Received this little tidbit via email from a local planning official yesterday. I would like to hear your comments.
The State of North Carolina owns all land below the mean high water line, except provided for by NCGS 113-205 and -206. Many, many plats erroneously indicate parcels that extend out into the Atlantic Ocean, the Intracoastal, or other bodies of water. Some of you can imagine the implications of this problem (folks thinking that they own submerged land, when in fact, they do not; lots improperly subdivided and not meeting the minimum dimensional requirements; etc.)
Any development plats submitted to me, where the boundary lines extend past the mean high water line will be placed on hold, requiring proof from chain of title to a recorded declaration of submerged land, pursuant to NCGS 113-205 and -206.
Makes sense to me. You can not use land to make up area of a lot, if you do not own the land.
The Supreme Court decided this case in 1988.
PHILLIPS PETROLEUM CO. ET AL
v.
MISSISSIPPI ET AL.
No. 8
Supr
Argu
(1988)
Does avulsion appear in the law?
NC has laws regarding what a surveyor must show on his plat, one of the problems I see with this is that we are required to show title lines where they differ from actual possession lines, so should I have a deed that crosses the water, I am required to show it. we are also not supposed to make a title judgement, so we are not even supposed to highlight one and dash the other (of course this is absurd) but I believe this is where this official is seeing lines beyond MHW. another issue is the town has not established MHW and really has no basis for determining what goes on a survey plat. Of course the town can say what areas need to be shown for development purposes and require it to MHW but I would think they would need to establish MHW first or accept the surveyors judgement. Finally, a local government official shouldnt really interject themselves into a very litigous area, basically requiring a landowner to file suit to quiet title.
We deal with this issue all the time here concerning tidal mhw, recently I was informed that the local platting authority is extending this to any submerged lands. I enquired to what that meant and was told any land under water will not be used in sq ft calculations for planning or subdivision. They even went as far as to include any lands with an access easement and all lands in the flag portion of a flagstem lot. So now we must topo all creeks ponds etc and calc area. The funny part about this is I immediately went down to the tax assessor’s office and asked if they needed this info for taxes. Why? They asked, landowners pay taxes on the total sq ft of their property!
As far as MHW is concerned, it is easily established on the beach but gets much more complicated along rivers, do you stop at salt or do you consider backwater effects or do you delineate a "breaking" point - a physical location on a river where mean tide has been determined not to effect past that point?
All valid considerations depending on situation.
My state claims ownership to all lands below mhw, but many private lots extend into these lands due to avulsive acts of nature. Most notably the 1964 earthquake that raised and lowered our shoreline by several feet depending on where you are.
Your planner may be quoting a NC law that generally covers the subject, I run into this often among planners and their perceived knowledge of land law and surveying. I often have had to stand my ground concerning my knowledge of some of these subjects to protect the rights of the landowners in my area.
So when you guys have a big storm out on the banks and you have overwash and situations where property is eroded below mhw than the landowner instantly loses that land to the state of NC?
> NC has laws regarding what a surveyor must show on his plat, one of the problems I see with this is that we are required to show title lines where they differ from actual possession lines, so should I have a deed that crosses the water, I am required to show it.
There seems to be some misunderstanding with the above statement. The MHW is the extent of the title. The planner is correct. You shouldn't fall short of the line or extend beyond it. It is a migratory boundary found in place on the day of the survey. It is expected that the dimensions in the deed may fall short or extend beyond the line, however, the title line (the MHW) is the line to depict. Simply state the record and measured lengths to the boundary on your map. There is no reason to indicate lines on the map which don't exist.
>We are also not supposed to make a title judgement, so we are not even supposed to highlight one and dash the other (of course this is absurd) but I believe this is where this official is seeing lines beyond MHW.
Yep. That's a real problem that has gotten way out of hand!
>Another issue is the town has not established MHW and really has no basis for determining what goes on a survey plat. Of course the town can say what areas need to be shown for development purposes and require it to MHW but I would think they would need to establish MHW first or accept the surveyors judgement.
The town has no authority to determine the MHW. The courts have decided the law governing how the MHW is to be determined. They've given the job of applying the law to the surveyor based upon an analysis of the evidence in accordance with the law.
>Finally, a local government official shouldnt really interject themselves into a very litigous area, basically requiring a landowner to file suit to quiet title.
The owner would have no basis of a suit to quiet title if the claim extends beyond the MHW boundary. That's the limit of his title. That's the limit that should be shown on the plat.
JBS
JBS,
There are actually cases where title to lands in NC go beyond MHW. there are also statutes laying out the procedure to quiet the title in these cases. There are also cases where parcels cross the intra-coastal waterway. To everything there is an exception. Personally, I dont extend lines in this manner (probably to my own peril with the board) but this is a fairly standard practice. The town official told me that I could have CAMA could stake the MHW line, to which I replied that she was confusing normal high and mean high water lines.
Bear, yes, according to these officials. I am not overly concerned with it as generally these sort of thing work themselves out in the wash. I believe I may go so far as to suggest I will be mass mailing all the tax parcels that i see extending out into the water and offer my services in getting their areas reduced to save on taxes. This could cause a huge loss in revenue for the town.
