Riparian Rights When You Own Land in 联系 with the Water: A Mix of Environmental, Admiralty and State Law - June 2013

By 詹姆斯·T. 朗.

Why do people pay extra for property “on the water”?  Besides the ambience and the view, owning land in contact with the water of a river, 湾, creek or ocean includes valuable riparian property rights.  的 Virginia Supreme Court in 2012 wrote:

的 littoral or riparian nature of property is often a substantial, 如果不是最伟大的, 元素的值. This is true whether the owner uses his access to the sea for navigation, 钓鱼, 洗澡, 或者视图.

Lynnhaven Dunes Condominium Association v. 弗吉尼亚海滩市, 284 Va. 661, 673, 733 S.E.2d 911, 917 (2012).

的se riparian rights are recognized as a property right, the type of property right that  cannot be taken without just compensation, and the right is exercised within the “riparian area” which begins at the mean low water mark at the property and extends into the water body to the “line of navigability”.  泰勒v. 弗吉尼亚联邦, 102 Va. 759， __， 47 s.E. 875, 880 (1904).  的 method to set out the boundaries 的 riparian area is as follows:

measure the length 的 shore and ascertain the portion thereof to which each riparian proprietor is entitled; next measure the length 的 line of navigability, and give to each proprietor the same proportion of it that he is entitled to 的 shore line; and then draw straight lines from the points of division so marked for each proprietor on the line of navigability to the extremities of his lines on the shore. Each proprietor will be entitled to the portion 的 line of navigability thus apportioned to him, and also to the portion 的 flats, 或者在水下着陆, within the lines so drawn from the extremities of his portion 的 said line to the extremities of his part 的 shore.

格v. 福斯特, 94 Va. 650, 652-53, 27 S.E. 493, 494 (1897), 经批准引用于, 卡尔v. 基德, 261 Va. 81, 86, 540 S.E.2d 884, 887 (2001).  的se riparian rights are a specific set of five benefits that accrue to the owner of land adjacent to a navigable river, 湾, 小溪或海洋:

的 right to be and remain a riparian proprietor and to enjoy the natural advantages thereby conferred upon the land by its adjacency to the water.

的 right of access to the water, including a right of way to and from the navigable part.

的 right to build a pier or wharf out to navigable water, subject to any regulations 的 State.

的 right to accretions or alluvium.

[And,] [t]he right to make a reasonable use 的 water as it flows past or laves the land.

泰勒v. 弗吉尼亚联邦, 102 Va. 759, 773, 47 S.E. 875, 880-81 (1904),经批准引用于, 斯科特v. Burwell's Bay Improvement Association, 281 Va. 704, 710, 708 S.E.2d 858, 862 (2011).   

因此, 例如, an adjacent landowner may contest his or her neighbor’s construction of a pier, if the pier encroaches on the landowner’s riparian area, 就像在 卡尔v. 基德, 261 Va. 81, 540 S.E.2d 884 (2001). 

Importantly, the land owner does not own the land beneath the water in the riparian area. Unless the Commonwealth has granted it away[1], title to all “the beds 的 湾s, 河流, creeks and the shores 的 sea within the jurisdiction 的 Commonwealth [is] the property 的 Commonwealth”. 弗吉尼亚法典第28条.2-1200; see also, 43 U.S. Code section 1311 (Submerged Lands Act confirms “title to and ownership 的 lands beneath navigable waters within the boundaries 的 respective States, and the natural resources within such lands and waters . . . vested in and assigned to the respective States”); 马丁五世. Waddell, 41 U.S. 367 (1842) (when the American Revolution took place, the people of each 状态 took title to submerged lands formerly owned by the Crown).

因此, 例如, when the General Assembly granted a lease of 10 acres within Mrs. Taylor’s riparian area on the York River, which lease entitled the lessee to oyster and to install an Artesian well, Taylor’s legal action to eject the lessee was unsuccessful. 泰勒v. 弗吉尼亚联邦, 102 Va. 759, 773, 47 S.E. 875, 880-81 (1904).

这并不意味着, 然而, that the 弗吉尼亚联邦 has unfettered discretion to manage the submerged lands in a manner contrary to the public interest. This is so because the submerged lands are held by the Commonwealth in trust for the public interest, a principle that was established by the U.S. Supreme Court in 1892 after the 伊利诺伊州 conveyed 1,000 acres of submerged land comprising the harbor for the City of Chicago to the Illinois Central Railroad Company. 的 Court repudiated and revoked the conveyance, holding that:

的 控制 的 状态 for the purposes 的 trust can never be lost, except as to such parcels as are used in promoting the interests 的 public therein, or can be disposed of without any substantial impairment 的 public interest in the lands and waters remaining.

*********

的 状态 can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and 控制 of private parties, except in the instance of parcels mentioned for the improvement 的 navigation and use 的 waters, or when parcels can be disposed of without impairment 的 public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation 的 peace. In the administration of government the use of such powers may for a limited period be delegated to a municipality or other body, but there always remains with the 状态 the right to revoke those powers and exercise them in a more direct manner, and one more conformable to its wishes. So with trusts connected with public property, or property of a special character, like lands under navigable waters; they cannot be placed entirely beyond the direction and 控制 的 状态.

Illinois Central Railroad Company v. 伊利诺伊州, 146 U.S. 387, 453-454 (1892).

In addition to meeting its public interest responsibilities when managing its submerged lands, the 弗吉尼亚联邦 must also manage the submerged lands in a manner consistent with the public navigational servitude, which holds that the navigable waters are deemed to the be public property 的 Nation. 的 rule here is that “all riparian interests [are] subject to a dominant public interest in navigation.” U.S. v. 柳河电力公司, 324 U.S. 499, 507, (1945).

在维吉尼亚州, persons wishing to place a vessel or a structure on the submerged lands owned by the Commonwealth, or encroach on those submerged lands, must apply to the Virginia Marine 澳门亚洲博彩平台排名 Commission for a permit covering the proposed activity, with the failure to do so exposing the wrongdoer to criminal prosecution (Class 1 misdemeanor per Va. 法典第28条.2-1203) or civil penalty (up to $25,000 for each day of violation per Va. 法典第28条.2-1213) for the unauthorized trespass or encroachment. VMRC has the jurisdiction and the responsibility to balance the merits 的 proposed activity, the effect on the riparian rights of adjacent landowners, 对导航的影响, the effect on marine and fishery resources, 对潮汐湿地的影响, the effect on water quality and the public interest, all of which is outlined at Title 28.2, Chapter 12 的 Code of Virginia, the regulations 的 VMRC, and the Court precedents.  

Finally, riparian property rights are held by those who own property in contact with the water. 美国.S. Supreme Court and many other Courts follow the rule that property situated near the water, 但没有和它接触, 不符合:

Those rights are incident to riparian ownership. 他们以这样的所有权存在, and pass with the transfer 的 land; and the land must not only be contiguous to the water, 而是与它接触. Proximity, without contact, is insufficient. 的 riparian right attaches to land on the border of navigable water, without any declaration to that effect from the former owner, and its designation in a conveyance by him would be surplusage.

Illinois Central Railroad Company v. 伊利诺伊州, 146 U.S. 387, 445 (1892).