Whenever land is bordered by or extends beneath a body of water, an exception as to riparian and littoral rights is always required. The nature and extent of riparian rights can never be insured without a referral to local underwriting counsel. Title to submerged land or previously submerged land could be subject to a Federal Navigational Servitude based on government powers pursuant to the commerce clause of the Constitution of the United States of America. It may be impossible to release or convey such rights. Any attempts to convey such lands may be revocable if deemed contrary to the Public Trust Doctrine. The Public Trust Doctrine provides the sovereign state will hold all lands in trust for the benefit of the public. Careful analysis of the derivation of title and uses of the land must be made in every instance when affirmative coverage is sought with respect to riparian or littoral rights. The initial presumption as to any body of water is that it is a navigable body of water. Accordingly, others may have rights of use for navigation purposes in addition to rights to uninterrupted flow of the water. The terms: accretion, reliction, erosion, and avulsion are generally associated with the changes in the location of the waterlines as a result of natural causes. The definition of these terms may vary from state to state. Many of these terms are used interchangeably. A determination of which of these terms is applicable should be made only after consultation with underwriting counsel. Be careful not to rely on prior title insurance policies to determine waterfront interests. The nature, extent, or existence of riparian rights may never be insured without thorough analysis by underwriting counsel. An independent determination must be made in each instance. Often deeds or mortgages are prepared with language such as “together with all riparian rights” included after the legal description of the land. The agent should be careful not to incorporate this or similar terms anywhere in the title policy. Although title insurance does not insure riparian rights, mistakenly including this language with the legal description in Schedule A may lead to the insured to believe the Company is providing this coverage.
Whenever the land abuts a body of water, proper exceptions must always be raised in Schedule B. These exceptions could take the following forms:
Rights, if any, of the United States of America, State/Commonwealth of _______________, the municipality or other local government and the public in and to that part of the land, if any, as may have been formed by means other than natural accretions or may be covered by the waters of Lake ______________.
Rights of the United States of America, State/Commonwealth of _______________, the municipality or other local government and the public in and to that part of the land lying within the bed of the ______________River.
Rights of owners of land bordering on the ______________ and others to the continued and uninterrupted flow of the water (without diminution or pollution).
Rights of the public and owners of land bordering on the _________________ River/Lake to navigational and/or riparian recreational and/or other rights to use said water.
Any and all rights of the United States of America, the State/Commonwealth of ______________, the local government and the public, if any, in and to the use of all or any part of the land lying between the body of water abutting the subject land and the natural line of vegetation, bluff or extreme high water mark or other apparent boundary line separating the publicly used area from the upland private area.
This policy does not insure title to artificially filled lands, submerged lands, or land which may have been under water or which has been added to the subject land by accretion, reliction or avulsion.
This policy does not insure title to any portion of the land lying below the high water mark of _________________.
This policy does not insure against any decrease of the subject land, if any, caused by erosion or changes in the shoreline or centerline or meander line of the body of water known as __________________.
This policy does not insure against any claim of ambiguity or uncertainty in the exact location of the boundary along the body of water known as ________________.
This policy does not insure against the rights of federal, state, or local jurisdictions to regulate usage of the shore area.