22.00 Waters

22.00.1

In General

Insurance of the title to land that abuts or is covered, totally or partially, by a body of water presents substantial problems and additional risks to the title insurer.

The actual ownership of the bed of a river, lake, or any other body of water depends upon the body of water being navigable or non-navigable, and this fact is not always easily ascertained.

Surface, flood and underground waters in conjunction with tide lands, surface waters, flood waters, underground waters, ditches, levees, irrigation and filled lands do present unique problems and peculiarities that require special consideration.

The application of the riparian and appropriation doctrines, in combination with the general rules of accretion, reliction, avulsion and erosion augment the intricacy of any water title.

Finally, state laws vary considerably in the area of "waters," and these seem to be permanently affected by copious litigation.

22.00.2

Terminology Pertaining To Water

Accession

Accession, as it relates to the law of real property, is sometimes defined as a method of addition to or acquisition of title to real property by one or more several methods. Three of the methods of accession to real property are the doctrines of:

  • Accretion
  • Avulsion
  • Reliction

Accretion

Accretion is the increase, formation or acquisition of land by the gradual or imperceptible action of natural forces upon the bank or shoreline of a body of water. Accretion can occur either by "avulsion" or by "reliction."

Alluvion

In connection with accretion, "alluvion" is the deposit itself, that is, the particles of solid material that are deposited upon the bank or shoreline of the body of water. It is also known as "alluvium."

Avulsion

Avulsion is the sudden, rapid, and perceptible change of the channel of a body of water.

Bank of a River

The banks of a river are the elevations of land which confine the waters in their natural channel when they rise the highest. The banks include the shore and the whole space through which the stream flows.

Batture

Technically, "alluvium" is the matter deposited on the shore above the water, while "batture" is the deposit on the bed covered by water. Also, an elevation of the bed under the water.

Bed

The bed of a watercourse is the land contained between its banks.

Dereliction

See "reliction."

Erosion

The process of gradual and imperceptible encroachment or eating away of a riparian or littoral owner's soil by the operation of currents or the tides.

High Water Mark

That line on the sea shore reached by the shoreward limit of the rise of the medium tides between the spring and the neap. In freshwater lakes and streams, "high water mark" is that line along the shore and banks which is apparent because of the contiguous different character of the soil or of the vegetation due to the common and continuous action of the water.

Littoral

Littoral means belonging to the shore of a sea or lake.

Littoral Owner

One whose lands abut upon a lake or sea.

Littoral Rights

Littoral rights are defined as rights concerning properties abutting an ocean, sea, or lake rather that a river or stream. Littoral rights are usually concerned with the use and enjoyment of the shore.

Low Water Line

The line in the bed of a stream or lake to which the water fall in the season or ordinary low water.

Low Water Mark

In nontidal waters, the line to which the water recedes at ordinary stages. In tidal waters, the lowest line made by the receding tide.

Meander Line

A "meander line" is a survey line used for the purpose of defining the sinuosities of the shore or bank of a body of water and as a means of ascertaining the quantity of land in adjoining fractional areas. The general rule is that, it is not necessarily such but rather the water course itself, which constitutes the boundary of land bordering thereon. It is recognized, however, that the intention of the parties governs.

Navigable Waters

Navigable waters are now defined by nearly all the courts, including the United States Supreme Court, as waters which are capable of being navigated, that is, navigable in fact. This definition is applicable to rivers and lakes.

According to the federal test of navigability, which has been followed by most of the state courts, the question of navigability depends on whether the stream or body of water, in its natural state, is such that it affords a channel or highway for useful commerce and travel.

However, State Courts and not U.S. Courts have the right to decide the question of the navigability of a stream within a state, and in the respect, the courts have disagreed very greatly as to what is to be considered "navigable waters" under the rule of a particular state.

The question as to whether a stream, lake, or any other body is navigable is ordinarily one of fact, and is to be determined by inquiring whether it is used or is susceptible of being used for navigation purposes, with the burden of proof resting upon the party asserting it.

The importance of "navigability" lies in the fact that the title to lands under navigable waters belongs to the state where the land is located.

Reliction

Also referred to as "dereliction," is the term applied to land that has been covered by water, but which has become uncovered by the imperceptible recession of the water.

Although technically speaking, the land uncovered by the gradual subsidence of water is not an "accretion" but a "reliction," these terms are often used interchangeably, and the law relating to "accretions" applies in all its features to "relictions."

