                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                            Assigned On Brief January 16, 2002

                   STACEY J. STANLEY v. DANIEL RING, ET AL.

                  Direct Appeal from the Chancery Court for Obion County
                     No. 21,537    William Michael Maloan, Chancellor



                     No. W2001-00950-COA-R3-CV - Filed March 20, 2002


This case concerns riparian rights to a privately owned lake in a subdivision in Obion County. The
trial court found that the boundaries of lots abutting the lake extend into the lake, and that the owners
of these lots have riparian rights to limited use of the lake as reasonable under the circumstances.
We modify in part and affirm in part.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed as
                                Modified; and Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
HOLLY K. LILLARD, J., joined.

David L. Hamblen, Union City, Tennessee, for the appellant, Stacey J. Stanley.

Bruce Moss, Union City, Tennessee, for the appellees, Daniel Ring and wife, Deon Ring, Jerry Bond
and wife, Jackie Bond, Robert Rose and Paul Seger and wife, Georgette Seger.

                                              OPINION

        This case concerns use of a privately owned lake in a subdivision by landowners whose lots
abut the lake. The underlying facts in this case are undisputed. In 1976, Raymond Clark purchased
a farm in Obion county consisting of approximately 30 acres. He built a home and lake on this
property, and in 1978, developed a subdivision on the eastern and southeastern sides of the lake. The
subdivision includes the four lakeside lots at dispute in this case, which Mr. Clark sold to the current
owners’ predecessors in interest.

         The subdivision plat as recorded in the Register’s Office of Obion County sets out the
specific dimensions of each lot as “plus or minus,” and depicts the lots as extending to the water’s
edge. The deeds conveying the lots do not describe the property by metes and bounds, but by
reference to the recorded plat. The deeds are silent as to use of the lake. Mr. Clark, however,
testified that the proximity of the lake was a positive selling point, and the lot owners (“Defendants”)
testified that the fact that their lots adjoined the lake was a factor in their decision to purchase the
property.

        In 1980, Mr. Clark sold the remaining acreage, including the lake, to Mr. Larry Wade. Mr.
Wade subsequently sold the property to Ms. Stacey Stanley in 1994. In June of 1999, Ms. Stanley
filed a petition in Obion Country Chancery Court to quiet title and establish boundary lines of the
property. Ms. Stanley also sought and was granted a temporary restraining order to enjoin the
Defendants from interfering with a survey of the property and from harassing or threatening her.
Defendants counter-claimed, asserting the right to use of the lake, and stating that they had enjoyed
relatively free access to the lake under the prior owners of the property. The surveys subsequently
prepared show the lots as now extending two to fourteen feet into the lake. Two surveyors testified
that this was probably due to erosion of the banks over the years.

        The chancellor found that the boundary line of the property should be established using the
original Plat as filed by Mr. Clark, without using the “plus or minus” indications as to distances. He
further ordered that the adjoining property owners abutting the lake have rights as riparian owners
for the limited purpose of fishing from the banks of their property without interfering with Ms.
Stacey’s reasonable use of the lake. This order was entered “exclusive of the Court finding that an
implied easement exists.” Defendants accept the chancellor’s award of limited riparian rights and
concede that such limits are reasonable under the circumstances. Ms. Stanley now appeals.

                                          Issues on Appeal

        The issues on appeal in this case, as we perceive them, are:

                (1) Whether the boundaries of Defendants’ lots extend into the lake or end
        at the water’s edge.

                (2) Whether the Chancellor erred in awarding Defendants limited riparian
        rights to fish from the banks of their property into the lake.

                                         Standard of Review

        Our standard of review of a nonjury trial is de novo upon the record. See Wright v. City of
Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of correctness as to the trial
court’s findings of fact, unless the preponderance of the evidence is otherwise. Tenn. R. App. P.
13(d). With respect to the trial court’s conclusions on matters of law or on mixed questions of fact
and law, however, our review is de novo with no presumption of correctness. See Bowden v. Ward,
275 S.W.3d 913, 916 (Tenn. 2000); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996);
Tenn. R. App. P. 13(d).




                                                  -2-
                                         Establishment of Boundaries

        As noted above, the deeds conveying the lots adjoining the lake refer to the original plat as
recorded by Mr. Clark for a description of the property. This plat depicts the lots as ending at the
edge of the lake. The metes and bounds measurements for the boundaries extending to the lake are
depicted as “plus or minus.” The chancellor found that the boundary line of the lake should be
established using the original plat recorded by Mr. Clark, without using the “plus or minus”
indications on the distances. Using these distances, the chancellor found that Defendants’ lots now
extend into the lake.

