First in a series on water boundaries.

For my next few articles I plan to launch an exploration of water boundary doctrines. In the nine years that I have been writing this column, I have addressed individual water boundary issues five separate times: April-May 1990 (apportionment of accretion); February-March 1991 (definition of ordinary high water); December 1995-January 1996 (Madison v. Basart doctrine); June 1996 (construction of deed calls to water boundaries) and October 1997 (United States v. Alaska). I will not revisit those issues for this series, except in so far as they come up in cases on other topics (which they surely will, for water boundary cases are always complex). I cannot give you an advance look at how I will attempt to outline the water boundary area, because at this point I don't have a clue where this trip will lead.

For this first chapter, I will address artificially induced shoreline changes and their effects on water boundaries and property rights in general. This beginning gives me a chance to review the recently concluded dispute between New York and New Jersey concerning jurisdiction over Ellis Island, a fascinating case in its own right. As I examine these cases I will branch out to topics important to the cases but not necessarily central to the theme of the article, because-again-every water boundary case seems to cover a myriad of property issues.

The Cases

State of New Jersey v. State of New York, 66 LW 4389 (1998).

Ellis Island lies in the harbor between New York and New Jersey. The Duke of York, who obtained title to the present states of New York and New Jersey in 1664, created New Jersey in a grant "bounded on the east part by the main sea, and part by Hudson's river." As stated by Justice Souter for the majority of the Supreme Court, "Having wasted no words, the noble grantor all but guaranteed the succession of legal fees and expenses arising from interstate boundary disputes, now extending into the fourth century since the conveyance of New Jersey received its seal." 66 LW at 4390.

New York claimed jurisdiction over the river and harbor up to New Jersey's shore, including the three-acre island privately owned by Samuel Ellis. In 1808, after obtaining title to Ellis Island, New York granted it to the United States for defense purposes. In 1833, after at least two boundary commissions and one lawsuit, the two states reached a boundary agreement that was approved by Congress as an interstate Compact. The Compact set the state boundary in the middle of the Hudson River, but allowed New York to keep its "present jurisdiction" over Ellis Island. New York gained jurisdiction over the water to the New Jersey low-water mark, but New Jersey gained property rights to the submerged land from its shore to the boundary, as well as jurisdiction over docks and wharves on its shore.

The federal government opened its first immigration station on Ellis Island in 1892. Later it would add new facilities, docks, buildings and fill until by 1934 the island encompassed about 27.5 acres (the government received a deed from New Jersey to cover part of this fill). More than 12 million people disembarked at Ellis Island from 1892 to 1954, when the Immigration and Naturalization Service closed the station. Their journey to America began with steamship tickets marked with the destination "New York," and they received certificates of arrival to "New York." Nonimmigrants working and living on the island were counted in the New York census, had addresses in New York, were part of a New York legislative district and voted in New York. Birth, death, and marriage certificates all were issued by New York for both immigrants and nonimmigrants on the island (although the parties disputed the extent of such registrations). All construction-as well as police and fire protection-was provided by the federal government, but when the federal officials needed help they received it from New York police and fire departments. When the federal government issued construction contracts, it paid prevailing wages based on city of New York rates. 66 LW at 4398.

Shortly after the immigration station was closed, the General Services Administration classified the property as surplus. 66 LW at 4391. The GSA, however, noted that disposal of Ellis Island to private interests would be difficult because both New Jersey and New York claimed it on their tax rolls, and both announced plans to collect taxes if a private owner took over the island. So, the federal government made Ellis Island a national historic site and transferred jurisdiction to the National Park Service. Nevertheless, New York and New Jersey asserted rival claims of sovereign authority over the filled land of the island for taxation, zoning, environmental protection, elections, education, residency, insurance, building codes, historic preservation, labor and public welfare, and general civil and criminal laws. 66 LW at 4392.

The Supreme Court held that the filled land, outside of the original three-acre island, was part of New Jersey. The Court held that the original low-water line around the island, even where it ran through buildings, marked the boundary. In doing so it applied classic common-law water boundary doctrines and made some interesting points about prescription as well. New York argued that the original Compact, by describing "Ellis Island" without any metes and bounds delineation of the perimeter, recognized New York's sovereignty over any territory that was made "fast land contiguous to the original island" by the federal government. 66 LW at 4393.

