With spring in the air and the temperature rising, it’s time to think about going to the beach. We are going to take our traverse of the law down to the seashore and other bodies of water.
Our first stop is a consideration of the projection of the upland owner’s boundary lines into the navigable waters.
These “projections” are called by various names: “partition lines,” “projection lines,” “division lines,” “littoral boundaries” and “riparian boundaries.” The purpose of these lines, no matter what name they go by, is manifold. As the waters recede or the shoreline builds up, these lines may form the basis for the location of the boundary line between two coterminous upland owners. In other words, they “partition” the new land that was thus created.
They are also projected out from the shoreline to form the division line between the various upland owners and their respective riparian rights. And those riparian rights can consist of everything from the right to the flow of water and navigation, to building, docking and shipping. Therefore, I prefer the term “riparian boundary” when referring to these lines because, once established, they form the boundary or limits, if you will, of the respective riparian rights.
Riparian vs. LittoralAs I have stated on many occasions, property law and the rights associated with the ownership of property are state specific--none more so than those rights associated with the ownership of land bounding upon water. As with all property law issues, many of the fundamental principles are the same from jurisdiction to jurisdiction. One issue that seems to have no universal application is what to call these rights associated with the ownership of the uplands. Are they “riparian” or “littoral” rights, and is there any real difference?
The distinction between “riparian” and “littoral” rights has been summed up in the following manner: In common usage “riparian” is generally used to define property having water frontage. In fact, the term “riparian” refers specifically to land abutting non-tidal or navigable river waters whereas “littoral” refers to the land abutting navigable ocean, sea, or lake waters.1
Having made the distinction, however, many courts go on to ignore it:
Appellants contended in their amended complaint that the Gabrielsens’ conduct, if not enjoined, would interfere with their riparian rights in the pond. A riparian water right provides an owner of property abutting a natural watercourse the right to the reasonable and beneficial use of the water. A littoral right is a right attaching to land abutting a natural lake or pond, and accords that land the same status as a riparian right.2
A littoral landowner is one whose land borders an ocean, sea, or lake…. Littoral landowners are similar to riparian landowners, whose land borders on a river or stream. Generally speaking, the special property rights of littoral and riparian owners are the same, and cases dealing with one type of waterfront landowner are freely applied when adjudicating the rights of the other.3
Still other courts have attempted to hang onto the distinction even though they have trouble doing so.
Modern usage distinguishes between “littoral” and “riparian,” with the former applying to seas and their coasts and the latter applying to rivers and streams. Our case law has not always precisely distinguished between the two terms. Consistent with our recognition that the common law of the sea applies to our Great Lakes, we will describe defendants’ property as littoral property. Although we have attempted to retain consistency in terminology throughout our discussion, we will at times employ the term “riparian” when the facts or the language previously employed so dictate. For example, a littoral owner of property on the Great Lakes holds riparian rights as a consequence of owning waterfront property.4
Finally, other courts have simply given up on the distinction:
The term “riparian rights” refers to the rights of owners of land abutting a stream, while the term “littoral rights” refers to the rights of owners of land abutting the surface waters of a lake or the sea. Courts now commonly use the word “riparian” when describing water rights in either context.5
For the purposes of this article and others following along the same vein, I will continue to use the term “riparian” in either context.
Good Law or Bad LawThe cases we are going to look at, Cove Properties v. Trent Marina (Cove I),6 Cove Properties v. Trent Marina (Cove II),7 and Ex Parte Cove Properties,8 all come from Alabama. These are companion cases, in that Cove I dealt with certain issues and sent the case back to the lower court for a ruling. The new lower court ruling was appealed once again and ended up back in the Court of Appeals in Cove II. The Court of Appeals sent their new ruling up to the Alabama Supreme Court for a review and a writ of certiorari.9 The Supreme Court then issued its ruling in Ex Parte Cove. In essence, all three of these cases comprise one case. For ease of discussion, unless a distinction needs to be made, I’ll refer to these cases as “our case.”
In order to understand the final ruling in our case, all three cases have to be read together. If any one case is read separate from the others, a full and correct understanding of the law will not be gained. This could be true with any written court opinion. A reading of one opinion, even though it may seem authoritative, may not be the law or a full rendering of the law. This is one of the dangers of Internet case research. Without a method of Shepardizing10 case law, there is no way to know if the opinion you are reading is good law, a complete rendering of the law, or if it has been overruled in part or in its entirety.
Facts in the CaseIn 1993, Trent Marina, under permits issued by the Army Corps of Engineers and the Alabama State Docks Authority, built a 350-foot-long pier with stalls for the docking of boats very close to the property line between it and Cove Properties, the other party in our case. Both properties sit on the northern shore of Terry Cove in Bay Ornocor, an inland body of water that connects to the Gulf of Mexico at the southern tip of Alabama. The Trent Marina property sits to the west of Cove Properties and the pier extends out to the south and into Terry Cove. The northern shoreline of Terry Cove is relatively straight in front of Trent’s property and in the immediate vicinity of the pier, but as you follow the shoreline to the east, it takes an abrupt curve to the north, then to the east and south, creating a “cove” formation in front of the property owned by Cove Properties.
