May 1999

The common law rule that as land along a shoreline increases by accretion, the owner of contiguous upland property may claim the increase has one important exception. Analyzing this exception requires one to determine which of the six justifications for the rule is paramount. Most commentators state that as land accretes to a shoreline, it enlarges the adjoining upland property because: a) our common law has adopted the ancient Roman theory of "accession," analogizing accretion to the concept that the owner of a tree also owns the fruit produced by the tree; b) the edge of the waterway is a natural monument and so controls the boundary even though it may move by natural causes; c) as dry land is created little by little it should go to the adjoining upland owners by the maxim de minimis non curat lex; d) a riparian owner can most efficiently use accreted land and so awarding the land to the adjoining upland owner encourages productive use of land; e) since a riparian owner is as likely to lose land as gain it, he or she should be compensated by the increase if the owner's land enlarges by accretion just as his or her domain will be diminished if the land erodes; and f) allowing the adjacent riparian owner to claim accreted land preserves access to the water for the upland parcel. Most courts consider the last justification to be the most important.

The policy of preserving the water access of waterfront land leads to the common law rule that accretion forming along the shoreline of two or more parcels must be apportioned equitably among the parcels. For example, in the case of Cutliff v. Densmore, 354 Mich. 586, 93 NW 2d 307 (1958), the Michigan Supreme Court adjudicated competing claims to accretion by four lots configured in an L-shaped pattern. Lot one was the northernmost, situated at the top of the vertical portion of the L. Lot two was directly south, and lot three (itself L-shaped) formed the base of the vertical part of the L and the first part of the horizontal leg. Lot four lay east of the lower part of lot three and finished out the L. A bay lying adjacent to the inner angle of the L accreted until a straight shoreline ran diagonally from the northernmost end of the L to the easternmost end of the bottom of the L.

The owner of lot four claimed all of the accretion lying east of his eastern boundary extended north to the new shoreline, and argued that lot three should only gain that accretion lying between the extension of its north and south boundaries, which would grant lot three increased area but very little of the new shoreline. The court disagreed, requiring that the new shoreline be divided proportionately to the amount of shoreline enjoyed by each lot before the accretion. The court's reasoning was that preserving riparian access to the water was far more important to the lots than the value of the area by which each lot was increased.

This rule works well enough when accretion forms more or less equally along the waterfront of several adjoining lots. It is, however, much more difficult to apply when a accretion attaches to one parcel, and then enlarges across in front of a neighboring parcel, without attaching to the neighboring parcel. This is the situation that leads to an exception, recognized by most courts, as explained in the following cases.

Hudson House v. Rozman 82 Wash 2d 178, 509 P2d 992, 61 A1 R3d 1163

The Cases
Hudson House v. Rozman, 82 Wn. 2d 178, 509 P. 2d 992 (1973).

When the GLO surveyed in 1891 the area of the mouth of the Copalis River on the Pacific Ocean, the river ran approximately straight west to the ocean. On the sketch this can be seen by the line marked "meander line" shown south of the river as it existed at the time of trial. As shown in the sketch, the meander line crosses Highway 9-C in a northwesterly direction along the north line of the Hudson House property, and then runs southwesterly along the west sides of the Hudson House and Rozman parcels, where it delineates the historical mouth of the river, and finally runs south along the old ocean shoreline along the west side of the Quigg and Close and Menath parcels. An 1887 United States Coast and Geodetic Survey harbor survey showed the river mouth in essentially the same configuration. As noted on the sketch, the 1887 U.S. C&GS survey showed the high-tide line lying west of the meander line, but the long north trending peninsula, shown west of the river, had entirely accreted after the patents to the land were issued in 1894. The case addressed competing claims of ownership of this peninsula.

The Hudson House property lay north of the east west running Benner County Road. The diagonal line, marked "Line established in Rohr v. Gordon" was established in an earlier superior court dispute between prior owners of the Rozman and Quigg and Close tracts. In this dispute Rozman and Hudson House claimed ownership of proportionate shares of the peninsula by the common law rule of accretion enlarging their respective tracts. Quigg and Close claimed the land accreted along the Pacific Ocean lying south of the diagonal line and north of their south line extended west. Menath made the interesting argument that since his legal description called for "government lot 1" less certain metes and bounds tracts deeded to the others, and since the accretion enlarged "government lot 1," all of the accretion should be awarded to him. Finally, the state of Washington claimed the northern part of the peninsula as part of the state park, asking for all of the peninsula lying north of the south line of the park extending west to the ocean.

Before the accretion of the peninsula, the state park property fronted the ocean north of the mouth of the Copalis River. As the river gradually moved north, however, it eroded in to the state park land and deposited the peninsula between the park and the ocean. The state argued that it should not be cut off from its ocean frontage, and the court agreed.

The court analyzed the reasons behind the common law rule that accretions should attach to contiguous property, and decided that the main reason for the rule was to preserve access to deep water. It based its decision primarily on the most often cited case in this arena, Lamprey v. Metcalf, 52 Minn. 181, 53 NW 1139 (1893), which held that access to the water was so important to riparian properties that the accretion doctrine could not be used to block the access of one parcel by another. It stated that earlier Washington cases had recognized that no fixed rule, no matter how elastic, can answer the many questions that arise from shoreline disputes. Prior Washington cases, and such rules as the doctrine that accretion should be apportioned, were based on equity and on protecting the rights of each property to access the water. Consequently, the court stated the rule that where a substantial accretion has built up in front of a property, even if separated by a stream or other natural barrier, it will belong to the upland property in such a way as to preserve its access to water.

