Tidal Boundary and the Bulkhead
A waterfront lot on the Indian River in Sussex County is described in a 1954 deed as bounded 'to the mean high water of the Indian River.' The 1954 subdivision plat shows a bulkhead line 18 ft channelward of the present bulkhead. The present mean high water is about 18 ft landward of the bulkhead, and the owner has placed fill behind the bulkhead. The owner wants a survey extending the lot to the bulkhead to support a dock expansion and a future sale, saying 'the plat says bulkhead.' Your field evidence includes old bulkhead remnants, a 1968 aerial showing marsh, and recent fill. DNREC has not been contacted.
1. What boundary principle applies, and how do you evaluate the bulkhead and fill?
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The deed boundary is mean high water, which is generally an ambulatory boundary that moves with gradual erosion or accretion. A bulkhead line on a plat is not automatically the legal boundary, especially if the deed calls for mean high water. You need to determine whether the change between the bulkhead and present mean high water resulted from gradual erosion, avulsion, or artificial fill. Fill placed by the upland owner does not ordinarily extend the upland boundary into public trust submerged land. The old bulkhead remnants and the 1968 aerial are evidence of the former condition; the recent fill is evidence of artificial change. Before extending the lot to the bulkhead, you should establish the present mean high water by field evidence and evaluate whether the bulkhead was ever legally established as a fixed boundary. This is a title and public-trust question, not just a measurement question.
2. What should the survey plat show and how should you qualify the boundary?
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Show the present mean high water line as you located it, the bulkhead and remnants, the fill area, and the relationship to the deed and plat calls. Do not draw the lot boundary to the bulkhead merely because the owner wants it there. If the location of mean high water is uncertain, show the evidence and state the uncertainty rather than presenting a false precision. The plat should note that the water boundary is ambulatory and that the upland limit may be affected by erosion, accretion, avulsion, or artificial fill. If you show a bulkhead line for reference, label it as a reference line, not as the boundary. Qualify the area statement so it is clear whether the area is to mean high water or to the bulkhead. The owner may need legal advice and a state review before relying on either line.
3. How should you advise the owner and coordinate with the state?
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Tell the owner that the survey can locate physical evidence, but it cannot settle ownership of tidal land or authorize a dock. Recommend that the owner consult an attorney and contact DNREC before expanding the dock or selling the lot on the assumption that the bulkhead is the boundary. Provide the state with your field evidence if requested, and avoid certifying that the filled area is private upland. If the owner insists on a boundary to the bulkhead, explain in writing why you will not do that without legal authority. A dock permit may depend on the location of the mean high water and the public trust boundary, so an inaccurate survey could create permit and title problems. Keep the communication factual and refer the legal questions to counsel.