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THE LAND BELOW THE 800 FOOT CONTOUR – Where do my rights begin and the rights of my neighbor end?

On Behalf of | Jan 12, 2023 | Real Estate Law |

Smith Mountain Lake is a man-made lake controlled by American Electric Power. AEP has certain legal rights to various activities occurring below the 800 foot contour of the lake along the shoreline. Many residents are familiar with the Shoreline Management Plan, dock permits, etc. However, this article is not meant to discuss AEP’s rights, but instead, your rights to use of the shoreline compared to the rights of your neighbor.

The law related to ownership and possession of the land below the 800 foot contour is controlled by two different cases arising out of Bedford County that both made their way to the Virginia Supreme Court. One of the cases is Smith Mountain Lake Yacht Club v. Ramaker from 2001, which dealt with the situation where the property owner not only owned their land, but also owned the land beneath the 800-foot contour and then down below the waters of the lake. The second case is Anderson v. Delore from 2009 which dealt with the situation where AEP owned the land beneath the 800-foot contour and the lot owners merely had easements to get to the water

Yes, you may actually own “fee-simple” title to the land beneath the water. (Note – Despite the fact that many legal descriptions in deed loosely refer to the land below the 800 foot contour, only a title examination can reveal whether you do or not.) If you own the land below the 800 foot contour, then the 2001 case is applicable. In the Smith Mountain Lake Yacht Club case, SMLYC owned the land beneath the waters of Smith Mountain Lake. The property line between the SMLYC land and the land owned by the Ramakers ran almost exactly along the 800 foot contour line for hundreds of feet, allowing the Ramakers to have land adjoining the waters of the lake only when the lake was at full pond. The Ramakers constructed a dock that originated on their land, but then extended out into the waters of the lake and onto the submerged property still owned by SMLYC, who objected to the use of their land as a trespass. The Supreme Court of Virginia held:

The chancellor’s designation of a riparian zone permitting construction of a dock extending from the Ramakers’ property is contrary to the law because the dock would have to cross the Yacht Club’s partially submerged property to reach the dock’s designated terminus point in the water. [Per the Virginia Code], the right to construct a dock or pier for noncommercial purposes on a watercourse is subject to the restriction that the exercise of this right shall not obstruct navigation or injure the private rights of any person. Thus, we hold that a property owner may not build a pier or dock extending into a watercourse across the property of another without that owner’s permission. Since the Yacht Club did not give the Ramakers permission to build a dock across the Club’s property to reach the navigable part of the watercourse, the chancellor’s determination allowing the construction of such a dock is plainly wrong.

What does this mean? It means that your neighbor cannot trespass upon your land even if it is submerged/flooded by the waters of a river, stream, lake, pond, etc. Just as in the Ramaker case, if you own the land below the 800 foot contour, then your neighbor cannot come upon your property without your permission. You have the ability to instruct them not to do so, and if they continue to do so, they are subject to a claim that they are trespassing on your property.

The second case is applicable if AEP owns the land below the 800 foot contour. In the Anderson v. Delore case, the Andersons owned a parcel of land that was located immediately above the 800-foot contour of Smith Mountain Lake in Bedford County. The Delores owned property that was adjacent to the Anderson lot and also was located immediately above the 800-foot contour.

These two parcels derived from a common grantor, the Villamont Corporation, which in 1958 purchased about 140 acres of real property on Smith Mountain Lake for the development of a subdivision known as Gross Point. As part of this development, Villamont retained ownership of the land below the 800-foot contour, but conveyed to Appalachian Power Company a flowage easement so that the company could change the level of the water in Smith Mountain Lake, up to the 800-foot contour. While Villamont conveyed each property owner the right to go over and across the land lying immediately between the lot and the lake, the deeds did not mention “extended lot lines” or any other words that would establish the lateral dimensions for the respective rights of each property owner. The Supreme Court held:

In the absence of express language specifying the lateral dimensions of the easement or otherwise describing its scope, the Andersons were required to present evidence that the grantors of the Villamont deeds intended to convey an easement to the Andersons’ predecessors in title over property from the 800-foot contour to the water’s edge encompassing the disputed area on which the Delores’ improvements lie. The Andersons, however, did not present such evidence. They failed to offer any testimony addressing this issue, and the only documents they presented were the deeds in the parties’ respective chains of title, the permits and related documentation concerning the Delores’ structures at issue, and the 2006 plat prepared after the present dispute arose.

We observe that in certain instances involving subdivisions created by a common grantor, we have determined the grantor’s intent by reference to a common scheme of development. We are unable to do so in this case, however, because the record lacks any evidence regarding other conveyances by Villamont to property owners in the Gross Point subdivision. Therefore, we conclude that the record before us fails to support the Andersons’ claim of encroachment based on their theory of “extended lot lines,” and that the circuit court was not plainly wrong in refusing the Andersons’ request for injunctive relief.

In reaching this conclusion, we do not decide the lateral dimensions of the particular easement before us. We hold only that with regard to the present allegations of encroachment, the Andersons failed to meet their burden of proof. Thus, our holding is limited to the particular encroachment alleged here by the Andersons and does not preclude a future request for injunctive relief involving structures other than the beach area, rip rap, and dock, as presently configured, which are the subject of this litigation.

What does this mean? It means that when AEP owns the land and the adjacent property owners have an easement to cross the 800 foot contour to get to the lake, the language used to create that easement is EXTREMELY IMPORTANT!! If the language in your chain of title does not set out that the imaginary extension of the side lot line is applicable, then do not rely upon that as the basis of a claim that your neighbor is encroaching on “your shoreline.”

Note the language at the end of this holding. It appears that the outcome could have been different had counsel for the Andersons presented evidence at trial of the lateral dimensions of the easements. In other words, if the Andersons could have brought the original developer of the property to trial to testify about the meaning of the easement language (called “parol evidence”), the entire case may have turned out different. Unfortunately, in 2007, and certainly in 2023, this is nearly impossible as the developers from the 1960’s are in most cases no longer available to testify in court.

(Note – This article is not meant to discuss the details of AEP’s Shoreline Management Plan which requires a 15 foot setback from the imaginary extension of the lot line for purposes of locating your dock when obtaining a dock permit from AEP.)