Fourth in a series on water boundaries.

A frequent theme in water boundary cases is the attempt to reconcile lateral boundaries of fee title or riparian rights with the centerline of a river or channel. The following cases, which range from the simple to the complex, show how courts will vary the normal rules of setting lateral boundaries in order to accommodate the need to reach some channel or harbor line. The cases could be viewed as variants of the principles of apportioning submerged land along irregular shorelines, which I discussed earlier in this series.

McKain v. Central Nebraska Public Power & Irrigation Dist.

The Cases

McKain v. Central Nebraska Public Power & Irrigation Dist., 295 N.W. 386 (Neb. 1940).

In this, the least complex of the group, a party claimed ownership of a portion of the bed of the Platte River at the intersection of two tributaries. The facts are best understood with the help of the court's diagram (below):

"Line AC represents the center line of the North Platte river. Line FC represents the center line of the South Platte river. Line CE represents the center line of the Platte river, and line DC is an extension of CE and is equi-distant from the shores on either side. Land GHK is land owned by the plaintiffs bordering on the river....

"Plaintiffs contend that, by riparian right, they own to the line DC as the center line of the Platte river. Defendant contends that the plaintiffs own only to the line BC as the centerline of the North Platte river." 295 N.W. at 388

The court began by quoting three familiar rules of riparian boundaries: "An owner of land on the shore of an unnavigable river, in the absences of restrictions in his grant, owns to the center line of the stream"; "The boundary line between riparian owners on the same side of the stream runs from the end of the shore line to, and along a line at right angles with, the center line of the stream"; "Where title to an island, bounded by the waters of a nonnavigable stream is in one owner, and title to the land on the shores opposite the island is in the other owners, the same riparian rights appertain to the island as to the mainland." 295 N.W. at 388.

The area designated Plat B on the diagram was not an island; however, the court elected to treat it according to its last principle quoted above:

"It follows that, where two tributary streams meet and form one stream, the center lines of the streams of the two tributaries are extended until those lines meet and form the center line of the main stream. In the absence of restrictions in the grants, such lines then become the boundary lines of the lands on either side of, between and immediately below the point of the confluence of the two streams." 295 N.W. at 388.

From this it follows that the land designated Plat B would own the submerged land in BCD rather than the plaintiff.

Richards v. New York, N. Il. & Il. R. Co., 77 Conn. 501, 60 A. 295 (1905).

In this case the plaintiff owned land abutting a cove along the shore of a navigable river:

"The Thames river, a navigable stream, flows in a southerly direction to Long Island Sound. Upon its eastern margin, at a point just above Gale's Ferry, there is a small pouch-shaped indentation known as 'Clark's Cove.' This cove is about 1600 feet in length north and south, and near its northerly end it has an opening or mouth into the river about 450 feet in length. There is no channel in the cove, and it has a mud bottom, with from 11/2 and 21/2 feet of water thereon at low tide. The mean rise and fall of the tide there is 2 feet and 10 inches. The channel of the river is about 800 feet westerly from the mouth of the cove. The land surrounding the cove is owned by diverse owners in severalty." 60 A. at 296.

The defendant railroad had constructed a track along the shore of the river. Where it met the mouth of the cove it "made, and laid its railroad thereon, a solid embankment, 20 feet wide and 10 feet high, across the mouth of said cove, save at the northerly end thereof, where it has left an opening 16 feet wide, but permanently closed at the top with the railroad, between the cove and the river." 60 A. at 296. The plaintiff claimed a riparian right to access the channel of the river and that the narrow opening left by the railroad berm, through which it obviously would be impossible to sail a masted craft, impaired that right.

The court disagreed, holding that the plaintiff's riparian rights were limited to the cove. The plaintiff's property was apparently situated where, by extending its lateral boundaries out through the mouth of the cove as it originally existed, the plaintiff could physically wharf out to the river channel. However, to do so would prevent other owners in the cove from reaching the river. Because of the number of owners abutting the cove and its narrow mouth, the court held that none could extend their rights to the river itself.

