Streets and Highway; Effect of Erosion and Accretion on Dedicated Streets

Subject:

Streets and Highway; Effect of Erosion and Accretion on Dedicated Streets

Navigable Waters; Effect of Erosion and Accretion on Dedicated Streets.

Requested By:

Richard L. Stanley Town Attorney Town of Emerald Isle

Question:

When a street which is part of a municipal street system is eroded away by navigable waters and the area that is washed away subsequently builds back up, does the street right-of-way exist in the area which builds back up?

Conclusion:

When a part of a street which is in a municipal street system is gradually eroded or suddenly washed away by navigable waters and the area that was eroded subsequently builds back up, the street right-of-way is still in existence on the area which builds up unless the right-of-way is formally abandoned by the municipality.

The facts supplied by the Town of Emerald Isle are as follows:

1. Inlet Drive lies parallel to the Atlantic Ocean on the west end of Bogue Banks within the Town of Emerald Isle. It is recorded on a subdivision map filed in 1971. At the time the subdivision map was recorded the west end of Inlet Drive terminated shortly before reaching the high water mark on Bogu Inlet.

2. Inlet Drive has been dedicated to and accepted by the Town of Emerald Isle and is included in the Town street system.

3. Beginning in 1975 the east shore of Bogue Inlet experienced considerable erosion. Some of the erosion was gradual but much of it occurred during a "northeaster" in 1977.

4. As a result of this erosion the high water mark of Bogue Inlet moved easterly until it began to eat away Inlet Drive. By the end of the 1977 "northeaster" approximately 1000 feet of Inlet Drive had been washed away by the easterly migration of the waters of Bogue Inlet. During the period from 1975 to 1978 Inlet Drive actually terminated at the high water mark of Bogue Inlet.

5. In 1978 the land on the eastern shore of Bogue Inlet adjacent to Inlet Drive began to build back up in a westerly direction. This accretion of land has resulted in the high water mark moving approximately 500 feet west of the location where the high water mark had previously intersected Inlet Drive.

We take notice of the fact that Bogue Inlet is a navigable body of water. The mean high water mark of Bogue Inlet is the dividing line between privately owned riparian or littoral property and State owned submerged land. Carolina Beach Fishing Pier v. Town of Carolina Beach, 277 N.C.

297. If the high water mark moves landward due to erosion the riparian owner is divested of ownership of the property that was previously above the high water mark and which has become submerged due to erosion. In other words, the property line moves with the high water mark. Carolina Beach Fishing Pier v. Town of Carolina Beach, supra.

Accretion is the natural addition of material to the land of a riparian or littoral owner which causes that to become dry land which was previously below the mean high water mark. State v. Johnson, 278 N.C. 126. When accretion occurs the additional property created vests in the adjacent riparian or littoral owner. Thus the riparian or littoral owner loses land by erosion and gains land by accretion. Carolina Beach Fishing Pier v. Town of Carolina Beach, supra. See also Shalowitz, Shore and Sea Boundaries, Vol. II, § 4423; Powell, Real Property, § 986; Thompson, Real Property, § 2562.

Where a riparian or littoral tract completely disappears by erosion so that the adjoining non-riparian tract becomes adjacent to the water, the new tract becomes riparian and carries with it all riparian rights, including the right to any accretion which thereafter occurs. Carolina Beach Fishing Pier v. Town of Carolina Beach, supra. Shalowitz, supra; Thompson, supra at § 2562.

Under the facts supplied, the Inlet Drive right-of-way became riparian property when erosion caused the high water marker to intersect the boundary of the right-of-way. At this point in time the public street extended to the high water mark thereby enabling Inlet Drive to be used as public access to the waters of Bogue Inlet. Under the theories of accretion previously discussed the owner of Inlet Drive would be entitled to ownership of any accretion which subsequently occurred at the intersection of boundaries of Inlet Drive with the high water mark of Bogue Inlet.

The next question which must be addressed is that of ownership of Inlet Drive. Is the ownership for accretion purposes in the owner of the right-of-way or in the owner of the underlying fee? The information supplied indicates that a right-of-way for street purposes was dedicated to and accepted by the Town of Emerald Isle. The information does not indicate who is the owner of the underlying fee in the street right-of way; however, such a determination need not be made for purposes of this opinion. It is sufficient to say that the right-of-way and the underlying fee are separately owned.

There are no cases in North Carolina which have addressed this legal issue. The decisions of courts in other jurisdictions are almost unanimous in holding that when a right-of-way terminates at the water, the right-of-way is automatically extended across accreted land so that it continues to terminate at the waters edge. Stated differently, it is held that the easement is entitled to the same benefits of accretion as any other riparian land. Horgan v. Town Council, 32 R.I. 528, 80 A.271; State v. Yates, 104 Me. 350, 71 A. 1018; Moore v. Kuljis, 207 So. 2d 1005; Nature Conservency v. Machipango Club Inc., 419 F. Supp. 390; Heise v. Village of Pewaukee, 285

N.W. 2d 859; Smith v. Bruce, 244 S.E. 2d 559. See also 91 A.L.R.2d 884.

It is our view that these cases are soundly based on English common law property principles. The
common law of England is in force in North Carolina to the extent that it has not been altered by
statute or has not become obsolete. State v. Lackey, 271 N.C. 171. Therefore, it is our opinion
that the common law rule enunciated and followed in the above-cited cases is the law in North
Carolina.

This opinion would not be altered by a factual determination that the replacement of the road by
water was a result of avulsion rather than erosion. Avulsion is the sudden and perceptible loss of
riparian property. Avulsion unlike erosion does not normally divest the previous owner of the
property if the area were to subsequently reappear by accretion. Thus, in the case of a loss by
avulsion, the street right-of-way would clearly be reestablished if the are subsequently reappeared
by accretion.

The street in this case has been dedicated to the Town and the Town could abandon the
right-of-way only by the prescribed statutory means. Blowing Rock v. Gregorie, 243 N.C. 364.
Even then the owners of land in the subdivision may have certain rights which cannot be
extinguished without their consent. Blowing Rock v. Gregorie, supra.

Rufus L. Edmisten
Attorney General

William A. Raney, Jr.
Special Deputy Attorney General