The final in a series on water boundaries

Recently I was fortunate enough to have some free time in New Mexico, part of which I spent bird watching at Bosque del Apache National Wildlife Refuge on the Rio Grande. I grew up very near this river, so any return brings memories. This visit also reminded me of the character of rivers coursing through this arid landscape. The vegetated banks were separated by several hundred feet of barren silty river bed, through which meandered any number of small, shallow, interconnecting channels. The entire expanse is so strongly influenced by the desert sun that people have, in many places, diverted portions of the flow through ditches to concentrate some of the water into channels, minimizing loss through evaporation. In the Pacific Northwest, where I presently live, the rivers either completely inundate the area between the banks or run violently through generally well-defined, braided channels in rocky river beds. It is usually much easier to tell where the "actual" river is situated at any one time.

For this, my final article in this series on water boundaries, I will describe one interesting case from New Mexico that addresses the common problem of interpreting deeds that call out a river as one of the boundaries of a parcel. Cases interpreting such deeds are legion. In any state where you practice, you will need to know whether the Supreme Court considers a call in a deed to a "river" or a "bank" as meaning the center of the area between the banks, the thread of some channel, or perhaps the high water line of the river. Many courts have adopted policy decisions that they will always construe deeds calling lines to a river to include all the grantor's land within the river bed, unless a separate clause specifically reserves some described portion. Frequently, however, deeds that call out a riparian boundary give rise to some of the most difficult problems of determining the "intent" of some long past grantor in a chain of title.

Sketch used in the court's report of Burnham v. City of Farmington.

The Case

Burnham v. City of Farmington, 957 P. 2d 1163 (N. M. App. 1998). It is impossible to follow this difficult case without referring to the sketch that appears in the court's report.

The two rectangular parcels shown in the drawing comprise the south half of the northwest quarter, and the west half of the southwest quarter of section 12, township 29 north, range 13 west of the New Mexico Prime Meridian (which I will abbreviate as Sec. 12 in the rest of this article).

To confuse matters, the descriptions at issue sometimes also refer to the northwest quarter of the northwest quarter of the same section, an area not shown on the sketch. In some of the deeds, this latter quarter-quarter is combined with the parcel shown on the sketch as including the San Juan Machine Works and described as the west half of the northwest quarter.

Note that the sketch includes a D&RG Railroad Right of Way and a crosshatched area called the "Property at Issue," which runs from the thread of a channel of the Animas River as it existed in 1938 to the north bank of the present north channel of the same river. The north and south channels of the Animas, as shown, represent presently existing channels running within a broader riverbed. The map also depicts an Island Property that crosses the line between the two rectangular parcels. The parties were disputing ownership of the crosshatched portion of the island.

The two rectangular parcels were owned by the Hubbs, who divided the overall property by conveyances in 1943 and 1946. The senior conveyance, dated Feb. 24, 1943, went to Schenck and contained this description:

All that part of the South half of the Northwest one fourth (S1/2 NW1/4) of (Sec. 12) running North and West from the Animas River as it now runs, to the North and West line of the said above described lands. 957 P. 2d at 1165.

The 1946 conveyance, from the Hubbs to Dickey, read:

All that part of the SW1/4 NW1/4 and the NW1/4 NW1/4 of (Sec. 12) lying south of the right of way of the Denver and Rio Grande Railroad as now constructed over and across the same. Said land being only that portion of the above W1/2 NW1/4 of Section 12 lying between the D&RG Railroad right of way and the present course of the main channel of the Animas River. 957 P. 2d at 1166.

Next, the Burnhams instituted a quiet title action. The DeWeerds were not themselves named in the lawsuit, but (probably because of a threat that they would be brought in by their grantee, although the report is not specific on this point) the case was settled by an exchange of quit claim deeds between the Burnhams and the DeWeerds in 1959. The deed from Burnham to DeWeerd covered:

All that part of the South Half of the Northwest Quarter (S1/2 NW1/4) of (Sec. 12) lying North and West of the Animas River, as such river existed on Feb. 27, 1943.

The DeWeerd to Burnham quit claim described:

All that part of the South Half of the Northwest Quarter (S1/2 NW1/4) of (Sec. 12) lying South and East of the Animas River as such river existed on Feb. 27, 1943. 957 P. 2d at 1166.

Then, in 1970, the DeWeerds sold property on a real estate contract to the Coles, using the following description:

All that part of the W1/2 NW1/4 of (Sec.12) lying between the present course and/or channels of the Animas River, as the same now exists. This tract being part of an island covered with brush and trees and located between the new or present channel of the river and the old or 1943 riverbed of said river. 957 P. 2d at 1166.

This final description was repeated on conveyances in 1974, 1976, 1980, and ultimately on a conveyance to the City of Farmington in 1991. The trial court had held that all of the "Property at Issue" belonged to the Burnhams, and the city appealed.

