Carr v. Kidd

Present: All the Justices

LESLIE G. CARR, ET AL.

v. Record No. 000475 OPINION BY JUSTICE BARBARA MILANO KEENAN
January 12, 2001
ROBERT C. KIDD, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge

This appeal arises from a judgment entered in a suit to

determine the riparian rights of neighboring landowners. The

primary issue is whether the trial court erred in confirming the

report of a commissioner in chancery, which recommended an

apportionment of riparian rights based on an approximated

historic shoreline existing prior to manmade development of the

perimeter of the parties' properties.

The suit initially involved a riparian rights dispute

between Robert C. Kidd and Marjorie B. Kidd (collectively, the

Kidds), and their immediate neighbors to the northwest, Mark S.

Crowley and Lori Crowley (collectively, the Crowleys). The lots

owned by the Kidds and Mark Crowley 1 respectively are situated

along a cove of Tanner's Creek, a tributary of the Lafayette

River in the City of Norfolk. The Kidds sought to build a pier

out into the cove from their lot, to which the Crowleys

1
Mark Crowley is the sole owner of the Crowley lot. His
wife Lori was named as a party at the request of Mr. Crowley
objected. The Kidds commissioned a riparian surveyor, Robert L.

Taliaferro, to perform a riparian survey of their lot (the

Taliaferro survey) to help resolve the dispute. The Taliaferro

survey indicated that the Kidds were within their riparian

rights to build the proposed pier, and that the existing pier

used by the Crowleys encroached on the Kidds' riparian rights.

Thereafter, the Kidds filed a bill of complaint against the

Crowleys requesting a determination of the parties' respective

riparian rights and asserting a cause of action against the

Crowleys for trespass based on the location of the existing

pier. 2 After the suit was filed, the Crowleys commissioned their

own riparian surveyor, Robert M. Kennedy, to perform a survey

(the Kennedy survey) of the Crowley and Kidd lots. The

delineation of riparian rights in the Kennedy survey was nearly

identical to that in the Taliaferro survey. 3

In light of the similarity between the two surveys, the

Kidds and the Crowleys reached a tentative settlement that would

have required the Crowleys to remove the existing pier but would

have ensured that each party had sufficient riparian rights to

based on her interest in the property by reason of her marriage
to Mr. Crowley.
2
The Kidds later filed an amended bill of complaint naming
additional parties with a potential interest in the disputed
riparian rights. These additional parties are not involved in
this appeal.

2
construct a pier. The Crowleys' neighbors to the northeast,

Leslie G. Carr and Janice N. Kohl (collectively, the Carrs),

learned of the impending settlement and intervened in the suit

on the ground that the proposed settlement interfered with the

Carrs' riparian rights. The Carrs further alleged that the

Kennedy survey incorrectly drew riparian lines across a portion

of the Carrs' property, thereby converting a substantial portion

of allegedly non-riparian property into a riparian zone

belonging to Mr. Crowley.

Following the Carrs' intervention, the trial court referred

the matter to a commissioner in chancery, Philip R. Trapani, Jr.

At a hearing before the commissioner, the Kidds and the Crowleys

stipulated to the results of the Kennedy survey. The Carrs

argued that the Kennedy survey was incorrect, and they requested

a different allocation of the parties' riparian rights.

After the hearing, the commissioner filed a report in which

he recommended that the parties' riparian rights be allocated

based on the Kennedy survey. The trial court confirmed the

commissioner's report and entered a final order allocating the

parties' riparian rights in accordance with the Kennedy survey.

The record shows that the lots currently owned by the

parties were part of a residential subdivision that originally

3
Attached to this opinion is a diagram adapted from the
Kennedy survey depicting the properties and their respective

3
was platted and recorded in 1903. The lots now owned by the

Carrs (the Carr property) were purchased by their original owner

in 1904 from the subdivision developer. 4 The source deed for the

Carr property makes reference to the original subdivision plat

of 1903 (original subdivision plat). The lot now owned by Mr.