        Appellees argue that this finding by the chancellor is a finding of fact which must be upheld
unless the preponderance of evidence is otherwise. We disagree. The establishment of the
boundaries of Defendants’ property presents a mixed question of fact and law. The determination
of the original boundaries, as presented by the plat, is a question of fact. The determination of
whether Defendants own and control property now submerged by the lake due to natural erosion
presents a question of law. Thus, the determination of the current boundary line is a mixed question
of fact and law to which we attach no presumption of correctness to the trial court’s findings.
Reading the record as a whole, however, we believe that the preponderance of the evidence supports
a conclusion that the original boundaries of Defendants’ lots ended at the water’s edge.

         As drawn on the original plat, the boundary lines extending from the front of Defendants’
lots to the lake clearly end at the lake edge. The fact that these distances were measured in terms of
“plus or minus,” while all other boundaries were measured in exact distances, supports a conclusion
that the distances were never calculated exactly, but that the lots ended at the edge of the lake. Mr.
Clark, the original developer of the property, testified that the boundaries of the lots ended at the
water’s edge. He further stated that the Defendants’ predecessors in interest never had any
ownership rights in the lake itself. The surveyor for the Defendants testified that, in his opinion, the
original line would have been “dry,” but erosion of the bank has resulted in an expansion of the lake
onto Defendants’ lots. Read together, the record supports a finding that the water’s edge constituted
the original boundary of the lots, and that Defendants’ lots did not extend into the lake. Defendants
therefore did not possess any part of the lake bed itself.

         The erosion of the bank of the lake such that what was once dry land is now under water
raises a question of law regarding property ownership, in the context of changing water lines, where
the water itself defines a property boundary. The law applicable to this circumstance, in the instance
of a navigable waterway, is well-settled. When a property boundary is determined by a body of
water, and when that body is altered gradually by erosion or accretion, the boundary follows that of
the water.1 See Arkansas v. Tennessee, 246 U.S. 158, 173 (1917); 25 Tenn. Juris. Water and
Watercourses § 17 (1985). “Where a water line is the boundary of a given lot, that line, no matter


         1
           Accretion occurs when an “area of land is increased by the gradual depo sit of soil due to the action of a
bound ary river, stream , lake, p ond or tidal water.” 5A Rich ard R . Pow ell, Powell on Real Property Ch. 66 ¶ 717[1]
(Patrick J. Rohan ed., 1993). Erosion is the “process by which land is gradually covered by water.” Id.

                                                         -3-
how it shifts, remains the boundary, and a deed describing the lot by number or name conveys the
land up to such shifting water line . . . .” Jefferis v. East Omaha Land Co., 134 U.S. 178, 188
(1890). “The riparian or littoral owner is given title to lands that are gradually added be accretion
. . . [l]ikewise, a riparian owner loses title to lands that are submerged though erosion.”2 5A Richard
R. Powell, Powell on Real Property Ch. 66 ¶ 717[2] (Patrick J. Rohan ed.,1993). The basis for this
general rule is that the gain or loss of land from gradual erosion and accretion may be imperceptible
such that it is difficult or impossible to determine from where the gain or loss of the land came. 25
Tenn. Juris. Water and Watercourses § 17 (1985). Original boundaries altered by such gradual
erosion cease to exist, and the relationship between the riparian lands and the waterway are
determined by the new conditions. Id. Through the doctrine of re-emergence, title to an identifiable
parcel lost due to erosion will return to its previous owner should it re-emerge. 5A Powell, supra
¶ 717[2]. Generally, the character of the water as navigable or nonnavigable is immaterial with
respect to application of this rule. 78 Am. Jur. 2d Waters § 315 (2002).

        A riparian owner takes title only to that which is conveyed by the deed. 78 Am. Jur. 2d
Waters § 44 (2002).3 In this case, Defendants’ deeds convey title to the lots as depicted in the plat.
These lots end at the water’s edge. The approximate distances noted on the plat reflects this general
rule. The boundaries are “plus or minus,” or approximately those indicated given the natural ebb
and flow of water. We therefore modify that part of the trial court’s order which sets the boundaries
of the parties’ property at the distances noted in the plat without the “plus or minus,” and hold that
the boundary line is set at the water’s edge as depicted by the original plat. The boundary line
between the parties will therefore shift due to the gradual processes of accretion and erosion.
Defendants have no ownership interest in the lake itself.

