The rule that land beneath the waters of a non-navigable lake is to be apportioned among the various shoreline owners by drawing lines to a center point illustrates one of those neat ideas that proves untidy when applied in the field. Lakes are never circular and reliction is seldom regular, allowing lakefront proprietors ample opportunity to argue over their resultant slice of the pie. Public Lands Surveying, a Casebook, prepared by the Cadastral Training Staff of the United States Bureau of Land Management Cadastral Survey Training Program in 1975, has an excellent example of the difficulties of dividing a lake bed in its discussion of the "Reliction of Flagstaff Lake," found in section D-5. That case study discuses several different ideas for apportioning the lake bed, and points out how title matters such as the dates of various patents can affect the process. Even simpler examples are difficult, however, and in my experience, these questions are not only difficult but contentious.
Most lakefront survey questions involve the extension of private recreational docks, and the resultant effects on neighbors' use of their water area and on their view. Intuitively it seems unnecessary to use a principle designed to allocate the bed of a dried-up lake to control the direction of a dock within a lake that's full of water, especially if all the lakefront owners legally can use the waters of the lake in common; and some, but not all, courts treat the docking situation differently from the division of land left dry by reliction. The following cases show how various state jurisdictions have faced these issues.
glossaryLittoral: Belonging or relating to the bank of a lake or sea.
Reliction: The gradual exposure of land by the permanent recession of a body of water.
Riparian: Belonging or relating to the bank of a stream or river.
Hefferline v. Langkow, 15 Wn. App. 896, 552 P. 2d 1079 (1976). This Washington case concerns docks in non-navigable Lake Leota. The entire lake and surrounding property were originally owned by one couple, who subdivided the land around the lake and granted each lot an undivided 1/24 interest in the lake bottom. A restrictive covenant recorded with the lots stated that the lake was to be used in common among all the shore owners for recreational purposes. The combatants owned neighboring lots along a portion of the shoreline that formed a sort of corner. Langkow-who owned a lot in the apex of the corner-extended a dock directly toward the center of the lake, which crossed in front of Hefferline's lot because that lot lay against a straight portion of the shoreline extending from the corner.
Note that in this case all of the lakefront owners had the right to use the entire surface of the lake in common with the others. This is the common-law rule in Washington, whether there are covenants specifically stating as much, and holds even when the lots around the lake did not arise from a common grantor. In effect, the difference in Washington between the use of the water area of a non-navigable and a navigable lake is that the public can be excluded from a non-navigable lake (and even that rule doesn't hold if there is public ownership of land along the lakeshore). Recognizing this, the Appellate Court fashioned a "rule of reasonableness" for competing interests in docking rights.
"While the reasonableness of the dock must ultimately be determined on the basis of all the facts and circumstances, we suggest, but do not require, that the court approach this issue by first defining the general area within which the dock could conceivably be located. Guidance in accomplishing this can be derived from the cases dealing with the ownership of tidelands and the apportionment of riparian rights associated with navigable waters. However, since Lake Leota is held in common, by citing these cases we necessarily make no holding regarding any actual ownership of any specific portion of the lake bottom.... [The court then quoted rules used for proportioning a shoreline against a line of navigation.]
"It appears to us that by relating the 'low water line' and the 'line of navigability' to a line in the lake which defines the minimum depth necessary for the exercise of riparian rights, the court will be able to apply these rules to the instant case and thereby have a sound starting point from which it can ultimately determine whether the dock is reasonable. Of course, these rules are not necessarily applicable to every situation; the court must treat each affected riparian owner equitably and arrive at the most appropriate solution in view of all the interests involved." 15 Wn. App at 899-900. (Emphasis in original.)
The court remanded the case to the trial court to fashion an equitable solution based on the principles of proportioning. The proportioning described amounts to the same rule that would be used in a navigable lake, except that the outer line of proportioning would be determined by finding the depth where people normally exercised their "riparian rights"-in this case, recreational boating-and creating a line at that distance from the shore. The court was not attempting to partition the parties' "1/24 interests" in the lake bed so it did not use a pie-cutting method to settle the problem.