Crowley (the Crowley property) was purchased by its original

owner from the developer in 1910. The source deed for the

Crowley property references a revised subdivision plat recorded

in 1908 (revised subdivision plat). The source deed for the

Crowley property is also the source deed for the lot now owned

by the Kidds (the Kidd property), which was part of a larger lot

originally purchased from the developer in 1910 by one of the

Kidds' predecessors in title. 5

In 1939, a concrete bulkhead was constructed along the

northwestern edge of the Carr property. In addition to the

bulkhead, an area of "riprap" 6 was placed along the northeastern

edge and corner of the Carr property. Samples of sand and

potash taken from the Kidd property were admitted into evidence

riparian allocations.
4
The Carr property consists of two adjacent lots. For ease
of reference, we will refer to the two lots collectively as "the
Carr property."
5
The larger lot had been subdivided before the Kidds
purchased their property in 1994.
6
The Kidds' expert testified that "riprap" is "[g]enerally
stone and concrete and debris of that nature . . . use[d] as
backfill and to prevent any more erosion."

4
at the commissioner's hearing as proof that "fill material" had

been placed behind the bulkhead on the Carr property.

The parties stipulated that the applicable rule for

apportioning riparian rights is the rule set forth in Groner v.

Foster, 94 Va. 650, 27 S.E. 493 (1897). There, the Court

stated:

A just rule of division is to measure the length of the
shore and ascertain the portion thereof to which each
riparian proprietor is entitled; next measure the length of
the line of navigability, and give to each proprietor the
same proportion of it that he is entitled to of the shore
line; and then draw straight lines from the points of
division so marked for each proprietor on the line of
navigability to the extremities of his lines on the shore.
Each proprietor will be entitled to the portion of the line
of navigability thus apportioned to him, and also to the
portion of the flats, or land under the water, within the
lines so drawn from the extremities of his portion of the
said line to the extremities of his part of the shore.

Id. at 652-53, 27 S.E. at 494. Our decision in Groner further

indicates that the "shore line" for purposes of applying the

above rule is what today is referred to as the mean low water

(MLW) line. 94 Va. at 656-58, 27 S.E. at 496.

The parties agreed on the proper methodology for measuring

a current MLW line for the purpose of apportioning riparian

rights under Groner, and they did not dispute that the Kennedy

survey shows the correct current MLW line. The parties also did

not dispute that the Kennedy survey shows the correct "edge of

water" line in 1939, as taken from a 1939 harbor chart prepared

by the United States Army Corps of Engineers Water Department,

5
and that this line is nearly identical to the current MLW line.

The parties disagreed, however, whether the current MLW line, or

a historic MLW line existing about the time the lots originally

were platted and recorded, should be used in making the

calculation under Groner.

The parties further disagreed on the proper location of a

historic MLW line. The Kidds and the Crowleys argued that the

correct MLW line for making the Groner apportionment is a

historic MLW line "unaffected by man," namely, a MLW line that

existed prior to any manmade development affecting the perimeter

of the properties. In determining this historic MLW line in

their separate surveys, both Kennedy and Taliaferro relied on

the revised subdivision plat. Although a MLW line is not

expressly designated on the revised subdivision plat or the

original subdivision plat, Taliaferro and Kennedy both concluded

that the MLW line of 1908 could be approximated from the

information appearing on the revised subdivision plat.

Taliaferro testified that this MLW line was an unmarked dotted

line on the revised subdivision plat that roughly follows the

"straight-line" 7 rear lot boundary lines of the properties, and

that he used this dotted line in making his calculation under

the Groner rule. Kennedy did not use this dotted line in making

6
his calculation pursuant to Groner but instead used the

"straight-line" rear lot boundary lines of the properties, as

shown on the revised subdivision plat, which closely resembled

the historic MLW line identified by Taliaferro. Kennedy used

these rear lot boundary lines based on his determination that

they were precise and clearly determined, and were "basically a

mathematical tie line" along the actual MLW line of 1908.

The approximate MLW line of 1908, as determined by both the

Kennedy and the Taliaferro surveys, is located substantially

inland of the current MLW line. An apportionment of the

parties' riparian rights under the current MLW line would yield

different results from an apportionment under the approximate

MLW line of 1908. This disparity would result because the

property dimensions set forth in the source deeds and

subdivision plats do not extend to the current MLW line, with

the exception of the northeastern corner of the Carr property.

Thus, based on the dimensions indicated in the deeds and the

subdivision plats alone, there is currently an additional

portion of land between the rear property line of all the

parties' lots as originally platted and deeded and the current

MLW line.

7
We use the term "straight-line" to describe the fixed lines
as designated by the original subdivision surveyor and shown on
the revised subdivision plat and the Kennedy survey.

7
 The parties agreed that if the Groner rule were applied

using the current MLW line, the pie-shaped configuration of the

Crowley property would result in its side lot lines converging

before reaching the current MLW line. Also, using this method,

the side lot lines extending from the Kidd property would nearly

converge. Therefore, use of the current MLW line in applying

the Groner rule would leave the Crowleys with no riparian rights

and the Kidds with substantially reduced rights.

