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Starr v. Child1 is a New York opinion dating back to 1838, so it would be easy for surveyors to dismiss it as irrelevant to their practice. However, this opinion has been directly quoted by numerous jurisdictions, including Virginia,2 West Virginia,3 Maine4 and Ohio.5 From there, the influence of this opinion continues to spread.
This case highlights one of the classic dilemmas faced by surveyors engaged in the retracement of river boundaries and is one of the early antecedents to what has been referred to in a few states as the “strip and gore doctrine.” While this specific phrase only appears in opinions from a few states (including Alaska, Idaho, Texas and West Virginia) thus far, the principles embodied in the doctrine are solidly grounded in the rulings of many states.
The background information recorded in Starr v. Child is fairly straightforward. A 100-acre parcel was divided into multiple tracts by means of two partition deeds. The 100-acre description was held forth as the source of title by both the plaintiff and the defendant. The Genesee River was one of the boundaries of the tract and was called for in the description of “mill-seat lot no. 12” (see Figure 1 on page 40).
All parties involved initially agreed that title to the center of the Genesee River (a small non-navigable river) was included in the original tract. The central problem in the case was determining ownership of the bed of the Genesee River based on the subsequent division of the 100-acre parcel. The description of the Cobb tract (a portion of mill-seat 12) included the phrase “thence eastwardly parallel with Buffalo Street about 45 feet to the Genesee River; thence northwardly along the shore of said river to Buffalo Street.” This description contains an apparent contradiction. While the phrase “to the river” would generally be presumed to extend ownership to the center of the river, the following call with the “shore of the river” might well be interpreted to limit the conveyance to the bank of the river. A significant portion of the opinion was devoted to proving that the terms “shore” and “bank” would be considered synonymous in this instance. The decision was further complicated by the fact that each mill-seat would be allowed to take water from an existing raceway.
A second deed of the same date conveyed the remainder of mill-seat 12 to Thomas Morgan and included this property description: “beginning at the southwest corner of the premises conveyed to Cobb, running thence southwardly along the east bounds of the mill-yard 25 feet; thence eastwardly along the north bound of an alley and parallel with Buffalo Street to the Genesee River (nearly fifty feet); thence northwardly along the shore of the Genesee River to William Cobb’s corner.” Again, there is a distinct lack of clarity in the description of the river boundary.
While the attorney for the defendants was adamant in his claim that the descriptions cited above would limit the title of the owners of mill-seat no. 12 to the bank (or shore) of the river, the majority opinion opposed this interpretation for several reasons and maintained that the descriptions to Cobb and Morgan would extend title to the center of the Genesee River.
Two important principles were set forth by the New York court to justify their decision.
Prima facie, a proprietor of each bank of a stream is the proprietor of half the land covered by the stream. The bank and the water are correlative. One cannot own one without touching the other. But the bank is the principal object; and when the law once fixes the proprietorship of that, the soil of the river follows as an incident, or rather as a part of the subject-matter, usque filum aquae. Fresh rivers do, of common right, belong to the owners of the soil adjacent.
Upon construction of law, which does not require express words for the grant of every part, as houses, fences, mines, or the elements of water or air, which all pass by the word “land;” and, as a grant of land by certain boundaries, prima facie passes all such parts to the grantee, usque ad caelum et ad infernos; so, within the same principle, it passes the adjoining fresh-water stream, usque ad filum aquae. … and surely it would be more absurd for the law to give a man the shore or side of a fresh-water river; and yet, by saving the bed to the grantor, make the owner of the land a trespasser, every time he should slake his thirst or wash his hands in the stream.6
|Figure 1. The Genesee River was one of the boundaries of the 100-acre tract in Child v. Starr.|
The opinion stated clearly that the burden of proof would be on those seeking to prove the exclusion if any possibility existed that some element of the land in question was to be reserved from the operation of the conveyance.
The justices conceded that elements existing on a tract of land may be excepted from a conveyance. They also recognized that certain parts of a tract of land may be held by others due to processes such as prescriptive claims or estoppel, but they were adamant in their thesis that the mere omission of a specific item from a grant does not create a presumption that the item is to be excluded from the grant. Although not mentioned in this case, an interesting parallel occurs when considering easements appurtenant--the mere failure to reference an existing easement in later conveyances of the dominant estate does not extinguish the easement.
This legal fiasco did not end with the 1838 ruling. The opinion was not a unanimous ruling, and these issues were revisited by the New York courts on two later occasions. While clearly upholding the general legal principles stated in the 1838 opinion, the court in 1842 reversed the earlier ruling with another split decision, and the final vote was 11-10. This reversal was based not on a repudiation of the principles previously stated but on re-interpretation of the construction of the deeds and consideration of the likely intent of the parties. The language employed in the various individual opinions laid out in the 1842 document gives a clear indication of the possible conflicts inherent in coming to a decision when the wording in deeds is ambiguous.
The 1842 decision also expanded the scope of precedent implied by this case. Chancellor Walworth stated that conveyances adjacent to roads, party walls and ditches also follow the same general presumption and boundaries are presumed to extend to the center of these called-for monuments.
The common law rule, as I understand it, is that the riparian proprietor is, prima facie, the owner of the alveus or bed of the river adjoining his land, to the middle or thread of the stream; that is, where the terms of his grant do not appear and show that he is limited…. It has also been decided that the same principle applies to the construction of grants bounded generally upon highways, party-walls, ditches, etc., which constitute natural boundaries between the lands granted and the adjacent property.
