Opinions wanted…
If a friend asked what I did over the weekend and I told him that I had a wonderful picnic on the bank of the brook, then walked along the brook for a half hour or so, then stopped and pitched my tent for the night and staked it down well. Would the friend be confused as to whether I had walked down the center of the brook in the water or simply alongside the brook?
Guys, almost every state has statutute law or clear common law practice that carries title to the center of non navigable bodies of water unless it is clearly excluded, just like roads. It makes no sense to create strips of orphaned land under the beds of creeks, just like it makes no sense to do the same with roads.
Those of you saying that it only goes to the bank. Are you saying that just becasue you think it should, or are you actually basing it on statute or case law in your state?
Of course specific circumstances can always override general principles so I would not hazard a guess based solely on the provided information.
Guys, almost every state has statutute law or clear common law practice that carries title to the center of non navigable bodies of water unless it is clearly excluded, just like roads. It makes no sense to create strips of orphaned land under the beds of creeks, just like it makes no sense to do the same with roads.
Those of you saying that it only goes to the bank. Are you saying that just becasue you think it should, or are you actually basing it on statute or case law in your state?
Of course specific circumstances can always override general principles so I would not hazard a guess based solely on the provided information.
But it wouldn’t be orphaned if the adjoiner owned it. Perhaps there was a parent parcel that was split along the bank.
You can argue this all day either way but there is no answer without more information, as has already been pointed out.
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The presumption (meaning given no other information to the contrary) is title carries to the center of the creek. There would need to be expressed, unambiguous language to overcome that because the Courts do not favor leaving useless and unconveyed strips as a policy matter.
I see this as a surveyor’s description of what he surveyed, or perhaps what he was able to survey, and he stopped measuring at the stake he set on the bank and measured down the bank to the next stake set, IMVHO, on the bank.
The surveyor’s report was not to say where the title boundary ended, he was describing what he measured and left the uncertainty, distance to some point under water, to where it may be in the future.
Title is probably to the center of the branch which can be considered an uncertainty and subject to change in location.
It reminds me of many surveys I have followed and measured myself around the local water boundaries.
Working with a timeframe that does not consider nature’s display of the date, many a time I have arrived at the edge of water and bank, centerline and gradient boundary are somewhere out there around the opening where no trees grew, and it was freezing weather, full of snakes or rushing waters told me that I’m not entering the water to place myself in peril to find the actual location of the title line because I am not getting hazard pay to make this survey and the client will not pay for my medical bills if something happens.
I set something at the edge of water and state that distance and rely upon facts of title to imply where the boundary ends, at the correct location of the boundary of the waterway in consideration.
0.02
Yes, there can be exceptions. Call to the bank of a canal and then along the canal, especially in some western states. Call to a common wall. But in spite of exceptions and special circumstances, even more generally and safe, the rule is if the call touches the monument it goes to the center thereof. So, if the call is to the bank, then along the bank, you can find cases where title doesn’t go to the centerline of the brook, etc..
But, the OP is in NY and none of that matters anymore, and hasn’t since 2012. There was some confusing dictum before 2012.
https://scholar.google.com/scholar_case?case=9821410340628895028&q=knapp+v+hughes&hl=en&as_sdt=4,33
And from a Florida case:
https://scholar.google.com/scholar_case?case=16126391786180533842&hl=en&as_sdt=5,33&sciodt=4,33
“The general rule of construction of a conveyance of land bounded by water is that, unless a contrary intention appears, it passes the soil towards the center of the water as far as the grantor owns.”). Patton and Palomar explains the widespread nature of this principle and the reason therefor:
All states follow the English rule that lands bounded by nonnavigable rivers and streams carry the title of the bed of the water course to the center thereof. 1169*1169 A grantee will, of course, receive all of the title of the grantor unless a contrary intention is clearly shown. This is consistent with the ordinary rule that a call to a monument carries to the middle of the monument and prevents the wasteful creation of strips of property that would be of little value to the holder thereof but would greatly impair the value of the upland tract.
Patton and Palomar, at ?? 134 (footnotes omitted).”
Surveyors are not authorized to make up their own laws of boundary.
unfortunately there’s no web link for the case, but here’s a link to relevant texas case law in a situation like this.
http://txls.texas.gov/wp-content/uploads/2013/01/Tyler_v_Gonzales_189_SW_2d_519.rtf
short version: an explicit call to bank and “along meanders” is controlled by the bank call. which is… i still don’t know how i feel about that, 5 or 6 years after having this cited by the GLO to extract money out of my client.
unfortunately there’s no web link for the case, but here’s a link to relevant texas case law in a situation like this.
http://txls.texas.gov/wp-content/uploads/2013/01/Tyler_v_Gonzales_189_SW_2d_519.rtf
short version: an explicit call to bank and “along meanders” is controlled by the bank call. which is… i still don’t know how i feel about that, 5 or 6 years after having this cited by the GLO to extract money out of my client.
I think the language is consistent with the rule. Seems like a clear intent to not use the stream as the boundary.
“…at all points 15 varas distant from the bank…”
right- i stated that incorrectly. i accept the case law, just in the particular situation i was talking about it was used in combination with some other, more dubious arguments to assert title to something that i’m still pretty convinced they’d pretty clearly quit by multiple acts over decades.
unfortunately there’s no web link for the case, but here’s a link to relevant texas case law in a situation like this.
http://txls.texas.gov/wp-content/uploads/2013/01/Tyler_v_Gonzales_189_SW_2d_519.rtf
short version: an explicit call to bank and “along meanders” is controlled by the bank call. which is… i still don’t know how i feel about that, 5 or 6 years after having this cited by the GLO to extract money out of my client.
