Riparian Water Boundaries Titles and Rights
Exhibit A ALTA® ENDORSEMENT 41-06 Water – Buildings Adopted 12-02-13
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Exhibit A ALTA® ENDORSEMENT 41-06 Water – Buildings Adopted 12-02-13 Attached to Policy No. __________ Issued by BLANK TITLE INSURANCE COMPANY 1. The insurance provided by this endorsement is subject to the exclusion in Section 4 of this endorsement; and the Exclusions from Coverage, the Exceptions from Coverage contained in Schedule B, and the Conditions in the policy. 2. For purposes of this endorsement only, “Improvement” means a building on the Land at Date of Policy. 3. The Company insures against loss or damage sustained by the Insured by reason of the enforced removal or alteration of any Improvement resulting from the future exercise of any right existing at Date of Policy to use the surface of the Land for the extraction or development of water excepted from the description of the Land or excepted in Schedule B. 4. This endorsement does not insure against loss or damage (and the Company will not pay costs, attorneys' fees, or expenses) resulting from: a. contamination, explosion, fire, flooding, vibration, fracturing, earthquake or subsidence; [or] b. negligence by a person or an Entity exercising a right to extract or develop water[; or c. the exercise of the rights described in ( )]. * * Instructional note: identify the interest excepted from the description of the Land in Schedule A or excepted in Schedule B that you intend to exclude from this coverage. This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls. Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements. [Witness clause optional]
By: _______________________________________ Authorized Signatory Property Address: Exhibit B File No. ENDORSEMENT Attached to and forming a part of Policy Number: Of
The insurance provided by this endorsement is subject to the exclusions in Section 4 of this endorsement; and the Exclusions from Coverage, the Exceptions from Coverage contained in Schedule B, and the Conditions in the policy. For purposes of this endorsement only: “Federal Navigational Servitude” means rights of the United States Government, as further described and set forth in Schedule B, Part I, Exception __. “CWD” means that certain Consolidated Written Determination pursuant to M.G.L. c. 91, as further described and set forth in Schedule B, Part I, Exception ___. “Licenses” means those certain Licenses issued pursuant to M.G.L. c. 91, as further described and set forth in Schedule B, Part I, Exceptions _________. “Improvement” means an existing building, located on the Land at Date of Policy, that by law constitutes real property, and that is authorized, built, maintained and used in accordance with the CWD and the Licenses. “Future Improvement” means a building to be constructed on or affixed to the Land, that will by law constitute real property, and that is authorized, built, maintained and used in accordance with the CWD and the Licenses. “Fill” means existing filled tidelands contained within the Land at Date of Policy that is authorized and maintained in accordance with the CWD and the Licenses. The Company insures against loss or damage sustained by the Insured by reason of: The exercise of the Federal Navigational Servitude, or Revocation of the Licenses, which results in the forced removal, without the payment of just compensation, of: Fill; or Improvements or Future Improvements. This endorsement does not insure against loss or damage (and the Company will not pay costs, attorneys’ fees, or expenses) resulting from noncompliance with the terms, conditions or provisions of the CWD and the Licenses. This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls. Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements. 1 http://www.brainyquote.com/quotes/quotes/l/laotzu384273.html 2 See, David N. Cassuto & Rômulo S.R. Sampaio, Water Law in the United States and Brazil – Climate Change and Two Approaches to emerging Water Poverty, 35 Wm. and Mary Envtl. L. and Pol’y Rev. 371 at 376 (2011). 3 Id. at 386. 4 The Daniel Ball, 77 U.S. 557 at 564 (1870). 5 U.S. v. Milner, 583 F.3d 1174 at 1191 (9th Cir. 2009). 6 See, e.g., http://www.umass.edu/sunwheel/pages/moonteaching.html. 7 See, Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 108 S.Ct. 791, 98 L.Ed. 877 (1988). 8 See, page 4, infra. 9 311 U.S. at 404, 61 S.Ct.at 298. 10 Leslie Salt Co. v. Froehlke, 578 F.2d 742 at 752 (1978). 