Fluid Challenges

June 21, 2002
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How water boundaries differ from their upland counterparts.



Every surveyor is aware of perpetuation of the original corner positions on upland boundaries. The contemplated intent of perpetuation is the stability of boundaries. If any of those boundaries are watercourses or water bodies, however, there are different rules for determination and perpetuation. Riparian or littoral parcels—any parcels of land adjoining water—carry distinct legal and practical location aspects of non-tidal boundary determination, distinguishing them from their upland boundary counterparts.

Historical Basis

Rooted primarily in the English common law, the original colonies, when forming the Union of the United States of America, determined that individual states would hold in trust for the public submerged lands under navigable waters within their borders. States admitted to the Union subsequent to the original colonies have taken sovereignty over the beds of navigable waters under the Equal Footing Doctrine. Under this doctrine, new states entering the Union would do so on an equal basis with the original states.

The Fundamentals

Navigability

Inland waters are either navigable or non-navigable. In water boundary determinations this is the first question to answer. In contrast with navigable watercourses or water bodies, the beds of non-navigable waters are usually owned by the upland riparian or littoral owners. The boundary delimiting opposite riparian owners in non-navigable settings is most usually the thread, but when specifically called out may extend to the thalweg or other line.

There are varying definitions of navigability. Some waters are navigable-in-law but not necessarily navigable-in-fact. Navigability for title purposes is generally a question of navigability-in-fact. The question of fact is with respect to the character of a watercourse or water body in its natural and ordinary condition as it existed on the date of statehood. At this time was the watercourse or water body capable of passage for commerce in the customary modes of trade and travel on water?

The United States Supreme Court opinion in United States v. Holt State Bank, 270 U.S. 49, 56(1926), establishes the guiding principle:

“The rule long since approved by this court in applying the constitution and laws of the United States is that streams or lakes which are navigable in fact must be regarded as navigable in law; that they are navigable in fact when they are used, or are susceptible of being used, in their natural and ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water; and further that navigability does not depend on the particular mode in which such use is or may be had – whether by steamboats, sailing vessels, or flatboats – nor on an absence of occasional difficulties in navigation, but on the fact, if it be a fact, that the stream in its natural and ordinary condition affords a channel useful for commerce.”

When confronted with the question of navigability, it is helpful to research case law specifically pertaining to the watercourse or water body. Recorded documents for parcels of land adjoining the subject watercourse or water body (e.g., plats and legal descriptions) may also lend some direction. Be cautious to search thoroughly, for conflicting information is not uncommon. Only a diligent search will reveal a preponderance of information for a particular watercourse or water body.

Boundary Position

Once it has been determined that a particular watercourse or water body is navigable, the next question to answer is what proper point it is (i.e., definition, not location) that the sovereign’s interest in the bed ceases and the upland owner’s private interest begins. Various description verbiage is used. I have dealt with descriptions that called out the water line as measured on a certain date, or the average water line, or the water line as shown on aerial imagery, or the meander of a river, or the meander line of the river, etc. This type of verbiage leaves open to question the intent of the parties to a deed. At the least, it exhibits the scrivener’s misunderstanding of water boundaries. At worst, it violates perhaps the principal canon of water boundaries—that of being an ambulatory (movable) boundary.

With regard to the common deed description statement … “to the bank of the river,” or “to the river; thence, by (or along) said river …,” more case law exists pertaining to non-navigable water courses than navigable. In the former, ownership in the bed is in private interests with the boundary generally resting at the thread of the river or stream. For the latter, ownership in the bed has vested in the sovereign (and remains there unless specifically divested) with the boundary being either at the OHWL or the OLWL, depending on the jurisdiction. In either situation, navigable or non-navigable, the court abhors deed language such that the potential for a narrow unconveyed strip exists. In the absence of explicit deed language to the contrary, the court (with rare exceptions) will apply an interpretation such that the conveyance extends to the watercourse or water body, thereby precluding the occurrence of an unconveyed strip.