On July 2, 1993, Cove became aware that Trent’s pier was encroaching upon a straight line projection of the common boundary line between the two properties (what we will refer to as the “riparian boundary” line). Some time later, Cove Properties commissioned Rowe Surveying and Engineering to survey Trent’s pier (the “Rowe survey”). The survey revealed that the pier encroached the riparian boundary by approximately one and one-half feet at the high-water mark, increasing to 7.1 feet at the southern end of the 350-foot pier. As with so many other boundary disputes: “Unable to agree like neighbors, or negotiate like enemies, the parties instead have resorted to the modern trial by ordeal of the land line dispute.”11
Trent’s primary contentions were that it did not encroach on the property or property rights of Cove because the pier is located in navigable waters, built on soil owned by the state. In addition, Trent had a lease from the Alabama Department of Conservation and Natural Resources on a portion of the submerged lands that included the pier from 150 feet offshore out to its southern end.
Cove’s case boiled down to the interpretation of the statutory language found in Section 33-7-50, Code of Alabama 1975. That section states in pertinent part that: “The owner of riparian lands upon navigable waters in the State of Alabama may install in front of their respective riparian lands wharves, docks, warehouses, sheds [etc.]…and may use their riparian lands in connection therewith and dredge out and deepen the approaches thereto…. All such structures are to be subject to such lines and limitations as may at the time of making such improvements be laid or placed by any authority of the United States, or of the State of Alabama, who may have authority to control harbor and pier lines.”12 The critical language being: “in front of their respective riparian lands.”13
Riparian BoundariesFrom my reading of our case, this appears to be a case of first impression.14 Many outside sources were cited, and when the Alabama Supreme Court made its final decision it was careful to limit its ruling:
The issue is whether one waterfront property owner can build in front of the riparian lands of an adjacent waterfront property owner. Our holding is limited to properties on generally straight or convex shorelines. The holding in this case will not necessarily govern a dispute between owners of properties on a shoreline so deeply concave that any structure in front of the riparian lands of one property will necessarily be in front of the riparian lands of another property.15
Two things are missing from the rest of the opinion: the applicable rule in a concave situation and the exact method of projection of the riparian boundary line.
Coming close, the Alabama Supreme Court went back to the statutory language found in Section 33-7-50, Code of Alabama 1975. “The language of § 33-7-50 is plain and unambiguous. An owner of riparian lands may install a pier in navigable waters in front of its riparian lands, subject to harbor and pier lines established by the United States or the State of Alabama, and with the caveat that such a pier may not unreasonably obstruct navigation…. The express inclusion of the words ‘in front of their respective riparian lands’ excludes an interpretation that a riparian landowner has a right to erect a pier in front of the riparian lands of another.”16
So what constitutes “in front of riparian lands”? The Supreme Court didn’t tell us in its written opinion but it did tell us how to find this area: “The Court of Civil Appeals correctly reversed the ‘summary judgment as it applies to the parties’ property rights above the high-water mark and the parties’ riparian rights.’”17 We now have to turn back to the other two cases, Cove I and Cove II, where we find that the entire issue of encroachment is based on the Rowe survey commissioned by Cove. That survey used a straight line projection of the upland boundary lines to determine the extent of encroachment of the riparian boundaries.
“After the case was remanded18 [in Cove I], Trent moved for a summary judgment on Cove’s remaining claims, contending that ‘any encroachment of Trent’s pier onto the extended boundary lines of Cove’s occurred in navigable waters’ and that its encroachment could not have violated Cove’s rights therein because, it said, ‘Cove does not own that property inasmuch as it is the property of the State of Alabama.’”19 The Court of Appeals reversed that summary judgment made by the trial court and that reversal was upheld by the Supreme Court, thereby establishing the method of projecting riparian boundary lines--a straight line projection of the upland boundary lines. This could only be found, however, after a careful reading of all three cases.
Final AnalysisWe’re still left without a ruling on the proper location of riparian boundary lines when the shoreline is concave as opposed to “generally straight or convex.” However, given the study of our case and the courts’ interpretation of the statutory language, it’s not hard to imagine how they would rule. If “in front of riparian lands” along a generally straight or convex shoreline means a projection of the upland boundary lines, then forced to make a decision in a cove situation I would project the upland boundaries by proportionally dividing the cove among the upland owners. This would seem the most equitable course of action. In any case, an agreement, properly memorialized, between all of the upland owners on the cove would solve the issue once and for all.
Until next time, go forth and measure redundantly.