11 Palm Beach Isles Associates v. U.S., 58 Fed.Cl. 657 (2003). 12 Id. at 673. 13 Id. at 686. 14 See, pg. 6, infra. 15 Actually, independence was won in 1781 in the Battle of Yorktown. It took almost two more years to complete the paperwork with the Treaty of Paris in 1783. 16 Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894) begins with a detailed description of the English antecedents to water law in the U.S. 17 152 U.S. at 18-19, 14 S.Ct. at 555. 18 California ex rel. State Lands Commission v. U.S., 457 U.S. 273, 102 S.Ct. 2432, 73 L.Ed.2d 1 (1982). 19 U.S. v. Milner, 583 F.3d 1174 at 1191 (9th Cir. 2009). 20 Shively v. Bowlby, supra. 21 43 U.S.C. §1311(A). 22 Section 1301 does not define “improvements.” 23 See, U.S. v. Alaska, 521 U.S.1, 117S.Ct. 1888, 138 L.Ed. 231 (1997) and Alaska v. U.S., 545 U.S. 75, 125 S.Ct. 2137, 162 L. Ed. 57 (2005). 24 California ex rel. State Lands Commission v. U.S., supra. 25 Shively v. Bowlby, supra, at 152 U.S.57, 14 S.Ct. 569. 26 484 U.S. at 482, 108 S.Ct. at 798. 27 484 U.S. at 472, 108 S.Ct. at 793. 28 Id. 29 146 U.S. at 453, 13 S.Ct. 118. 30 Id. 31 146 U.S. at 452, 13 S.Ct. 118. See, also, Appleby v. City of New York, 271 U.S. 364, 46 S. Ct. 569, 70 L.Ed. 992 (1926). 32 National Audubon Society v. Superior Court, 33 Cal.3d 419, 658 P.2d 709, 189 Cal.Rptr. 346 (1983). 33 Illinois Central, supra. 35 PPL Montana, supra, at 132 S. Ct. 1227 & 1228. 36 Id. at 1223. 37 Id. at 1235. 38 See, Appalachian Electric Power, supra, page 2. 39 In Cassuto, supra, note 2, the authors indicate in note 30 at page 378, that, Riparian doctrine remains the law in some form in thirty-one states: Alabama, Arkansas, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Vermont, Virginia, West Virginia, and Wisconsin. 40 James A. Simpson, River and Lake Boundaries 4 (Plat Key Publishing 1994). 41 See, Cassuto, supra at 378. 42 Michigan Citizens for Water Conservation v. Nestlé Waters of North America, Inc. 269 Mich App. 25 at 54-55, 709 N.W.2d 174 at 194 (2005). 43 Id. 44 Cassuto, supra, at 379. 45 Franco-American Charolaise, Ltd. v. Oklahoma Water Resources Board, 855 P.2d 568 (Ok. 1990). 46 Michigan Citizens for Water Conservation v. Nestlé, supra, 269 Mich. App. at 57, 709 N.W.2d 196. 47 Id. 269 Mich App. at 67, 709 N.W.2d 201. 48 Ironically, considering that the Cuyahoga River itself caught fire in 1969, this choice appears troubling, but that fire was 60 years later in Cleveland. 49 Portage County Board of Commissioners v City of Akron, 109 Ohio St.3d 106, 846 N.E.2d 478 (2006); see also, Crum v. Craig, 2010 Ark. App. 531, 379 S.W.3d 71 (2010), L & S Water Power, Inc. v. Piedmont Triad Regional Water Authority, 211 N.C.App. 148, 712 S.E.2d 146 (2011). 50 Pursuant to the delegation by Congress in the Rivers and Harbors Act, supra, on page 4. 51 Heeringa v. Petroelje, 279 Mich. App. 444 (2008). 52 142 So.3d at 943. 54 See, Heeringa, supra, and Daisy Farm Limited Partnership v. Morrolf, 886 N.E.2d 604 (Ind. 2008). 55 See, http://www.capewind.org/ 56 City of Newark v. Natural Resource Council, supra (on pg. 10), 82 N.J. at 534, 414A.2d at 1306. 57 Id. 82 N.J. at 545-6 and 414 A2.d at 1311-2. 58The American Land Title Association®, founded in 1907, is the national trade association and voice of the abstract and title insurance industry. All publications of the American Land Title Association®, including ALTA® Policy Forms, Endorsements, and Related Documents, are copyrighted and are reprinted by specific permission from: American Land Title Association® (ALTA®) 1828 L Street, N.W., Suite 705 Washington, DC 20036 Phone: 202-296-3671 E-Mail: service@alta.org Web: http://www.alta.org 59 The only difference among the four endorsements is the definition of the term “Improvements.” In the ALTA 41-06 it means Buildings; in the ALTA 41.1-06 it means “means a building, structure located on the surface of the Land, and any paved road, walkway, parking area, driveway, or curb, affixed to the Land at Date of Policy and that by law constitutes real property, but excluding any crops, landscaping, lawn, shrubbery, or trees; ” in the ALTA 41.2-06, the parties may agree on a definition and in the ALTA 41.3-06, it includes future improvements shown on a designated plan. 60 The Commonwealth of Massachusetts does not require title insurance companies to file insuring forms like policies or endorsements for approval. 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