Of course, applying a "rule of reasonableness" gives a great deal of latitude to the court in fashioning a remedy. Heston v. Ousler, 398 A. 2d 536 (N.H. 1979), is a New Hampshire case which also used what it called a "rule of reasonable use" to settle a dock dispute in a non-navigable lake:
"We have adopted a fixed mechanical formula for making an equitable division between abutting riparian owners of alluvion formed by the natural action of water.... Nevertheless, we refrain at this time from adopting a similar mechanical rule to determine the scope of littoral owner's rights. Rather, we adopt a rule of reasonable use as the guidepost in adjudging the permissible exercise of a shorefront owner's littoral rights." 398 A. 2d at 538.
The court concluded that the trial court had acted properly by creating a 30-foot buffer zone around extensions of the litigants' upland boundaries, within which neither party could build a dock. "Once a right to equitable relief has been established, the powers of the [master] are broad and the means flexible to shape and adjust the precise relief to the requirements of the particular situation." 398 A. 2d at 539.
Calkins v. Hart, 219 N.Y. 145, 113 N.E. 785 (1916).This old case concerns competing rights to commercially cut ice from the surface of a lake in winter. The court described the lake as about two-thirds of a mile long, north and south, and about half as broad. It has no inlet or outlet. The land surrounding the lake was subdivided by a common grantor, with a plat showing lot lines running in to the lake, in approximately east-west directions.
Although the lots as platted extended across the "centerline" of the lake, the trial court had held that the parties had not proven title beyond the "center" of the lake. The issue, then, was how to locate the lake center.
One of the parties suggested that the lake surface be divided by running lines to a center point, but the court rejected the plan because the lake was twice as long as it was wide. The court adopted a centerline as created by the trial court, which ran north and south through the lake and extended all the way to each end of the lake:
"The body of water under consideration is legally a non-navigable stream, its length is double the width of the same, the shore line practically unbroken by coves or bays, the lot lines bounding the same at right angles with the stream. A line drawn through the center of the stream north and south equitably and proportionately gives to each riparian owner an interest to that line in the water or the land thereunder without undue advantage over his neighbor." 113 N.E. at 786.
The trial court in this case had acknowledged concern about extending this centerline all the way to the north and south ends of the lake. It felt, however, that such an extension was justified as opposed to ending the centerline within the lake and extending pie sections to each end, because of the uncertainty of deciding where to end the line:
"On the contrary, under the centerline theory the owner of land bounded by the square end of a lake a mile wide and a mile-and-a-half long would have no interest whatever in the land under water in front of his premises. But the same thing would happen to the owner of property facing the end of a street. Or a lake might be so nearly round that it would be difficult to say what is its greatest diameter. As for the use of converging lines at the ends of the lake... it would render the rights of proprietors near those ends as uncertain as are the rights of all the proprietors under the suggestion that the courts must divide each lake according to the equities of each particular case." 118 N.Y. Supp. 1049, 1053 (1909).
Shandalee Camp, Inc. v. Rosenthal, 133 Misc. Rep. 502, 233 N.Y. Supp. 11 (Sullivan Cy. 1929).The above New York case concerned rights to cut ice, which would bear similarity with rights to the lake bed. This New York trial- level case, on the other hand, concerned the area of a non-navigable lake in which the parties could exercise their rights to boat, fish and swim. Here the parties also owned lots which ran into the lake; in addition, there was an agreement among the common owners around the lake to maintain the lake level. This court refused to run the parties' lines to the "centerline" of the lake, instead holding that the platted lot lines controlled just as if there was no water over lots at all. Furthermore, unlike the Washington and New Hampshire cases that required a "reasonable use" of the entire surface of the lake, this court held that each owner had the exclusive right to boat, bathe and fish within the area of the lake falling within each respective lot. As to an argument that the agreement created a sort of common ownership of the lake surface, the court disagreed, stating that the document only created cross easements to maintain the lake level.