This case is a very interesting case, thanks for posting it, but it is not applicable to the current conversation. The boundary of this parcel was not the bank but a line 15 Vargas from the bank.
The question of center versus bank was not even brought up, because a call to a line that far away obviously is ment to exclude not only the bank but a significant amount of land in front of the bank. In fact this ruling makes it clear the riparian law does not apply at all in this case.
Depends on the state. My state would have title at the bank and not to the c/l regardless of what any adjoiner said. It is the intention of the party conveying the property. Neighbors don’t have any say as to what you are intending to convey and neither does the surveyor.
So, unless local laws redefine the call, it is as clear as day as to where the line went to.
Depends on the state. My state would have title at the bank and not to the c/l regardless of what any adjoiner said. It is the intention of the party conveying the property. Neighbors don’t have any say as to what you are intending to convey and neither does the surveyor.
So, unless local laws redefine the call, it is as clear as day as to where the line went to.
Do you have anything to back that up? I am not doubting you. I just have never seen that and am interested in how that would work.
Among the multitude of other variables, I am envisioning an area around here where you might have a major cutbank that could be 50′ or more from the waters edge even when flowing in the largest of storms. This would leave no worthless strip of land, it could be ample room for a trail to be built, a campsite to be constructed, a rope swing to be installed, etc. A call to the bank would provide specific intent that the grantor did not want to provide access to the water and did not want to provide rights to the water.
Among the multitude of other variables, I am envisioning an area around here where you might have a major cutbank that could be 50′ or more from the waters edge even when flowing in the largest of storms. This would leave no worthless strip of land, it could be ample room for a trail to be built, a campsite to be constructed, a rope swing to be installed, etc. A call to the bank would provide specific intent that the grantor did not want to provide access to the water and did not want to provide rights to the water.
Sure, no one said you have to include the bed, but if you dont you need to specifically state it.
If both sides are sold only to the bank, even under the circumstances you describe the remaining land is worthless. A call to a bank, unless otherwise clearly stated is a call to OHW,OLW, or the geandient boundary depending on your state. In all of these cases the land is submerged at high water.
Not every state recognizes riparian rights. Even owning the entire stream doesn’t mean you have any rights to the water in that stream. In the case of my state there are many deeds that run along the bank, the adjoiner owning across the stream to the bank. And it’s unrelated to what happens to the water. The owner to the bank could well own water rights to the stream where the person who owns the land the stream passes across has none. That would be unusual but not unheard of.
This may have impacts on just how deeds like this will be interpreted in each state. I would tend to see this deed running down the CL but I would need to follow all the creation deeds and adjoiners. I’m doing one now where the original land owner deeded the tract south of the stream to the CL and tract north of the stream to the left bank as the streams falls to the east, thus creating a strip. The lawyers have taken over and it’s being quiet titled to the owner to the north.
The OP deed is ambiguous, but maybe in the state it was created in it isn’t.
Not every state recognizes riparian rights. Even owning the entire stream doesn’t mean you have any rights to the water in that stream. In the case of my state there are many deeds that run along the bank, the adjoiner owning across the stream to the bank. And it’s unrelated to what happens to the water. The owner to the bank could well own water rights to the stream where the person who owns the land the stream passes across has none. That would be unusual but not unheard of.
This may have impacts on just how deeds like this will be interpreted in each state. I would tend to see this deed running down the CL but I would need to follow all the creation deeds and adjoiners. I’m doing one now where the original land owner deeded the tract south of the stream to the CL and tract north of the stream to the left bank as the streams falls to the east, thus creating a strip. The lawyers have taken over and it’s being quiet titled to the owner to the north.
The OP deed is ambiguous, but maybe in the state it was created in it isn’t.
Riparian rights and water rights are two different things. In some places and situations they are related, in some they are not.
Every state recognizes riparian rights as to boundary locations. There are some differences, like OHW vs OLW and the definition of avulsion, but the the basics, erosion, accretion and center versus bank, are extremly similar across all states.
Not every state recognizes riparian rights. Even owning the entire stream doesn’t mean you have any rights to the water in that stream. In the case of my state there are many deeds that run along the bank, the adjoiner owning across the stream to the bank. And it’s unrelated to what happens to the water. The owner to the bank could well own water rights to the stream where the person who owns the land the stream passes across has none. That would be unusual but not unheard of.
This may have impacts on just how deeds like this will be interpreted in each state. I would tend to see this deed running down the CL but I would need to follow all the creation deeds and adjoiners. I’m doing one now where the original land owner deeded the tract south of the stream to the CL and tract north of the stream to the left bank as the streams falls to the east, thus creating a strip. The lawyers have taken over and it’s being quiet titled to the owner to the north.
The OP deed is ambiguous, but maybe in the state it was created in it isn’t.
Riparian rights and water rights are two different things. In some places and situations they are related, in some they are not.
Every state recognizes riparian rights as to boundary locations. There are some differences, like OHW vs OLW and the definition of avulsion, but the the basics, erosion, accretion and center versus bank, are extremly similar across all states.
Riparian rights and water rights are two different things. In some places and situations they are related, in some they are not.
Every state recognizes riparian rights as to boundary locations.As I say there are no riparian rights (the exception being in stream stock use) in this state and that is related to water rights. This is a Prior Appropriation Doctrine state. There is no use of the water allowed because you own the land the water is on, putting a pump in a stream or irrigation ditch that passes over your land can get you into all kinds of trouble. As far as riparian rights to boundary locations, that isn’t a riparian right. A riparian right is use of the water because the land owners location to the water. The water is all owned by the state and is allocated irrespective to location to the water.
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