Continuing with our water theme, this month we are going to examine another aspect of water boundaries that is often misunderstood by the land surveyor: the ambulatory nature of water boundaries. What do I mean by ambulatory? Simply put-they move.
Unlike other boundary lines which, once established, the courts and legislative bodies like to see remain fixed, water boundaries are expected to move. The law has long recognized this fact and has accommodated it in rendering decisions concerning water boundaries and in enacting legislation concerning water boundaries. Land surveyors, on the other hand, especially those who do not regularly perform surveying work along water boundaries, often want to fix the location of the water boundary as of the date of their survey. When this happens it is because of the surveyor’s misunderstanding of the nature of water boundaries. The resulting survey can adversely affect the property rights of landowners, which may in turn lead to a negligence action against the professional surveyor
Boundary MovementWe need to spend just a moment discussing how water boundaries move in order to refresh our memories on the subject and further our discussion.1 That subject alone could fill volumes so this brief treatment can only be topical at best. Gradual and almost imperceptible movement in the banks or the shoreline generally move the boundaries with them. Accretion is the gradual build up of the shore through naturally occurring soil deposits. The soil deposited is often referred to as alluvium and this process is sometimes called alluvion. The opposite process is erosion, where the soil is taken away, either through natural processes or manmade causes. Reliction is the gradual exposure of the soil that was once submerged. This gradual exposure is also referred to as dereliction or emergence. The relictive process, however, must be of a permanent nature in order to move boundaries. Temporary drought conditions do not move boundaries.
Sudden movements of the banks and shores or of the water body generally do not move the boundaries either, but there are exceptions. Dredging activities that leave deposits on the banks under the right circumstance can and do change boundaries. Bulkheading and backfilling can also move boundaries. But then again, if these activities are carried out illegally or without proper permits, the boundaries do not move with the banks. Avulsion is the process whereby a watercourse suddenly changes its direction. The most common occurrence is when a river or stream suddenly changes course by taking on a new channel. In such a situation the boundary stays in its former channel or on the old riverbank and does not move with the water course. The presumption under the law is that any movement of a water body has taken place due to accretion or reliction or a combination of both, but this is a rebuttable presumption. That the movement was due to an avulsive event must generally be proven by the facts in the case.
Again, this is a general treatment. The point is that when the water body moves, under many circumstances, the boundary moves with it. And where the boundary moves, so moves the rights associated with the ownership of the banks and the shores.
Riparian RightsRiparian rights2 are derived from the ownership of the upland estate that adjoins the banks or shores along a body of water.
In Gough v. Bell, a riparian owner is said to mean in its common law sense, the owner of the ripa, or bank of streams not navigable, though it is frequently used in the books to indicate the owner of the land adjoining the shore of tide water above the ordinary flow of the tide…. In Potomac Steamboat Co. [v. Upper Potomac Steamboat Co.] it was said: “A riparian proprietor is one whose land is bounded by a navigable stream and among the rights he is entitled to as such are, access to the navigable part of the river from the front of his lot, the right to make a landing, wharf or pier for his own use, or for the use of the public, subject to such general rules and regulations as the legislature may impose…. A riparian right is the result of that full dominion which every one has over his own land, by which he is authorized to keep all others from coming upon it except upon his own terms. It is defined as the right of the owner of lands upon tide water to maintain his adjacency to it, and to profit by this advantage and otherwise as a right in the riparian owner to preserve and improve the connection of his property with the navigable water. The rights which a riparian proprietor has, with respect to the water, are entirely derived from his possession of the land abutting thereon.”3
Critical to the enjoyment of riparian rights is the ownership of the banks or the soil adjoining the water body, wherever those banks or the soil adjoining the water body may go. If the ownership of the banks has been severed from the remainder of the upland estate, the accompanying riparian rights will be severed as well. When might such a severance take place? It could very well take place at the hands of the land surveyor who attempts to “fix” the position of the water boundary as of the date of the survey.