"It is undoubtedly true that, so far as the public rights of fishing and navigation of and others of like nature are concerned, Clark's Cove is a part of the Thames river; but it does not follow from this that for all purposes the cove is to be regarded as a part of the river. It does not follow, for instance, that the riparian owner at the south end of the cove has rights of wharfage, or reclamation, or alluvion in the main river. The situation of his land precludes the existence of any such rights, and this is equally true of other owners of land fronting upon the waters of the cove. They have undoubtedly certain exclusive, yet qualified, rights and privileges in the waters and submerged land adjoining their upland; but they must take their riparian rights as they find them, and they are entitled only to such as the condition of the cove and the situation of their land with respect to the cove will afford... Each riparian proprietor in the cove had then at least three important rights, but they all related to the waters of the cove and to the land submerged by said waters, and not to the river proper. It may be said that the situation of the plaintiff's land was such, with reference to the mouth of the cove and the channel of the river, as to give her the right to wharf out to the channel, and also to reclaim submerged land in that part of the river lying westerly of and opposite to her land; but we do not think so. Her rights of wharfing out and of reclamation, like those of her neighbors, were confined to the cove. The existence in her of a right to wharf out and reclaim in the river is entirely inconsistent with, and its exercise might be destructive of, the rights of access belonging to her neighbors. It would give the plaintiff the right, as against her neighbors, to fill up wholly or partially the waters of the cove and its mouth, so as practically to impair or destroy the riparian rights of those neighbors, and especially their rights of access. It follows from the fact that her rights of wharfing out and reclamation were confined to the cove, that these rights were not invaded by the acts of the defendant." 60 A. at 297.

Columbia Land Co. v. Van Dusen Inv. Co., 91 P. 469 (Or. 1907).

This case concerns the direction of piers along the south shore of the Columbia River, a short distance upstream from its mouth. It discusses the difficulty of determining lateral lines in an extremely broad portion of a river.

"A proper division in all cases is that each shore owner shall have a proportionate share of the deep-water frontage, and the rules adopted by the courts in relation thereto are with that end in view... The difference in such rules, as announced by different courts, is evidently due to the varying conditions in each case more than to the diversity of opinions as to equitable methods. The rule applicable to property situated in a cove... as followed in several states, and relied upon by defendant here, is fair and equitable in cases where it can be applied, but will not apply here for the reason that this shore cannot properly be considered a cove. The headlands are probably four miles apart, and, being projections at the extremes of a long and irregular shore line, make such a basis of division impracticable. Neither is it practicable to take the current of the stream as the basis from which to determine the division line. The township, along the front of which Astoria is situated, is a peninsula, extending into the river, having sheltered bodies of water on either side called bays. In front of the peninsula the river is very wide, probably three or four miles, the tide rising nine or more feet, and therefore we consider that the line of deep water frontage should be the basis of apportionment, being the basis adopted for the division of water frontage in lakes and tide water." 91 P. at 470.

The court adopted the statements from the Rhode Island courts, quoting from Aborn v. Smith, 12 R.I 370.

"The problem here is to define water fronts in regard to a harbor line, not to divide flats or alluvion. The establishment of a harbor line, we have held, amounts to an implied permission to the riparian proprietors within it to fill out to it. The question is: How fill out to it? We answer, fill straight out to it. The owners of the upland are impliedly permitted to carry the upland forward to the harbor line so that each owner will occupy the part which is abreast his own land." 91 P. at 470.

The court held the proper method was to construct lateral lines perpendicular to the harbor line, where such laterals when extended shoreward would intersect the upland boundaries. This method seems to be the most common where harbor lines exist, and where the intervening tide or shore lands have not been platted.

Hayes v. Bowman

Hayes v. Bowman, 91 So. 2d 794 (Fla. 1957).

This case concerns a complex shoreline created by artificial fill.

"Prior to the institution of this suit appellees and their predecessors were owners of a portion of the mainland on the western shore of Boca Ciega Bay. They acquired a parcel of submerged lands in the Bay from the Trustees of the Internal Improvement Fund. By dredging and filling they built a subdivision know as Brightwater Beach Estates shown in the foregoing drawing. The northern tier of lots comprising Block 4 is located on a narrow dredged-in peninsula approximately 1750 feet long in an easterly direction from the mainland toward the channel. Lots A and B, Block 4, constitute a parcel of land across the eastern extremity of said Block 4. Blocks 1, 2, and 3 are dredged-in 'fingers' or peninsulas constructed in a southeasterly direction from the southern boundary line of said Block 4. Block 3 is the easternmost of these three fingers. Appellants' property is Lot 11, Block 3. It is located on the easterly side of the Block. Consequently, the front of appellants' lot faces the waters and channel of the Bay. The sidelines of appellants' lot run in a generally northeasterly-southwesterly direction.

"Appellees own Lots A and B above mentioned. The south line of these lots is about 200 feet north of the northerly line of appellants' lot.