The parties at trial disputed the true location of the main channel of the river as it existed in 1943. Evidence presented to the court included a 1938 hydrological survey, which showed the single, large channel depicted on the sketch as "Course of Animas River wet water in 1938 State Engineer's Water Rights Map/Hydrological Survey." Aerial photographs taken in 1950 and 1973 showed the distinct north and south channels of flow. Three witnesses testified that they swam in the river near the San Juan Machine Works in "the early 1940s," and in the "late 1940s and early 1950s." 957 P. 2d at 1170.

They remembered the north channel as being wide and deep and as lying adjacent, on the north side, to a still existing steep embankment. One of the witnesses pointed out the location where he used to swim on an aerial map, relating it to the headgate to the North Farmington Ditch. A surveyor provided the court with an analysis based on the deed abstracts and an overlay of the 1938 State Engineer's map superimposed on a 1985 aerial photograph. He pointed out that a dashed line, depicted as the "old river channel" on the 1938 map, conformed well with the current north channel. 957 P. 2d at 1170.

The Burnhams and the surveyor pointed out that the deed from the Hubbs to Dickey, in 1946, called for 150 acres, which apparently best matched the trial court's conclusion that the north edge of the present north channel was the boundary.

The city countered that the north channel was merely the North Farmington Ditch, and that the best evidence of the old location of the river was the channel shown on the 1938 state hydrological survey. As with most such factual disputes, however, the Court of Appeals held that substantial evidence supported the trial court's determination that the north channel was the main channel of the river as it existed in 1943. Thus, the Court of Appeals affirmed the trial court's choice of channels, but it disagreed that the deeds should be construed so as to grant the Burnhams' ownership to the north edge of that channel.

The Burnhams raised two arguments to support their claim to the entire 1943 main river channel. One was the above- mentioned acreage, which best matched the property with the channel included. The other concerned the wording of the original Hubbs to Schenck deed, where it described land "running North and West from the Animas River as it now runs."

According to the Burnhams, this language of the deed establishes that the property conveyed began from the northern edge of the river because the words "to" and "from", when used in a boundary description, "are to be understood as terms of exclusion absent some manifest indication that they were used in a different sense." 957 P. 2d at 1168.

The court gave little weight to the acreage, because it was not found in the senior deed (the 1943 deed to Schenck). The fact that the Hubbs did not mention acreage until a deed written three years after the deed creating the division made the acreage extraneous to the problem. The court had several reasons to reject the Burnhams' interesting argument concerning the use of the word "from" in the Schenck deed.

First of all, the Appellate Court found that an earlier New Mexico Supreme Court case had construed a description of a portion of a quarter section lying "to the east" of a highway to include the land up to the centerline of the highway. 957 P. 2d at 1168. The Court stated the following general rules for interpreting deeds against monuments, such as rivers, that have a width:

We construe a deed to give effect to the intent of the grantor... To accomplish this purpose, we follow rules of construction or presumptions when the deed is not clear... A strong presumption exists that a conveyance of land that describes a boundary with width conveys to the center of the boundary monument absent a contrary intent manifested in the conveying instrument in the context of surrounding circumstances... Our Supreme Court has applied this presumption to deeds calling for a boundary of a highway, an alley, and an acequia... The general purpose of the presumption is to ensure that the title to the two narrow strips of land surrounding such boundaries is not left uncertain... The same need for completeness applies when a stream or river describes the boundary of a conveyance... The presumption is refutable by wording which necessarily excludes the boundary monument from the description of the property conveyed when the instrument is viewed with its attending circumstances... However, if the conveyance language is of doubtful meaning, the presumption will prevail. 957 P. 2d at 1167-68.

The court found the quit claim deeds to provide additional support for its conclusion that the above-described presumption should control, rather than the Burnhams' contention that the use of the language "from the Animas River" in the Schenck deed rebutted the presumption. Those quit claims described property lying "North and West" and "South and East" of the river, rather than running "from" the river:

We find more compelling the fact that Bernice A Burnham... exchanged quitclaim deeds with the DeWeerds in 1959 in connection with, according to Mr. DeWeerd's testimony, a quiet title lawsuit initiated by Ms. Burnham. The DeWeerds and Ms. Burnham acknowledged, at that time, that the property "lying North and West of the Animas River, as such river existed on Feb. 27, 1943," belonged to the DeWeerds and that the property "lying South and East of the Animas River, as such river existed on Feb. 27, 1943," belonged to Ms. Burnham. The quitclaim deeds changed the description from the original Hubbs-Schenck deed. By dividing the property as they did, the parties to the quitclaim deeds, including Ms. Burnham, recognized the river as it existed on Feb. 27, 1943 as the boundary between their properties.

By accepting as her property that property lying south and east of the river, Ms. Burnham gave up her claim to the property from the center of the river to the northern edge of the river. The description in the quitclaim deed allocating the property to her cannot be read to include such an area. If the Hubbs-Schenck deed can be read as the Burnhams presented and the district court found, Ms. Burnham relinquished an interest in the property from the northernmost boundary of the Animas River as it existed on Feb. 27, 1943 to the center of the river on that date in the quitclaim deed exchange....

