Determining Ownership Within Boundary Disputes Part III: How to Determine Whether you Own the Water you Live On

This blog post is Part III in a series of blog posts discussing the determination of ownership in boundary disputes. Part I discussed the different claims and elements of claims that may be asserted in a boundary dispute action. Part II discussed the different types of information that can be used to prove or disprove ownership in a boundary dispute action. This blog post shifts to disputes over ownership in the water you live you as well as the use interests associated with certain bodies of water.

Just because your house is lakefront or oceanfront does not necessarily mean that you own those waters that border your house. In fact, more often than not, individuals have no ownership interest in the waters they live on, even though they may have use rights. Additionally, there are times in which an owner understands they have no ownership rights but believe that that they have use rights, when in fact, they do not have any right to use the water. This blog will explore ownership versus use rights; navigable waters versus non-navigable waters; and the classification of bodies of waters as sovereign versus subject to individual ownership.

Handling disputes to titles or use rights in waterfront properties is tricky and full of nuances. When a practitioner gets a dispute related to waterfront property, there are some initial questions that should be answered, such as:

• Does the property abut a navigable or non-navigable water?
• Does the property abut a man-made or natural body of water?
• Was the land affected by accretion, reliction, avulsion, or erosion?
• What is the nature of the access to the water as it relates to who has access and for what activities is it accessible?

Obviously, there are many other questions that are relevant, but these broad questions can open the door to more specific questions to narrow down exactly what the practitioner is working with.

One analysis that should exist with every action is the question of whether the lands that are covered by the body of water are sovereign lands. To determine what are sovereign lands, practitioners have two options: (1) navigability and (2) the mean high water line (“MHWL”) (sometimes referred to as ordinary high water line (“OHWL”)).

Looking first to navigability, navigable waters are of course those waters that are navigable in fact, which means that they can literally be used for transportation or commerce, or stated another way, are those waters with the capacity for navigation, even if the waters are not used for that purpose. Navigable waters include streams, rivers, gulfs, and bays. Additionally, some lakes are navigable waters, like Lake Okeechobee in southern Florida. The determination of navigability is very fact specific.

Why is the determination of navigability the most important question to ask before jumping into a dispute headfirst? The state holds navigable waters in trust for the public such that the waters and the land thereunder are not subject to private ownership. Coastal Petroleum Co. v. American Cyanamid Co., 492 So. 2d 339 (Fla. 1986). To be clear, if the waters are navigable, the adjacent property owners do not have any ownership to the lands or water thereon, but they do maintain use rights. Ownership of land adjacent to a navigable waterbody, also known as riparian land, confers “riparian rights” on the upland landowner. Although now categorized broadly as riparian rights, at one point in time and still present in some case law today, there were two categories of rights, depending on the nature of the land that borders the water: riparian rights and littoral rights. As defined by Section 253.141, Florida Statutes, “riparian rights are those incident to land bordering upon navigable waters.” Specifically, riparian rights applied only to lands that bordered rivers and streams. Littoral rights applied to oceanfront lands. For clarity sake, this blog will refer generally to riparian and littoral rights under the same umbrella category of riparian rights.

Riparian rights are just that – rights. Rights do not provide an individual with any ownership interest, and for that reason, most title policies for waterfront property will have an exception that states that riparian or littoral rights are not insured. Additionally, riparian rights do not create a superior interest in the waterfront property owners over the general public with regard to fishing and navigation. Some of the most common issues with riparian rights include docking, view, filling, adding land by accretion or reliction, and losing land by erosion. Docking is a qualified right that is considered a form of ingress and egress to or from navigable waters. The right to a view of the water is limited in that the right only extends to the lines perpendicular to the water from the shorelines. The remaining issues of accretion, reliction, and erosion are discussed below as they relate to changes in the land or boundaries.

The second way to determine sovereign lands is to look at the boundary lines. There are multiple boundary lines that a court may look to in a determination of a water dispute, but the prevailing view today is to use the MHWL. Looking back, the old rule was that the boundary line between privately-owned lands and the sovereignty lands along the tidally influenced waters was the MHWL and the boundary along non-tidally influenced water was the OHWL. In addition to these two lines, the meander lines were estimations of the shoreline. When a difference arose between the meander line and the OHWL, the OHWL controlled because it was considered a natural monument.

To define these terms, MHWL is technically defined as the average height of water over a 19-year period. Courts also use the vegetation line test (at what point does the water rise that it prevents vegetation from growing/where is there a defined difference in the vegetation levels) to determine the MHWL. Additionally, Chapter 177 of Florida Statutes contains a method for determining the MHWL by a means of an interactive Mean High Water map. For the OHWL, the boundary is found by examining the bed and banks and determining the mark that indicates the presence and action of water that is distinct from that of banks. With the advance in technology, the OHWL can be determined by mathematical averaging of water levels. Rhoads v. Virginia-Florida Corp., 549 F.2d 985 (5th Cir. 1977).

