SOVEREIGNTY LANDS. An ACREL Workshop on Water Rights and Wrongs: Checklist of Water Issues for the Dirt Lawyer

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1 SOVEREIGNTY LANDS An ACREL Workshop on Water Rights and Wrongs: Checklist of Water Issues for the Dirt Lawyer R. Norwood Gay III Attorneys Title Insurance Fund, Inc Corporate Centre Boulevard Orlando, Fl ACREL 2003 Annual Meeting New Orleans, LA

2 SOVEREIGNTY LANDS I. General Sovereignty Lands Exception Required Because of the passage of time and the difficulty in ascertaining historical facts about the artificial alteration of water features by dredging, filling, draining, pumping, and other means, sovereign ownership claims arise from time to time unexpectedly and much to the consternation of the private land owner. For these reasons, the following exception should appear in every owner policy, unless specific conditions are met which will allow the deletion of the exception or the substitution of a more specific exception: Any adverse ownership claim by the State of (Florida) by right of sovereignty to any portion of the lands insured hereunder, including submerged, filled, and artificially exposed lands and lands accreted to such lands. II. Tidally Influenced Lands A. Definition of Sovereignty Tidelands Under the "Equal Footing Doctrine", upon their entry into the Union the several states acquired title to lands beneath waters that are influenced by the ebb and flow of the tide. Phillips Petroleum v. Mississippi, 108 S.Ct. 791 (1988). The Court indicated that these tidelands are not limited to "shorelands or those lands beneath tidal waters which are immediately adjacent to the sea but include all lands affected by the ebb and flow of the tide. This case was of great importance because the Court specifically rejected the argument that a state could only claim title to lands beneath tidally influenced, navigable waters. A state's ownership of the lands beneath tidally influenced waters generally ends at the "mean high water line." Florida defines "mean high water" as: The average height of the high waters over a 19 year period. For shorter periods of observation, "mean high water" means the average height of the high waters after corrections are added to eliminate known variations and to reduce the result to the equivalent of a mean 19 year value. B. Basic Insuring Requirements 1. Submerged Lands. If a policy is insuring real property the description of which includes or may include submerged lands of a tidally influenced water body (not filled lands) the General Sovereignty Lands Exception may be replaced with the following exception: This policy does not insure any portion of the insured parcel lying waterward of the mean high water line of (name of water body). 1

3 If a deed specifically conveying submerged lands from the state is found during the examination of title, the above exception may be deleted and the following exceptions substituted in its place: The inalienable right of the public to use the navigable waters; and The rights of the State of (Florida) and the United States to regulate the use of the navigable waters. 2. Filled Lands. When dealing with lands that are not currently submerged but are near tidally influenced water bodies, before deleting the General Sovereignty Lands Exception you should consider whether such lands have been artificially filled. State-specific statutes or case law may exist which will govern how such lands must be treated. III. Lands Affected by Freshwater Bodies of Water A. Meandered Lakes Upon their entry into the Union, states gained title by right of sovereignty to all lands that were beneath non-tidally influenced navigable water bodies. Standards of navigability vary among the states. In Florida, for example, capacity for navigation, not usage for that purpose, determines the navigable character of water. If a review of the original government survey indicates that any of the parcel being insured is waterward of the meander line of a fresh water body, the following exception may be used instead of the General Sovereignty Lands Exceptions: This policy does not insure any portion of the insured parcel lying waterward of the ordinary high water mark of (name of lake). B. Non-meandered Lakes Because of the difficulty of applying an objective standard of navigability, one must also be conscious of the state s sovereignty lands rights in non-meandered lakes. The state may claim ownership of non-meandered navigable lakes waterward of the ordinary high water mark. The Florida courts established the following definition of the ordinary high water mark: A high water mark, as a line between the riparian owner and the public, is to be determined by examining the bed and banks, and ascertaining where the presence and action of the water are so common and usual, and so long continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks, in respect to vegetation as well as respects the nature of the soil itself. If the insured parcel abuts a fresh water lake that was not meandered on the original government survey, the following exception may be substituted for the General Sovereignty Lands 2

4 Exception: This policy does not insure any portion of the insured parcel lying waterward of the ordinary high water mark of (name of lake ). C. Rivers, Streams and Creeks The state may claim ownership of the beds of rivers, streams and creeks that were navigable at statehood. The Florida courts have established a broad definition of a navigable river: What constitutes a navigable river, free to the public, is a question of fact, to be determined by the natural conditions in each case. A stream of sufficient capacity and volume of water to float to market the products of the country will answer the conditions of navigability, and is a public highway, open to all persons for the business of floatage to which it is adapted, whatever the character of the product, or the kind of floatage suited to their conditions. Rivers All rivers are navigable and portions some distance upstream from the river's mouth are tidally influenced. Consequently, policies which insure property bordering a non-tidally influenced segment of the river should contain the following exception: This policy does not insure any portion of the insured parcel lying waterward of the ordinary high water mark of (name of river). When insuring property bordering tidally influenced segments of the river, use the following exception: This policy does not insure any portion of the insured parcel lying waterward of the mean high water line of (name of water body). Streams and Creeks Essentially, a stream is considered navigable if it could be used to transport commercial products to market at statehood. In situations in which a non-meandered and non-tidally influenced stream or creek traverses the insured parcel, the General Sovereignty Lands Exception may be replaced by the following exception: This policy does not insure any portion of the insured parcel lying waterward of the ordinary high water mark of (insert name of stream or creek). 3