By contrast, the Kennedy survey depicts that in 1908 no

additional portion of land existed between the approximate MLW

line of 1908 and the back line of the parties' properties as

platted and deeded. Since that approximate MLW line was farther

inland than the current MLW line, all the parties would have

substantial riparian rights if the calculation under Groner were

made using the MLW line of 1908.

The Kidds and the Crowleys produced testimony from their

expert witnesses that the additional portion of land shown on

their surveys exists today because manmade development of the

perimeter of the parties' properties has moved the MLW line

seaward since the lots originally were platted and recorded.

The Kidds and the Crowleys argued that this movement was caused

by the placement of the concrete bulkhead and "riprap" on the

Carr property, as well as the placement of fill materials along

the perimeter of all three properties.

8
 The Carrs disagreed with this argument and asserted before

the commissioner that the Kidds and the Crowleys improperly

relied on the "straight-line" rear lot boundary lines of the

revised subdivision plat to approximate the MLW line of 1908.

John F. Hill, Jr., a surveyor who qualified as an expert

witness, testified that the MLW line of the parties' properties

is essentially the same today as when the lots originally were

platted and recorded. Based on this testimony, the Carrs

contended that the current MLW line is the proper line for

purposes of making the calculation under Groner.

Hill based his opinion on a comparison of a "proposed" 1903

U.S. Army Corps of Engineers harbor chart, a 1939 harbor chart

prepared by the U.S. Army Corps of Engineers Water Department,

and the original subdivision plat. While Hill conceded in his

testimony that there had been some movement of the MLW line over

the years, he contended that this movement was only "partially

caused by development." Hill did not prepare a survey that

supported his opinion.

The Carrs also argued that the language in their source

deed extended their side lot lines to a MLW line that was

virtually the same in 1904 as it is currently. They relied on

the language of their source deed stating that the property was

conveyed "with all riparian rights on that branch of Tanner's

Creek bounding them on the North and West." Thus, the Carrs

9
argued that the courses and distances set forth in the deed

descriptions merely approximated the true rear boundary of their

property, which is the MLW line of Tanner's Creek. The Carrs

contended that by comparison, the source deed for the Kidd and

the Crowley properties did not contain express grants of

riparian rights or indicate that the properties were bounded by

Tanner's Creek.

In his report, the commissioner concluded that a historic

MLW line "unaffected by man" is the appropriate MLW line for

making the Groner apportionment. The commissioner determined

that the "straight-line" rear lot boundary lines shown on the

revised subdivision plat, and depicted on the Kennedy survey,

best approximated such a MLW line, and that the Kennedy survey's

apportionment of riparian rights under the approximated MLW line

of 1908 should be adopted. In reaching these conclusions, the

commissioner found that Kennedy used a more appropriate

methodology that was based on known points, which are fixed and

are capable of recertification at any time.

The commissioner was not persuaded by Hill's methodology,

observing that testimony from Kennedy and Taliaferro established

that the 1903 proposed harbor chart used by Hill was prepared to

show navigable water, not land boundaries. Further, Hill

conceded on cross-examination that his analysis of the case

relied on whether he had accurately located the Carr house on

10
the 1903 proposed harbor chart. The commissioner noted, first,

that Taliaferro testified that the structure identified by Hill

was not the Carrs' house but an upstream structure, and second,

that Kennedy testified that the house simply was shown on the

plat as a general reference point. Moreover, while the

commissioner found that Taliaferro and Kennedy had very candid

demeanors, the commissioner stated that he was left with the

impression that Hill did not believe his own testimony but

merely was crafting the best argument for his clients, the

Carrs.

The commissioner concluded that there was no merit in the

Carrs' argument that the Kidds and Mr. Crowley lacked riparian

rights based on the language of the parties' deeds. The

commissioner noted that the 1904 source deed for the Carr

property describes the property by referring to the lot lines of

the original subdivision plat, and refers to the Carr property's

dimensions as 150 feet wide by 125 feet deep, fronting on

Luxembourg Avenue to the west.