"On October 22, 1954, appellees acquired from the Trustees of the Internal Improvement Fund an additional strip of submerged land 270 feet in width extending from the easterly edge of Lots A and B a distance of 2300 feet easterly toward the channel. Appellees now propose to dredge and fill this newly acquired submerged land (Cross hatched in the diagram). Appellants filed a complaint to enjoin the proposed action." 91 So. 2d at 798.

The appellants claimed the right to an unobstructed view of the channel, in the direction of their property lines extended toward the channel.

"We harken back to the main points made by the parties. Appellants claim that they are entitled to an unobstructed view toward the channel over a corridor measured by extending their northeasterly-southwesterly lot lines directly to the channel. Appellees claim that this corridor is to be bounded by imaginary lines drawn at right angles from the thread of the channel to the corners of appellants' lot. If appellants' contention is approved, the proposed fill would obstruct their view. If appellees' position is adopted, there would be no obstruction.

"It is absolutely impossible to formulate a mathematical or geometrical rule that can be applied to all situations of this nature. The angles (direction) of side lines of lots bordering navigable waters are limited only by the number of points on a compass rose. Seldom, if ever, is the thread of a channel exactly or even approximately parallel to the shoreline of the mainland. These two conditions make the mathematical or geometrical certainty implicit in the rules recommended by the contesting parties literally impossible. We must therefore search elsewhere for a solution to this admittedly difficult problem. We find our answer at least suggested by the language of Section 271.01, Florida Statutes, F.S.A. granting bulkheading privileges to upland owners 'in the direction of the channel, or as near in the direction of the channel as practicable to equitably distribute the submerged lands¿'

"We are therefore of the view and must hold that the common law riparian rights to an unobstructed view and access to the channel over the foreshore across the waters toward the channel must be recognized over an area as near 'as practicable' in the direction of the channel so as to distribute equitable the submerged lands between the upland and the channel. This rule means that each case necessarily must turn on the factual circumstances there presented and no geometric theorem can be formulated to govern all cases. An upland owner must in all cases be permitted a direct, unobstructed view of the channel and as well a direct means of ingress and egress over the foreshore and tidal waters to the channel. If the exercise of these rights is prevented, the upland owner is entitled to relief." 91 So. 2d at 795.

The court held for the appellees, without specifically approving of their formula. It decided that the appellants' view corridor extended at right angles to the thread of the channel, because this provided them with a view "in the direction of the channel."

"Riparian rights do not necessarily extend into the waters according to upland boundaries nor do such rights under all conditions extend at right angles to the shore line. Our own precedents are completely inconsistent with the appellees' view that such rights extend over an area measured by lines at right angles to the channel. It should be borne in mind that littoral or riparian rights are appurtenances to ownership of the uplands. They are not founded on ownership of the submerged lands. It is for this reason, among others that we cannot define the area within which the rights are to be enjoyed with mathematical exactitude or by a metes and bounds description.

"We therefore prescribe the rule that in any given case the riparian rights of an upland owner must be preserved over an area 'as near as practicable' in the direction of the channel so as to distribute equitably the submerged lands between the upland and the channel. In making such 'equitable distribution' the Court necessarily must give due consideration to the lay of the upland shore line, the direction of the channel, and the co-relative rights of adjoining upland owners¿

"In the case before us the ruling of the Chancellor does no violence to the rights of appellants. They still may enjoy their riparian rights over the waters of Boca Ciega Bay in an area as 'near as practicable' in the direction of the channel with a resulting equitable distribution of the submerged lands and the waters and area above said lands between their upland and the edge of the channel." 91 So. 2d at 802.

Conclusion

These cases, while perhaps not remarkable, illustrate the difficulties courts have when applying mathematical rules to shoreline situations. Running lateral lines at right angles to a channel or harbor line is, in theory, one of the simplest rules of shoreline boundaries. Unfortunately, nature provides us with tributaries, coves, wide bays in river mouths, and complex artificial shorelines that complicate the formula. Long discussions, such as that of the Florida Supreme Court in the Hayes case, have become fairly typical. Courts often state that there can be no fixed rule because they want to preserve the flexibility to deal with future situations they haven't yet thought of, but in the end they often conclude that one or another mathematical rule should be applied because it provides the equity they are searching for. This tendency should be noted by surveyors who would be well advised to choose between competing mathematical rules, in most instances, by preferring the one that preserves the most equitable and direct route from the upland lots to deep water.