### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Assigned O n Brief J anuary 16, 2002 STACEY J. STANLEY v. DANIEL RING, ET AL 

### . Direct Appeal from the Chancery Court for Obion County No. 21,537 William Michael Maloan, Chancellor

No. W2001-00950-COA-R3-CV - Filed March 20, 2002

This case concerns riparian rig hts to a privately owned la ke in a subdivision in Obion County. The trial court found that

the boundaries of lots abutting the lake extend into the lake, and that the owners of these lots have ripari an righ ts to limited use

of the la ke as re asonable

under the

circumst ances. We modify

in part a nd affir m in part. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified; and Remanded

D AVID R. F ARMER , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W.S., H OLLY K. L ILLARD , J., joined. David L. Hamblen, Union City, Tennessee, for the appellant, Stacey J. Stanley.

Bruce Moss, Union City, Tennessee, for the appellees, Daniel Ring and wife, De on Ring, Jerry Bond and wife, Jackie Bond, Robert Rose and Paul Seger and wife, Georgette Seger.

OPINION

This case co ncerns u se of a pr ivately owned la ke in a subdivis ion by

landowne

rs whose lots abut the lake. The underlying facts in this case are undisputed. I n 1976, Raymond

Clark purchased
a farm in O

bion coun

ty c onsisting

of appro ximately

30 acre s. He built

a home and lake on t

his pr op er ty, and in

1978, developed a subdivision on the eastern and southeastern sides of the lake. The subdivision includes the four lakeside lots at dispute in this case, which Mr. Clark sold to the current owners’ predec essors in

interest

. The subdivisio n plat as r ecorde d in the Reg

iste r ’s Office of Obion County sets out the specific dimensions of each lot as “plus or minus,” and depicts the lots as extending to the water’s edge. The dee ds conve

yin g the lot s do not des c ri be the property by metes and bounds, but by reference to the re corded pl at. The deeds are silent as to use of the lake. Mr. Clark, how ever, testified that the proximity of the lake was a pos itive sell

ing point , and the lot owners (“Defendants”)-2-

testified that the fact that their lots adjoined the lake was a factor in their decision to purchase the property.

In 1980, Mr. Clark sold the remaining acreag e, including the lake, to Mr. La rry Wade. Mr. Wade subsequently sold the property to Ms. Stacey Stanley

in 1994. In June of 1999, Ms. Stanley filed a petition in Obion Country Chancery Courtto quiet tit

le and es tablish

boundary lines of the pr op er ty. Ms. Stanley also soug ht and was granted a temporary restraining order to enjoin the Defendan ts f

rom interfering with a survey of the property

and from harassing or threatening her. Defend ants counter-claimed, asserting the right to use of the lake, and stating that they had enjoyed relative ly free access to the

lake under the prior

owners o f the pro

perty . The sur

vey s subseque

ntly prepared show the lots as now extending two to fourteen feet into the lake. Two survey ors testified that this was probably due to er osion of the banks over the y ears.
The chancellor found that theboundary line of the property should be e stablished using the original Plat as filed by Mr. Clark, without using the “ plus or minus” indications as to distances. He further ordered that the adjoining property owners abutting the lake have rights as riparian owners for the limited

purpose o f fishing

from the b anks of th

eir prop erty

without int

erfer ing with M s. Stacey’sreasona

ble use of the lake. This order was entered “exclusive of the Court finding that a n implied easement exists.” Defendants accept the chanc ellor’s award o f limited r iparian rights and conced e that suc h limits are

reasona ble under the circumstance s. Ms. Stanl ey now appe als. Issues on Appeal The issues on appeal in this case, as we perce ive them, are: (1) Whether the boundaries of Defend ants’ lots extend into the lake or end at the water’s edge.
(2) Whether the Chancellor erred in awarding Defendants limited riparian rights to fish from the banks of their property into the lake. Standard of Review

Our standar d of revi ew of a n onjury

trial is de novo upon the record. See Wright v. City of Knoxville , 898 S.W.2d 177, 181 (Tenn. 1995). There isa presum ption of c orrect

ness as to the trial court’s finding s of fac t, unle ss the pre pondera nce of th e evidence is othe

rwise. T enn. R. Ap

p. P. 13(d). With respect to the trial court’s conclusions on matters of law or on mixed questions of fact and law, howe

ver, our review i s de novo with no pre sumption of correctness. See Bowden v. Ward , 275 S.W.3d 913, 916 (Ten n. 2000); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996); Tenn. R. App. P. 13(d).1 Acc ret ion occ urs when an “area of land is increased by the gradual depo sit of soi l due to the action of a

bound ary river, stre am , lake, p ond or tida l wate r.” 5A Rich ard R . Pow ell, Powell on Real Proper ty Ch. 66 ¶ 717[ 1] (Patri ck J. Rohan ed., 1993). Erosion i s the “proce ss by which land i s graduall y covered by water.” Id.
-3- Establishment of Boundaries