The court extended the state park's southern boundary west to the ocean. It adopted the Rohr v. Gordon line for the boundary between Rozman and Quigg and Close, and created a line parallel with that line to divide Rozman from Hudson House. As for Menath, he only received the land between his northern and southern boundaries extended west to the ocean.

Steinem v. Rodney, 233 Md. 16, 194 A. 2d 774 (1963).

Plaintiff's land lay west of defendant's, along the south bank of a river that flowed east to west. A stream, flowing from south to north, separated the tracts. The stream emptied into the river, and a small east west running sandbar existed in the river, just north of the mouth of the stream.

Gradually, the sandbar accreted, attaching itself to the shore at the defendant's property. It altered the flow of the stream to the point where it began flowing west before turning the corner at the west end of the sandbar and running into the main river.

The sandbar accreted across in front of both parcels, but never attached itself to the plaintiff's land.

The court refused to award the entire sandbar to the defendants, mainly because it ran across in front of the entire river frontage of the plaintiff's land. Although it agreed that the accretion was contiguous to the defendant's property, the court refused to sanction the cutting off of the plaintiff from the river. It divided the sandbar between the parties proportionately.

Archer v. Southern R. Co., 114 Miss. 403, 75 So. 251 (1917).

Plaintiff and defendant owned adjoining riparian tracts along the east side of the Mississippi River. An island formed in the river, well east of the thread, and just west of the plaintiff's property.

Gradually, the island accreted upstream until it lay in front of both the plaintiff's and defendant's tracts. Under Mississippi law, the plaintiff had the right to claim ownership of any island forming in front of her land. She also claimed the accretion to the island, even where it crossed the extended lines of the defendant's land.

The court noted that allowing all the accretions which attach to an island to run to the benefit of the parcel across from where the island first formed could lead to a situation where one person could own an island that eventually might lie in front of several properties, and even could cross jurisdictional boundaries. It adopted a rule from the New York case of Mulry v. Norton, 100 NY 424, 3 NE 581 (1893) that however accretions may be commenced or continued, the right of one upland owner to follow and appropriate such accretions ceased when the formation passed laterally in front of his conterminous neighbors. The Mississippi Court felt this rule was sound in principle and accorded with "common justice." It felt that ownership of accretions had to be limited, and set those limits at the extended property lines of the neighbors.

Ford v. Turner, 142 So. 2d 335 (Fl. App. 1962).

This case concerned two parcels along the west coast of Florida. The two parcels fronted the Gulf of Mexico and were separated by a navigable channel. The channel gradually shifted southward, building up a peninsula on the northerly parcel which eventually extended 9,000' southward separating the southerly parcel from the Gulf. The Florida court in this case did not follow the lead of the others in this article. It distinguished the cases that limited ownership of accretion that extended laterally across in front of neighboring parcels by stating that most of them involved streams emptied into rivers, rather than tidal boundaries. This case, which was criticized in a Florida Law Review article ("Accretion: New Slant," 17 U. of Miami L Rev. 417, 420 (1963)) did not explain why the difference was important, and simply followed the general common law in awarding the accretion to the northerly parcel.

Conclusion

An American Law Reports article, "Annotation, Right to Accretion Built Up From One Tract of Land and Extending Laterally in Front of Adjoining Tract Without Being Contiguous Thereto," 61 ALR 3rd. 1173, concludes that the majority of jurisdictions recognize the exception discussed in these cases and limit ownership of accretions when they extend across in front of neighboring parcels. The article states that the exception is recognized in New York, Maryland, Minnesota, Wisconsin, Delaware (as stated in a Federal Court decision), Missouri, Washington and Mississippi. The Florida case of Ford v. Turner (above) is the only case cited in the article that rejects the exception, although the article also describes a California case (Fulmore v. Jennings, 78 Cal. 634, 21 P. 536 (1889)) which awarded all of the accretion to an island to one owner at the expense of a neighbor, reaching the opposite conclusion to that reached by Mississippi in the Archer case.

In all these states the rationale for the exception is the same. The principle purpose behind awarding accretion to the upland owner is to preserve access to the water, and so the rule should not be applied in a way that defeats that purpose. For the most part, the courts pay little heed to the fact that, in practically all of these instances, the property "cut off" from the water still has waterfront access. For instance, in the Hudson House case the state park still had access to the Copalis River and through that to the ocean. This detail must be unimportant, however, for the courts consistently insist on direct access to the main body of water, either the ocean or a river, lying in the geographic area of the dispute.

glossary

"de minimis non curat lex" This old Latin phrase means that the law does not concern itself with trifling matters. As applied to the rule awarding upland owners the right to claim accretions, it refers to the general fact that accretions build up slowly, and the law will not address disputes over boundaries that change in "trifling" increments (even though after many years the changes are often significant).