Watercourse elements.

Terminology and Definitions

While there is conflicting case law on water boundaries, there is a relatively consistent set of definitions and terminology for this complex subject. The figure illustrates the elements of a watercourse. A watercourse is defined as a flowing stream or river. A water body is defined as a contained body of water, such as a lake or ocean.

Definitions1:

Bank: The bank(s) of a river or stream are those elevations of land that confine the waters when they rise out of the bed.

Bed: The bed of a river or stream is that supporting soil so usually covered by water as to be distinguishable from the banks, produced by the common presence of an action of flowing or contained water. Its limits are neither the result of periodic floods, nor diminished flows from drought.

Littoral: The term littoral is derived from the Latin “litus,” which means shore, seashore or coast. An owner of land adjoining a contained water body is said to have taken title in littoral. The owner is a littoral owner, and the parcel is a littoral parcel.

Normal (ordinary) Water Level: The most prevalent water level in a watercourse, as distinguished from the ordinary high water line or ordinary low water line (or, …. water mark).

Ordinary High Water Line (OHWL)2: The line that delimits the river bed or lake bed from its banks (in those states where the preponderance of case law recognizes this position). It is the level to which the water rises at its ordinarily highest stage annually. It is where the public’s ownership in the water and its supporting bed ceases, and adjoining private ownership begins. In the case of a watercourse, the OHWL is neither a straight line nor at a constant elevation. It can best be described by envisioning the line along each bank created by the intersection of a falling “plane” of water with the sinuosities of the bed and banks that confine it to its course. The height of this “plane” of water is that to which it rises at its ordinarily highest annual stage, excluding floods or diminished waters from drought years. It is found by ascertaining where the physical presence and action of water are so usual and long continued in all ordinary years as to mark upon the soil of the bed a character distinct from that of the bank(s), with respect to both vegetation and the nature of the soil itself. Leading definition taken from Howard v. Ingersoll, 54 U.S. 381, 427(1851), concurring opinion of Curtis, J.

Ordinary Low Water Line (OLWL): The OLWL is the exact inverse of OHWL, in those states where the preponderance of case law recognizes this position.

Riparian: Riparian is derived from the Latin “ripa,” meaning river bank. An owner of land adjoining a river or stream is said to have taken title in riparian. The owner is a riparian owner, and the parcel is a riparian parcel.

Shore: Sometimes referred to as “shoreline,” it is actually a band or margin along a watercourse or water body, as opposed to a line. It is the margin that is washed by the action of water on the bed and banks without overflowing the banks, being the strip of land between the Ordinary High Water Line (OHWL) and the Ordinary Low Water Line (OLWL).

Thalweg: The centerline of the deepest, most navigable channel of a watercourse, as distinguished from the line midway between the banks.

Thread: The line equidistant from the water’s edge at the normal water level. In some states this definition has been applied to the OLWL. State law should be consulted to verify this (case law is the best source).

Ambulatory Nature

Probably the paramount distinction between upland and water boundaries is the ambulatory nature. The one exception to this applies in an avulsive event, which will be discussed when covering water boundary doctrines in the second part of this series.

To ambulate is to be free to move about. In the context of water boundaries the implication is one of contemplated change of position over long periods of time. This change is understood to be slow and imperceptible to the observer at any given moment of time. It works to gradually move the boundary (which is marked in this case by a natural monument subject to movement) with movement of the watercourse.

To knowingly or unknowingly “freeze” a water boundary to a given location and point in time (avulsion excepted) has the effect of countering important court sanctioned doctrines, and has been viewed by the court as unlawful taking. Water law doctrine has evolved around the precept of an ambulatory environment, with both the associated rights and risks having been carefully guarded by the court.

Rights and Risks

A riparian or littoral parcel may benefit from its unique status, but must also bear the associated risks that attach. One may gain real property through the accretive or relictive process, or conversely, may experience loss through erosion and the gradual movement of a watercourse. Indeed, it is possible for a parcel of land over time to be entirely extinguished through the action of water.

