Accretion vs avulsion
When you bought your land, your lawyer will have sent you a search copy of the title to your property as recorded on the register at Land Information New Zealand (LINZ). The LINZ register is generally regarded as being conclusive evidence that you own the land and how much land is included in your title. However, it isn’t always the case – and it wasn’t the situation 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 changed which 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 wasn’t an issue between the owners of Stansborough and Kummerstein – until the Eldridges and the Beanges (the owners of Kummerstein) fell out. Things went downhill and, ultimately, the Beanges fenced off the land on their side of the river. The Eldridges issued legal proceedings seeking court orders including an order that they owned the land cut off by the river. The court therefore 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.
Accretion and avulsion
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 accretion. For the 13 acre piece of land, the court1 decided that the river course had changed gradually and imperceptibly and therefore the existing course of the river formed the boundary. This decision meant that Stansborough had lost 13 acres and Kummerstein had gained 13 acres – no doubt to the Eldridges’ displeasure.
Including the extra land in your title
If you have gained land by accretion and you want the accretion to be included in your title, we can do this for you by applying to the Registrar-General of Land. You will need to provide a survey plan and evidence showing an accretion has occurred.
The Registrar will notify adjoining owners, local authorities and the Commissioner of Crown Lands of your application. If any interested party provides reliable evidence which conflicts with your application, the Registrar will decline your application. If you don’t agree with the Registrar’s decision, then it’s possible to challenge the decision in the High Court.
1 Eldridge v Beange (2005) 6 NZCPR 915
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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.