The commissioner observed that the language of this source

deed states that the Carr property includes "all riparian

rights" extending into Tanner's Creek from the southwest corner

of the property by a line of North 16 degrees West "as shown by

a dotted line of the plat above referred to." The commissioner

concluded that this deed language designates this riparian line

11
to run from the platted pin placed 125 feet from Luxembourg

Avenue at the southwest corner of the Carr property. The

commissioner stated that this conclusion is evident from the

original subdivision plat, which shows dotted lines extending

out from the corners of the three properties of the parties, and

described these dotted lines as "strikingly similar in

orientation to the riparian lines on the Kennedy survey."

The commissioner noted that although the current deeds for

the Kidd and the Crowley properties have quitclaim provisions

regarding the properties' respective riparian rights, no

riparian rights have been severed by deed from these properties.

The commissioner finally concluded that an apportionment based

on the Kennedy survey better meets "plain principles of justice"

because such an apportionment gives all the property owners in

this case rights to the shore and the flats directly in front of

their properties. The trial court entered a final order

apportioning the parties' riparian rights in accordance with the

commissioner's recommendations.

We consider the Carrs' assignments of error on appeal under

an established standard of review. A trial court's order

approving a commissioner's report will be affirmed unless it is

plainly wrong or without evidence to support it. Chesapeake

Builders, Inc. v. Lee, 254 Va. 294, 299, 492 S.E.2d 141, 144

(1997); Firebaugh v. Hanback, 247 Va. 519, 525, 443 S.E.2d 134,

12
137 (1994). We accord "great weight" to the factual findings of

the commissioner that have been confirmed by the trial court

and, thus, it is not our role to assess either the credibility

of the witnesses or the probative value to be given to their

testimony. Cooper v. Cooper, 249 Va. 511, 518, 457 S.E.2d 88,

92 (1995).

On appeal, the Carrs first argue that the commissioner's

use of the approximate MLW line of 1908, rather than the current

MLW line, violated the Groner rule. They contend that the

commissioner improperly assumed that the historic MLW line had

changed because the Carrs' predecessors in title had placed fill

materials and a bulkhead on the property.

The Carrs also assert that since their bulkhead lawfully

was constructed in 1939 inland of the then existing MLW line,

the commissioner erred in making his calculations under the

Groner rule based on the approximate MLW line of 1908. They

contend that the Kennedy survey adopted by the commissioner is

further contrary to the Groner rule because the survey allocates

within Mr. Crowley's riparian zone 639 square feet of the Carrs'

"dry" land. We disagree with the Carrs' arguments.

In addressing these arguments, we first observe that the

law governing the allocation of riparian rights is clear. A

riparian owner has a right to the water frontage that belongs by

nature to his land. This right includes, among other things,

13
the right to the soil under the water between his land and the

navigable line of the watercourse. The riparian owner may erect

on this soil wharves, piers, or bulkheads for his own use, or

for public use, subject to such rules as the General Assembly

may impose for the public's protection. Langley v. Meredith,

237 Va. 55, 62, 376 S.E.2d 519, 523 (1989); Cordovana v. Vipond,

198 Va. 353, 357, 94 S.E.2d 295, 298 (1956); Groner, 94 Va. at

651, 27 S.E. at 494. The enjoyment of this right is limited by

statute such that exercise of the right shall not result in an

obstruction of navigation or in injury to another's private

rights. See Code § 62.1-164.

In conformance with these principles, a riparian owner is

entitled to have the extent of his rights on the line of

navigability of the water course determined and marked, along

with his proper share of the flats, or land under the water, and

those boundaries defined. Langley, 237 Va. at 62, 376 S.E.2d at

523; Groner, 94 Va. at 651-52, 27 S.E. at 494. The prime object

of this apportionment "should be to give each proprietor of the

shore, and as directly in his front as practicable, a parcel of

land under the water of a width at its outer end upon the line

of navigability proportioned to that which it has at the inner

or shore end." Langley, 237 Va. at 62, 376 S.E.2d at 523

(quoting Groner, 94 Va. at 652, 27 S.E. at 494).

14
 Frequent incidences of shore curvature prevent

apportionment of riparian rights under a fixed rule extending

out to the line of navigability the divisional lines between the

owners' properties in the same direction that these lines reach

the shore. Langley, 237 Va. at 62, 376 S.E.2d at 523; Groner,

94 Va. at 652, 27 S.E. at 494. If the shore line or the line of

navigability curves, or the divisional property lines approach

the shore at different angles, projection of these lines in the

same direction out to the line of navigability would necessarily

and unjustly cause an encroachment on the riparian rights of the

several adjoining waterfront owners, and deprive one or more of

those owners of all access to the navigable part of the

watercourse. Langley, 237 Va. at 62-63, 376 S.E.2d at 523;

Groner, 94 Va. at 652, 27 S.E. at 494. To account for these

potential problems, we articulated the rule in Groner, which we

set forth above.

