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Skeeter1996, post: 450482, member: 9224 wrote: A Surveyor whom I regard as probably the most knowledgeable Surveyor regarding water boundaries lost a very expensive lawsuit regarding a riparian boundary. He had original GLO stone meander corners which the Court dismissed and directed new corners be established. This case was impressive with what length both parties went to, to support their cases. Old aerial photos, coreing existing trees. It was in creditable the money that was spent on this case. If you get the choice of flipping a coin or going to Court, take flipping the coin.
I have heard many times the lower courts get Land Boundary cases wrong, it’s not till they go to Appeals Court, where the Judges understand and know more about Boundary Laws, that the correct decision is made.
John Putnam, post: 450435, member: 1188 wrote: Okay, I might need to add an * to my previous comment. It applies to PLSS states.
I’m pretty sure all navigable rivers in PLSS states run right down the section lines.
You have gotten some very good and very bad advise here. Water boundaries are not rocket science, but you need to make sure you understand them before surveying them. Simpson’s book, as recommended above is a great resource, but probably won’t give you the a real answer, just tell you what all the possible answers are.
In most states the state owns the bed of navigable waters, but be sure you know your states definition of navigable for boundary purposes, it is not the same as for other purposes.
Navigability for title purposes is a federal question and is determined by the criteria determined in the Federal courts (see US v Oregon, 295 US 1, 1935). The states may hold a different, less stringent definition for public navigational purposes. Under a state definition, a waterway can be non-navigable for title purposes, yet be subject to the public’s right to navigate. This is different from the Public Trust in that it is limited to navigation and does not include any other rights associated with the Public Trust.
Where a waterway is navigable under the State definition but not under the Federal definition, title to the bed is generally with that of the adjacent upland, and generally to the center (or middle, thalweg, thread, whatever) of the bed of the waterway, but the Public Navigational Easement exists over the bed up to the OHWM (or to the edge of water if at a stage below OHW, depending upon the State).
The Federal definition of navigability for title purposes is that the waterway must have been:
1) Susceptible to navigation… (The Daniel Ball, 77 US 557, 1870)
2) In its natural and ordinary condition… (The Daniel Ball)
3) At the time of statehood… (Pollard’s Lessee v. Hagen, 44 US 212, 1845)
4) Using a customary means of waterborne travel for that place and time. (The Daniel Ball; Brewer-Elliot Oil & Gas Co. v. US, 260 US 77, 1922)
5) Navigability need not be continuous. (Economy Light & Power Co. v. US, 256 US 113, 1921; US v. Holt State Bank, 270 US 49, 1926)
6) Navigability need not be without difficulty. (Economy Light & Power v. US and US v. Holt State Bank)The Supreme Court reaffirmed this definition by bringing all of the components together in one case in 2012 (PPL Montana v. Montana, 565 US 576).
State definitions usually are defined by the ability to actually navigate with a certain size watercraft, the ability of a certain size log to float unimpeded downstream, and other measures of actual use.
Surveying water boundaries is not rocket science, but there are many things to consider. Without training and experience specific to surveying water boundaries, the potential for making incorrect boundary decisions is greater than it is in most upland boundary circumstances. But with some study of Federal case law with regard to navigability for title purposes, and State case law with regard to navigability for public use, State-specific treatment of channel movements due to various natural and artificial reasons, and both levels for determination or identification of the feature defining the water boundary (OHWM, LWM, center), study of the general principles from a recognized text, and some guidance for application from surveyors in one’s jurisdiction who are recognized for their knowledge in the area of practice, any reasonably intelligent licensed surveyor is capable.
In short, recognize that water boundaries are just different enough from upland boundaries to constitute a specific area of practice. Just as I would suggest to a surveyor well versed in construction and control surveys to do some study and get some guidance before taking on boundary retracement, I would similarly advise a surveyor who may be well versed in upland boundaries but with no water boundary experience to do some study and get some guidance before taking on a water boundary project.
As with many upland boundary situations, the task may be pretty straightforward, or it can be very complicated. If you are not sufficiently aware of the shoreline movement processes, the application of water boundary principles both generally and specifically in your jurisdiction, and perhaps more so than other boundary situations, the basis in law for the application of principles, you probably won’t be sufficiently equipped to recognize when the circumstances are complicated.
eapls2708, post: 450694, member: 589 wrote: Navigability for title purposes is a federal question and is determined by the criteria determined in the Federal courts (see US v Oregon, 295 US 1, 1935). The states may hold a different, less stringent definition for public navigational purposes. Under a state definition, a waterway can be non-navigable for title purposes, yet be subject to the public’s right to navigate. This is different from the Public Trust in that it is limited to navigation and does not include any other rights associated with the Public Trust.
Where a waterway is navigable under the State definition but not under the Federal definition, title to the bed is generally with that of the adjacent upland, and generally to the center (or middle, thalweg, thread, whatever) of the bed of the waterway, but the Public Navigational Easement exists over the bed up to the OHWM (or to the edge of water if at a stage below OHW, depending upon the State).
The Federal definition of navigability for title purposes is that the waterway must have been:
1) Susceptible to navigation… (The Daniel Ball, 77 US 557, 1870)
2) In its natural and ordinary condition… (The Daniel Ball)
3) At the time of statehood… (Pollard’s Lessee v. Hagen, 44 US 212, 1845)
4) Using a customary means of waterborne travel for that place and time. (The Daniel Ball; Brewer-Elliot Oil & Gas Co. v. US, 260 US 77, 1922)
5) Navigability need not be continuous. (Economy Light & Power Co. v. US, 256 US 113, 1921; US v. Holt State Bank, 270 US 49, 1926)
6) Navigability need not be without difficulty. (Economy Light & Power v. US and US v. Holt State Bank)The Supreme Court reaffirmed this definition by bringing all of the components together in one case in 2012 (PPL Montana v. Montana, 565 US 576).
