Riparian Rights and Adverse Possession

January 15, 2008

Mr. Lochner's practice is maritime in nature, however, over the years many of his maritime clients have found that they also owned waterfront property and sought representation on these issues. The staff at boatinglaw.com handled many such issues wherein there were allegations that a pier was encroaching on the riparian rights of another.  Since many, piers on the Chesapeake and its tributaries were built without formal lot surveys, it is a frequent occurrence that a pier is built at an angle that crosses over the lot lines between two lots.  It also frequently occurs that later additions to a pier (often unpermitted additions) stretch a pier into a place that it should not go. 

Normally in boundary disputes if a structure is built on another’s land, and 20 years passes, title to the land under the structure can change hands through the doctrine of adverse possession.  In Maryland, adverse possession allows one to take land owned by another if one holds the land of another for the period of 20 years. (NOTE: many states have a shorter period for adverse possession – 10 years is not uncommon – so do not delay if you have a dispute or concern).  The “possession must be actual, open, notorious, exclusive, hostile, under claim of title or ownership, and continuous or uninterrupted.”  A typical case for adverse possession involves fencing in a part of a lot and claiming title to it for the 20 year period.  There are many variables, but this sort of claim is likely to be successful.

In pier cases, however, the analysis is more difficult.  When clients bring matters to our attention, it is not unusual that it be unknown when the pier or the extension was built, or that it have been built more than 20 years prior to our involvement.  If it is more than 20 years, we are asked whether adverse possession applies, but no Maryland case has ever directly decided the issue.  In a recent case, boatinglaw.com staff argued at trial that adverse possession did not apply for two reasons.  First, the land under the pier in dispute was land under water.  Land under water is owned by the State of Maryland, and it cannot be taken by adverse possession.  Second, since our goal in the case was to preserve the space in which to build a future pier, we argued that this right was “incorporeal” (ie not land), and therefore could not be taken by adverse possession.  The trial court made its decision on other issues, so we did not get a specific finding on these arguments. 

On January 10, 2008, however, the Court of Appeals issued a decision in the Pines v. White matter. (Mr. Lochner tried the case below and argued before the Court of Special Appeals where Mr. Lochner's client was the only one to win on appeal and be remanded for further findings consistent with the opinion, therefore, Mr. Lochner and his client could not argue their issues, along with the other defendants at the Court of Appeals level.)  This was a case involving a dispute between property owners and the community association in Pines on the Severn over control and ownership of the piers in that neighborhood.  The Court of Appeals, however, did specifically look at the question of whether riparian rights can be taken through adverse possession – unfortunately, it did not provide the answer.  In a footnote, it said

A question thus exists as to whether riparian rights can even be lost under the theory of adverse possession or prescription. We note that there are conflicting cases in other jurisdictions. We have never decided the issue. As the water level rises and the mean high tide mark advances landward, new waterfront properties come into being to which riparian rights become appurtenant. If water levels were to fall, the mean high tide mark would move channelward out into the waters, eventually moving past the area of riparian rights previously claimed by adverse possession. As only riparian rights riparian rights would have been claimed by adverse possession (as in the present case), i.e., the right of access to water, and no fast land is claimed, how would title to the new land created channelward of the area where riparian rights have been claimed, be established? Considering the unique nature of riparian rights, it may be doubtful whether they can be obtained under the theory of adverse possession or prescription. How can a property right which by its very nature must be attached to fast land, be severed from it? How can an unattached riparian right exist-ever? In light of the fact that the lower court and the Court of Special Appeals have found and affirmed that, in any event, the requirements of adverse possession have not been met in this case, and we agree, we need not resolve that issue in this case. We expressly leave it for another time.