As these principles governing riparian rights make clear, a

riparian owner's rights are limited by the water frontage

belonging by nature to his land. Langley, 237 Va. at 62, 376

S.E.2d at 523; Cordovana, 198 Va. at 357, 94 S.E.2d at 298;

Groner, 94 Va. at 651, 27 S.E. at 494. Thus, a riparian owner

gains the benefit of any accretion 8 of his property from gradual

8
"Accretion" is a broad term referring generally to any
change in land that is caused by the force of water and that

15
and imperceptible changes caused by natural forces. Steelman v.

Field, 142 Va. 383, 387, 128 S.E. 558, 559 (1925). However, a

riparian owner may not, by means of lawful development of his

land, enlarge his riparian rights and advance the division line

between his riparian zone and the riparian zone of other

property owners, or otherwise restrict the riparian rights of

such other property owners. Lambert's Point Co. v. Norfolk and

W. Ry. Co., 113 Va. 270, 274, 74 S.E. 156, 158 (1912); see

Shepheard v. Boggs, 198 Va. 299, 305, 94 S.E.2d 300, 304 (1956).

This rule articulated in Lambert's Point is particularly

instructive here. The parties in that case sought an

apportionment of riparian rights under circumstances in which

the shoreline of their adjoining properties was irregular and

curved. 113 Va. at 271, 74 S.E. at 157. On the waterfront of a

portion of its land, one party lawfully had "filled in" land and

built wharves, and sought to have its riparian rights determined

in accordance with the altered shoreline resulting from the

"filled in" land. 113 Va. at 273-74, 74 S.E. at 158. The

commissioner in chancery to whom the suit was referred

apportioned the parties' riparian rights by determining the MLW

line "as if the filling in had not been done." 113 Va. at 274,

74 S.E. at 158.

involves an addition to land. Lynda Lee Butler & Margit
Livingston, Virginia Tidal and Coastal Law § 3.4, at 62-63

16
 We approved the methodology of the commissioner and his

conclusion that an owner's riparian rights cannot be increased

by that owner's lawful development of its shoreline. Id. We

quoted with approval the commissioner's explanation that under a

contrary view, "it would lie in the power of one riparian owner,

by its own voluntary act, which could not be prevented by the

adjoining owner, to increase its riparian rights, and encroach

upon the riparian rights of the other adjoining owner to any

extent." Id. Thus, when a property's perimeter has been

developed, thereby altering the property's shoreline, an

apportionment of riparian rights under the Groner rule requires

that those rights be determined as if the perimeter

improvements, including the placement of fill materials, had not

been made. Id.

In the present case, the commissioner accepted the

testimony of Kennedy and Taliaferro that the Carrs' shoreline

had been altered due to the manmade development of the perimeter

of the property. Both experts testified that there were fill

materials behind the bulkhead and the riprap on the Carrs'

property. Taliaferro stated that these fill materials created

"an enormous increase in land" behind the bulkhead on the Carr

property, and he identified the fill materials as including

(1988).

17
heavy grain sands, rock, stone, and fly ash, which are materials

"not natural to that area."

In addition, the bulkhead on the Carr property was

constructed about 38 feet seaward of the 125-foot southern lot

line terminus designated in the Carrs' source deed. Taliaferro

concluded that the portion of the Carr property extending to the

water beyond its 125-foot southern side lot line consisted

entirely of fill materials.

Kennedy also testified that the difference between the

current shoreline of all the parties' properties and their

shoreline shown on the revised subdivision plat of 1908 is

largely the result of manmade development. In addition, Hill,

the Carrs' expert, conceded on cross-examination that the Carrs'

shoreline had moved to some degree partly based on the manmade

development of the property. Based on this evidence of manmade

development, we conclude that the commissioner properly

disregarded the current MLW line for purposes of making his

apportionment under the Groner rule.

We next conclude that the evidence supports the

commissioner's use of the approximate MLW line of 1908, as

reflected by the "straight-line" rear lot boundary lines shown

on the Kennedy survey. This methodology is supported by the

expert testimony of Kennedy and Taliaferro. The approach also

is consistent with Code § 28.2-1202 which provides, in material

18
part, that the boundaries of tracts of land lying on the bays,

rivers, creeks, and shores within the jurisdiction of the

Commonwealth, and the rights and privileges of the owners of

such lands, generally extend to the mean low-water mark "but no

farther." Id.