Excerpted from Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973):

“…where lands are bounded by water, it may well be regarded as the expectancy of the riparian owners that they should continue to be so bounded… The quality of being riparian, especially to navigable water, may be the land’s most valuable feature,’ and is part and parcel of the ownership of the land itself. Hughes v. Washington 389 U.S. 290(1967), at 293.

… By requiring that the upland owner suffer the burden of erosion, and by giving him the benefit of accretions, riparianess is maintained. Finally, there is a compensation theory at work. Riparian land is at the mercy of the wanderings of the river. Since a riparian owner is subject to losing land by erosion beyond his control, he should benefit from any addition to his land by the accretions thereto, which are equally beyond his control.”

Sources of Water Law

The body of water law is rooted in the common law; that is, case law reported in the various state’s court reporters. It is necessary to always check the federal reporter as well. The official reporter for the U.S. Supreme Court is the United States Reports. Cases taken to the U.S. Supreme Court typically involve conflicts between states wherein the watercourse or water body functions as a common border. Cases heard in Federal District Court and then appealed to one of the federal courts of appeal can be found in West’s Federal Reporter.

The common law, as distinguished from law created by the legislature (statute law), comprises the body of those principles and rules of action relating to the government and security of persons and property, which derived their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of courts recognizing, affirming and enforcing such usages and customs. The common law is also used in reference to that body of law and juristic theory originated in England, particularly the ancient unwritten law of England (at the time of the American Revolution), having obtained adoption among the Anglo-Saxon peoples of the United States of America.3

A key doctrine of our court system is that of stare decisis. The term literally means “to stand by things decided.” It is a rule or policy of law requiring courts to abide by precedents previously laid down as being applicable to a similar set of facts. Its purpose is to lend an element of predictability in legal decisions.

Cases heard at the district, or trial, court level are not reported. As such, they provide neither precedent nor persuasive authority under the rule of stare decisis. The trial court functions as the trier of (i.e., determines) facts under rules of evidence and conduct. Rather than setting precedent, the trial court looks to reported case law for established precedent in rendering a decision (i.e., in applying the proper principles of law to the facts as determined at trial). A case on appeal from the trial court, if heard and reported, thus contributes to the first level of precedent-setting case law.

It is important to note that some states have statutorily identified certain watercourses as being navigable. While interesting, and often correct, these statutes are not consistently all-inclusive. The fact that the legislature may have designated certain streams or rivers as navigable has little bearing on the legal standing of the beds of these watercourses, or others perhaps not statutorily identified. Navigability as an issue is ultimately a judicial question.4

Because water boundary issues go back many centuries, there is a certain element of equity interwoven throughout the common law doctrines that have come to be adopted. This is interesting because the concept of equity originates from the old equity courts of England, which provided remedies not available in the more rigid common law courts. Equity courts were regarded as courts of fairness. With formation of the United States of America, courts of equity (or their juristic concept) were integrated into the regular law courts. Thus, judges could provide remedies of both law and equity. Elements of equity will be seen when we visit the water law doctrines later in this series.

  1. The definitions have been taken from a mixture of case law, dictum and Definitions of Surveying and Associated Terms prepared by a joint committee of the American Congress on Surveying and Mapping and the American Society of Civil Engineers, 1978(rev.), reprinted 1981.

  2. The term Ordinary High Water Line (OHWL) is one of several used for what is universally held as the same intended line or mark (e.g., Ordinary High Water Mark, High Water Mark, Mean High Water Line or Mark). For purposes of this series, use of the term Ordinary High Water Line (OHWL) will be intended as inclusive of all other variations of wording.

  3. Black’s Law Dictionary, 4th Ed.

  4. See State v. Bunkowski, 88 Nev. 623; 503 P 2d 1231 (1972).

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