Unmistakable Marks: Boundaries Are Affected by Watercourse Location
Calls for riparian features have only limited control over the locations of associated upland boundaries and corners.
Property corners situated on riparian features present unique challenges for land use professionals. In general, a call for a specific tree or other physical object on the bank of a river is considered to control over measurements. However, the situation is less clear-cut when a deed calls for the mouth of a branch or an otherwise undescribed point on the river bank. Well-established rules of erosion, accretion, and avulsion come into apparent conflict with the typical requirement for permanence and certainty that is normally associated with boundary monumentation.
The inherent instability of riparian features as monuments has led many courts to consider refinements to the general rules of construction as applied to property descriptions. Judges, surveyors and attorneys must take this uncertainty into account when applying the rules of retracement that typically favor the precedence of monuments over measurements.
The Mouth of the Branch
An excellent early discussion of the problems associated with riparian features is found in the Alabama decision Doe v. Cullum: 4 Ala. 576 (1843): In this dispute, the relevant plat showed the mouth of a branch (labeled “A”) as a corner of the original grant. The plat in turn was called for in express terms by the original grant, and the court conceded the critical importance of the plat in determining the location of the disputed tract.
The court recognizes two inherent difficulties that might arise if the mouth of the branch were allowed to control the location of the upland portions of the grant. The first is the near-impossibility of precisely locating a feature as ill-defined as the outfall of a branch into a bay or ocean. It is likely that modern surveys (by different surveyors) depicting this water feature would vary in their location of the watercourse in question, even in cases where any changes to the shoreline were gradual and all surveyors exercised due diligence in their field procedure.
The second issue is the relative uncertainty and instability of the location of the branch contrasted with the greater certainty and stability of the lines as originally run and marked on the upland portions of the grant. Lines proved to have been run and marked by the original surveyor at the time of the original division are high on the list of priorities due to their close relationship with the intent of the original grantor and their relative stability.
This uncertainty could be aggravated in cases where a natural body of water has been modified by artificial means. Artificial changes could result from dredging, dams constructed across watercourses or artificial erosion control measures common in coastal areas. In any of these scenarios, the structures or artificial changes might be located some distance from the described property corner.
Judge Collier notes that the need for certainty and stability of property boundary lines and titles is a primary factor in his analysis. While conceding the normal precedence of monuments over measurements, he also recognizes exceptions to the general rule: Thus, where by giving to monuments a controlling influence, absurd consequences would ensue, or where it is obvious that courses and distances furnish the most certain guide to the location and quantity of the land, the latter should be followed. In the present case, the “absurd result” would be a parcel of land that moves randomly with each new location of point “A” at the mouth of the branch.
The Alabama court concludes that strict application of the rules of construction would result in unacceptable changes to the size and location of the resulting survey: We should incline to the opinion, that it would under such circumstances be allowable to show, the precise point on the bay intended as the corner, though the natural object designated had been gradually removed by natural causes. The branch is doubtless an inconsiderable body of water to which no riparian privileges are attached, and by the mere shifting of its bed or mouth cannot be allowed to subtract from, or add to, the soil of contiguous proprietors.
Reference to a Distant River
More recently, the New Mexico decision Casa Colorado v. Pooler: 38 N.M. 87 (1933) applies a similar standard to a grant corner described as being “…19 miles due east of the southwest corner, a point on the left bank of the Rio Grande...” One party to the dispute insisted that the proper way to establish this upland grant corner was to determine the present location of the left bank of the Rio Grande and measure 19 miles from that point. Of course, this interpretation ignores the fact that the Rio Grande had shifted considerably since the date of the original government survey.
Judge Watson makes a clear distinction between upland monuments and those associated with watercourses: It is well known that rivers do change their banks; particularly such streams as the Rio Grande. A presumption against change would be contrary to common knowledge. If indulged in this case, as matter of law, it would result, as matter of fact, in making the eastern boundary a variable. Any erosion would upset the description. Except for the remote possibility of equal wash at the two western corners, the eastern boundary would soon cease to be a north and south line.
In a sense the river may be a permanent boundary. But not in the sense that a point on the eastern boundary may be located by measuring from it. In fact, a description tied merely to a bank of the Rio Grande is necessarily ambiguous.
The judge concludes that the lines as originally run on the ground (along with the corners established in the process) controlled over a mere measurement from a distant riverbank. Any other interpretation would result in an unstable upland corner that was constantly moving based on the position of a distant watercourse.
Spreading the Confusion
Scureman v. Judge: 747 A.2d 62 (1999) is a convoluted Delaware dispute that emphasizes the difference between riparian boundaries and upland boundaries that happen to be in the general vicinity of a body of water. The disputed 50-foot easement (Lake Drive) and adjoining tracts were originally mapped and located in 1876, and shown on a subdivision plat. The north edge of the easement was located along the then-current shore location of Silver Lake. On the south side of Lake Drive, a series of residential lots were created adjacent to the easement.
As time passed, the level of Silver Lake rose and the Town of Dewey Beach decided (erroneously) that this change in water level had altered the original location of Lake Drive. This flawed reasoning resulted in a purported road re-location that would run through the backyards of several of the southern adjoiners.
After years of litigation, Judge Jacobs concluded that the southern adjoiners are upland parcels rather than riparian tracts. As such, they are not affected by gradual changes to the shoreline of Silver lake.
The Delaware court notes that the upland (non-riparian) parcels and lines remained fixed, and that the easement bore the brunt of the changes to the shoreline: But the accretion doctrine, even if applicable, would not benefit the intervenor in this particular case. Under that doctrine, the riparian boundary (here, the boundary separating the parcel on which Lake Drive is located from Silver Lake) would shift south with the erosion of the shore, but the non-riparian boundaries (the boundaries that separate that parcel from the plaintiffs’ lots) would not. Instead, the non-riparian boundary would remain fixed.
Described but Never Seen
In West Virginia. v. Maryland: 217 U.S. 1 (1910), the U.S. Supreme Court rejected arguments that a call to a riparian monument controlled, and instead held a stone set long after the creation of the original state boundary line between Virginia and Maryland. The disputed corner is described as “the first fountain of the river Potomac…” It was critical to this decision that the purported corner was located in an area that was unexplored at the time and had never been observed or marked by anyone associated with the controlling document.
The original description does not recognize that the upper reaches of the Potomac has two branches (the South and North Forks, respectively). Nor were there any field notes, marked lines or other evidence to clarify the original intent of the document.
Upon their later arrival at the purported corner location, surveyors found a low swampy area with numerous springs that would give rise to an infinite number of possible solutions, all conforming to the written description.
When a call to a riparian boundary is vague or uncertain, other elements of retracement law may control: But it is to be remembered that the grant to Lord Baltimore was made when the region of the country intended to be conveyed was little known, was wild and uninhabited, had never been surveyed or charted, and the location of the upper part of the Potomac River was only a matter of conjecture.
The court ultimately recognized the Fairfax Stone, established circa 1746 as the true corner of the state boundary lines. It should be noted that this case was ultimately resolved by acquiescence rather than by basing the decision on a strict interpretation of the original intent of Lord Baltimore.
The disputes described above arise in part from a fundamental misunderstanding of the effective limit of the control exerted by riparian features. The parties also failed to recognize the correct standards to be applied at the point where upland and riparian boundaries intersect. While the principles of accretion, erosion, and avulsion clearly apply to riparian boundaries, they do not have an unlimited effect on upland boundaries in their vicinity.
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 is an attorney admitted to the bar in your jurisdiction.