Kennedy testified that he approximated the MLW line of 1908

after examining both the original and the revised subdivision

plats. He stated that he identified this approximate MLW line

based on his 16-year expertise in preparing hydrographic and

riparian surveys, and that he followed proper surveying

procedures for determining riparian rights, including

disregarding changes in property boundaries caused by manmade

development. Taliaferro confirmed that Kennedy used proper

surveying procedures, and identified an approximate MLW line of

1908 that closely resembled the course of the historic MLW line

identified by Kennedy.

We find no merit in the Carrs' assertion that the method of

locating this historic MLW line violated the requirement of

Swanenburg v. Bland, 240 Va. 408, 413, 397 S.E.2d 859, 862

(1990), that a surveyor's conclusion regarding the location of a

property line rest on a factual basis. In Swanenburg, we

reversed a judgment that was based on a surveyor's opinion

regarding the location of a MLW line because his testimony was

not supported by any probative evidence. Id. In contrast, the

19
historic MLW line adopted by the commissioner in the present

case was supported by evidence that this MLW line could be

approximated based on the shoreline as shown on the original and

revised subdivision plats.

We next consider the Carrs' contention that the trial court

erred in adopting the commissioner's conclusion that the

southern lot line of their property did not extend to "existing

mean low water." The Carrs' objection to the commissioner's

conclusion is based on their assertion that they own a

triangular-shaped piece of about 639 square feet of land that

they would lose to Mr. Crowley under the commissioner's

recommended allocation of riparian rights. The Carrs note that

their property was conveyed pursuant to the original 1904

subdivision plat, and that their deed description did not

provide for a rear property line but stated only that Tanner's

Creek bounded the rear of the property. They contend that this

natural boundary description takes precedence over measurements

in the deed, such as the description of the property as "running

between [125-foot] parallel lines."

We conclude that the commissioner's finding is not plainly

wrong and is supported by evidence in the record, including the

testimony of Leslie Carr. Carr admitted on cross-examination

that the survey he obtained when he purchased the property

showed that the disputed triangle of land lying to the southwest

20
of his bulkhead was outside his platted lot lines. Moreover,

the Kennedy survey adopted by the commissioner placed that

triangle of land within the riparian zone for the Crowley

property based on Kennedy's location of the approximate MLW line

of 1908 along the rear lot lines fixed in the revised

subdivision plat. Thus, the commissioner properly accepted the

conclusion of Kennedy and Taliaferro that the Carr property did

not include the disputed triangle of land.

The Carrs next argue that the trial court erred in

affirming the commissioner's determination that the language of

the source deed for the Kidd and Crowley properties did not

"estop" the Kidds and the Crowleys from asserting riparian

rights. The Carrs note that the source deed for both properties

did not contain an express grant of riparian rights and did not

state that the rear boundary lines of those properties was

Tanner's Creek. The Carrs also contend that the commissioner

failed to address adequately the issues raised by the quitclaim

provisions in the deeds of the Kidd and the Crowley properties.

We disagree with the Carrs' arguments.

Although the source deed for the Kidd and Crowley

properties did not contain an express grant of riparian rights,

the deed describes the boundaries of those lots in part by

reference to the revised subdivision plat, which depicts the

properties as having a rear waterfront boundary. Moreover, the

21
source deed for the Kidd and Crowley properties did not have a

quitclaim provision. The record before us shows that a

quitclaim provision appeared in the chain of title for the Kidd

property in 1993, and in the chain of title for the Crowley

property in 1985.

A riparian owner has the right to water frontage belonging

by nature to his land, unless that right has been clearly and

manifestly retained by the grantor in language appearing on the

face of the deed. Irby v. Roberts, 256 Va. 324, 330, 504 S.E.2d

841, 844 (1998); Thurston v. City of Portsmouth, 205 Va. 909,

913, 140 S.E.2d 678, 681 (1965). Here, the chain of title to

both the Kidd and the Crowley properties shows no such retention

or severance of riparian rights. Thus, the commissioner

properly concluded that the language of the Kidd and the Crowley

deeds did not preclude them from asserting riparian rights in

their waterfront properties. 9

For these reasons, we will affirm the trial court's

judgment.

Affirmed.

9
We have considered the remaining arguments advanced by the
Carrs in support of their assignments of error and conclude that
those arguments have no merit.

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