"The arguments are unavailing. To begin with, the absence of any description of the Island in metes and bounds is highly dubious support for any inference beyond the obvious one, that in 1834 everybody knew what Ellis Island was. The drafters' silence, then, can hardly be taken to convert the Island's name into a definitional Proteus for validating sovereignty claims.

"Nor can we draw any conclusion in New York's favor from the failure of the Compact to address the consequences of landfilling, however common the practice may have been. There would have been no reason to do so, simply for the reason that the legal consequences were sufficiently clear under the common law as it was understood in 1834.... Under the common law, a littoral owner, like the United States in the instant case, cannot extend its own property into the water by landfilling or purposefully causing accretion.... The littoral owner's act of placing artificial fill is thus treated under the traditional common law rule governing avulsive littoral changes.... We have long recognized that a sudden shoreline change known as avulsion (as distinct from accretion, or gradual change in configuration) has no effect on boundary, and that this is the received rule of law of nations on this point, as laid down by the writers of authority.... This common law rule speaks in the silence of the Compact, and we follow it to conclude that the lands surrounding the original Island remained the sovereign property of New Jersey when the United States added landfill to them." 66 LW at 4393.

The court characterized the common belief that Ellis Island was part of New York as relevant to a claim based on prescription. "As between two sovereigns, jurisdiction may be obtained by one through prescriptive action at the other's expense, over the course of a substantial period, during which the latter has acquiesced in the impositions upon it." 66 LW at 4394. I find the Court's exposition of this principle interesting, for it presents some of the broadest statements I have read in recent cases on the doctrines of prescription and acquiescence in boundary lines:

"For the security of rights, whether of states or individuals, long possession under a claim of title is protected. And there is no controversy in which this great principle may be involved with greater justice and propriety than in a case of disputed boundary... The doctrine of prescription and acquiescence 'is founded upon the supposition, confirmed by constant experience, that every person will naturally seek to enjoy that which belongs to him; and the inference fairly to be drawn from his silence and neglect, of the original defect of his title, or his intention to relinquish it'... From such expectations, in part, have we derived 'moral considerations which should prevent any disturbance of long recognized boundary lines; considerations springing from regard to the natural sentiments and affections which grow up for places on which persons have long resided; the attachments to country, to home and to family, on which is based all that is dearest and most valuable in life.'" 66 LW at 4394.

Despite such strong pronouncements, the majority held that New York had not gained sovereignty over the filled portions of Ellis Island by prescription. That state's biggest hurdle, of course, came from the fact that the federal government had created the fill and built the buildings. Thus New York's prescriptive acts were not possessive but were based on declarations made on various documents (voting lists, marriage licenses, etc.) The Court decided that the various bits of New York's evidence of prescription could equally apply to the original three-acre portion of Ellis Island, which it clearly owned, as well as to the filled portion it was claiming. With no descriptions on the documents, no clear declaration that a particular act was directed toward the filled island as opposed to the original island, the Court held that New York failed to meet its burden of proving prescription. Justice Stevens dissented on this point, arguing that New York's actions were sufficient, while Justices Scalia and Thomas felt that the original Compact was ambiguous and should be interpreted as per the parties' actions, which generally favored New York's claim.

Puyallup Indian Tribe v. Port of Tacoma, 717 F. 2d 1251 (1983).

This case addresses the result of artificial filling and rechanneling of a navigable river by the federal government, who, as in the case above, was not a primary party to the case. The Puyallup Tribe was one of a group of Indian tribes that signed the Medicine Creek treaty with the United States in 1854. This treaty guaranteed the Indians continued fishing rights in return for relinquishment of their aboriginal homeland, and placed the tribes on various reservations. The Puyallup Reservation, as originally defined, did not include the Puyallup River, even though the Tribe had historically fished the Puyallup by placing more or less permanent nets and traps in its bed and considered the river valley to be its home. Shortly after resettlement the Puyallups joined in hostilities against settlers, leading the federal government to convene the Fox Island Council in 1856. The government accepted the promise of the Tribe not to engage in future hostilities in return for an enlarged reservation that included the mouth of the Puyallup River. 717 F. 2d at 1254.

Over the next 100 years the reservation was allotted to individual Indians and passed to individual Indian and non-Indian ownership. Between 1948 and 1950, the United States Army Corps of Engineers (COE) straightened the Puyallup River where it flowed through the reservation, exposing a 12-acre tract of former riverbed adjacent to some allotments owned by the Port of Tacoma. The port took possession of the 12 acres and leased it to industrial tenants.

