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Issue  25  Article  61
Published:  8/1/1997

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Riparian Rights of Landowners Abutting Navigable Waters
Chris Burti, Vice President and Legal Counsel

A detailed discussion of all of the area known as "riparian rights", "littoral rights", "water law" or "wetlands law." is beyond the scope of this article. Because of the burgeoning development of lands abutting navigable waters in recent years there has been an increase in litigation and title issues dealing with the conflicts between the holders of the various interests that intersect where land meets water. A summary of the statutes and case law dealing with some of the key issues in this area may be helpful.

Black’s Law Dictionary, Sixth Edition, defines riparian rights as those of ‘ owners of lands on the banks of watercourses, relating to the water, its use, ownership of the soil under the stream, accretions, etc." And further defines littoral rights as those "concerning properties abutting an ocean , sea or lake ... [l]ittoral rights are usually concerned with the use and enjoyment of the shore." G. S. 146-64 provides the definitions applicable to wetlands legislation and which are frequently cited, interpreted or construed in determining the outcome of litigation in this area. Submerged lands are defined as state lands lying beneath navigable waters within the boundaries of the state or beneath the Atlantic Ocean to a distance of three geographical miles seaward from the state's coastline. Tidelands are generally described as those lands lying between the ordinary low water and ordinary high water. Submerged lands lie below these water lines. However, North Carolina case and statutory law use "submerged lands" in a way so as to include tidelands, lands beneath navigable rivers as well as beneath the ocean.

The state owns all of the land below the ordinary high watermark of the abutting body of navigable water. This is the boundary between private property and submerged lands. In most cases, the ordinary high watermark means the mean high tide line, Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach, 277 N. C. 297, 177 S. E. 2d 513 (1970). The Court of Appeals in a coastal area management act case, found that "mean high water," when not defined by regulations, meant "a mean or average high tide, and not as the extreme height of the water" and that natural indicators of high water were determinative, Webb v. N. C. Dep't of Environment, Health & Natural Resources, 102 N. C. App. 767, 404 S. E. 2d 29 (1991). G. S. 77-15(a) states that the seaward boundary of property within North Carolina not owned by the state which adjoins the ocean is the mean high watermark, with the limitation that this rule does not apply where title below the mean high watermark was specifically granted by the state prior to the enactment of the statute.

The state holds lands under navigable waters of sounds, rivers, bays and inlets in trust for its citizens and this is often referred to as the "public trust doctrine". The "public trust doctrine" is alive and well in North Carolina and it voids conveyances of state lands which cannot be conveyed. This doctrine has been codified with regard to submerged lands and pursuant to G. S. 146-3(1), they may not be conveyed in fee but easements can be granted. The Department of Administration has the power under G. S. 146-4 to sell vacant and unappropriated lands and swamplands but not submerged lands Swamplands are defined broadly but it should be noted that vacant and unappropriated lands do not include swamplands. Natural lakes of 50 acres or more may not be disposed of by the state as controlled by G. S. 146-3(2). In State ex rel. Rohrer v. Credle, the state brought an action to quiet title to land in Hyde County submerged under Swan Quarter Bay, a navigable water. The Supreme Court held that because of the public trust doctrine, no fee title can be granted to land beneath navigable waters and the North Carolina Constitution requires conservation and protection of public lands and waters for the benefit of the public, State ex rel. Rohrer v. Credle, 322 N. C. 522, 369 S. E. 2d 825 (1988). In Concerned Citizens v. Holden Beach Enterprises, Inc., the Court of Appeals found that no prescriptive easement, from the public road, over the defendant's land to the beach existed. As the statutory presumption of title in the state was inapplicable, since this was a suit over an easement, and since there existed no offer and acceptance of dedication by virtue of a recorded plat, the public trust doctrine was not to be expanded to create access over private property without paying compensation, Concerned Citizens v. Holden Beach Enterprises, Inc., 95 N. C. App. 38, 381 S. E. 2d 810 (1989).