Riparian

The term "riparian" is derived form the Latin word "riparius", this is, of or belonging to the bank of a river, and in turn, derived from "ripa," a bank, and is defined as pertaining to or situated on the bank of a river; the word has reference to the bank, and not to the bed of the stream. "Riparian land" is land bounded by a natural stream or lake.

Riparian Owner

Riparian owner is one whose land is bounded, or traversed by a natural stream; this is, one whose land abuts upon a river or a lake.

Riparian Rights

Riparian rights are the rights of the owners of lands on the banks of a water course in relation to the water, its use, ownership of the water bed, accretion and relictions. The term applied to the rights of the owners of land appurtenant to seas or lakes is "littoral rights."

Shore

Land on the margin of the sea, or a lake. That space of land which is alternately covered and left dry by the rising and falling of the tide. It is synonymous with "beach."

Thread of a Stream

The center of the main channel of the stream. Ordinarily, the middle line between the shores is regarded as the "thread of the stream", taking it in the natural and ordinary stage of the water and irrespective of the depth of the channel. It is sometimes called the "thweat" of the stream.

Tidelands

Tidelands are those lands at the margin of tidal waters which are alternately covered and uncovered by the rise and fall of the tide, between the lines of mean high tide and mean low tide, or as sometimes provided by statute, extreme low tide.

The States own the non-navigable tidelands bordering the oceans, bays, and estuaries, and also, any other non-navigable tidelands influenced by the ebb and flow of the tide.

22.00.3

Some Important General Legal Principles Relative To Flowing Waters

  • Grants by the United States of its public lands bounded on streams or other waters, made without reservation or restriction, are to be construed as to their effect according to the law of the state in which the lands lie.

  • Upon admission of a state into the Union, title to non-navigable river beds remained in the United States, but title to navigable streams passed to the state.

  • Grants by the United States prior to the admission to statehood extended to the beds of non-navigable streams and this cannot be subsequently changed by statute.

  • Title to the bed of non-navigable streams passed from the United States to the patentees.

  • Title to the bed of navigable streams passed to a state from the United States on admission to the Union.

  • Title to the bed of lands under non-navigable waters, but which are subject to the ebb and flow of the tide, passed to a state from the United States on admission to the Union.

  • The exclusive right of the riparian owner of a non-navigable stream to fishing cannot be affected by the legislature.

  • Title to the bed of a non-navigable stream depends on the law in effect at the time of the grant from the United States.

  • Land under navigable waters does not belong to the United States, and therefore, it can pass to a riparian grantee by force of a declaration by the state which owns it. In some states, the conveyance will be subject to a public trust or is a violation of public policy.

  • The respective states by virtue of their sovereignty, may use or dispose of the lands underlying navigable waters within their jurisdiction as they choose, subject always to the rights of the public in such waters and to the paramount power of Congress for the regulation of commerce between states and with foreign nations.

  • In the case of land bounded on a non-navigable stream, the United States assumes the position of a private owner subject to the general law of the state, so far as its conveyances are concerned.

  • The law of the state in which the water action takes place is the forum law to be applied. Exceptions to this principle are made in favor of federal law when:

    • The stream or other body of water is navigable and is part of interstate commerce.
    • The question of accreted material gradually deposited by action of the ocean on foreshore property, is at issue.

22.00.4

Main Water Problems

The main legal problems that affect the riparian and littoral owners and that are of greatest concern to the title insurers may be grouped into four major categories:

  • Title to the bed of the body of water.
  • Legal "riparian" or "littoral" rights, which arise by virtue of the abutting ownership.
  • Problems arising as an effect of:

    • Accretion
    • Reliction
    • Avulsion
    • Erosion

  • The use of the shore of the body of water as a boundary.

22.00.5

Title To The Bed Of A Body Of Water

The ownership of land within a body of water is determined by the law of the state where the land is located. In most states, if the water involved is "navigable" or "tidal" or both, the ownership of a part of the land in the bed of the water is owned by the state, with the law of that state defining the boundary between the land owned by the state and that owned by the owner of the land abutting the water.

The great majority of the states treat the boundary line as the mean high water mark, but the boundary line in others is the mean low water mark. In a few states, the abutting owner owns to the center line of a navigable river.

It is a question of fact as to whether a stream of water is a "navigable or tidal" water, from the title insurance point of view, and because only a court can resolve this factual question, any body of water should be treated as being navigable or tidal unless it is a pond completely surrounded by the remainder of the land or an artificial lake created for the use of the abutting owner.

