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Adverse Possession at the Water's Edge

What is fascinating, if not maddening, about the practice of law is that just when you think you've come across every iteration of facts that can be applied to a legal doctrine or precedent, you run into a scenario that tests-or at least puts a new twist on-a seemingly foregone conclusion.

This is especially true in matters related to adverse possession.

Add in a beachside location, maybe a couple of adjacent roads, and you've got a contentious hot mess. For those that want an "insider's view" to how lawyers initially analyze these kinds of cases when they come into a firm, read on.

Let's lay out some of the law first, or what we "know":

  • Under the Colonial Ordinance of 1641-1647, "a person holding land adjacent to the sea shall hold title to the land out to the low water mark or 100 rods (1,650 feet), whichever is less." Pazolt v. Director of the Div. of Marine Fisheries, 417 Mass. 565, 570 (1994). The land located between the mean high water and mean low water marks is often referred to as the "flats".
  • When construing deeds that convey land adjacent to the ocean or a river (or other tidal waters), there is a presumption that title to the flats follows the title to the adjacent upland area even if it is not expressly so stated in the deed; however, it is just a presumption because . . .
  • . . . an owner of tidal flats and adjoining upland can convey one without the other. See Kane v. Vanzura, 78 Mass. App. Ct. 749, 753-54 (2011) (and cases cited therein). That is, the owner can convey the upland portion to Person A, and the tidal flats separately to Person B. But this kind of separation is not presumed, and instead must be proved (i.e. with a showing of affirmative intent to do so).
  • In some circumstances, successfully proving a claim of adverse possession to an upland area can result in a judgment also includes ownership of adjacent tidal flats. See, e.g., Lebel v. Nelson, 29 Mass. App. Ct. 300 (1990). To reach this conclusion, the Lebel court relied on the conveyancing principles set forth above, specifically finding that the record contained no evidence that at some earlier time the tidal flats bordering on the disputed upland area had been separately conveyed, as well as the fact that no other party actively used the tidal flats.

But let's suppose there is a road or way running along the edge of the upland beach area. Better yet, that there are houses on the other side of the road. What then? Do the owners of those house lots have ownership rights in the road? In the upland beach area? In the tidal flats? And what about the source of those rights--are they solely deeded rights? If any of these rights have been acquired by adverse possession or result from prescriptive use, are they dependent on the nature of what language is set forth in the record title?

Further still, how does the derelict fee statute come into play, if at all? If you remember, the derelict fee statute, M.G.L. c. 183, § 58, provides, inter alia, that the grant of land bounded on a way, whether public or private, shall be construed to include any fee interest of the grantor in such way unless the grantor retains other real estate on the opposite side of such way, in which case, the title conveyed shall be to the center line of such way. Will application of the derelict fee statute effect a severance of upland from the flats where the way is a separating bound? The Kane case answers that question affirmatively reasoning that because the uplands abut a way on one side, and the tidelands abut the way on the other, "the way is considered a bounding monument, and "[a] boundary 'by a way' ... excludes the flats beyond."

How then, does the derelict fee statute apply in a waterfront situation where the basis of rights is adverse possession and the claimant seeks to extend title to the flats under the Colonial Ordinance? The Kane case (which was not an adverse possession case) briefly touches upon this interplay between the Colonial Ordinance and the derelict fee statute. (see footnote 12). Furthermore, what kind of facts would be necessary to meet the elements of adverse possession of the tidelands in those cases where a road or way runs along the upland portion of the land? And of course, we have not even started to discuss the issue of whether the severance of title may give rise to an easement by implication or necessity over the way, even though the underlying fee has passed by operation of the derelict fee statute.

These kinds of questions would just be the tip of the iceberg in such a case. It goes to show why lawyers need to ask so many questions of clients and gather all the relevant information before they can even begin to formulate an analysis about how the law applies. And these are exactly the kinds of tangled knots that keep the practice of law exciting for all these years.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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