Even though submerged lands include land beneath navigable waters, we did not have a clear definition of "navigable" for many years. Navigable waters are defined as waters that are navigable in fact by G. S. 146-64(4). The statute does not say by what type of vessel the waters must be navigable, but in Gwathmey v. State the North Carolina Supreme Court, in an opinion that provides an excellent discussion of the history of this area of the law, has resolved the issue as follows, "The controlling law of navigability as it relates to the public trust doctrine in North Carolina is as follows: " 'If water is navigable for pleasure boating it must be regarded as navigable water, though no craft has ever been put upon it for the purpose of trade or agriculture. The purpose of navigation is not the subject of inquiry, but the fact of the capacity of the water for use in navigation.' " ... (quoting Attorney General v. Woods, 108 Mass. 436, 440 (1871)). In other words, if a body of water in its natural condition can be navigated by watercraft, it is navigable in fact and, therefore, navigable in law, even if it has not been used for such purpose. Lands lying beneath such waters that are navigable in law are the subject of the public trust doctrine, "464 S.E.2d 674, 342 N.C. 287, Gwathmey v. State Through Dept. of Environment, Health, and Natural Resources Through Cobey, (N.C. 1995) . There are several cases determining the issue of whether land was swampland or vacant and unappropriated land that may be sold in fee or submerged land that may not be, see Resort Dev. Co. v. Parmele, 235 N. C. 689, 71 S. E. 2d 474 (1952); Home Real Estate Loan and Ins. Co. v. Parmele, 214 N. C. 63, 197 S. E. 714 (1938); State Board of Education v. Roanoke R. R. & Lumber Co., 158 N. C. 313, 73 S. E. 994 (1912). Swampland that can be conveyed by the state includes lands covered by any state-owned lake or pond, subject to G. S. 146-4 effective since January 1, 1959, providing that no natural lake having an area of 50 acres or more may be conveyed as stated above.

Accretion is an addition to land resulting from a gradual deposit of sand, etc., by water. Avulsion is the rapid, perceptible addition or loss of riparian land from, for example, a storm. Reliction is the process by which land covered by water becomes dry by the imperceptible recession of water. In North Carolina, the gradual physical loss of land results in loss of title and the gradual physical gain of land results in the acquisition of title to the land, State v. Johnson, 278 N. C. 126, 179 S. E. 2d 371 (1971). The rapid physical gain or loss of land has no effect, subject to G. S. 146-6.5. It is usually difficult to tell how land was physically added or lost. Unless the title examiner has access to accurate information about such matters, conveyances and title insurance policies should contain exceptions for such matters since it is apparent that there can be a difference between record title and actual title resulting from such physical processes. G. S. 146-6(a) provides that if land is raised above the high watermark of any navigable water by certain circumstances, title to the land raised becomes vested in the adjoining owner. In order for the statute to apply, the land can be raised by any process of nature or the erection of any pier, jetty, or breakwater. Before the 1979 amendment to G. S. 146-6(b), the statute provided that if land were raised above the high watermark of any navigable water by any act of man by filling, except filling to reclaim land previously lost by natural causes under G. S. 146-6(d), title to the land vested in the state and became part of the state's "vacant and unappropriated lands," unless the Governor and Council of State previously approved the act under G. S. 146-6(c). Therefore certain filling was treated differently under G. S. 146-6(b) than the erection of certain man-made objects under G. S. 146-6(A). Prior to a 1979 amendment, G. S. 146-6(c) provided that if any owner of land adjoining navigable water desired to fill the area immediately in front of his land, he could apply to the Department of Administration for an easement to make the fill. The statute provided for delivery of a copy of the application to adjoining landowners of the applicant with a 30-day period for filing objections. If the Department found that navigation and public use would not be impeded and riparian owners would not be injured, it would issue the easement to fill and fix the consideration therefore. The easement was conclusive evidence of compliance with the statute. G. S. 146-6(c) also provided that when the filing was completed, the Governor and Council of State may execute a quitclaim deed (of the land covered by the easement to fill) to the owner having the easement to fill, on conditions approved by the Governor and Council of State. Apparently, G. S. 146-3(1)'s prohibition against conveying submerged lands did not apply in this narrow set of facts. The State has determined that if an owner who lost land by natural causes filled the land to reclaim it, the owner had to comply with the easement to fill procedure under G. S. 146-6(c) , even though title did not vest in the state and when an owner obtained an easement to fill under G. S. 146-6(c) and completed the fill, a quitclaim deed was then not necessary to transfer or pass title to the owner. It has also been interpreted that only the owner losing land by natural causes could reclaim it under G. S. 146-6(B) and a successor owner could not. Any successor owner would need to apply for an easement to fill under G. S. 146-6(C). G. S. 146-6 makes reference to other permit requirements pertaining to fills in G. S. 113-229 and G. S. 113A-118. It is, of course, advisable to obtain all required state and federal permits to fill. The state has also taken the position that any land lost by natural causes prior to the 1959 effective date of G. S. 146-6 cannot be reclaimed by filling. If title to filled land is in question because of any failure to comply with applicable law or if part of the land to be conveyed is filled land, a title opinion and title insurance commitment and policy should contain an appropriate. In State ex rel. Cobey v. Simpson, the court ordered the restoration of wetlands to their prior status when the defendant built a retaining wall and an addition to an existing bulkhead and deposited fill material in the marshlands on her property violating the Coastal Area Management Act and the Dredge and Fill Act, State ex rel. Cobey v. Simpson, 333 N. C. 81, 423 S. E. 2d 759 (1992).