Severing Riparian RightsCases support the theory that the conveyance of the upland estate, without more, does not pass title to the tidelands. In other words, a definite call to the bank did not convey down to the mean high water line, thereby not conveying any riparian rights. That is, if it is clear that there was an intention to convey to a line capable of definite location, that line and not the water boundary (with its associated rights and privileges) becomes the boundary. “It is within the power of the riparian owner to separate the riparian rights from the upland, and in every case it would be a question of the intention of the parties whether it has been so separated.”4 “As was said by Parker, chief justice, in Hatch v. Dwight,5 where land was bounded by the bank of a stream, it necessarily excluded the stream itself, and an owner may sell the land without the privilege of the stream, as he will do if he bounds his grant by the bank.”6
These are older cases and the modern tendency is to construe a conveyance to the “bank” or to the “river” or any other body of water, without more, as a conveyance to the centerline or in the case of navigable waters, to the common boundary with the sovereign. “Where the description in a deed calls for a line running to a named river, title to the bed of which is in private ownership, the conveyance is regarded as passing title to the center of the river, in the absence of evidence showing a contrary intent.”7 However, even the most modern cases continue to recognize that a grantor can sever the riparian rights from the upland ownership. “A grantee’s rights are circumscribed by the description in the deed … and that it is within the power of any grantor to sell his riparian rights separately from the lands to which appurtenant, or in making a conveyance of such realty, expressly or impliedly, to reserve such riparian rights … leaving such riparian rights the property of the original grantor and his successors in interest.”8
Fixing the Location of Water BoundariesThe most common occurrence of the land surveyor being implicated in the severance of riparian rights from the upland owner is when the surveyor attempts to “fix” the location of the water boundary as of the date of the survey. This is accomplished in many ways. But the most deadly method (in terms of professional death due to a negligence lawsuit) of accomplishing this task is by writing a legal description of the property that is subsequently used in the conveyance of the property, fixing the location of the water boundary, or otherwise expressly or impliedly excluding the riparian rights.
How does this happen? First and foremost it is accomplished by excluding a call for the water boundary in the description. The water boundary needs to be called out specifically, as the boundary of the property. This then subordinates particular calls that attempt to define the location. By calling out with particularity the exact location of the water boundary, without some language that subordinates these calls to the actual location of the water boundary, the argument can be made that the grantor conveyed to the particular line and not to the water boundary.
Another occurrence that I have seen is the land surveyor calling out something other than the water boundary. I have seen this in the case where bulkheads or seawalls have been installed. At the time the survey is performed, the water is happily lapping up against the seawall. The description goes something like this: “thence N00°00’00”E for a distance of 150.00 feet, to a cross found on top of an existing seawall; thence along the top of the seawall….” Nowhere in the description is the water body ever called out. Why should it? Everyone knows that the mean high water line is right up against the face of the seawall. It’s a minor technicality that the horizontal distance between the calls in the description (the particular calls in the description, mind you) and the mean high water line is but a few inches.
What happens if the shore builds up in front of the seawall through the process of accretion? The question then becomes whether the conveyance was to the seawall or to the mean high water line. Does the boundary thus conveyed follow the mean high water line as it moves away from the seawall or does it remain on top of the seawall? These are interesting questions, but not questions that I would want to have to answer in a negligence lawsuit.
Property Rights and the Land SurveyorI continually receive comments from surveyors, either through E-mails or in live seminars, to the effect that surveyors have no responsibility for private property rights. That’s a subject better left to the attorneys and judges. I conduct a seminar on private property rights where I point out at least six torts that the land surveyor can commit by ignoring private property rights. Several of those torts come with punitive damages. Punitive damages are the club with the nail driven through it that the court beats you with after they have taken everything else. It could be the difference between surviving a lawsuit and going out of business. As I hope you are able to see from this brief discussion on water boundaries and the associated riparian rights, ignorance of the law will not be an excuse when the question of the severance of the grantees legitimate riparian rights is brought up in court. Therefore, don’t be ignorant of the law or of private property rights that the land surveyor must properly consider.
Go forth and measure redundantly.