Another viewpoint from the 1842 opinion amplifies on this presumption:
Reasons founded on public policy and general convenience forbid the disjunction of the ownership of the bed of the river and the adjacent land. It would, in many instances, present a line of boundary as uncertain and variable as the edge of a cloud. Although one may own the land, and another the adjacent stream or the land covered by it, yet the intendment of the common law will apply in favor of the riparian proprietors in all cases where there is no evidence to rebut it; and will equally apply in all cases even of doubtful construction.7
Four years later, the parties were back in court, this time with one final and critical piece of evidence. Additional research revealed that the original 100-acre tract cited in the 1838 opinion was part of a 20,100-acre tract that only extended to the bank of the Genesee River. Therefore, the final ruling found that the riverbed was never included in the original 100-acre parcel at all.
This is yet another cautionary tale demonstrating the chaos that can ensue when decisions are based on insufficient deed research.
Although these New York rulings dealt primarily with ownership of waterways, common law in many states has applied these principles in other situations. Several states have considered these principles as they relate to strips of land along both public and private roads. In addition, they may be applied to narrow strips inadvertently left in limbo from poor resurveys of parcels where monumentation set or called for in the resurvey did not precisely reflect the location of previously existing boundary lines.
Of particular interest to surveyors may be the common situation where an old recorded plat lays out lots, streets and alleys for a proposed subdivision. While state statutes regarding the express dedication of roads for public use vary, some early subdivision plats were recorded before such statutes existed. Others were recorded without fulfilling the letter of the law for statutory dedication and acceptance. In either situation, the underlying fee-simple title of the land within the street limits may remain vested in those individuals who purchased lots on either side of the streets. The Virginia Law Register discussed this topic in 1925, stating, “The rights of purchasers by the plat or map are different from those of the general public, the abutter takes the fee to the middle of the street in front of his lot.”8
Even in states such as Virginia, where statutory dedication and acceptance of a public road transfers fee-simple title to the local governing body, cases may be found where the recorded plat was not properly approved before recording. In the following example, representatives of Lancaster County, Va., contended that a previously existing recorded plat had effectively transferred fee-simple title in an existing road to the county. The reply by the court was emphatic:
The 1992 plat was not submitted for approval as required by the subdivision ordinance, nor was it in compliance with various requirements of the Virginia Code. This plat apparently was not intended by the landowner to be a subdivision plat. The 1992 plat is of no consequence in resolving the issue before the Court.9
The presumption against the conveyance of useless strips of land will often be a legitimate consideration by the court; however, numerous exceptions to this doctrine do exist. It is important to emphasize that these presumptions are rebuttable and may be disregarded when significant evidence indicates that the presumption is not appropriate for the specific situation under consideration. In addition, individual states vary in their application of this doctrine, particularly in situations involving railroads. The U.S. District Court in Idaho considered a railroad right of way that had been converted to trail use and concluded:
The conveyance of strips of land in fee is disfavored in some states as a matter of public policy and therefore gives rise to a presumption that the conveyance of a strip of land is an easement rather than a fee. This is commonly referred to as the “strip and gore doctrine.” However, the Idaho Supreme Court has expressly declined to apply the strip and gore doctrine to railroad deeds.10
In addition, this presumption requires that there be some ambiguity in the deed description and does not control in situations where clear and unambiguous phrasing in a grant specifically reserve a narrow strip of land.
Numerous examples of litigation regarding the “strip and gore doctrine” may be found in the records of the Texas Supreme Court. One of the best summaries of the principle follows:
It is well known that separate ownership of long narrow strips of land, distinct from the land adjoining on each side, is a fruitful source of litigation and dispute. To avoid this source of contention, it is presumed that a grantor has no intention of reserving a fee in a narrow strip of land adjoining the land conveyed when it ceases to be of use to him, unless such fee is clearly reserved…unless it clearly appears in the deed, by plain and specific language, that the grantor intended to reserve the strip.11
However, the Texas courts also specifically recognize a fundamental conflict in disputes of this type. While the presumption against useless strips of land is well established, it comes into conflict with another important principle that presumes that each deed should stand on the basis of its own specific language. “There is an inference that the grantee is entitled only to the land described within the limits of the boundaries in the deed, but there is also a presumption that the grantor did not intend to retain a narrow strip along an outside line.”12
The responsibility remains for the surveyor to read each deed in the light of the circumstances surrounding the execution of the deed and to attempt to retrace the deed in accordance with the intent of the original parties. Ultimately, the courts may apply legal presumptions such as those described here, particularly in the case of ambiguous descriptions. These presumptions are often considered to be “rules of construction” analogous to those with which surveyors have long been familiar.
1. Starr v. Child: 20 Wend. 149 (1838) N.Y.
2. French v. Bankhead: 52 Va. 136 (1854).
3. State v. Lillie Mounts: 108 W. Va. 53; 150 S.E. 513 (1929).
4. Mansur v. Blake: 62 Me. 38 (1873).
5. Dayton v. Cooper Hydraulic: 10 Ohio Dec. 192 (1900).
6. Starr v. Child: 20 Wend. 149 (1838) N.Y.
7. Child v. Starr: 4 Hill 369 (1842) N.Y.
8. Virginia Law Register, Vol. 10, No. 10, February, 1925.
9. Humphreys v. Arnold: 33 Va. Cir. 126 (1993).
10. Hash v. U.S.A., U.S. District Court, Idaho; Case No. CV 99-324-S-MHW (2001).
11. Cantley v. Gulf Production Co.: 135 Tex. 339; 143 S.W.2d 912 (1940).
12. Town of Refugio v. Strauch: 29 S.W. 2d 1041 (1930).
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.