Thoughts..........What Makes a lot littoral with littoral rights?

Thats the wrong ocean and State for me to make the call. That being said, Im unaware of any statute or doctrine that extends rights without any written or physical evidence...

I would be more than skeptical. I would say with no call in the deed (or in the deed history) for the shoreline, no plan to show the shoreline as a bound, and no other evidence to support the claim that their boundary is the shoreline, all they have is a specious argument, and a judge would probably rule against them. Given what facts you posted, all they have is wishful thinking.

Generally, if the lots were waterfront lots when the lost & unrecorded subdivision was made, then the courses along the waterfront would have been considered meander lines whether or not they were actually identified as such. In which case, the accretions would attach to the lots.

The exceptions are if there had been a clearly expressed reservation of some strip along the shore, or, and this is what you will want to research, if there had been a previous separate grant or dedication of the beach.

The town doesn't get to claim land simply because the assessor's maps don't indicate any specific ownership. I don't know which State you are in, so don't know if private ownership goes to high water, low water as you indicate, or some other line. I know that it can vary depending not only on the State, but also on the original source of base title along the Atlantic (i.e. Some colonial era grants from European monarchs might include tidelands out to some distance from shore).

The town probably has jurisdiction over the beaches which are public by virtue of the Public Trust Doctrine. That means that the underlying fee might be public or private (which is a separate title question), but the public has the right to use the beach up to the ordinary high water mark. The origin of the right and underlying principle is different, but you can think of it as being similar to a road right-of-way. The landowner adjoining a RW in most cases has fee ownership to centerline, but the public's right to use the area within the RW for roadway & related purposes limits the fee owner's rights of use coincident with ownership.

The Public Trust works similarly. The fee owner may own to the OHWM, to the LWM, or possibly beyond, but can't make use of that property in any way that inhibits the public's right to use the area up to the OHWM for passage, fishing, navigation, swimming, and activities incidental to the basic Public Trust usages.

Again, look for something in the title history that clearly and expressly shows the intent to separate the littoral ownership/rights from the lots. If you can't find any, challenge the town to produce it or to produce the legal basis by which they claim ownership. Most likely, when the dust settles, it is most likely that town bureaucrats are confusing jurisdiction over public beaches by virtue of the Public Trust Doctrine with the concept of fee title. They are separate yet somewhat related questions.

With no call to ocean/shore/sea as the boundary, I'd think that the called for bounds are the boundary. I've seen examples where a strip between the lots and a water body was left, either retained by the owners or kept for communal use.

I would examine historical aerial photographs to see if I could identify the water location in the past...

and the title to the surrounding properties. If they extend to the water, the intent here may be the same.

Jim in AZ, post: 429606, member: 249 wrote: I would examine historical aerial photographs to see if I could identify the water location in the past...

We used to the Soil Service aerials in Maine to see progressions...

JPH, post: 429605, member: 6636 wrote: With no call to ocean/shore/sea as the boundary, I'd think that the called for bounds are the boundary. I've seen examples where a strip between the lots and a water body was left, either retained by the owners or kept for communal use.

This is a common misconception, but the courts have generally ruled that a boundary that appears to be waterfront at the time of its creation is presumed to have been intended to have been bound by the water boundary and that any courses described or shown on a map are considered to be meander lines, whether specifically said to be meanders or not.

The exceptions, generally (check your State's case law) must be very specific and very express. That is, the intent to separate the lands from the water boundary must be crystal clear. That intent cannot be implied, and it cannot be inferred on the basis that the water boundary was not specifically mentioned.

eapls2708, post: 429640, member: 589 wrote: This is a common misconception, but the courts have generally ruled that a boundary that appears to be waterfront at the time of its creation is presumed to have been intended to have been bound by the water boundary and that any courses described or shown on a map are considered to be meander lines, whether specifically said to be meanders or not.

The exceptions, generally (check your State's case law) must be very specific and very express. That is, the intent to separate the lands from the water boundary must be crystal clear. That intent cannot be implied, and it cannot be inferred on the basis that the water boundary was not specifically mentioned.

