Is That My Dirt? Riparian Rights, Erosion, Avulsion, and Owning Land by Rivers and Streams
After experiencing Hurricanes Fran and Floyd, like many others, I felt we would never see that much rain again at one time. I was mistaken. The sea of water Hurricane Matthew brought to eastern North Carolina is hard to comprehend, but I will say I have a new respect for Noah’s Ark. All of the water brought many questions about erosion and rights, so I thought now is a perfect time to write about Riparian Rights and… who owns the dirt.
Riparian rights are the rights of the people that own land adjacent to rivers and streams. Littoral rights are the rights of the people that own land adjacent to lakes and oceans. For the sake of this writing, I am calling everything riparian rights since the affect is generally the same no matter against which body of water an owner's land sits.
Bodies of water are constantly flowing and changing - whether it is the flow of a stream, rainwater collecting in a lake, or the tides of the ocean. As the water flows, changes are happening to the land beneath and surrounding the water as well. Some of these changes can take years and years to notice, other changes happen suddenly. The law may treat these changes differently when it comes to the rights of the affected land owners. To make things easy, let's put these changes into 2 categories: (1) a sudden change like that caused by a flood or hurricane and (2) a constant, gradual taking or giving of soil from or to a riparian owner.
A noticeable sudden gain or loss of land like that caused by a hurricane or a flood is called an avulsion. In this situation, there is no change in legal title. The riparian owner still owns the land which was owned prior to the flood or hurricane. Though you never want to be in the middle of a flood or hurricane, at least you can claim your property after the waters recede.
A gradual taking or adding of soil is a little more detailed. The term we all are familiar with is erosion, which is defined by Webster’s Real Estate Law In North Carolina, as the loss of soil by running water or by the currents or tides of the ocean. If a creek or stream erodes away a riparian owner’s land, the soil swept downstream is lost as to that riparian owner upstream. Accretion is the increase in soil an owner downstream may obtain over time. The solid deposit of soil which has now created an increase in dry soil is the property of the riparian owner downstream. The accretion has now adjusted the boundary line of the downstream owner of the deposited soil, and they may have a bigger parcel of land.
Another form of increasing a riparian owners property is a process called reliction. Reliction is the gradual increase of land over time by a body of water receding. The key is that the receding water has to be permanent. Tidal waters receding would not create ownership at low tide since the soil will be submerged at high tide.
Overtime you may end up with a change in your boundary line if your property abuts a body of water. This should be an important consideration when buying waterfront property. A potential buyer should make a physical inspection of the subject water front property and contact a professional with any questions.
Published by Christopher T. Salyer on November 28, 2016