A deed conveying a parcel of land bordering on a body of water may describe the conveyed land with reference to the adjoining water. The description may give a call and a distance as part of a metes and bounds description to the water’s edge, bank of a river, or low or high water mark, or it may simply state that the river, bay, lake, or ocean is a boundary line. Although the deed may give an exact distance and direction, that does not answer the question of how close to the water or how much of the land is conveyed. Shore lines erode and rivers meander; the only certainty with land bordering water is that the shore line or bank will change over time. Physical features will change and the rules for determining the extent of ownership in each state are different.
The effect such change has on land ownership depends upon how the change occurs. Changes to a shoreline, which occur gradually or by “imperceptible degrees” in response to the normal and natural action of the water will, in many jurisdictions, actually shift the legal boundary. These changes occur through erosion, reliction, or accretion. Under normal circumstances, Agents National Title would not insure the ownership of this additional land. On the other hand, sudden, perceptible changes do not result in a shift in the legal boundary. Such sudden action is referred to as avulsion (i.e., the effects of a violent storm) or the artificial filling of wet areas.
To confuse matters further, different bodies of water are also subject to different rules. Any inquiry into the extent of the ownership interest should start with a determination of whether the land under the water or even the land adjacent to the water is subject to private ownership. The answers to such inquiries, although academically stimulating and educational, are difficult and fraught with peril for the title insurer. These inquiries must, nonetheless, be made on those occasions when we encounter the waterfront property with a dock or a marine condominium providing ownership of a boat slip or even a condominium built on piers or filled lands.
Even if private ownership of shore lands or subaqueous land can be proven and is allowed, it will typically be subject to stringent federal, state, and local regulation, as well as be burdened by rights vested in the public. When insuring lands bordering a body of water, several exceptions for these rights must be taken, as set out in the Underwriting Guidelines section below. These would include the right of the public to use the shore, the navigational servitude imposed on navigable waters, and others.