Water Rights: Beds, Boats & Beaches

Transcription

1 Water Rights: Beds, Boats & Beaches James W. Williams III Chicago Title Insurance Co. 3/16/2005 Chicago Title 1

2 Introduction Public Trust Doctrine & Submerged Lands Federal Navigational Servitude Who Owns the Dry Sand Beach? Riparian & Littoral Rights Boat Slips & Boataminiums 3/16/2005 Chicago Title 2

3 Public Trust Doctrine Defined The state holds title to submerged lands in trust for the benefit of its citizens. Why? The importance of the waterways for commerce. 3/16/2005 Chicago Title 3

4 Public Trust Doctrine The Scope of Public Trust Waters Common Law Ebb and Flow test Early Navigability Test The Daniel Ball & State v. Baum Navigability in Fact is Navigable at Law That the public have the right to the unobstructed navigation as a public highway for all purposes of pleasure or profit, of all watercourses, whether tidal or inland, that are in their natural condition capable of such use. 3/16/2005 Chicago Title 4

5 Public Trust Doctrine Gwathmey v. State of North Carolina 1995 case Navigability in fact = Navigability at Law So-called Recreational Test No trade or commerce requirement Canoes & Kayaks 3/16/2005 Chicago Title 5

6 Limitations on Public Trust Doctrine No right to land on the banks No right to access water across private lands at some point, navigability in the usual and ordinary course ceases, and public trust rights give way to those of private property. 3/16/2005 Chicago Title 6

7 Transfer of Public Trust Lands No adverse possession / prescriptive use N.C.G.S Submerged Land Claims N.C.G.S Claims had to be filed by Board of Education deeds - marshlands 3/16/2005 Chicago Title 7

8 Transfer of Public Trust Lands The General Assembly has the power to convey such lands, but under the public trust doctrine it will be presumed not to have done so. That presumption is rebutted by a special grant of the General Assembly conveying the lands in question free of all public trust rights, but only if the special grant does so in the clearest and most express terms Gwathmey v. State 3/16/2005 Chicago Title 8

9 Authorized Transfers of Public Trust Lands N.C.G.S (1). No submerged lands may be conveyed in fee, but easements therein may be granted, as provided in this subchapter. 3/16/2005 Chicago Title 9

10 Authorized Transfers of Public Trust Lands Permitted Easements NCGS authorizes certain easements in favor of adjoining riparian or littoral owners over submerged lands lying between the t high water mark and deep water. All such easements are subject to the public trust rights and are e further subject to revocation for a violation of the conditions upon which it was granted Owners of structures built upon state-owned lands covered by navigable waters after August 31, 1998 are required, unless specifically exempted, to obtain an easement from the State Exemptions include: Piers, docks or similar structures for the exclusive use of the adjacent riparian or littoral owner which generate no revenue directly related to the structure and which accommodate no more than 10 vesselsv N.C.G.S Shellfish & Aquaculture Leases Must no impinge upon adjacent riparian owners 3/16/2005 Chicago Title 10

11 The Federal Navigational Servitude Commerce Power The power to regulate commerce comprehends the control for that purpose, and, to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie 3/16/2005 Chicago Title 11

12 The Federal Navigational Servitude The Scope Broad power to regulate commerce Entire bed of stream Title to such submerged lands is at all times subordinate to the uses that may be consistent with or demanded by the public right of navigation. 3/16/2005 Chicago Title 12

13 The Federal Navigational Servitude Maintaining navigable channels Removing impediments created by adjacent riparian owners (docks, groins) Enlarging the navigability of watercourses No takings for: Damage to structures below high water line Loss of access to navigable waters due to improvements Loss of value to adjoining lands due to lack of access to navigable waters 3/16/2005 Chicago Title 13

14 The Federal Navigational Servitude Permitting Corps of Engineers permitting authority General Permits to perform work in or affecting navigable waters of the United States including the construction, maintenance and repair of piers, docks, boathouses, mooring piles dolphins and jetties in the navigable waters of the United States in the State of North Carolina Similar Gen. Permits for Kerr Reservoir, Falls Lake and Lake Jordan 3/16/2005 Chicago Title 14

15 The Federal Navigational Servitude Kaiser Aetna v. United States Lands Rendered Navigable by Private Effort Not subject to Navigational Servitude Hearty dissent the navigational servitude, with its origins in the commerce clause of the Constitution, should extend to the limits of interstate commerce by water Public Trust???? 3/16/2005 Chicago Title 15

16 Title to Lands on the Move Erosion Accretion Reliction Avulsion Thus the lots of the plaintiff were gradually worn away by the churning of the ocean on the shore and thereby lost. Its title divested by the sledge-hammering seas the inscrutable tides of God. 3/16/2005 Chicago Title 16

17 Title to Lands on the Move State v. Johnson A traveling inlet does not uproot and supplant a boundary line as it passes over it unless such inlet in fact was the boundary line when it started its journey. erosion and accretion work no change in title along a body of water that does not constitute the boundary of the tract 3/16/2005 Chicago Title 17

18 Who Owns the Dry Sand Beach? What is the dry sand beach? See Joseph Kalo Article Giampa v. Currituck County 3/16/2005 Chicago Title 18

19 Who Owns the Dry Sand Beach? The effect of Beach Renourishment NCGS 146-6(f) 6(f) Publicly financed projects Privately financed projects Rights of the general public our common heritage The Curious case of Slavin Session Laws 3/16/2005 Chicago Title 19

20 Riparian & Littoral Rights TERMS Riparian = rivers & streams Littoral = lakes, bays & oceans 3/16/2005 Chicago Title 20

21 Riparian & Littoral Rights Riparian rights are not severable from the waterfront land. 3/16/2005 Chicago Title 21

22 Riparian & Littoral Rights the right to be and remain a riparian proprietor and to enjoy the natural advantage thereby conferred upon the land by its adjacency to the water; the right of access to the water, including a right of way to and from the navigable parts; the right to build a pier or wharf out to the navigable water, subject to any regulations by the state; the right to accretions or alluvion; ; and the right to make reasonable use of the water as it flows past or laves the shore. 3/16/2005 Chicago Title 22

23 Riparian & Littoral Rights The riparian corridor 90 Rule No interference with rights of adjacent riparian owners Practicability 3/16/2005 Chicago Title 23

24 Boat Slips & Boataminiums All Marinas are Not Created Equally!!!! 3/16/2005 Chicago Title 24

25 Boat Slips & Boataminiums When Examining Title to Boat Slips: Read the CCR s and review the plat!! What is the nature of the interest acquired? Membership Condominium Unit / PUD Appurtenance How is the interest transferred? Certificate Deed Is there a landside real property interest? Access easement Undivided interest Is there an easement for the submerged lands? 3/16/2005 Chicago Title 25

26 Thank you. 3/16/2005 Chicago Title 26