We view the quitclaim deeds as determinative since they were intended to resolve boundary differences between Ms. Burnham and the DeWeerds. We note that although the district court found that the Hubbs-Schenck deed was dated Feb. 24, 1943, it stated that the ultimate issue in the case was the location of the river on Feb. 27, 1943, the date adopted by the quitclaim deeds. 957 P. 2d at 1169.

Having by all this decided that the Burnhams owned the land to the center of the Animas River as it existed on Feb. 27, 1943, and that the north channel was main channel of the river at that time, the court next addressed whether the line should run down the middle of the main channel or be centered between the outer banks of the bed that contains all the channels.

Generally, the center of a river would be in the middle of the river's banks. The river's banks are defined as the "boundaries, which confine the water to its channel throughout the entire width when [a] stream is carrying its maximum quantity of water."... Particularly, in an arid or semiarid state such as New Mexico, the water flow through a river's banks need not be continuous... But although a river may have defined banks, when it is stated as a boundary monument, the court's role is to effectuate the parties' intent when determining title to property. The evidence in this case... indicates that the Burnhams' chain of title runs from the center of the north channel of the Animas River.

The district court found that the north channel was the main channel of the Animas River in February 1943. With the north channel as the main channel, under what circumstances would Hubbs intend to convey a substantial portion of the riverbed to Schencks? The rational response is circumstances in which water is flowing within the riverbed. In that case, Hubbs' intent of conveying to the Schencks the property north and west of the Animas River "as it now runs" has meaning. If, on the other hand, the river were not running in the area south of the north channel, it would not make sense for Hubbs to convey such an area of property through a presumption that their conveyance includes the property they own to the center of a river; the river was not running there. We will not presume an irrational intent when construing a contract or deed...

Although the City contends that water runs throughout the area between the two outer banks, the Hubbs-Schenck deed establishes the boundary of the river using the present-tense language of "as it now runs." To construe this language to mean anywhere within the banks of the river in which water may occasionally flow, rather than a [presently] flowing channel of the river, does not comport with reasonable action of Hubbs in the circumstances... With the river having such an identity, with two separate, distinct channels separated by a significant distance, we cannot conclude that a boundary describing property "from the Animas River as it now runs" takes to a point between the two channels of the river. 957 P. 2d at 1171-72.

Although I find the court's exposition of its reasoning a bit confusing, on reflection it has a certain logic. Given a broad expanse between the "outer banks" of a river, wherein several separate channels might flow at any given time, the Hubbs could have tied the southeasterly boundary of the grant to Schenck to the center of the broad expanse by calling for the middle of the "bed" or "riverbed" of the Animas River. Assuming, as apparently the court did (or the evidence showed) that the "outer banks" would be much more stable than the inner channels, it makes sense to say that when the Hubbs called for the river "as it now runs" they meant the main flowing channel, as that would probably be more subject to movement than the outer banks. Given that conclusion, it is not too big a leap to apply the same logic to the DeWeerd-Burnham quitclaim deeds, which described the same river as it existed at a particular date.

Finally, the Court added one last point to support its conclusion. If the DeWeerds actually felt they had a true claim to the "island covered with brush and trees" they conveyed to the Coles in 1970, why didn't they retain an access to that island when they deeded the land to the northwest of the main channel of the river to the San Juan Machine Works? The court further noted that the Coles contract called for very low consideration and excluded all warranties, thus it amounted to no more than a quitclaim in its own right. 957 P. 2d at 1172.

From all this, the Court concluded that the Burnhams owned the land up to the center of the north channel of the river. It remanded the case to the trial court to determine the exact location of the center of that channel (in the earlier trial, the court only determined the location of the north line of that channel.) Although the court is not completely clear on this, it appears from the sketch that this conclusion eliminates any ownership on the part of the city, assuming that San Juan Machine or its successors had clear title to the land lying northwest of the center of the north channel.


Most cases involving interpretations of deeds with calls to rivers concern, as did this case, the issue of whether the side lines of the warring properties run to a bank of a river or to the centerline. Other common situations question whether some exact point called by a distance in a metes and bounds controls over the edge or middle of a stream. They often further involve the question of movement of boundaries by accretion or reliction. In this fascinating case, the main channel of the river most likely moved regularly, but the court found that by the time of trial the present north channel was in the same location as the 1943 channel. Furthermore, moving boundaries would be a proper issue in a case between the Burnhams and the San Juan Machine property-here the question was whether an intervening ownership existed at all.

Above all, this case should alert you to the pitfalls of interpreting the fine points of language in such a deed. The descriptions in this case appear, at first reading, to be disarmingly simple. How likely is it that, in 1943, either party imagined that the simple phrase "running north and west from the Animas river" would lead later parties to purport to deed land that never existed (at least as a separately titled parcel) and would require an appellate court 10 pages of fine print to decipher? Such is the world of riparian boundaries.