5 D. Artificially Exposed Lands The state may claim ownership of lands that were formerly beneath a navigable lake, river, stream or creek but are now dry because the course or location of the water body has been artificially altered. When insuring property that has been artificially exposed, you should not delete the General Sovereignty Lands Exception without obtaining and recording a deed or release from appropriate government authorities to the reclaimed lands. IV. Deleting the General Sovereignty Lands Exception Certain determinations must be made before waiving the General Sovereignty Lands Exception and any other water-related title exceptions. 1. If the property is in proximity to a tidally influenced water body, it must be determined: a) that the land being insured is not now and was not submerged as of statehood. (This generally includes comparing the original government survey or oldest available survey with a current survey of the property.); b) if the land was formerly submerged, that the formerly submerged land is not accreted land nor filled land, or if filled, that it was filled in compliance with applicable laws or regulations. 2. Lands not in proximity to tidally influenced water bodies may nevertheless be affected by the state s sovereignty rights in the land under, near or in proximity to fresh water bodies. a) It must be determined that no rivers, lakes, or streams abut or traverse the subject property; and b) that the property is not within the meander line of any nearby lake. V. Riparian and Littoral Rights The definition of Land in the Conditions and Stipulations of the standard ALTA policy excludes any right, title, interest, estate or easement in abutting... waterways. Nonetheless, when insuring waterfront property, you should include the following exception in Schedule B of all commitments and policies: Riparian and littoral rights are not insured. VI. Soft Sand Public Rights Courts in a number of states, including California, Oregon and Florida have rendered decisions similar to that in City of Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73, at 78 (Fla. 1974): If the recreational use of the sandy area adjacent to mean high tide has been ancient, reasonable, 4

6 without interruption and free from dispute, such use, as a matter of custom, should not be interfered with by the owner. However, the owner may make use of his property which is consistent with such public use and not calculated to interfere with the exercise of the right of the public to enjoy the dry sand area as a recreational adjunct of the wet sand or foreshore area. Since the court may take a similar attitude with respect to lakeside and riverside beaches, as well as oceanside beaches, any policy involving waterfront property which has been subject to substantial public use should contain an exception along the following lines: The rights, if any, of the public to use as a public beach or recreation area any part of the land lying or formerly lying between the body of water abutting the subject property and the natural line of vegetation, bluff, extreme high water line or other apparent boundary line separating the publicly used area from the upland private area, or such upland private area as it may have existed prior to the construction, if any, of seawall or bulkhead thereon. VII. Navigational Water Rights A. Navigational Servitude Exception In all instances in which the property being insured is artificially filled land in what was formerly navigable waters, that land is subject to the rights of the United States government arising by reason of the United States' control over navigable waters in the interest of navigation and commerce. In such cases, the following exception must be included in the policy: Those portions of the property herein described comprising artificially filled land in what was formerly navigable waters, are subject to any and all rights of the United States government arising by reason of the United States government's control over navigable waters in the interest of navigation and commerce. B. Procedure for Issuing the Navigational Servitude Endorsement The Navigational Servitude Endorsement provides affirmative coverage against losses arising by reason of forced removal of improvements based on the exercise of governmental rights with respect to control over navigable waters. When the Navigational Servitude Exception appears on Schedule B, the proposed insured may ask for the Navigational Servitude Endorsement. If any part of the property to be insured was not legally filled, there must be a Schedule B exception for sovereignty lands and the following language must be inserted in Schedule B: The Navigational Servitude Endorsement is attached to this policy as endorsement number. The coverage afforded thereby shall not be deemed to extend to any portion of the subject property which is encompassed by exception number, the General 5

7 Sovereignty Lands Exception. For property that was legally filled, the endorsement may be issued unless unusual circumstances are present, such as the improvements on the property directly abutting the boating channel. VIII. ACCRETION, AVULSION, and RELICTION A. Accretion The extension of the land due to the gradual, natural and imperceptible addition of material is known as accretion. From early times, the additional land so produced has been held to belong to the upland owner, and the doctrine of accretion applies both for and against the state as well as to private parties. The doctrine of accretion does not apply to a sudden or perceptible building up of the area of the upland. Neither does the artificial building up of the upland constitute accretion. The problem is that a title examiner usually cannot be sure whether the build-up was by accretion or otherwise. For this reason, a policy should not be issued insuring what may be accreted lands, unless a deed using a metes and bounds description of the additional land is obtained from the appropriate governmental authority, or the additional land is judicially determined to be accreted land, with the appropriate governmental authority made a party to the action. B. Avulsion Avulsion is defined as a sudden and perceptible addition of sand or sediment caused by a natural event. When presented with a request to insure property waterward of a plat line, or previously insured legal description, the agent must conduct an investigation to determine whether the additional property was formed by accretion, reliction, or avulsion. If the additional property has been created by avulsion, the property remains sovereignty land and no policy may be issued in favor of the upland owner unless a deed from the state is obtained. C. Reliction Reliction refers to land which, although formerly covered by water, has become dry land by the imperceptible recession of the water. For title insurance purposes, land will not be considered to have been created by reliction until a court makes such a determination and the relevant appeal period has expired. If the additional property is judicially determined to have been created by reliction, and not caused by the upland owner, a policy may be issued to insure property using the mean high water line of a salt water body, or the ordinary high water mark of a freshwater boundary, as the 6

8 ambulatory boundary. The standard water rights exceptions should be included in the policy. 7