Yes, but we have not been presented with any evidence that the description ever was close to the water

Who (or what) is the call for the easterly abutter (Is the Ocean to the east?)? What state are you talking about, and what does the deed for the property in between the locus and the ocean call for?

I agree with where EAP is going with this. Is there evidence that the space between the property and the water is owned by anyone (or any entity) else? I also like the idea of looking at other descriptions of other adjoining lots. If they reference the same unrecorded subdivision plat and/or also call to the water line, that could be evidence that the subdivision was along the water line. Calling to the plat "brings" the plat into the description, and it would help if you could get a feel for where it showed the line. I wouldn't be surprised if a copy of that plat is tucked away in someone's property abstract down in their basement.

My first instinct is that they own to the waterline giving no further evidence to the contrary.

aliquot, post: 429686, member: 2486 wrote: Yes, but we have not been presented with any evidence that the description ever was close to the water

Yes. It needs to be established first that the lots or parent parcel were waterfront when created.

If the parent parcel was waterfront, subdivision of the parent parcel was made based upon some previous record map or description, and there had been accretion between the time that map or description of the parent parcel had been made, the same presumptions about waterfront title to the lots that I described in earlier posts would still apply. That is, the parent parcel was littoral, so absent a clearly expressed intent by that grantor to have reserved the accretions as a separate parcel having the littoral rights, or a previous grant of that accreted area to another party, the presumption is that the grantor had intended to divest himself of all title when he subdivided and upon selling the lots. The littoral nature of the parent parcel would be presumed to have passed to the lots along the boundary adjacent to the Ocean.

Of course, being the presumption, that is rebuttable. I've explained what's required to rebut the presumption in earlier posts.

aliquot, post: 429686, member: 2486 wrote: Yes, but we have not been presented with any evidence that the description ever was close to the water

I don't think the OP said anything of the sort, that the,"...boundary that appears to be waterfront at the time of its creation...."

Unless I'm mistaken, he's saying that the current owners are claiming that, but without the plan or other evidence, we have no idea, in this situation. From what we've been given for information here, the creating deed here doesn't call for a water boundary, and there's no mention of it at all.

eapls2708, post: 429640, member: 589 wrote: This is a common misconception, but the courts have generally ruled that a boundary that appears to be waterfront at the time of its creation is presumed to have been intended to have been bound by the water boundary and that any courses described or shown on a map are considered to be meander lines, whether specifically said to be meanders or not.

The exceptions, generally (check your State's case law) must be very specific and very express. That is, the intent to separate the lands from the water boundary must be crystal clear. That intent cannot be implied, and it cannot be inferred on the basis that the water boundary was not specifically mentioned.

I don't think the OP said anything of the sort, that the,"...boundary that appears to be waterfront at the time of its creation...."

Unless I'm mistaken, he's saying that the current owners are claiming that, but without the plan or other evidence, we have no idea, in this situation. From what we've been given for information here, the creating deed here doesn't call for a water boundary, and there's no mention of it at all.

OK. Let's go back to the beginning.

FACTS Presented
1. Lots described M&B with reference to lost & unrecorded plat. Lot owners claim accretions to present day water boundary.
2. Town claims accretions. No mention of their source of title to support claim.

QUESTIONS that will lead to title determination (who has claim based on written title and principles of littoral ownership)
3. 1st question to be answered: Was the parent parcel (the one subdivided to create the lots) a littoral parcel?
4. 2nd question to be answered: Is there any title history of lands lying between the lots and the water boundary?

One might be able to definitively answer those questions with just a day or research, but not likely. Finding those answers may take a very long time, but that doesn't mean that you can't make any progress in your analysis.

Under many circumstances, the law permits one to proceed on PRESUMPTIONS. (see end of post for explanation if you're not sure what that means)
5. Leaving open the possibility that further research might uncover such separate title, but so that you don't get professional vapor lock preventing you from making any progress, since there is no mention of a separate title to lands between the lots and the water boundary, proceed on the presumption that there is not.