22.00.6

Riparian Rights

If a body of water is in movement, as in a stream or river, the abutting owner is referred to as a "riparian owner." But if the water is not flowing, as in the case of a pond, lake, or ocean, the abutting owner is referred to as a "littoral owner."

Anyone owning land contiguous to a body of water acquires by virtue of said ownership certain rights of use in the water itself. These rights do not necessarily depend upon the ownership of the land over which the water flows or stands.

These "riparian" or "littoral" rights include the right of swimming, boating, docking, navigation building, fishing, wharves, taking ice, rights of use of the water itself without diminution of its quantity or impairment of its quality, and the right to the alluvium deposited by the water.

The nature and extent of the rights vary among the states and is of course affected by the ownership of the bed of the river and by the reasonable use of the same by other riparian owners.

22.00.7

Water Rights

In some western States, the right to take water from bodies of water (regardless of their location) for the purposes of irrigation, mining, stock feeding, or any other purpose, may become of extraordinary necessity and of considerable value. "Water rights" legislation is extremely complex, controversial, and its application to areas or situation in dispute does originate lengthy and expensive litigation.

Because of this, no title insurance policy is to be issued which insures any right of appropriation of waters ("water rights") from any body of water, regardless of whether the water crosses, or is located on or under the property, or is located on any other land. 

22.00.8

Water Boundary On A Navigable Body Of Water

The water boundary where land is bounded by the ocean, sea, bay, navigable rivers or navigable lakes is determined exclusively by state law.

In certain jurisdictions, the boundary takes to the high-water marks, while in others it takes to the low-water marks. The state of Michigan presents an exception to the above because the title of the upland owner is limited to the meander line, which is presumed to have followed the existing shore when it was run.

22.00.9

Water Boundary On A Non-Navigable And Non-Tidal Body Of Water

When the water boundary on a non-navigable and non-tidal body of water is not definitely fixed by the conveyance, the question as to whether the land involved extends to the center of the stream or lake, or is limited to the high water margin, or to the low water margin thereof is entirely dependent upon the laws of the state in which the land is located.

In this respect, all of the states seem to follow the old "English Rule": "Conveyances of lands bounded by non-navigable waters carry the title of the bed of the water course to the center thereof, unless a contrary intention is manifest."

The U.S. Supreme Court (Phillips Petroleum vs State of Mississippi, 108 S. Ct.791) seems to have made it necessary to modify the rule by incorporation "non-tidal waters" to the same.

22.00.10

Changes In Water Boundaries

Where a boundary line or call of a tract consists of a water boundary, river, stream, lake, pond or seashore, any physical change in the water line will cause a change in the legal boundary of the tract thus resulting in an increase or decrease of the total acreage of the same.

The law recognizes three distinct types of possible changes: avulsion, accretion and reliction. Avulsion does not result in the change of title to land. However, the boundary of the land does change both by accretion and by reliction.

22.00.11

Distinction Between Accretion And Avulsion

The difference between "accretion" and "avulsion" lies in the physical nature of the change of the course of the stream. Three basic factors may be used in distinguishing between an "accretion" and an "avulsion":

  • Speed
  • Perceptibility
  • Cause

22.00.12

Accretion And Reliction--Title Consequences

Although technically speaking very different, the terms "accretion" and "reliction" are often used interchangeably, and the law relating to "accretions" applies in all its features to "reliction."

"Accretion" is the process by which foreshore land is increased by a gradual and imperceptible deposit of soil, dirt, mud or any other similar sediment caused by the natural flow of a stream, lake, tidal or other body of water. The product of this action is most often referred to as alluvion (or sometimes alluvium).

Meanwhile, "reliction" is the term applied for the process of creation of exposed land caused by the withdrawal of water from land that was previously covered by the water; the land added to the foreshore by the permanent uncovering of land or the laying bare of the bottom of a course or body of water by the permanent disappearance of the waters.

All of the courts agree that the "riparian" or "littoral" owner, if not restricted by his grant, regardless of whether or not the body of water is navigable, acquires title to all the accretions or relictions in front of his property and contiguous thereto according to his shoreline, but his right cannot extend laterally so as to exclude other riparian owners above or below access to the body of water.

22.00.13

Avulsion--Title Consequences

In case of "avulsion", the titles of riparian landowners are not affected even though the boundary line between two riparian owners may have been the stream itself and the center line or thread of the stream may have changed by reason of avulsion.

