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High Water Mark Title?

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Customer Query:

A client approached us to determine the location of his High Water Mark Boundary. This is not as simple as it my seem at first glance.

Our Thoughts:

SIMPLY
The following comments are general in nature and are an opinion only.

Where lands are bounded by tidal waters, the common law rule is that the boundary is the mean high-water mark, i.e. the mean of all high tides including the spring and neap high tides taken over a twelve month period. Unless a contrary intention appears, this rule is almost invariably the case - ie a high water mark boundary of a title is understood to be the mean high-water mark at any given point in time. The foreshore (i.e. the shore between mean high-water mark and low-water mark) and the land below low-water mark belong, at common law, to the Crown.

If it is not reasonably practicable to determine an inaccessible or irregular or indeterminant high-water mark, a surveyor may determine the high-water mark approximately by reference to regular or approximately regular curves or to right lines or to any combination of curves and lines. In most instances, it is not necessary to place marks on the mean high-water mark. The description of a boundary by reference to the high water mark is a metes and bounds description indicating an intention rather than a precise spatial location - this means that the visible tide line may not be the mean high water mark boundary line.

High-water mark boundaries may move from time to time, and title boundaries generally move concurrently with “slow and imperceptible” changes of the high water mark so that change is not visible, week to week, month to month, or year to year. However, there are many examples of accretion and erosion which have been held to fall outside the definition of gradual and imperceptible. In A-G v. Reeve (1885), there was evidence that the process of accretion was visible day by day; on some occasions the sea had been observed to recede and acrete by as much as 10 to 12 feet in a single tide. The Court held that the land so formed remained Crown land and did not become part of the land which formerly adjoined the sea. Equally in such circumstances, land eroded from freehold does not become Crown land but remains in the freehold owner. It was held in Pearse v. Boulton (1902) that a sudden increase in land caused by an earthquake which moved the high-water mark out to sea did not constitute accretion. Likewise, avulsion or a sudden and evident change in the course of a river, caused through flooding, did not divest title from the owner deprived of the use of his land on the other side of the resultant new channel of the river: Humphrey v. Burrell (1951). Nor was there any change of riparian boundary in Boyle Concessions Ltd v. Yukon Gold Co. (1917) where a river eroded 30 metres of land, the loss occurring each year at springtime over a period of three years.

If a Crown grant contains a reservation along a foreshore or tidal river (say for example, 30 metres) , the reservation operates as an exception of this strip from the grant and so the landward boundary of that reservation remains at 30 metres from the high-water mark as it was at the date of the grant. Thus, if the high water mark gradually changes position, the land so gained or lost is added to or taken from the reservation; it would not, however, affect the land granted, as the landward boundary is an artificial boundary rather than a riparian boundary. If instead of a reservation the affected parcel is not Crown but freehold, the same principle applies - it is theoretically possible for the high water mark to move inland to such an extent that the land owner, either Crown or private, ends up with no land remaining - ie the sea inundates the whole of the parcel. Of course, in such instances the ocean floor remains in or becomes the Crown, albeit now underwater.

It would appear that the nature of the foreshore adjoining the land in question is such that it is likely to be quite volatile, and may well move significantly in both directions on almost a daily basis, depending upon the direction and intensity of the sea at the time. Almost certainly, any rough weather would result in erosion or avulsion of the high water mark. The case quoted above, A-G v. Reeve, would suggest that in such a circumstance neither the high water mark nor the title boundary is deemed to move, and in fact remains in its mean position. This means that a surveyor when asked to survey the high water mark boundary would do so by determining that position by the best means available and marking that alignment on the ground.

The original title describes the properties as being bounded by, inter alia, High Water Mark, which description means the line of the median high water mark between the spring and neap tides.

Lands Titles Office circular 1/1999 states that the High Water Mark boundary of a property is the line of the medium high tide between the highest tide each lunar month (the spring tides) and the lowest each lunar month (the neap tides) averaged out over the year.

The location of mean high water mark is a matter capable of clear definition, as it has a definite relationship with the Australian Height Datum (AHD) for a given location. For the case in question (Hobart) +0.45 AHD can be considered to be Mean High Water Mark.

It is my opinion that subsequent survey plans incorrectly established the high water mark boundary of the properties. Given this the description of the properties as recorded in the register is based on erroneous and imperfect information. Section 142(1)(b) should be used to rectify the registered description of the boundaries.