Accretion on Waterfront Property - What Does It Mean?

by David Sheffield 2012

Don Island Pilings

The pilings at the site of the old cannery on Don Island in the Fraser River showing accretion.

We recognize the sea as volatile and ever changing, and contrast it with dry land, which we often perceive as stable and unchanging. Yet subtly and inexorably the land changes as well. For thousands of years the forces of nature, and more recently human activity, have altered our coastlines and continue to do so. This can involve normal sediment transfer, seasonal flooding and fluctuating water levels caused by logging or hydro-electric dams. The impacts of installing breakwaters and rock groins along sandy beaches have been well documented in the alteration of littoral sediment drift. Natural features such as rocky headlands and promontories can trap sediments, while others create fast currents and scour zones that eat away at beaches and uplands.

Scientists have referred to the beach as a living and dynamic system, something to which anyone who has ever resided on the waterfront can attest. People have always been drawn to the interface between the land and the sea, and are prepared to pay a large premium to live there. If some waterfront lands are in a state of flux, and these lands are much coveted (prime residential waterfront in British Columbia can command upwards of $300 per square foot), the question arises as to the ownership of newly created or, conversely, disappearing waterfront lands.

Accretion is a term that refers to the increase in the mass of land adjacent to a body of water, whereas erosion is a decrease in such landmass. Accretion of land is of two types: (1) by alluvion, the process of sand or soil washing up so as to form firm ground; and (2) by dereliction, as when the sea shrinks below the usual watermark, exposing more land. The addition (or loss) of new land to an adjacent upland parcel by the action of water can be sudden, and is referred to in property law as an avulsion.

An accretion’s primary characteristic, on the other hand, is that the action of water in a lake, sea or river results in the gradual and imperceptible loss or addition of land. This distinction is important, as under common law the upland owner acquires any land that may accrete to waterfront land already in their possession, while in the case of an avulsion - such as a massive deposit of sediment brought into an estuary by a landslide event- the land remains in the ownership of the Crown. Putting out a breakwater to deliberately catch water-borne sediments would interfere with natural processes, as would depositing fill. Land created in this way would also not qualify as an accretion. There are instances, however, where land created inadvertently and slowly as a result of a man-made structure may be deemed an accretion.

The ownership of land seaward of the surveyed and titled boundary of a waterfront lot may have important repercussions. It may be land that the upland owner wishes to develop for personal use, therefore excluding the public, or it may even have the potential of enlarging the lot to the point that it is sub-divisible. This could provide a significant financial windfall to the upland owner if the added land is, in fact, an accretion.

Banks of the Fraser River

Sediment drops out of the water column in places where the current slows, and erodes where the current is swift.

While common law indicates that accreted land belongs to the upland owner, the land is not formally added to the title until application has been made to the Surveyor General, and it endorses a new survey plan to consolidate the accretion with the upland property. Conversely, if the survey indicates that portions of the property have eroded gradually and imperceptibly, then that land reverts to the Crown. Establishing that land is in fact accreted is not always simple, and often requires some preliminary work. Accreted land is usually comprised of fine textured, deposition-type soils rather than coarse, heavy material, and these are usually the result of a major deposition event or a fill.

To indicate that the land has settled into a stable state, the soil and vegetation cover must have taken on the characteristics of the adjoining upland. Aerial photos covering a long period of time can provide historical documentation of the ongoing growth of the land outward from the original surveyed bank of the property. Finally, in cases where it is not totally clear that the land is an accretion, a geotechnical engineer may be retained to examine the site, take soil samples and write a report to support the application. Provincial government staff may also be asked by the Surveyor General to inspect the site and provide an opinion as to whether the area is a natural accretion.

Occasionally, where the surveyed natural boundary is different from the present natural boundary, this is due not to accretion activity but a plotting error on the shoreline when the original survey was done. This is more common on old surveys dating from the late 1800s into the early 1900s, when surveyors working under difficult conditions or with poor equipment may have taken shortcuts or made plotting errors. If a plotting error can be demonstrated, an application can be made for a Natural Boundary Adjustment to correct the historical survey and establish the correct boundary line along a shore.

Accretions most often become an issue along developed shores where the public access along beaches (especially at high tide) may conflict with an upland owner making use of land fronting their ownership. With unauthorized fill possibly being subject to removal and penalty (and remaining in public ownership), while accretions belong to the upland owner, the outcome of an access dispute can hinge on this important distinction.

David Sheffield: The author has had a long career as a property negotiator and manager in the British Columbia forest industry and in the identification and protection of park and conservation lands.

To quote from this article please cite:

David Sheffield (2012) Accretion on Waterfront Property - What Does It Mean? 2012.

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