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Water And Changing Boundaries - How Much Land Do You Really Own?

13 December 2010

When you bought your land your lawyer will have sent you a search copy of title to your land as recorded on the computer register. The computer register is generally regarded as being conclusive evidence of your ownership of the land and how much land is included in your title. However, this isn't always the case – and it wasn't the case for the Eldridges when they purchased their farm "Stansborough" in the Wairarapa.

 

 Stansborough and Kummerstein

When Stansborough was settled in the late 1800s, the Kaiwhata River formed the boundary between Stansborough and the neighbouring farm, Kummerstein. Between 1879 and 1903 the course of the Kaiwhata River had changed. This resulted in two pieces of land being cut off from Stansborough by the river. Both pieces of land were on the Kummerstein side of the river. One of these pieces of land comprised 13 acres. The title to Stansborough showed the legal boundary as being the old course of the river and therefore showed it as including these two pieces of land. The owners of Stansborough paid the rates on the two pieces of land on the Kummerstein side of the river, even though they were cut off from their property by the river.

The change in river course was never an issue between the owners of Stansborough and Kummerstein - until the Eldridges and the Beanges (the owners of Kummerstein) fell out. Things went downhill after this - solicitors were instructed, the police became involved and the Beanges fenced off the land on their side of the river.

The Eldridges issued legal proceedings. The Eldridges sought Court orders that they owned the land cut off by the river, restraining the Beanges from trespassing on this land, requiring the Beanges to restore fencing and to observe the "give and take" boundaries between Stansborough and Kummerstein; and damages of $10,000 for loss of use of the land.

The Court had to decide whether the existing course of the river was the legal boundary between Stansborough and Kummerstein, or whether the legal boundary was the old course of the river. It was agreed that the answer to this question rested on whether the course of the river had changed gradually and imperceptibly (legally known as "accretion"), or whether the course of the river had changed suddenly (legally known as "avulsion"). If the course of the river had changed gradually and imperceptibly, then the Beanges would be entitled to the land shown as being in the Eldridges' title, but now being on the Beanges' side of the river. If the course of the river had changed suddenly (for example, as the result of a flash flood or earthquake), then the Eldridges would be entitled to the land shown as being included in their title, but on the Kummerstein side of the river.

The Eldridges agreed that one of the two pieces of land had become part of the Beanges' land by the legal process known as "accretion". In respect of the other piece of land, both the Eldridges and the Beanges produced evidence, including expert witnesses, to justify their respective claims that the change in the course of the river was the result of avulsion and accretion.

The Court decided that the river course had changed gradually and imperceptibly and therefore the river still formed the boundary between Kummerstein and Stansborough. No doubt to the Eldridges' displeasure, Stansborough had lost 13 acres and Kummerstein had gained 13 acres.

 

Including the Extra Land in Your Title

If your land has gained land by accretion, and you want the accretion to be included in your title, you do this by applying to the Registrar-General of Land. You will need to provide a survey plan and evidence showing an accretion has occurred. This evidence will be:

  1. Land Information New Zealand (LINZ) records showing the land has a water boundary and the doctrine of accretion has not been excluded.
  2. Statutory declarations by you (as applicant), someone who has no interest in the outcome of the application and a soil expert indicating the change has been gradual and imperceptible, and is not the result of a sudden event.

The Registrar will notify adjoining owners, local authorities and the Commissioner of Crown Lands of the application. If any interested party provides reliable evidence which conflicts with the application, the Registrar will decline the application. If you do not agree with the Registrar's decision, then it is possible to challenge the decision in the High Court.

 

Please email me at barbara.mcdermott@nwm.co.nz with your ideas for future articles. Keep an eye out for next month's column, where I will discuss another relevant rural legal issue.


Barbara McDermott is a partner of Norris Ward McKinnon, specialising in commercial and rural law. With offices in Hamilton and Huntly, we have friendly, expert legal advisors ready to help you with your business and personal legal matters.