Lands that adjoin a body of water (“water titles”) are often complicated and may require an examination of the local history of that body of water.
The purpose of this article is to introduce you to the basic exceptions that are typically raised in the title report where parcel adjoins a navigable body of water.
Navigable water is a general term which may legally differ from jurisdiction to jurisdiction. It may mean a body of water which commerce is or may be carried on with other states/countries or it simply may be a body of water large enough to ebb and flow – tidal waters.
Tidal water is navigable as a matter of law. No inquiry as to actual navigability is required. Water that is “navigable in fact” in navigable. A waterway is navigable in fact when it is used, or is susceptible of being used, in its natural state for travel, recreational use, trade or commerce.
Under the Public Trust Doctrine land under navigable water is presumed to be owned by the State of New York in its sovereign capacity as a trust for the people of New York. There are four primary “water exceptions” that are typically raised when the insured property adjoins a navigable body of water.
1) No title is insured to any land lying below the present or any former high water line of (name of body of water.)
2) Except riparian rights and easements of others over (name of body of water), but policy does not insure any riparian rights or easements in favor of the owner of the premises herein.
3) Except the right of the United States Government to change and alter the harbor, bulkhead or pierhead lines adjacent to said premises, to establish harbor, bulkhead or pierhead lines different from the present lines, and to take land now or formerly under water without compensation.
4) Except the rights of the United States Government, the State of New York and local municipalities or any of their departments or agencies to regulate and control the use of the piers, bulkheads, and land adjacent thereto.
The first exception – No title is insured to any land lying below the present or any former high water line of (name of body of water) – reflects the common law presumption that lands under navigable waters are considered public highways, title to which vests in the State in trust for the use of the people. As a result, title should not be insured to any land that is below the current or former high water line. Note that the exception states the present or former high water line. Title to accreted lands (land added to by natural action of soil carried by the body of water) or lands obtained through reliction (soil added because the water has receded) are not insured.
A variation of this exception – No title is insured to any land now or formerly lying in the bed of (insert name of body of water), its arms, branches or tributaries by whatever name called – is used when lakes, ponds, rivers, creeks, brooks or streams are involved.
The second exemption – Except riparian rights and easements of others over (name of body of water), but policy does not insure any riparian rights or easements in favor of the owner of the premises herein – addresses each riparian owner’s right to a reasonable use of the body of water. What is reasonable use is a question of fact. Although our insured probably has the same riparian rights, these rights are not insured due to the litigious nature of riparian use.
The third exception – Except the right of the United States Government to change and alter the harbor, bulkhead, or pierhead lines adjacent to said premises, to establish harbor, bulkhead or pierhead lines different from the present lines, and to take land now or formerly under water without compensation – recognizes the federal government’s power to regulate commerce, regulate and/or improve navigation and navigable waters regardless of whether the title to the land now or formerly under water is in the State or individual owners. This right is often referred to as the federal navigational servitude and it preempts all state and local laws.
The fourth exception – Except the rights of the United States Government, the State of New York and local municipalities or any of their departments or agencies to regulate and control the use of the piers, bulkheads, land under water and land adjacent thereto – excepts out the regulatory rights of the Federal, State and local governments. The title insurance policy does not insure compliance with regulatory or zoning statutes and regulations.
These four exceptions should always be utilized when you are dealing with lands that adjoin a navigable body of water. Due to the extra hazardous nature of titles to lands under water, as always, please feel free to contact a CB Title underwriting counsel with any questions you may have.
This article is courtesy of Fidelity National Title Group, and was originally from a FNTG Agency News Alert. This article is for informational purposes only and is not intended to provide legal advice, but rather to provide insight into legal developments and issues that may be useful to our clients and friends. In no circumstance is this article intended to be a full treatment of the above subject matter. Reader is advised to obtain additional information as noted.