As noted above, the deeds convey ing the lots adjoining the lake refer to the original plat as recorded by M r. Cl ar k f or a d es cr ip ti on of th e p ro pe rt y. This platdepicts the lots as ending at the edge of the lake. The metes and bounds measurements for the boundar ies extending to the lake are depictedas “plus or minus.” The chancellor found that the boundary line of the lake shou ld be established using the

origina l plat rec orded by

Mr. Clark , without u sing the “plusor minus” indications on the distances. Using these distances, the chancellor found that Defendants’ lots now extend into the lake. Appellees argue

that this f inding by the chan cellor isa finding

of fact which must

be upheld unless the preponderance of evidence is otherwise. We disagree. The esta blishment of the boundaries of

Defendants’ property

presents a mixed question of fact and law. The determination of the original boundaries, as presented by the plat, is a question of fact. The de termination of whether Defe ndants own and control property now submerged by

the lake due to natural erosion present s a question of law. Thus, the determination of the current boundary line is a mixed question of fact an d law to wh

ich we a ttach no p

resump tion of

correctness to the

trial cou rt’s find ings. Reading the record as a whole, however, w e believe that the preponderance of the evidenc e support s a conclusion that the original boundaries of Defe ndants’ lots ended at the water’s edge

. As drawn on t he orig inal plat, the bound ary lines extending fr

om the fro nt of Def

endants’ lots to the lak

e clear ly end at the lake edge. The fact that these distance s were measured in terms of “plus or minus,” while all other boundaries were measured in exact distances, supports a conclusion that the distances were never calc ulated exactly, but that

the lots ended at the edge of the lake. Mr. Clark, the original developer of the property , testified that the boundaries of the l ots ended at the water’s ed ge. He

furth er stated that the Defendants’ predec essors in interest never had any ownersh ip rights in the lake itself. The survey or for the Defendants testified that, in his opinion, the original line would have been “dry,” but e

rosion of the bank has resulted in an expansion of the lake onto Defendants’ lots. Read together, the record supports a finding that the water’ s edge constituted the origina

l boundar y of the lots, and that Defendants’ lots did not extend into the lake. Defend ants therefore did not possess any part of the lake bed itself.

The erosion of the bank of the lake such that what was once dry land is now under w ater raises a question of law regarding property owne

rship, in the context of

changing water lines, whe re the water itself defines a property boundary. The

law applicable to this circumstance, in the instance of a navigable waterway , is well-settled. When a property bound ary is det

ermined by a body

of water, and when that body is altered gradually

by erosion or ac cretion, the boundary follows that of the water. 1 See Arka nsas v. Tennessee , 246 U.S. 158, 173 (1917); 25 Tenn. Juris. Water and Watercourses § 17 (1985). “Where a water line is the boundary of a

given lot, that line, no matter2 Although not an i ssue here, it shoul d be noted th at such is no t the case when the cha nge is cause d by avuls ion, a “su dde n an d pe rcep tible ch ang e in the locatio n of a bo dy o f wa ter.” 5A Pow ell, supra Ch. 66 ¶ 71 7[1][2].

3 Technica ll y, the term “li tt oral ” ref ers to l and adj acent

to a lake or sea, while the term “ri pari an” ref ers to l and adjac ent to a river. Current usage, however, generally applies “riparian” to land abutting either a river or a lake. The Point e, LLC v. Lake Management Ass’ n. , 50 S .W .3d 4 71, 4 75 n .2 (T enn . Ct. A pp. 2 000 ).
-4- how it shif

ts, remains the boundary, and a deed describing the lot by number or name convey s the land up to such shifting water line . . . .” Jeffer is v. East O

maha Land Co. , 134 U.S. 178, 188 (1890). “The riparian or

littoral owner is given title to lands that are gradua lly added be a

ccretion

. . . [l]ikewise, a riparian owner loses title to lands that are submerged though er osion.” 2 5A Richard R. Powell, Powell

on Real Property Ch. 66 ¶ 717 [2] (Patrick J. Rohan ed .,1993). The basisfor this general rule is that the gain or loss of land from gradua l erosion and accretion

may be imperce ptible such that it is dif

ficult or impossible to determine from where the gain or loss of the land came. 25 Tenn. Juris. Water and Watercourses § 17 (1985). Original boundaries altered by such gradual erosion cease to exist, and the re lationship b etween the riparian lands and the water way ar e determinedby the new c onditions. Id. Throu gh the doctrine of re-e merge nce, title to an iden tifiable parcel lost due to erosion will return to its previous owner should it re-emerg e. 5A Powell, supra ¶ 71 7[ 2]. Gener

ally , the cha

racter of the wa

ter as na vigable or nonna vigable is immater

ial with respect to application of this rule. 78 Am. Jur. 2d Waters § 315 (2002).

