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Rhode Island Agencies

Salt Water Exceptions

Salt Water Exceptions - JULY 2014

SALT WATER EXCEPTIONS - Rhode Island is 37 miles wide at its widest point and 40 miles long at its longest point. It has, however, 384 miles of tidal shoreline, which includes the shorelines of 35 islands. Naturally, this means that the boundaries of many insured properties run along navigable salt water. There are also some 462 freshwater lakes and ponds, including 43 reservoirs. The land under many of these is privately owned, and the surrounding property is subject to rights of flowage. The water levels are governed by private dams. When title to these surrounding properties is insured, there should normally be a Special Exception in Schedule B of the title policy for any rights of flowage others may have. Also, if there is a suspicion that land bordering a private reservoir has been filled in, any title policy should contain a Special Exception in Schedule B for rights of others in such portions of the insured premises that consist of filled land.

When a parcel bounds on tidal waters in Rhode Island, the landowner has title to the mean high water mark. Narragansett Real Estate Co. v. Mackenzie , 34 R.I. 105. The state holds title below that line. The mean high water mark, or mean high tide line, is not the line of seaweed one sees on the beach. It is actually a topographical elevation along the coast. It is arrived at by a surveyor, based upon tidal data gathered over an 18.6 year lunar cycle. The 18.6 year time period allows enough time for the earth and the moon to occupy every possible position in relation to each other, while traversing their respective orbits. The tidal data is collected at a tidal gauge in Newport. The elevation is further corrected by the installation of a local tidal gauge near the land being surveyed, for a month, and compared to the tidal data at the government's tidal gauge in Newport. An additional correction is usually made for the general rise in sea level caused by expansion of the sea due to the "greenhouse effect."

Parts of Rhode Island (Tiverton and Little Compton) were once part of Massachusetts. The Massachusetts rule for land bounding on tidal waters is different. Every owner of land bounded on tidal waters in Massachusetts has title from the shore or flats to the low water mark, but no farther than 1,650 feet (1000 rods). "By shore or flats" means the land between the mean high water line and the extreme low tide. See Rockwood v. Snow Inn Corp., 409 Mass. 361 (1991) for a review of the law.

Every insured parcel that borders on tidal waters, in Rhode Island or Massachusetts, should have the following standard Special Exceptions included in Schedule B of its title policy.

a) "Rights of the United States Government to change and alter the harbor, bulkhead, or pierhead lines adjacent to said premises; to establish harbor, bulkhead, or pierhead lines different from the present lines; and to take land now or formerly under water without compensation."

b) "No title will be insured to any land lying below the present or any former high water line of (Narragansett Bay).

c) "Rights of the United States Government, the State of Rhode Island (Massachusetts) and the City/Town of ; or any of their departments or agencies to regulate and control the use of the piers, bulkheads, land under water and land adjacent thereto."