In 1980 the tribe sued, claiming title to the 12 acres. It won the case, based on a complex series of circumstances which have importance to anyone working against tribal boundaries. First, the reservation was created before the surrounding territory (Washington) became a state. Thus the state would have title to the former riverbed unless it was granted to the tribe when the reservation was created by the federal government. The basic principle governing this issue is that the federal government is presumed not to have granted the bed of a navigable river, within a reservation, to a tribe unless there existed an "appropriate public purpose" supporting the grant and unless there was a "public exigency" requiring Congress from departing from the usual rule that federal grants of land do not include such riverbeds. In this case, the fact that the United States knew that the Puyallup Tribe depended on the Puyallup River fishery, and allowed the Tribe to retain that fishery in return for their aboriginal uplands, as well as for the cessation of hostilities, provided both the public purpose and the "exigency" to include the riverbed in the grant to the Tribe. 717 F. 2d at 1260-61.

Next, individual Indians became owners of the allotments carved out of the reservation, and in many cases sold those allotments to non-Indians. Such allotments, however, when bounded by the river would, by common law, not include any part of the adjoining riverbed, any more than a patent to a government lot bounded by a navigable river would include the bed.

"The Puyallup River was navigable at the time allotments to the predecessors in title to the Port were made. Since grants of property bounded by a navigable river are deemed to be bounded by the ordinary high-water mark of that river... the district court correctly ruled that the allotments of land adjoining the river made by the United States, on behalf of the Tribe, to the predecessors in title of the Port were bounded by the ordinary high-water mark of the Puyallup River... Thus, after the allotments were made, the Tribe continued to have title to the riverbed of the Puyallup River within the reservation bounded on each side by the ordinary high-water marks of the river... Consequently, we must consider whether the movement of the Puyallup River in 1948-1950 was an 'avulsive' or an 'accretive' change under Washington law. If the rechannelization were avulsive, title to the bed is in the Tribe. If accretive, the title to at least some, if not all, of the riverbed now lies in the Port as upland owner on one side of the bed." 717 F. 2d at 1261-62.

The court easily concluded that the movement of the river south by at least half its width in a period of less than two years was "sudden and significant," and thus amounted to an avulsion. It did not matter that the move was artificially induced. The court did note that one party may not take advantage of the avulsion rule by artificially moving a stream away from his neighbor, and then claiming that the neighbor no longer has rights to the stream, but here neither party was responsible for the rechannelization project as it was undertaken by the COE. Thus this was an example of an artificial avulsion, similar to the Ellis Island case. The fact that the COE and the state had entered into a river improvement district, involving land trades and acquisitions of portions of the riverbed, did not matter because the tribe had senior rights to the bed.

Owen v. United States, 851 F. 2d 1404 (1988).

This case also addresses certain effects of COE work in a river, but concerns very different consequences. A private landowner sued the federal government for compensation after her house toppled into the Tombigbee River. As part of the Tennessee-Tombigbee Waterway Project, the COE dredged and widened portions of the Tombigbee River and increased the arc of certain river bends. The COE knew that this activity would increase erosion to certain uplands, but "the Corps decided that the cost of conducting a preconstruction study to identify those areas most likely to be affected by the resulting erosion and sloughing would exceed the cost of any after-the-fact acquisition by inverse condemnation of property specifically affected by the construction." 851 F. 2d at 1406.

The plaintiff alleged that the COE straightened a river segment upstream of her house, increasing erosion and effectively condemning her property by causing the river flow to undercut her house, allowing it to subside into the river. The COE resisted her claim, arguing that its work was entirely below the ordinary high-water mark of the river, and that it was not liable to damage that occurred outside of the riverbed. The COE pointed out that it did not raise the water level and flood the plaintiff's land, but at most its actions caused the ordinary high water line of the river to move below her property (or to remove its support) which then was damaged not by the COE activities but by the action of gravity. The COE won this argument in the trial court, but the appellate court reversed.

The COE argument centered upon its congressional mandate to regulate and protect the nation's navigational servitude over navigable waters. The COE may take actions to improve river navigation, and does not owe compensation for the damages such actions cause owners of improvements within the riverbed. For example, it can remove embankments placed below the ordinary high-water mark of a river, and can remove private wharves and bridges that hinder navigation; however, its jurisdiction in these matters extends only to the bed of the river (or to land and easements it acquires).