Scheifert v. Briegel, 96 N.W. 44 (Minn. 1903).This case concerns the partitioning of the dried-up bed of Swan Lake in Minnesota. Figure 1 shows the partitioning scheme adopted by the trial court. Although Figure 1 does not number the sections, the lake was surrounded by sections 17 and 18 on the north and 19 and 20 on the south (these same sections are numbered in Figure 2). The detailed dimensions on Figure 1 are not important to understand the case. The trial court's general method involved creating a centerline from points D to C to E in the eastern part of the lake, and from point F on the west end of the westerly arm of the lake to a point on the dividing line of the relicted area awarded lots 5 and 9 in section 19.The trial court's criteria for this division was to attempt to create the "center lines" more or less equidistant from the shores. Then distances were proportioned along those lines, along with a few supplementary lines also constructed equidistant between opposite shores (see Figure 1).
Certain property owners appealed, some arguing that a center point and a pie method should have been adopted, while others argued for different center lines. The Supreme Court did not approve of the trial court's method, because the lake was not "long" and it had no inlet or outlet:
"The rule has long been established that riparian owners upon a stream take to the center of the current.... But have no knowledge of any attempt to apply this rule to lakes, where there is no inlet or outlet. It would seem reasonable that where a lake is long, and comparatively narrow, it may be treated as a river, and a center line established from one end of the lake to the other, which should be considered the thread of the stream. Such rule could also, for the same reason, be adopted in case of irregularly shaped lakes, where there had been an inlet and outlet, and through which there might have been either a real or theoretical current, which would be deemed to be the centerline. In such cases the various owners may be said to have purchased their property with a view to the original situation. In the case before us the evidence does not disclose whether originally, or in times of high water, there was an inlet and an outlet to the lake, nor does it appear whether there is a gradual slope towards the center on all sides of the lake. ...
"The application of the centerline principle to this lake presents very serious difficulties. In the first place, we discover no rule according to which the center lines were established, except that they were run from the three principal points, F, D, and E, Fig. 1, to the center point C, as nearly as possible equidistant from the adjacent shore. The question arises at once, what better reason is there for running a center line from F, in the manner indicated than from the bay in lot 11, section 18, or from the bay in lots 8 and 9, section 18? And, if the center line may properly begin at the shore line F, why should not the center line, D, be extended to the shore at the west line of lot 4, section 20, and why should not the center line terminating at E be extended to the shore between lots 3 and 4, or between 2 and 3 [section 17]? It is evident that these lines were drawn and center points located without reference to any natural conditions of the original lake, either in respect to depth or natural current, and, so far as we are able to see, resulted in arbitrary division without regard to the legal rights of the owners." 96 N.W. at 46-47.
The court then analyzed several earlier cases and concluded that the proper division of a lake bed had to begin with the location of a center point, unless the lake was noticeably elongated or had an inlet and outlet. It then faced the question of where to locate a center point in this lake. It decided it would be improper to adopt the deepest point of the lake, unless the water had receded and left several smaller bodies of water that could be treated as separate lakes. Here, with the entire lake dried up, a mathematical center point had to be established from points around the perimeter. The court illustrated its conclusion with Figure 2.
In the following very long paragraph, the court discusses how to make the use of center points equitable in this case.