                                              Limited Riparian Rights

        Ms. Stanley asserts that prior owners always had restricted Defendants’ use of the lake, and
that Mr. Clark never intended to convey any interest in the lake to Defendants’ predecessors in
interest. She contends that since Defendants do not own any part of the lake bed, they have no right
to use the lake. The essence of her argument, as we perceive it, is that Defendants do not have
riparian rights to use of the lake.

        The deeds conveying the lots to Defendants are silent as to any rights to use of the lake, but
convey the land “with the appurtenances, estate, title, and interest thereto belonging . . . .” This
Court recently addressed riparian rights inherent in such a deed in The Pointe, LLC v. Lake
Management Ass’n, 50 S.W.3d 471 (Tenn. Ct. App. 2000). In The Pointe, we stated, “it is clear
that the grant of an appurtenance in a deed is meant to enhance the value and enjoyment of the

         2
          Although not an issue here, it should be noted that such is no t the case when the change is caused by avulsion,
a “sudde n and perceptible ch ang e in the locatio n of a body o f water.” 5A Pow ell, supra Ch. 66 ¶ 71 7[1][2].

         3
          Technically, the term “littoral” refers to land adjacent to a lake or sea, while the term “riparian” refers to land
adjacent to a river. Current usage, however, generally applies “riparian” to land abutting either a river or a lake. The
Pointe, LLC v. Lake Management Ass’n., 50 S .W.3d 4 71, 4 75 n .2 (Tenn . Ct. App. 2 000 ).

                                                            -4-
property.” Id. at 475. We noted that the inherent value of riparian land is derived from the
accessibility and proximity of the water. Id. We further noted that when, as here, property adjacent
to water is conveyed with all appurtenances, there is a presumption that the right to use and
enjoyment of the water is part of the grant. Id. These riparian interests are presumed unless the
terms of the grant, conveyance or deed expressly exclude them, or unless the description of the
property in the deed clearly indicates that such rights are not attached to the property. Id. at 476-77.
See also, Curtis M. Brown, et al, Boundary Control and Legal Principles 199 (3rd ed 1986).
Riparian water rights vest when the riparian land is acquired. 5A Richard R. Powell, Powell on Real
Property Ch. 65 ¶ 713[3] (Patrick J. Rohan ed.,1993). These rights are “considered part of the
package of rights in the fee.” Id. They depend not on ownership of the land beneath the water, but
on contact of the landowner’s land with the water. Brown, supra.

         As noted, the deeds conveying these lots are silent as to the right to use the lake and the
property is described by reference to the plat. The plat indicates that the lots extend to the edge of
the lake, and Mr. Clark testified that the proximity to the lake was a positive selling point. Mr.
Clark and Mr. Wade testified that Defendants were permitted to fish in the lake only with
permission. Ms. Stanley testified that she did not discuss the usage of the lake by the adjoining lot
owners with Mr. Wade when she purchased the property, that she did not tell the Defendants not to
fish in the lake until after this litigation was initiated, and that most of the fishing by Defendants was
from their own property.

        The court below granted Defendants limited riparian rights to fish from their property at the
banks of the lake without addressing the issue of whether an implied easement exists. Riparian
rights, while considered part of the fee, are not unlimited. 5A Powell, supra ¶ 713[4]. They are
limited to what is acceptable or reasonable under the circumstances. Id. Defendants agree that such
limited rights are reasonable under the circumstances. In light of the foregoing, we agree with the
trial court that the lake is appurtenant to the abutting property of the Defendants. We accordingly
affirm the trial court’s judgment awarding Defendants limited riparian rights to fish from their lots.

                                              Conclusion

        We modify the trial court’s determination that the boundary lines of Defendants’ lots should
be determined by the metes and bounds measurements minus the “plus or minus” symbols noted in
the plat. We hold that the boundary lines are at the water’s edge and will shift due to accretion and
erosion. We affirm the award of limited riparian rights. Costs of this appeal are taxed one-half to
the appellant, Ms. Stacey Stanley, and her surety, and one-half to the appellees, Daniel Ring and
wife, Deon Ring, Jerry Bond and wife, Jackie Bond, Robert Rose, and Paul Seger and wife,
Georgette Seger, for which execution may issue if necessary.



                                                         ___________________________________
                                                         DAVID R. FARMER, JUDGE


                                                   -5-
