Opinion
No. 4581.
Argued November 5, 1957.
Decided February 19, 1958.
1. General exceptions to a master's report and to the ruling of the Trial Court approving the same present the sole issue of whether any errors of law are apparent upon the face of the record.
2. Where the general course of a river shore surrounding and formed by accretion was not straight but predominantly convex, apportionment of the accretion between adjoining riparian owners, in accordance with the rule enunciated in Batchelder v. Keniston, 51 N.H. 496, by allocating to each owner a share of the new shore line in proportion to what was held in the old shore line and completing the division by running a line from the bound between the parties on the old river bank to the point thus determined on the newly formed shore was held to be a proper division between the parties.
3. The fact that the accretion, which formed along the claimant riparian owner's property resulted in whole or in part from the act of the State in erecting a jetty into the river under authority granted by a statute did not operate to prevent acquisition of rights in the accretion by the claimants; nor was the State as an adjoining riparian owner precluded from claiming the land so formed along the jetty; but each was entitled to its proportional part of the accretion.
PETITION, for acquisition pursuant to R. L., c. 27 (now RSA ch. 4) of six acres of land in Hampton on the easterly bank of Hampton River. The land in question, 3.7 acres of which lies above the mean high water mark, was formed primarily by natural accretion caused by the ebb and flow of the river. It lies generally to the south of land of the claimants and west of the northerly end of the old Hampton Harbor Toll Bridge between Hampton and Seabrook, acquired by the State pursuant to Laws 1933, chapter 159. Under the legislative authority contained in the cited statute, the State completed construction in 1935 of a jetty or stone abutment running generally north and south for some 650 feet from the Hampton shore on a line parallel to the bridge right of way. The northerly end of the jetty intersected a bulkhead extending along a northwesterly course which marked the claimants' shoreline at high water. The land since formed by accretion adjoins the westerly face of the jetty and connects with the. southwesterly side of the bulkhead.
In advance of the assessment of damages, questions of title were heard by a master (Leonard C. Hardwick) who made findings and rulings, and recommendations for a decree with respect to the title of the parties to the land sought to be taken. RSA 4:33. The underlying facts as found by the master were as follows:
"By deed dated December 19, 1933, the State acquired title to a sixty foot strip of land abutting upon the easterly side of the Hampton to its mean high water mark. The westerly boundary line of this tract intersected the boundary line of the property of the claimant's predecessor in title, which bore northwesterly from the property line of the State land, and. was delineated by a wooden bulkhead. The bulkhead at the time, also bordered upon the river at its mean high water mark. Thus, in 1933 the boundary line of both the State and the claimant's property were determinable.
"The State developed and filled in the land easterly of the sixty foot strip. As part of the project, to protect this development, the State built a rip-rap dike in the fall of 1934 and the spring of 1935. This dike was constructed approximately parallel with and some ten feet westerly of the westerly side line of the State's sixty foot strip. It intersected the bulkhead at the edge of claimant's property. The dike was thus built upon property to which the State did not have a specific conveyed title, but the authority of the State to so erect the dike is not questioned. The State then proceeded to fill behind the dike with hydraulic fill . . .
"It is not possible to determine from the evidence as to whether the accretion actually first started along the dike built by the State or along the bulkhead of the claimant's property, but in the opinion of the master, this is not material to the issue involved."
The master ruled that the general principle governing the apportionment of accretion among adjoining riparian owners as stated in Thompson on Real Property should be followed. 5A Thompson, Real Property (1957 Replacement) pp. 601, 602. He determined that the line at high water mark before accretion was 822 feet long, divided 655 feet to the State and 167 feet to the claimants. Dividing the new shore line of 950 feet into the same proportions, he concluded that the State was entitled to 757 feet and the claimants to 193 feet along mean high water mark at the time of taking.