"An examination of the plat Figure 2, where a central point C, is assumed, discloses that, if a division be made according to this principle, lot 1, section 20, will have an advantage over lot 2, which lies immediately south, on account of the peculiar formation of the point or projection of land which extends into the lake. The same thing occurs in lot 4, section 17, and lot 10, section 18, the latter having the advantage, and a difficulty arises as between lots 10 and 11, section 19. The chief difficulty, however, is in reference to lots 1, 12, and 14, at the western end of the lake. Commencing with lots 1 and 2, in section 20, lot 1 should not be permitted to have the advantage given it by the projection into the lake at the intersecting line between 1 and 2. The inequality occasioned by this irregularity in the shore ought to be divided between the parties immediately affected. It is a fair adjustment as between the two lots that such projection be ignored, and the division line running to the center point start, not at the marginal line, but at the point where the division line of lots 1 and 2 crosses a line drawn from the point where the northerly side line of lot 1 crosses the marginal line to the point where the south line of lot 2 crosses the marginal line as indicated on Figure 2. This would result in giving to lot 2 a slight portion of the increase directly in front of the southwest corner of lot 1. The same principle applied to lot 4, section 17, and lot 10, section 18, makes an equable division, as indicated on the plat. In respect to lots 10 and 11, section 19, the inequality may be adjusted as indicated on the plat. This arrangement gives lot 10 all it is entitled to, and gives lot 11 no credit for the small bay of the lake where the dividing line between the lots crosses the marginal line. Lot 12, section 18, bordering on the southwest corner of the lake, had a considerable water frontage, but, on account of the peculiar shape of the point of land at the southerly part of lot 11, the division line between lots 11 and 12 crosses the marginal line at a point too far south to leave any considerable portion of the lake bed adjacent to lot 12, and the interests of lots 1, 11, 12, and 14 conflict in any attempt to divide up the bed immediately in front of those lots.
"There are two ways of adjusting this inequality: First, by disregarding the point of land at the southerly end of lot 11, and dividing the space on the principle applied to lots 1 and 2, section 20; and, second, treat the bay bordering on lots 1, 14, and 12, west of the dotted line A, B, as an independent lake. The latter method might very properly be applied if, as the waters receded, some portion were cut off from the main part of the lake by a ridge across the neck of the bay, or if there were a deep central point where the water remained last. The evidence is silent on the subject, and we can only assume that such conditions did not exist, and that the lake bed slopes gradually from west to east. However, even if such were the case, this bay may be treated by analogy as a separate lake, and by so doing the interests would appear as indicated in the plat Figure 2, assuming D to the center point. This arrangement leaves the irregular tract A, B, D, C, less the portion of lot 11 within its borders, the property of the owners of lots 1, 14, and 12, which should be apportioned between them by the court in accordance with the acreage acquired by each in the bay west of the dotted line A, B." 96 N.W. at 48-49.
ConclusionThese cases show there is no easy way out of a lake-partitioning dilemma. In Scheifert the Minnesota court concluded that the law required it to use a center point in lakes that were neither "long" nor had a current, and as a result had to fashion a complex and tortured balancing of the equities around the complex shoreline of Swan Lake. Some of the court's solutions, involving cutting off land area historically allocated to some of the lots, could only be justified in light of the additional area gained by the total reliction of the lake. One wonders how the court's system, involving as it did the bending of lines upland of the old lake shore, would work if the parties already had improvements built according to their historical upland boundaries. (The court did not require that its Figure 2 be followed exactly, only that it be used by the trial court as a guide for examining more evidence as to the history and shape of the lake. Furthermore, the court did not tell the trial court how to locate the center points at C and D, hoping that the parties could reach an agreement or that a surveyor could apply some mathematical method to do so.)
While the Minnesota court appears rule-bound, the New Hampshire solution, in Heston, seems perhaps too free-form and lacking in predictability. The Washington system, equating a non-navigable lake with a navigable lake as shown in Hefferline, would only be appropriate for allocating rights to the surface of the water, and would never work to partition a dried-up lake bed. The system adopted by the New York court in Shandalee raises the interesting question of how a boater would know whether or not he was trespassing by floating over the underwater lot lines of his neighbors.
Nevertheless these cases are instructive, if for no other reason than to show the difficulties inherent in merely dividing a lake bed up like it was a pie. Many of the factors the courts were looking for-inlets and outlets, currents within the lake, deep points as opposed to center points, platted lot lines, center lines extended to the "ends" of lakes, and reasonable access to water deep enough for recreational boating-are all important for any surveyor faced with constructing lines within lakes. Above all, these cases illustrate that some rules might be applicable to answer one question, such as how to partition the bed of a dried-up lake, but not appropriate for another question, such as aligning docks. Unfortunately, surveyors are often asked to get involved with these questions after one or more landowners have decided they have been wronged; obviously these questions can seldom be answered in any certain manner without agreements.