6. There being no separate title between the lots and the water boundary, it must be presumed that the parent parcel of the lots, being the parcel nearest to the water boundary, was a littoral parcel.
7. Without an express, crystal clear reservation of a portion of the parent parcel between the lots created from it and the water boundary or a separate, previous conveyance by the owner of the parent parcel to a portion lying between the created lots and the water boundary, it must be presumed that the owner of the parent parcel intended to divest himself of all lands and rights associated with the parent parcel when the lots were conveyed.
8. The littoral nature of the parent parcel passes to the lots created from it.

Conclusion if Presumptions not rebutted by research?
9. If all those presumptions stand after exhaustive research, the lot owners gain the accretions.

What if the Presumptions are rebutted?
10. If more exhaustive research turns up valid title to the lands between the lots and the water boundary and that title is separate from the title of the lots, then the presumptions are overcome. The lot owners do not own the accretions.
11. Once you've determined that your client's don't have a valid claim based on written title and the principles of littoral ownership, dump the whole mess into the Town's hands and let them sort it out. Watch for the final resolution from a distance.

To properly comprehend any part of this or my previous posts, you need to understand what a "presumption" is.

A presumption is an assumption of particular facts that the law directs us to make based upon the existence of certain facts, or the non-existence of certain facts. The presumptive fact (the one you are assuming based on other known facts) is the one more likely to exist given what's already known. It doesn't necessarily rule out the possibility of proving different conclusions, but it recognizes other conclusions as less likely until and unless proven otherwise.

Some presumptions are conclusive, meaning that the law will not recognize any facts that show the presumption to be incorrect.

Most presumptions are rebuttable, meaning the law leaves open the ability to show the presumption to be incorrect by showing that facts previously thought to not exist (or for which there was no evidence of their existence), do in fact exist, or that a fact previously thought to have been established, turns out to be incorrect because it was based on a mistake, misidentification, or fraud.

In this case, the presumptions are rebuttable and the answers will be found in 1) the title history of the lands at that location, 2) statutory law, and 3) case law for the jurisdiction where the lands are located.

eapls2708, post: 429819, member: 589 wrote: FACTS Presented
1. Lots described M&B with reference to lost & unrecorded plat. Lot owners claim accretions to present day water boundary.
2. Town claims accretions. No mention of their source of title to support claim.

I dispute your fact #2 here. I don't think that it's been established that there even was any accretion, just that the private owner is claiming that it's happened, and owns it.

I have no idea whether town has a valid claim to the "public beach", and their source of title isn't part of the given information above.

eapls2708, post: 429819, member: 589 wrote: 7. Without an express, crystal clear reservation of a portion of the parent parcel between the lots created from it and the water boundary or a separate, previous conveyance by the owner of the parent parcel to a portion lying between the created lots and the water boundary, it must be presumed that the owner of the parent parcel intended to divest himself of all lands and rights associated with the parent parcel when the lots were conveyed.

I guess I'm missing this one. If I own land on the ocean, and want to cut out a non-frontage lot, that's 600' from the ocean, and I even have it surveyed and a plan drawn up, showing that it's nowhere near the ocean, and the deed description does not describe it as fronting on the ocean, is it really necessary that I insert a note in the deed that I'm not selling him land that fronts on the ocean?

We obviously don't have all of the information here, including the plan, deeds of abutters and town, or a grantee search of the original owner/subdivider. Hey, maybe his heirs now own the 600' of land and the beach.

Have you see the unrecorded subdivision? In NY by the coast we have a few but there are copies floating around in surveyors offices. Make some calls if you haven't.

600' is an awful lot. I can see if the deed is 100 deep with a jagged meets rear line and it's 112' currently to the water...but 600'?

When was the lot created? As someone said, historical imagery. You can find it online at Google maps. I think they have back to like the 1940s. Blurry, yes. But not blurry enough to not see 600'....

