Page 15 - ESS Summer 2023
P. 15

Continued from previous page
        location. (If the river moved slowly or quickly can have an  into riparian boundary subjects to find rules that are very
        effect.) Four dimensions, very unlike its usual twodimen-  different state-to-state: If a state owns the bed of a river
        sional boundary brethren.                              that is navigable for title (not all states do), what is the title
                                                               boundary between the state and the upland owner? If you
          And most boundary disputes between adjoiners are per-  said Ordinary High Water Line, you’d be correct for less
        sonal and are based on emotions. The cost of litigating a   than half the states. So, books by the authors listed above
        boundary almost always far exceeds the value of the land   don’t delve too deeply into riparian boundaries…as they
        in dispute. Not so in some riparian boundary disputes. At   shouldn’t.
        stake can be thousands of acres of land or issues worth
        tens of millions of dollars. The most epic boundary litiga- Some Examples
        tion matter in United States history was a riparian boundary   To  illustrate  how  state-specific  some  riparian/littoral
        dispute: The famous “Red River Litigation” between Okla-  boundary issues can be, here are some questions or hypo-
        homa and Texas. That litigation spent the 1920s in and out   thetical situations. For your jurisdiction, state the applica-
        of the U.S. Supreme Court and even at this date there re-  ble legal principle, along with any qualifying statements or
        mains an ongoing kerfuffle concerning the boundary. An-  explanations necessary. No answers are supplied with this
        other example is the current “Is it a river or is it a lake” ques-  quiz because there is not one answer that will be correct
        tion in Lake Catahoula in Louisiana (with huge ownership   for all 50 states and federal lands. One or two will be close
        and other consequences).
                                                               to the same nationwide, but even they will need a qualify-
        Lex Aquae                                              ing note or two.
          With its foundation in English Common Law, courts      If you’ve not accomplished many surveys of riparian
        and legislatures (both state and federal) have proclaimed  tracts, you may not have thought of or encountered some
        “lex aquae,” the law of the water. Riparian (river) and littoral  of these circumstances. All of these issues have been be-
        (lake or seashore) boundaries are part of that law. Riparian  fore the courts. It is likely these issues are settled for your
        boundary law is complex, largely buried in court decisions  state. (Perhaps not to the specificity desired by the Profes-
        that set precedents, and, like the shifting sands in a river, it  sional Surveyor, but the general principle can be stated.)
        has and will continue to evolve. But it establishes the rules
        and principles to be followed by the Professional Surveyor   1.)  For a non-navigable stream, what line is the bound-
        when determining the location of a riparian boundary.        ary between opposite landowners? Define, exactly,
                                                                     that line and how it is located.
          Boundary control legal principles are fairly uniform na-  2.)  Who owns the bed of a waterbody that is navigable
        tionwide, hence there are books by Skelton, Clark, Brown,    for title? Is it the State in trust for the public? Is it the
        Robillard, Wilson and others that do a good job of stating   upland landowner but subject to an easement in the
        and explaining them. Some legal principles are broadly       public for commerce and recreation? Or is it in some
        applicable nationwide. The general riparian rules for ero-   other entity?
        sion, accretion and avulsion are examples and they are ad-  3.)  Suppose the bed of a river is navigable for title and is
        equately covered by the authors listed above. Under the      owned by the State. Where is the boundary between
        Equal Footing Doctrine, the federal government left most     the State and the upland owner? Define, exactly, that
        riparian issues to the states (while reserving federal inter-  line and how is it located.
        ests). Because states can (and have) developed their own   4.)  Who owns an island that forms in a navigable river?
        law and rules relative to water law and riparian boundar-  5.)  On a navigable river that has barge and commercial
        ies, there are differences. Some riparian boundary issues    traffic, for the states on opposite sides of the river,
        are very state-specific. One doesn’t have to dig too deeply   where  is  the  state  boundary?  Define,  exactly,  that
                                                                     line, and how is it located.
                                                                6.)  Suppose a non-navigable lake is not meandered
                                                                     by the GLO and slowly goes dry. The littoral owners
                                                                     hire you to survey their lakebed ownership. First, do
                                                                     these upland littoral owners have any rights in the
                                                                     now dry lakebed? Describe how you proceed.
                                                                7.)  Suppose that post-avulsion on a navigable river,
                                                                     there’s a cutoff lake, formed from the abandoned
                                                                     channel. The cutoff lake partially fills in. Who owns
                                                                     the bed of this cutoff lake?
                                                                8.)  Owner A conveys to B “all lands north of the river,”
                                                                     then Owner A conveys to C, “all lands south of the
                                                                     north bank of the river.” Based on those facts what is
                                                                     C’s northerly title line?
                                                                                              Continued on next page

        www . LSA W. or g                                                                                         15
   10   11   12   13   14   15   16   17   18   19   20