In a 1993 the Court of Appeals set some parameters on what constitutes the right of a riparian owner to develop over submerged land as opposed to the obligation of the state to protect the public interest from unreasonable interference. In this case a marina project with 148 slips, four floating docks ranging from 375 to 540 feet, fuel dock, and breakwater, which would cover 5.9 acres of public trust waters and require hydraulic excavation of nine acres of public trust lands and would affect a nearby estuary designated as primary nursery area was determined not have "minor impact" within meaning of the regulation permitting structures with minor impact to be built without an easement from the State, in other words, as a matter of right. The landowner had no independent riparian or littoral property rights to construct a marina without obtaining such an easement, Walker v. North Carolina Dept. of Environment, Health and Natural Resources, Div. of Coastal Management, Coastal Resources Com'n, 111 N.C.App. 851, 433 S.E.2d 767, (N.C.App. 1993).

In 1968 the Supreme Court ruled on the limits of a littoral owner’s rights to control the use of the waters, by the public, in which a pier was located. The owner and operator of a sport fishing pier extending 1000 feet out into Atlantic Ocean from his waterfront land had no legal right to forbid a person on a paddleboard from passing under the pier. Without any easement in submerged lands having been granted to the owner by the State, the pier owner's rights to control the actions of persons in waters in the vicinity of the pier depended solely upon his status as a littoral or riparian owner. Without specific legislation, the littoral and riparian owner has a qualified right in the water frontage belonging by nature to their land, and the primary right arising out of the appurtenant estate in submerged land is the right of access over the extension of the waterfronts to navigable waters and the right to construct wharves, piers, or landings subject to such general rules and regulations as Legislature, in exercise of its power, may prescribe for protection of public rights in rivers or navigable waters. That qualified right does not permit unreasonable interference with the public’s right to use those waters for usual purposes, Capune v. Robbins, 273 N.C. 581, 160 S.E.2d 881, (N.C. 1968).

15A N.C. Admin. Code 07H.0208(b)(6)(E) provides detailed guidance on the manner in which the riparian boundary between two properties is established.

  • "The line of division of areas of riparian access shall be established by drawing a line along the channel or deep water in front of the properties, then drawing a line perpendicular to the line of the channel so that it intersects with the shore at the point the upland property line meets the water's edge."

Even though the property lines of the owners may not be perpendicular to the channel or the shore the riparian boundary will be. This method of determining riparian boundaries was expressly approved in the case of In re Mason, 78 N.C.App. 16, 28, 337 S.E.2d 99, 106 (1985), disc. review denied, 315 N.C. 588, 341 S.E.2d 27 (1986) and cited in Flowers v. Blackbeard Sailing Club, Ltd., 115 N.C.App. 349, 444 S.E.2d 636, (1994). This regulation also provides that any development must be set back fifteen feet from the riparian boundary.

In 1974, North Carolina enacted its Coastal Area Management Act (CAMA) a discussion of which is beyond the space limitations of this article. Because of its significant impact on coastal development we may deal with this act and its impact on title examination in a future article.

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