Sent from my SM-G955U using Tapatalk

Here's an interesting article, probably not applicable to the original question, but interesting none the less. 😎

http://content.time.com/time/nation/article/0,8599,1998905,00.html

JPH, post: 429918, member: 6636 wrote: I dispute your fact #2 here. I don't think that it's been established that there even was any accretion, just that the private owner is claiming that it's happened, and owns it.

I have no idea whether town has a valid claim to the "public beach", and their source of title isn't part of the given information above.

From the OP: "Lot owners are claiming that the 600 feet of additional land is the product of accretion. The other party in this dispute is the town and is the protector of the public beach."

That doesn't establish that there actually was accretion, but the lot owners asserts that there was as a critical part of his claim.

The Town claims it as "protector of the public beach", which implies that the beach is either 600' wide at this point, or that the beach was once known to be much closer to, if not at the Lot in this case, meaning accretions.

I have a logical basis for the facts I'm assuming to answer the question. I'm confused why you seem to think that the existence of a deed for a 600' wide swath along the shore frontage exists when there was no mention of one, no mention of a claim by the Town based on written title, and OP comments that suggest that both sides seem to at least partially base their claim on a stipulation that some or all of the disputed area is a result of accretions. Which leads me to....

... the initial questions that must be answered. First and foremost, were the lots, when created, or the parent parcel of the subdivision littoral?

If the answer is "no", then you need proceed no further. The Lot owner would have no claim based on the principles of littoral ownership.

JPH, post: 429918, member: 6636 wrote: I guess I'm missing this one. If I own land on the ocean, and want to cut out a non-frontage lot, that's 600' from the ocean, and I even have it surveyed and a plan drawn up, showing that it's nowhere near the ocean, and the deed description does not describe it as fronting on the ocean, is it really necessary that I insert a note in the deed that I'm not selling him land that fronts on the ocean?

We obviously don't have all of the information here, including the plan, deeds of abutters and town, or a grantee search of the original owner/subdivider. Hey, maybe his heirs now own the 600' of land and the beach.

You're missing it because rather than following the thread, and my posts as a logical progression of presumptions and questions that need to be answered to determine whether the presumptions stand or are rebutted by the facts, you are skipping around and cheery picking statements and throwing in "what if" facts created without any supporting info or solid presumptions based on what we were given in order to shoot down the argument you seem to think I'm making.

I don't have a dog in this hunt, I don't care who owns the lands, whether or not they are the product of accretion while you seem to be invested in the conclusion that there is no way the Lot owners can possibly have a valid claim. The actual argument we seem to be having is...

Me: "These are the hypotheses to work from, and this is the research you need to do to verify whether each is true or false. If each proves to be true, or isn't proven false, the Lot owner would seem to have better claim. If any are proven false, the Lot owner has no claim based on written title and littoral principles and the Town may have a valid claim."

You: "Deeds don't mention the ocean, so just assume that the land was never waterfront. It doesn't matter that the Lot owner believes they have a claim on accretions. No point in even looking into the possibility. Doesn't matter whether or not Town has a basis in written title, they serve 'the public', and since we're giving no credence to the Lot owner's belief that the lands were accreted, just assume that the Town owns it. No research needed. Tell client to pound sand and move on to easier jobs."

I'm not sure what you are basing your advice on, but boundaries, primarily water boundaries is the totality of my job. After nearly 30 years of surveying, I knew the basics of water boundaries pretty well, but after 9 years on this job, I've learned more about water boundaries than I ever thought existed. I'm not "the expert" in the nation on boundaries or on water boundaries, but I know plenty enough to be able to suggest that this is a thread in which you would do well to be trying to do more learning and less arguing.

When and if the State this location is in is given and someone can come along and discuss the law specific to that state, then I will be following and possibly asking questions to learn. I won't be tossing around "what ifs" with no foundation in an attempt to trip up that person to prove how smart I am.

If I read the intent of your posts incorrectly, I apologize. I'm a bit cranky these days, making my patience a bit thin and my normally sweet & cuddly disposition a bit more ragged and bitter.