A riparian owner takes title only to that which is conve yed by the deed. 78 Am. J ur. 2 d Waters § 44 (2002). 3 In this case, Defe ndants’ deeds convey title to the lots as de picted in the plat. These lots end at the water’s edge. The approximate distances noted on the plat reflects this general rule. The boundari es are “plus or minus,” or approximately those indicated given the natural ebb and flow of water. We therefore modify that part of the tria l court’s order which sets the boundaries of the parties’ property

at the distances noted in the plat without the “plus or minus,” andhold that the boundar

y lin e is set at the wate r’s edg e as depi cted by

the original plat . The boundary line betweenthe parties will therefore shift due to the gra dual processes of ac cretio n and erosion. Defendants have no ownership interest in the lake itself. Limited Ripari

an Rights

Ms. Stanley asserts that prior owners always had r estricted Defendants’ use of the lake, a nd that Mr. Clark never inten ded to con vey any interest in the lak

e to Defe ndants’ p redece ssors in interest

. She conte

nds that sin

ce Def endants do not own any part of the lake bed, they

have no right to use the lake. The essence o f her argument, as we per ceive it, is that Defendants do not have riparian rights to use of the lake.

The deeds convey

ing the lots to Defendants are silent as to any rig hts to use of the lake, but convey the land “with the appurtenances, es tate , title, and intere st theret o belonging . . . . ” This Courtrecently a

ddressed riparian rights inh erent in such a deed in The Pointe, LLC v. Lake Management

Ass’n , 50 S.W.3d 471 (Tenn. Ct. App. 2000). In The Pointe , we stated, “it is clear th at the gr ant of an appurtenance in a deed is mea nt to enhance the value and enjoy ment of the-5-

property.” Id . at 475. We noted tha

t the inhe rent val ue of rip arian la

nd is deri ved from the
access ibility

and proximity of

the water. Id. We further noted that when, as here, property adjacent to water is convey ed with all appurtenance s , there is a presumption that the right to use and enjoyment

of the water is part of the grant. Id. These ri paria n interests are presumed unless the terms of the grant, convey ance or deed expressly exclude them, or u nless the description of the propert y in the dee d clear

ly indicates that such

rights a re not at tached t o the property. Id. at 476-77. See also , Curtis M. Brow n, et al, Boun dary Control and Legal Principles 199 (3 rd ed 1986). Riparian water r

ights ve st when the

riparia n land is a cquired . 5A Richa

rd R. Powell, Powell on Real Property Ch. 65 ¶ 713[3] (Patrick J. Rohan ed.,1993). Th ese rig hts are “considered part of the package of rights in the fee.” Id. They depe nd not on ownership of the land beneath the water, but on contact of the landowner’s land with the water. B rown, supra
. As noted, the deeds convey ing these lots are silent as to the right to use the lake and th e propert y is described by

reference to the plat. The plat indicates that the lots extend to the edge of the lake, and Mr. Clar

k testifie d that the

proximi ty to the lake was a positive selling point. Mr. Clark and Mr. Wa

de testif ied that D efenda

nts were permitte d to fish in t

he lake o nly

with permission. Ms. Stanley testified that she did not discuss the usag e of the lake by the adjoining lot
owners with Mr. Wade when she purchased the property, tha

t she did not tell

the Defe ndants not

to fish in the lake unti l after t

his litiga tion was in

itiated, a nd that mos t of the fi shing by Defend ants was from their own property

. The court below granted Defendants limited riparian r ights to fish from

their property a

tthe ban ks of the la

ke withou

t addres sing the

issue of w

hether a n implied e asement

exists. Ripa

rian rig hts, while considered part of the fee, ar e not unlimited. 5A Powell, supra ¶ 713[4]. Theyar e limited to what is a

ccepta ble or reasonable under the circumstance s. Id . Defendants agree that such limited rights are reasonable under the circ umstances. In light of

the foregoing, we ag

ree with the trial court that the lake is appurtenant to the abu

tting pr operty of the De fendant s. We acc ordingl

y affirm the trial court’s judgmen

t awarding Def

endants l imited rip arian r

ights to f ish from th

eir lots.
Conclusion

We modify the trial

court’s determination that the boundar y lin es of Defendant s’ lots shou ld be determined by the me

tes and bounds measurements minus the “plus or minus” sy mbols noted in the plat. We hold thatthe boundary lines a re at the water’s edge and will shift due to accretion and erosion. We affirm the award of limited riparian rights. Costs of thi s appeal are taxe d one-ha

lf to the appellant, Ms. Stacey Stanley , and her surety , and one-half to the appellees, Daniel Ring and wi fe, Deo n Ring, Jerry Bond a nd wife, Jackie Bond, Robert Rose, and Paul Seger and wife , Ge or ge tt e S eg er , f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

___________________________________ DAVID R. FARMER, JUDGE