The principle that avulsion works no change of boundary and that the same rights whether state or private remains in the old channel is universally recognized.

22.00.14

Artificial Accretions

"Artificial accretion" or "filled land" is land resulting from any cause whatsoever other than natural causes. It is land that has been artificially raised in elevation by depositing or dumping dirt or other materials thereon.

As a general rule, artificial accretions do not come under the general rules as to ownership of accretions formed by purely natural causes. "Accretion" cannot be gained by filling, for such operations are in the nature of reclamation and must be made in compliance with the pertinent statutory requirements.

Because the Federal Government exercises certain control over all navigable bodies of water, when there has been an artificial filling in of a body of water deemed navigable in law, the title to the land constituted as a result of such "filling-in" is subject to the control of the United States by reason of its paramount jurisdiction over navigation and commerce.

Additionally, if the "filling-in" was done pursuant to a permit issued by the Secretary of the Army, the title to the land constituted as a result of such "filling-in" is also subject to the terms of the permit under which the "filling-in" was done. All such permits are revocable and subject to the right of the government to require the removal of the fill and/or other improvements. Removal may be required without compensation whether or not the filling was done pursuant to permit.

It is therefore necessary, when one or more of the boundaries of land to be insured is the ocean, a bay, navigable lake, navigable river or tidelands, and a portion of said land is or may be "filled land" that the following exception be shown:

"Any adverse claim to any portion of said land which has been created by artificial means or has accreted to such portion so created."

22.00.15

Lakes

In General

The ownership of the beds of lakes and the right of use of lakes is regulated by state law.

In some states, it is held that the state's ownership of the water beds includes those of non-navigable lakes and ponds and that the littoral owners take title to the shorelines only.

In other states, however, the beds of such waters are considered private property and, unless the contrary appears by the terms of the conveyances, the tracts embraced are held to extend to the center of the lake.

Conversely, if the lake is navigable in fact, its water and bed belong to the state in its sovereign capacity, and the riparian littoral owners own the fee only to the water line, but with all of the rights incident to riparian ownership on navigable waters, including the rights to accretions or relictions formed in front of his land by the action or recession of the waters.

Division of the Beds of Non-Navigable Lakes

In this respect, the common rule of ownership to the center of a non-navigable lake is easier to state than to survey. Courts have had some difficult questions to solve with reference to the division of the bed of dried up lakes between the various riparian owners in making an "equitable division" of the bed of the lake. Usually, courts do not agree on the best method to pursue the division in a given case.

Any division of the bed of a dried up lake must be established by proper judicial proceedings unless an agreement is executed by all of the littoral owners, their spouses and lienholders.

22.00.16

State Ownership Of Fee Under The Great Lakes

The title and the dominion of the beds of the Great Lakes belongs to the state adjacent to which the same is located. The state is the owner of the fee of all lands under the navigable waters of the Great Lakes, in trust, for the use of the public and subject to the paramount authority of Congress in making regulations of commerce and subjecting the lands to the necessities and uses of commerce.

22.00.17

Islands In Rivers

The title to islands in rivers is governed by the same rules that apply to the bed of the river.

The title to an island which springs up in the bed of a navigable stream vests in the owner of that part of the bed upon which the island forms and accretions to the island vest in the same.

Therefore, where the riparian owners have fee simple to shore only, and the bed of the stream is vested in the state, an island formed by accretion belongs to the state and not to the riparian owner, and when the accretions such an island is attached to the mainland, the owner of the shore is not entitled to the island, but only to such alluvion as formed from the land.

The title to an island in a non-navigable river, not otherwise legally appropriated, if on one side of the dividing line belongs to the owner of the bank on that side. If it is in the middle of the river, the opposite owners hold it in severalty, according to the original dividing line, as if there were no island in the river. If there are several borders, the island is apportioned according to their lines on the river.

22.00.18

Beaches

Insuring title to beach property may present an extrahazardous risk.

The courts, in many cases where the public has used, either oceanfront or lakefront privately owned land, for a certain period of time with knowledge of the owner and without permission or objection, have determined the existence of an implied dedication by the owner to the public for the purpose of access and recreation.

Recent court decisions have departed from this consideration and instead have used the "public trust doctrine" as the basis for the finding that the public has the right to use the upland dry sand area for access to tide-flowed lands and to use some of the dry sand area for uses incidental to the right of bathing and fishing. Under the "public trust doctrine," land covered by tidal waters is vested in the State in trust for the common use of all the people.