"Consequently, the question to be addressed here is what constitutes the boundaries of the 'bed' of a navigable stream... The Supreme Court defined the bed of a river as 'that portion of its soil which is alternately covered and left bare, as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn.'"

"In the present case ... the property allegedly taken by the government from Ms. Payne [was not] an artificial structure built in or under the bed of the Tombigbee River. Instead, the allegedly taken property was the native soil and rock which, although below the high-water mark, supported the fast land and house located beyond the high-water mark. Yet it should not be the extent of the analysis to conclude that the land or property in question was or was not located below the ordinary high-water mark. There must also be horizontal limits to the 'bed' of a river; otherwise, the navigational servitude would extend infinitely in all directions." 851 F. 2d at 1410.

The court reviewed Supreme Court cases that had allowed damages for consequences such as restricting drainage from uplands by raising the level of a nearby navigable river, and for land washed away as an indirect result of COE flooding of other lands.

"[W]e fail to discern valid distinctions between the undermining and permanent loss of fast land (and a house) due to government-caused erosion and permanent flooding of fast land due to government improvements to navigation found to be compensable by the Supreme Court.... Certainly Ms. Payne's undercut and washed-away house are no less useless than would be intact but permanently flooded land which was found to have been the subject of a Fifth Amendment taking in those cases. Since the Supreme Court in Kansas City Life expressly concluded that there was a taking when government improvements to navigation caused underground seepage into land below the high-water mark but outside the stream bed, thus rendering the land useless, it is difficult to understand how erosion, itself a much more violent invasion than seepage, of land below the high-water mark yet outside the stream bed can never constitute a compensable taking."851 F. 2d at 1416.

The court remanded the dispute to the trial court, with instructions that evidence be taken as to whether the COE actions directly led to the erosion that undermined the Payne house. Also, the court ordered that evidence be taken as to whether or not the Tombigbee River in the area of dispute was navigable before the COE channelization, holding that the COE could not claim jurisdiction over a river that was not navigable in its natural state by channelizing and rendering it navigable through artificial means.

Barakis v. American Cyanamid Co., 161 F. Supp. 25 (1958).

This case discusses riparian rights. Barakis leased land that lies adjacent to the Trinity River in Texas. The river in the vicinity had been channelized, and much of the leased land had been artificially filled against the channel, which did not follow the old natural bed of the river. Barakis sued American Cyanamid arguing that its operations polluted the water in the river upstream of his lease, rendering the water unfit for irrigation of his crops.

Barakis had no written right to the river's water. He was claiming common-law riparian rights based on his lease of land lying adjacent to the river. The court stated that riparian rights in Texas involved (a) that waters in navigable streams be held in trust for the public, first for navigation, second for riparian owners, and third for "the best interest of the people"; (b) that lands in original grants abutting on natural or navigable streams held riparian rights to the natural flow of the water as part of their land title; (c) that riparian ownership does not extend to flood waters; and (d) that the use of waters by riparian owners must be reasonable, and must not work injury to the use of others. 161 F. Supp. At 28. From these principles the court concluded that Barakis was not a riparian owner, and thus had no claim against Cyanamid:

"[I]t is to be noted that riparian rights apply only to the lands in the original grants, abutting on the natural streams in the original surveys. The Barakis tracts, at least in substantial part, are 'man made' soil; portions of the tracts did not exist prior to the year 1954. Neither the land nor the river channel are the same today as they were at the time of the patent from the sovereign. The channel of the Trinity River was changed, not by accretion, but by the efforts of the Tarrant County Water Control and Improvement District No. 1. The land conveyed by the deeds to the District could only have been up to the bank of the river, as it was then constituted. If the course of the river had been changed by accretion, which is a slow, gradual building up of the land by the gradual deposition by the river of a solid material... then the boundary lines would have changed with the bank of the river. However, where the change is by avulsion, which is a sudden and perceptible loss or addition to land by the action of water or otherwise... then the boundary line remains fixed as originally settled and does not change with the course of the river.

"Thus, the land built up artificially by the Water District comes under the doctrine of avulsion, and cannot be added to the land as originally constituted, and such change in the channel works no change in the boundary line of the premises. The map, photographs and testimony show that some of plaintiff's agricultural tracts cannot be riparian lands; those 'man made' acres along the 'man made' river channel, and those acres separated from the artificially constructed channel by the artificially made land, lost their riparian characteristics. There was no vested and no riparian right to irrigate those acres." 161 F. Supp. At 29.

