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Riparian Rights When You Own Land in Contact with the Water: A Mix of Environmental, Admiralty and State Law - June 2013

June 19, 2013

By James T. Lang.

Why do people pay extra for property “on the water”?  Besides the ambience and the view, owning land in contact with the water of a river, bay, creek or ocean includes valuable riparian property rights.  The Virginia Supreme Court in 2012 wrote:

The littoral or riparian nature of property is often a substantial, if not the greatest, element of its value. This is true whether the owner uses his access to the sea for navigation, fishing, bathing, or the view.

Lynnhaven Dunes Condominium Association v. City of Virginia Beach, 284 Va. 661, 673, 733 S.E.2d 911, 917 (2012).

These riparian rights are recognized as a property right, the type of property right that  cannot be taken without just compensation, and the right is exercised within the “riparian area” which begins at the mean low water mark at the property and extends into the water body to the “line of navigability”.  Taylor v. Commonwealth of Virginia, 102 Va. 759, __, 47 S.E. 875, 880 (1904).  The method to set out the boundaries of the riparian area is as follows:

measure the length of the shore and ascertain the portion thereof to which each riparian proprietor is entitled; next measure the length of the line of navigability, and give to each proprietor the same proportion of it that he is entitled to of the shore line; and then draw straight lines from the points of division so marked for each proprietor on the line of navigability to the extremities of his lines on the shore. Each proprietor will be entitled to the portion of the line of navigability thus apportioned to him, and also to the portion of the flats, or land under the water, within the lines so drawn from the extremities of his portion of the said line to the extremities of his part of the shore.


Groner v. Foster, 94 Va. 650, 652-53, 27 S.E. 493, 494 (1897), cited with approval in, Carr v. Kidd, 261 Va. 81, 86, 540 S.E.2d 884, 887 (2001).  These riparian rights are a specific set of five benefits that accrue to the owner of land adjacent to a navigable river, bay, creek or the ocean:

The right to be and remain a riparian proprietor and to enjoy the natural advantages 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 part.

The right to build a pier or wharf out to navigable water, subject to any regulations of the State.

The right to accretions or alluvium.

[And,] [t]he right to make a reasonable use of the water as it flows past or laves the land.


Taylor v. Commonwealth of Virginia, 102 Va. 759, 773, 47 S.E. 875, 880-81 (1904),cited with approval in, Scott v. Burwell's Bay Improvement Association, 281 Va. 704, 710, 708 S.E.2d 858, 862 (2011).   

Thus, for example, an adjacent landowner may contest his or her neighbor’s construction of a pier, if the pier encroaches on the landowner’s riparian area, as was done in Carr v. Kidd, 261 Va. 81, 540 S.E.2d 884 (2001). 

Importantly, the land owner does not own the land beneath the water in the riparian area. Unless the Commonwealth has granted it away[1], title to all “the beds of the bays, rivers, creeks and the shores of the sea within the jurisdiction of the Commonwealth [is] the property of the Commonwealth”. Virginia Code section 28.2-1200; see also, 43 U.S. Code section 1311 (Submerged Lands Act confirms “title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters . . . vested in and assigned to the respective States”); Martin v. Waddell, 41 U.S. 367 (1842) (when the American Revolution took place, the people of each state took title to submerged lands formerly owned by the Crown).

Thus, for example, when the General Assembly granted a lease of 10 acres within Mrs. Taylor’s riparian area on the York River, which lease entitled the lessee to oyster and to install an Artesian well, Taylor’s legal action to eject the lessee was unsuccessful. Taylor v. Commonwealth of Virginia, 102 Va. 759, 773, 47 S.E. 875, 880-81 (1904).

This does not mean, however, that the Commonwealth of Virginia has unfettered discretion to manage the submerged lands in a manner contrary to the public interest. This is so because the submerged lands are held by the Commonwealth in trust for the public interest, a principle that was established by the U.S. Supreme Court in 1892 after the State of Illinois conveyed 1,000 acres of submerged land comprising the harbor for the City of Chicago to the Illinois Central Railroad Company. The Court repudiated and revoked the conveyance, holding that:

The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining.

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The state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of the navigation and use of the waters, or when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation of the peace. In the administration of government the use of such powers may for a limited period be delegated to a municipality or other body, but there always remains with the state the right to revoke those powers and exercise them in a more direct manner, and one more conformable to its wishes. So with trusts connected with public property, or property of a special character, like lands under navigable waters; they cannot be placed entirely beyond the direction and control of the state.

Illinois Central Railroad Company v. State of Illinois, 146 U.S. 387, 453-454 (1892).

In addition to meeting its public interest responsibilities when managing its submerged lands, the Commonwealth of Virginia must also manage the submerged lands in a manner consistent with the public navigational servitude, which holds that the navigable waters are deemed to the be public property of the Nation. The rule here is that “all riparian interests [are] subject to a dominant public interest in navigation.” U.S. v. Willow River Power Company, 324 U.S. 499, 507, (1945).

Within Virginia, persons wishing to place a vessel or a structure on the submerged lands owned by the Commonwealth, or encroach on those submerged lands, must apply to the Virginia Marine Resources Commission for a permit covering the proposed activity, with the failure to do so exposing the wrongdoer to criminal prosecution (Class 1 misdemeanor per Va. Code section 28.2-1203) or civil penalty (up to $25,000 for each day of violation per Va. Code section 28.2-1213) for the unauthorized trespass or encroachment. VMRC has the jurisdiction and the responsibility to balance the merits of the proposed activity, the effect on the riparian rights of adjacent landowners, the effect on navigation, the effect on marine and fishery resources, the effect on tidal wetlands, the effect on water quality and the public interest, all of which is outlined at Title 28.2, Chapter 12 of the Code of Virginia, the regulations of the VMRC, and the Court precedents.  

Finally, riparian property rights are held by those who own property in contact with the water. The U.S. Supreme Court and many other Courts follow the rule that property situated near the water, but not in contact with it, does not qualify:

Those rights are incident to riparian ownership. They exist with such ownership, and pass with the transfer of the land; and the land must not only be contiguous to the water, but in contact with it. Proximity, without contact, is insufficient. The riparian right attaches to land on the border of navigable water, without any declaration to that effect from the former owner, and its designation in a conveyance by him would be surplusage.


Illinois Central Railroad Company v. State of Illinois, 146 U.S. 387, 445 (1892).

 


[1]One other circumstance where the landowner – not the Commonwealth – could own the land beneath the water in the riparian area is the situation where the waterway was created by excavating land, to which the owner has fee simple title, and allowing it to fill with water. Conceptually, one example might be a large parcel in private ownership on which the owner digs a canal connecting two navigable waterbodies. The owner does not lose title to the canal bed simply because he or she created a navigable waterway on the property.