In this regard, and unless it can be determined that the property to be insured is not affected by any of the above considerations, the title policy when issued must contain a pertinent exception.

22.00.19

Tidelands Under Non-Navigable Waters

The U.S. Supreme Court in Phillips Petroleum vs. State of Mississippi, 108 S. Ct. 791 has held, inter alia, the following:

"1. Since the States upon entering the Union, were given ownership over all lands beneath waters subject to the tide's influence--see, e.g., Shively v. Bowlby, 152 U.S. 1; Knight v. United States Land Assn ., 142 U.S. 161--the lands at issue passed to Mississippi at the time of statehood, even though the waters under which they lay were not navigable-in-fact.

(a) Petitioners' contention that, under the English common-law rule, the Crown's ownership of lands beneath tidewaters actually rested on the navigability of those waters rather than the ebb and flow of the tide, is not persuasive, since the cases relied on by petitioners did not deal with tidal, non-navigable waters, while Shively v. Bowlby, supra, and its progeny, clearly establish how this Court has interpreted the common law. Although none of the latter cases actually dealt with lands such as those involved here, this Court has never suggested that its rule that the States owned all the soil beneath waters affected by the tide was anything less than an accurate description of the governing law.

(b) Petitioners' contention that subsequent cases from this Court developing the American public trust doctrine make it clear that navigability--and not tidal influence--has become the sine qua non of the public trust interest in tidelands in this country, is also not persuasive. Although The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, and Barney v. Keokuk, 94 U.S. 324, did extend admiralty jurisdiction and public trust doctrine to navigable fresh waters and the lands beneath them, those cases did not simultaneously withdraw from public trust coverage the lands beneath waters influenced by the ebb and flow of the tide which had been consistently recognized by this Court as being within the doctrine's scope.

(c) Petitioners' position is weakened by their concession that the States own the non-navigable tidelands bordering the oceans, bays, and estuaries. While it is obvious that these waters are part of the sea, and that the lands beneath them are State property, ultimately, the only proof of this fact can be by the tide. Moreover, although there is a difference in degree between the waters in this case, and non-navigable seashore waters that are affected by the tide, there is no difference in kind since both types of waters are connected to the sea and share those geographical, chemical and environmental qualities that make lands beneath tidal waters unique. The ebb-and-flow rule has the benefit of uniformity, certainty, and ease of application, and will not be abandoned now, after its lengthy history, in favor of one of the unpersuasive and unsatisfactory alternatives offered by petitioners.

2. The contention that the State Supreme Court's decision is inequitable and would upset various kinds of property expectations and interests which have matured since the State joined the Union is without merit. By consistently holding that the public trust in lands under water includes "title to all land under tidewater", and by describing uses of such lands not related to navigability, Mississippi cases have clearly and unequivocally indicated the State's claims to tidelands, whether navigable or not, such that any contrary expectations cannot be considered reasonable. Affirming the judgment below will not upset land titles in all coastal States, as petitioners contend, but will simply confirm prevailing ownership rights both in States having the same rule as Mississippi and in other States that have granted all or a portion of their tidelands to adjacent upland property owners. Indeed, it would be far more upsetting to settled expectations to reverse on the ground that the scope of the public trust is limited to lands beneath navigable tidal waters, since many land titles, interests, and rights have been created on the basis of the ebb-and-flow rule. The fact that petitioners have long been the record titleholders, or paid taxes on the lands in question, cannot divest the State of its ownership, since the State Supreme Court held that, under Mississippi law, the State's ownership could not be lost via adverse possession, laches, or any other equitable doctrine. There is no reason here to set aside the general principle ceding the development and administration of real property law to the individual States."

22.00.20

Submerged Lands Act

The "Submerged Lands Act" is a federal statute dealing with the rights, title, and interests in lands beneath navigable waters within state boundaries and outer continental shelf lands.

The "Submerged Lands Act" confirmed the boundary of each state as three miles from its coastline, defined as the ordinary low-water mark along that portion of the coastline is in direct contact with the open sea and the line making the shoreward limit of inland waters. This last limit has been left unsettled.

The "Submerged Lands Act" confers rights in three categories:

  • Lands under inland navigable water including the Great Lakes;
  • Tidelands and
  • Lands under the open sea.

The doubt as to whether under the doctrine of national external sovereignty lands under the Great Lakes were open sea was dispelled by the "Submerged Lands Act" which confirmed title in the states.