As stated above, upon codification and inclusion of MHWL in the Florida Statutes, parties and courts alike began to reference the two terms (OHWL and MHWL) as MHWL and use the terms interchangeably and synonymously. Thus, what this means for purposes of this blog post is that the MHWL acts as the boundary line for sovereign and privately-owned lands, which would likely be used in a situation where a dispute arises as to the boundary of the sovereign land and the land subject to private ownership based on documents like surveys, maps, and deeds.

The importance of determining whether the water or land thereunder is sovereign is to avoid a meritless claim where the landowner has no ownership interest, but the landowner may have riparian rights. Note, an individual may have a cause of action with respect to a violation or deprivation of their riparian rights, but those claims will not be discussed in this blog.

As implicated by the difference in navigable and non-navigable waters, non-navigable waters are subject to private ownership. The boundary disputes that arise between two private owners are dealt with by analyzing the surveys, which rely upon metes and bounds, monuments, and locatable markers, as well as water levels. Non-navigable waters typically include small lakes and ponds. For example, in determining whether a waterbody is navigable, where an un-meandered lake or pond was less than 120 acres, one case found that given the size of the body of water, the water was not navigable. See Odom v. Deltona Corp., 341 So. 2d 977 (Fla. 1976) (“notice of navigability” concept did not apply to small non-meandered lakes).

A member of the public has no right to bathe, navigate, boat, or fish in a privately owned non-navigable waters. This is different from navigable waters in which the public maintains riparian rights for the purposes of navigating, boating, fishing, and other recreational uses. Further, an owner of lands that lie contiguous to or beneath a portion of another’s man-made non-navigable lake has no right to the beneficial use of the entire lake merely by virtue of the fact of ownership of the land, but is restricted to use of those portions of the lake which cover his or her land. Thus, if the property survey shows that the individual’s ownership extends ten feet into the lake, that individual is entitled to use those ten feet, and only those ten feet. Where all the land bordering a non-navigable lake is owned by one person, that single individual is the only party with ownership and use rights in the lake. Again, significantly different than a navigable lake. At times, these issues may bring up a claim for an easement, which can be determined by the intent of the parties at the time the alleged use rights were created.

Other common issues that arise with regard to ownership and use rights of water are the changes of the land or shoreline, due to accretion, reliction, avulsion, erosion, and artificial manipulation. As a quick guide to understanding, it is important to get the gist of what these terms mean. Accretion is a change in landform that usually occurs when there is a deposit of soil, clay, or other material, which causes a buildup that effectively changes the landform. Reliction is an increase of upland area due to a lowering of water level by natural causes or by state action. DNR v. Contemporary Land Sales, Inc., 400 So. 2d 488 (Fla. 5th DCA 1981). Avulsion is a sudden change in landform, which is treated different than accretion or reliction. Erosion is similar to avulsion in its effects but rather than a sudden change, it is a gradual change in the land. Artificial manipulation is the changing of a shoreline by adding jetties, rocks, or some type of fill.

The disputes that involve the doctrine of accretion arise because the uplands owner can enlarge his or her title to land. The landowner has a right to the benefit of accretion when there is an issue between the riparian owner and state because the land added to his or her property was solely by a process of nature. The determination of what extent of land was formed by accretion is difficult and oftentimes leaves courts to rely upon equitable principles instead of plats. Where there is reliction, if the land was increased by the natural lowering of water, the landowner is entitled to those lands. However, if the water was lowered by some artificial means by the state, the lands remain sovereign lands.

Avulsion and erosion are treated separate and distinct from accretion or reliction. Both actions are treated the same in that any land taken away by erosion or avulsion essentially reverts back to sovereign (so the landowner loses this land) and any land that is added by avulsion also becomes state land. Municipal Liquidators, Inc. v. Tench, 153 So. 2d 728 (Fla. 2d DCA 1963).

Apart from the actions mentioned above that may alter the makeup or size of the land, the boundary and ownership interest of shorelines generally follows the changing shoreline, moving with the fluctuating water’s edge. For example, boundaries accompanied by natural land formation, such as new island formations, generally follow the owner’s rights of the bed of water from which the island forms. On the other hand, land eroded away or permanently inundated (flooded over) belongs to the owner of the water or seabed (usually the State). Land detached from a natural bank or waterway remains the property of the landowner at the time of land detachment.

In sum, the determination of whether you own the water you live on is fact specific. If the body of water is sovereign, you do not have any ownership interest, but you may have riparian rights to swim, boat, or utilize the water for some other recreational means. If the body of water is privately owned, you may have to look at your survey to see if you own a portion of the water or if you own none at all, which would then preclude use rights without an easement.