Board of Trustees v. Medeira Beach Nominee, Inc., 272 So. 2d 209 (Fla. App. 1973).

Medeira Beach Nominee Inc. owned a tract of beachfront land in Florida. It began building a seawall on the beachfront, and the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida sued to stop the construction, arguing that it was occurring on accreted land belonging to the state. The land in question had accreted as a result of a public erosion control and beach stabilization plan conducted by the city. Wooden groins and concrete walls, placed by the city and state below mean high tide, had trapped beach material and led to the increase in front of the beachfront tracts.

"The question is: Does a strip of accreted land become the property of the upland riparian owner even where the accretion is the result of a lawful exercise of the police power by a municipality to prevent beach erosion?

"Accretion is the gradual and imperceptible addition of soil to the shore of waterfront property. The test as to what is gradual and imperceptible is, that though witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on. ... The fact that the strip of land involved was true accretion is not in dispute. The disagreement between the parties appeared to be whether the established rule of law should be followed or whether there should be recognized or created an exception to the general rule. One exception to the general rule is that accretion does not belong to the riparian owner where the riparian himself causes the accretion.... Historically, courts have attempted to distinguish between natural accretions and artificial accretions causes by the riparian owner. There is little authority for distinguishing between natural and artificial accretions generally.

"There are four reasons for the doctrine of accretion: (1) de minimis non curat lex; (2) he who sustains the burden of losses and of repairs imposed by the contiguity of waters ought to receive whatever benefits they may bring by accretion; (3) it is in the interest of the community that all land have an owner and, for convenience, the riparian is the chosen one; (4) the necessity for preserving the riparian right of access to the water.... An additional reason behind the doctrine of accretion relates to the riparian owner's ability to use his land. The ordinary high-water mark is well established as the dividing line between private riparian and sovereign or public ownership of the land beneath the water. This dividing line was not chosen arbitrarily." 272 So. 2d at 212-13.

In analyzing the application of these rules to the case at hand, the court noted that the state's argument would freeze the boundary at some point in time in the past, thus rendering useless the very practical value of using the ordinary high-water line as the visible, clearly marked boundary. The court agreed with the state that due to the city's beach control efforts, it was unlikely that the private owner in this case would bear the burden of loss imposed by erosion (and thus reason number two cited above was less persuasive than in normal cases). However, it also noted that the riparian owner had paid for the additional benefits through higher taxes imposed as special assessments due to the same erosion control project. The court stated that quieting title to this accretion in the state would not improve public access to the water, and remarked "It should be remembered that even beachfront property owners are members of the public. Their status as riparian owners, however, has historically entitled them to greater rights, with respect to the waters which border their land, than inure to the public generally." 272 So. 2d at 214.

Finally, the state urged application of § 161.051, F.S.A. "which purports to vest title to accretions caused by public works in the state." The court expressed some question as to the constitutionality of that law, but in any case held it did not apply because the erosion control project in this case was begun years before the statute was passed.

Conclusion

The common law doctrine that accretion and erosion cause shifts in waterfront boundaries while avulsion does not is simple enough in theory, but often very difficult to apply in practice. These cases show that classic historical research is always a necessary tool, for in many areas of the country there are few rivers remaining in their totally natural state, and thus the history of the construction of some man-made embankment or other object is often crucial for determining a boundary location. For anyone attempting to solve an accretion/avulsion problem I recommend River and Lake Boundaries, Surveying Water Boundaries- A Manual by James A. Simpson (1994, Plat Key Publishing Co., Kingman, Ariz.). This book presents a useful mixture of case studies and technical advice for approaching these perplexing questions.

Glossary

Allotted: The court in the Puyallup case used this word to refer to Indian Allotments, which are parcels of public or Indian reservation lands granted to an individual Indian for his use.

De minimis non curat lex: The law does not concern itself with small or trifling matters.

Littoral: Belonging to or referring to the shore of the sea or a "great lake."

Proteus: Justice Souter used this image of the Greek sea god because Proteus could change forms, thus referring to the changing form of Ellis Island.

Riparian: Belonging to or referring to the shore of a river or stream. In common usage the term "riparian rights" often refers to the right to make use of and enjoy the benefits of any body of water.