Littoral Rights

[Newtons_Apple]

My question involves real estate located in the State of: Maine

I am a Land Surveyor working in Maine, and was unsure which forum to post this question in. Anyway, here goes:

Our client wishes to build a pier on his waterfront property. In order to obtain a permit, the Town requires the riparian lines be shown on the plan. The problem is, the clients deed calls "to the shore of the river, thence along the shore, etc."

Here in Maine, we interpret "to the shore" to mean to the high water mark. There is no mention in the face deed, or in the chain back to 1840, of shore and flats rights. In the description of the property from 1816, the description reads: "thence south nine degrees west four rods to the shore of said Cove, thence easterly, southerly, & westerly as the shore of said Cove lieth to the bounds first mentioned, to contain forty acres more or less, within the bounds aforesaid, with the appurtenances thereof."

Perhaps I'm trouncing over lawyers terrain here, but does the underlined language infer the intent to grant shores and flats? I've seen that language plenty of times tied to shore and flats rights, as well as a myriad of other access and usage rights. It feels like a stretch, which is why I'm asking people here what they think of it.

We have not yet gone to the Mass State Archives, but this would be the next step to try to find who actually owns the shores and flats. If no mention in the chain is ever made of the shores and flats, who then owns them?

This is mostly an academic question, as the Town doesn't actually care who owns the flats. They will still grant a permit to build a pier, as long as they can see the lines on the plan. So we've come up with a workaround. The parcel to the north specifies it's riparian line as the same direction as it's upland bound. We are showing that riparian line based on that description. The parcel to the south does not specify a direction, but does include shores and flats in the description. So for the south parcel, we will have to employ the colonial method to ascertain that riparian line.

Thanks for reading, and thanks in advance for your response.

[Mr. Knowitall]

The determination of riparian rights based upon centuries-old transactions is not something we can do off-the-cuff based on a few paragraphs of history in an online forum. Even if we could determine what riparian rights existed back in 1816, it would require additional research to find out how natural and man-made changes in the shore line, as well as subsequent law, subsequent transactions, and other factors we might not yet have contemplated (such as, if the body of water contains a border with Canada, international treaties) could affect the present status of those rights.

You can see whether there are any property law resources at the county law library, a law school library, or perhaps in Google Scholar or some other online resource, that go into these issues for Maine. I doubt you're going to find any answers quickly, and I would not be surprised if any answers you find leave you with considerable ambiguity or prove dependent upon what (if anything) you turn up in relation to the ownership of the shores and flats.

[LandSurveyor]

I would recommend that you look for Maine Riparian Boundaries and Rights by Knud Hermansen and the Maine Bar Association (2007).

It will probably be the authoritative text on the subject. You might be able to get it from the University of Maine Law School.

Good Luck!

[eapls2708]

"with appurtenances thereof" without any specific reference in the deed or the chain of title preceding that deed may be referring simply to the buildings and other improvements upon the land. It would not be prudent to presume that the rights to shore and flats (ie tidelands), or any other rights for that matter are appurtenant to the upland without either that presumption being somewhere within ME law or without a specific grant of such rights in the chain of title.

Also be certain of the normal definition of the upland boundary. Is it the "High Water Mark" or the "Ordinary High Water Mark". There is often a difference which can be significant. The presumption may be codified in the ME statutes or it might be found in case law. Littoral boundaries can be a lot more complicated than simply locating a scour line. I agree with the others that this is a good opportunity to educate yourself on the subject. Knud, having taught at the University of Maine for several years would be the logical source to start with.