State definitions usually are defined by the ability to actually navigate with a certain size watercraft, the ability of a certain size log to float unimpeded downstream, and other measures of actual use.
Surveying water boundaries is not rocket science, but there are many things to consider. Without training and experience specific to surveying water boundaries, the potential for making incorrect boundary decisions is greater than it is in most upland boundary circumstances. But with some study of Federal case law with regard to navigability for title purposes, and State case law with regard to navigability for public use, State-specific treatment of channel movements due to various natural and artificial reasons, and both levels for determination or identification of the feature defining the water boundary (OHWM, LWM, center), study of the general principles from a recognized text, and some guidance for application from surveyors in one’s jurisdiction who are recognized for their knowledge in the area of practice, any reasonably intelligent licensed surveyor is capable.
In short, recognize that water boundaries are just different enough from upland boundaries to constitute a specific area of practice. Just as I would suggest to a surveyor well versed in construction and control surveys to do some study and get some guidance before taking on boundary retracement, I would similarly advise a surveyor who may be well versed in upland boundaries but with no water boundary experience to do some study and get some guidance before taking on a water boundary project.
As with many upland boundary situations, the task may be pretty straightforward, or it can be very complicated. If you are not sufficiently aware of the shoreline movement processes, the application of water boundary principles both generally and specifically in your jurisdiction, and perhaps more so than other boundary situations, the basis in law for the application of principles, you probably won’t be sufficiently equipped to recognize when the circumstances are complicated.
If you are in state like Alaska that disagrees with federal navigability determinations the question of navigability is a state law question, unless you are working for the federal government.
You quoted a federal court case, but private land owners are also bound by state courts, and state statutes, so it is more complicated than that.
Many states have challenged particular federal findings of navigability and vice versa. But the question of navigability for title purposes remains a federal question in all 50 states.
The question of navigability for purposes of public navigation is a state specific question.
Challenges between State and Federal governments regarding navigability for title purposes often hinges on things like the recognition of what the customary mode of travel for that location at the time of statehood would have been. That can vary greatly not just from region to region, but often from waterway to waterway.
In some places and on some waterways, the customary mode may have been a 100′ paddlewheeler or similarly sized barge. In other places and waterways, the customary mode of commercial travel might have been a 20′ canoe. It sometimes takes some historical investigation to determine what the customary mode of commercial travel was.
The challenges may also hinge on what the condition of the waterway was at the time of statehood, or the nature of channel movements since statehood.
Without having an in-depth knowledge of the case law regarding AK waterways, I can well imagine that since statehood was relatively recent and the documentation of customary types and routes of travel going back well before 1950 in many locations of the State, that the part of the Federal definition tying the determination to conditions at the time of statehood might be changed to accommodate pre-statehood documented or reputational use by native populations. I’ll have to look into that at some point.
When a State wins such a challenge in court, that does not mean that a State definition of navigability for title purposes has supplanted the Federal definition. What it means is that the court agreed with the State that the Federal authorities who made the particular determination at question either misapplied the Federal criteria or failed to give proper consideration to certain relevant facts. The court, viewing all the facts and making its own determination of which are and are not relevant, determined that the State was correct that when all of the relevant facts are applied to the Federal definition, that the waterway was (or was not, however the State contended) navigable.
State statutes are important. That’s where you will find if the State abdicated its claim of sovereign ownership to part or all of the beds of navigable waterways and if they make a different level of claim for different types of waterways. For example, CA statute passed in 1872 (statehood occurred in 1850), affirmed that the State made no claim of sovereign ownership over non-navigable waterways, declared that the State claimed sovereign ownership only up to the LWM on non-tidal navigable waterways, but retained its claim of sovereign ownership up to the OHWM over the beds of tidal waterways. It is important to know what level of sovereign claim the State makes over the beds of the type of waterway that you are working along.
It is important to be familiar with the State’s case law, but also to recognize that any part of State court rulings that speak to navigability for title purposes may not be binding or dispositive on the question. Where a State court makes a decision as to navigability for title purposes, that ruling is appealable to the Federal courts. Where the ruling is as to navigability for public use as a separate issue from underlying title, the Federal courts do not have jurisdiction.
I never said it was simple, on the contrary, I’ve tried to give the advice that there is a lot to consider. But I also agree with the statement that it is not rocket science. The principles are not difficult to understand, but there are a lot of moving parts to be considered. If you don’t know the principles or recognize all the facts which may be relevant to the question, you may not recognize when you need to do more than simply locate the existing OHWM along the existing bank.
Tom Adams, post: 450554, member: 7285 wrote: I’m pretty sure all navigable rivers in PLSS states run right down the section lines.
So do our mountain ridgelines. All of our lakes are rectangular to.
eapls2708 got it right. Only Federal government has authority for a navigability determination, authority granted by Congress. A state can challenge it by protest and appeal (same process as protest/appeal of Federal Survey) or seek to litagate by a Quiet Title action if they disagree and have substantial evidence to show the Federal navigability determination was not based on all of the evidence concerning condition status of the River or use for travel trade and commerce at the date of Statehood.
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Scott Ellis, post: 450546, member: 7154 wrote: I have heard many times the lower courts get Land Boundary cases wrong, it’s not till they go to Appeals Court, where the Judges understand and know more about Boundary Laws, that the correct decision is made.
That is exactly what the USFS expects, and why they introduce ALL of the evidence they possibly can in the lower level trial, since new evidence cannot be introduced on appeal.
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