The master made the following "recommendations": "The master recommends that it be decreed that title vests in the claimant to that portion of the accretion lying northerly of a line drawn from a point marking the intersection of the westerly side line of the State's property as originally conveyed to it by deed dated December 19, 1933 (State Exhibit No. 7), with the bulkhead or an extension of the line of the bulkhead, marking the southerly line of the claimant's property before accretion formed to a point on the shore line as it existed as of the date of the initiating of these proceedings, such point being 193' southerly of the aforementioned bulkhead, measured along the then existing line; that title vests in the State to that portion of the accretion lying southerly of said line." The general exceptions of the claimants to the master's report and to a ruling of the Trial Court approving the same were reserved and transferred by Wheeler, C.J.
Louis C. Wyman, Attorney General, and Warren E. Waters, Deputy Attorney General (Mr. Waters orally), for the State.
George R. Scammon (by brief and orally), for the claimants Marcus and Marie A. J. Marty.
The issue before the court is simply that of whether any errors of law are apparent upon the face of the record. Racine v. Armstrong, 100 N.H. 96. The rule for apportionment of accretion between adjoining riparian owners which was employed by the master in reaching his conclusions is one which has long been established both in this jurisdiction and elsewhere. Batchelder v. Keniston, 51 N.H. 496; Watson v. Horne, 64 N.H. 416. See State v. Stafford Company, 99 N.H. 92, 100; III American Law of Property, s. 15.31, p. 867; 5A Thompson on Real Property (1957 Replacement) s. 2560, p. 610. As briefly stated in Batchelder v. Keniston, supra, 498, the rule is applied as follows: "Give to each owner a share of the new shore line in proportion to what he held in the old shore line . . . and then the division of the land would be completed by running a line from the bound between the parties on the old river bank to the point thus determined on the newly formed shore . . . ."
As was pointed out in Watson v. Horne, supra, 418: "When the general course of the shore approximates a straight line, the division is made among the proprietors by lines perpendicular to the general course of the original bank or of the original mark of the shore." But when "it curves or bends the general rule is to . . . divide . . . the newly formed water line" according to the rule described in Batchelder v. Keniston, supra. See State v. Stafford Company, 99 N.H. 92, 100. "The dividing lines across the alluvion are commonly laid down by connecting the extremities of the upland sides at the old shore with the point of division on the new shore as fixed by proportion." Skelton, Boundaries and Adjacent Properties (1930) 338, 339. See note, 6 Ark. L. Rev. 68. Since in this case the general course of the shore surrounding the accretion is not straight but predominantly convex, the rule of Batchelder v. Keniston, supra, was properly employed to make the division. Watson v. Horne, supra.
The fact that the accretion which formed along the claimants' property resulted in whole or in part from the artificial obstruction erected by the State does not operate to prevent acquisition of rights in the accretion by the claimants. See anno. 134 A.L.R. 467, 468-472; Solomon v. Sioux City, 243 Iowa 634, 639, 640.
It is urged on behalf of the claimants however that erection of the jetty southerly from the original high water mark toward the low water mark constituted a trespass by the State to rights of the claimants; and that the new high water mark which resulted upon completion of the jetty should be ignored in favor of the high water mark which existed prior thereto, in determining the division of the accretion between the parties. Upon this theory it is argued that the division should be made "by the extension of the easterly side line [of the claimants' property] to the low water mark." Since such an extension would virtually parallel and coincide with the westerly side of the jetty, the claimants in effect assert title to the entire tract of land by accretion involved in the proceeding.
The views thus advanced are not sustained by the findings of the master: "The master cannot find upon the evidence that the erection of the dike was a trespass by the State of New Hampshire." There was no evidence to compel a finding that it was. The right of the State to construct the jetty pursuant to the provisions of Laws 1933, c. 159, is thus not here in question. Nor does the circumstance that the accretion resulted from this artificial structure preclude the State from claiming the land so formed along the jetty. Kansas v. Meriwether, 182 Fed. 457; Brundage v. Knox, 279 Ill. 450, 464-467. See 4 Tiffany, Real Property (3d ed.) s. 1223; anno. 134 A.L.R., supra, 472; Skelton, supra, s. 296.
The recommendations of the master were properly approved by the Trial Court and there are no questions of law apparent upon the face of the record which disclose error.
Exceptions overruled.
WHEELER, J., did not sit.