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Drake v. Russian River Land Co., 10 Cal. App. 654 (1909) states the general rule where the thread of the low water channel is the boundary except it cites an old Treatise for the proposition that a call for the bank makes the bank the boundary but the grantee still has access to the low water mark.
In Drake the early Deeds simply called for the River but at some point a Deed was delivered which changed to a description of the bank but then saying it included all of the land in the earlier Deed. The trial court had ruled for the bank but the Appellate Court reversed.
The call is to the bank. Title cannot be determined solely on this description. To determine the preponderance of evidence would require more research. Limiting the analysis to the deed alone can produce a reasonable assumption, which at best is an assumption.
3 Miller & Starr California Real Estate 4th, ?? 8:68. Water as property boundary??Where adjacent to nontidal waters (excerpt):
Property adjacent to non-navigable non-tidal waters. In the case of non-tidal waters that are not navigable, unless the instrument of conveyance shows a different intent, 40 it is presumed that the owner of the adjacent land owns to the center of the abutting lake or stream. 41 The center for these purposes is a line midway between the intersection of the plane of the water with the two opposite banks at low water. 42 A conveyance that refers to and uses the bank or shore of non-navigable waters as a monument or boundary description ordinarily conveys to the center or thread of the water. 43 If the grant is described expressly in reference to the ??shore? or ??bank? of a non-navigable stream, the grantee receives title to the shore or bank to the location of the water at normal flow, as distinguished from the high water or storm flow. 44 If title to the bed of the stream is held under a different title at the time of the conveyance, then the presumption of title to the center of the stream does not apply. 45
Footnotes:
40 Hutton v. Yolo Orchard Co., 203 Cal. 724, 727??730, 265 P. 933 (1928); Canal Oil Co. v. National Oil Co., 19 Cal. App. 2d 524, 531??532, 66 P.2d 197 (3d Dist. 1937) (disavowed by, County of San Bernardino v. Doria Mining & Engineering Corp., 72 Cal. App. 3d 776, 140 Cal. Rptr. 383 (4th Dist. 1977)); San Pedro, L.A. & S.L.R. Co. v. Simons Brick Co., 45 Cal. App. 57, 62, 187 P. 62 (2d Dist. 1919).
41 Civ. Code, ?? 830; Code Civ. Proc., ?? 2077, subd. (4).
Bishel v. Faria, 53 Cal. 2d 254, 257, 1 Cal. Rptr. 153, 347 P.2d 289 (1959); Estate of Mitchell, 10 Cal. 2d 628, 634, 75 P.2d 1048 (1938); Foss v. Johnstone, 158 Cal. 119, 127, 110 P. 294 (1910) (pond). See McDonald v. Mason, 25 Cal. App. 2d 17, 23, 76 P.2d 212 (1st Dist. 1938) (non-navigable portion of Carmel River).
42 Bishel v. Faria, 53 Cal. 2d 254, 259, 261, 1 Cal. Rptr. 153, 347 P.2d 289 (1959) (thread of the stream is measured at the lowest stage of the water).
See Deeds: description of land conveyed by reference to river or stream as carrying to thread or center or only to bank thereof??modern status, 78 A.L.R.3d 604.
43 Rubel v. Peckham, 94 Cal. App. 2d 834, 837, 211 P.2d 883 (3d Dist. 1949).
44 Hutton v. Yolo Orchard Co., 203 Cal. 724, 729??730, 265 P. 933 (1928); San Pedro, L.A. & S.L.R. Co. v. Simons Brick Co., 45 Cal. App. 57, 61??62, 187 P. 62 (2d Dist. 1919). See Heilbron v. Kings River & F.C. Co., 76 Cal. 11, 17??18, 17 P. 933 (1888) (overruled by, Van Bibber v. Hilton, 84 Cal. 585, 24 P. 598 (1890)) (finding conveyance to the ??bank? of a river to be a conveyance riparian to the river).
But compare Drake v. Russian River Land Co., 10 Cal. App. 654, 659??661, 103 P. 167 (3d Dist. 1909), where property bordering on a horseshoe-shaped stream was described as ??bounded and enclosed? by the river on the ??north, east, and west side.? The court held that the description did not by its terms indicate any other intent than to bound the land by the stream, and the boundary followed the thread of the stream.
45 Under the statutory rule of construction, Code Civ. Proc., ?? 2077, subd. (4), the presumption that title is conveyed to the center of a road or the thread of a non-navigable stream is subject to the qualification, ??except when the road or thread of the stream is held under a different title.?Texas:
Moore v. Ashbrook, 197 S.W.2d 516, 517 (Tex. Civ. App. 1946)
When there is a call for the bank, the place where the surveyor stopped is to be taken, not as the corner, but the place where the projected line enters the stream; it is immaterial whether such place be at the edge of the water or at a convenient distance back on the line.” 7 Tex.Jur. 134, ?? 15.
It is further stated that the rule “is applied because of the necessity of the case. A surveyor usually cannot go into a stream to make a corner, so he makes a corner on the bank in order to identify the place where he stopped, ?? the rule being an exception to the one which requires the following the footsteps of the surveyor. The rule is applied in public grants for the reason that it is the policy of the government ultimately to grant all its lands to individuals. Streams are made the boundaries of surveys in order that the owners on each side may have access to the water; and it is unreasonable to suppose that the government intended to reserve the narrow strip of land between surveys covered by the non-navigable streams. Similar reasons apply in case of private grants.” 7 Tex.Jur. 133, ?? 14.
Alaska:
AS 09.25.040(4)
when a road or stream of water not navigable is the boundary, the rights of the grantor to the middle of the road or the thread of the stream are included in the conveyance, except where the road or bed of the stream is held under another title
Federal:
2009 BLM Manual Sec. 8-2:
For lands fronting a nonnavigable inland body of water, the intention is that the upland ownership extends to the medial line.
Sec. 8-40:
A riparian owner on one side of a meandered nonnavigable river is conveyed title to the medial line of the stream or to the center of a meandered nonnavigable lake.
- Posted by: aliquot
Federal:
2009 BLM Manual Sec. 8-2:
For lands fronting a nonnavigable inland body of water, the intention is that the upland ownership extends to the medial line.
Sec. 8-40:
A riparian owner on one side of a meandered nonnavigable river is conveyed title to the medial line of the stream or to the center of a meandered nonnavigable lake.
I’m not knowing what they mean by medial line.
In California, the Courts have said the boundary is the thread between the low water banks, not the centerline between the high water banks.
- Posted by: Sergeant Schultz
Looking at a deed. In part it says, ….southwesterly to the bank of the brook; Thence northwesterly along the brook approximately 1180 feet to a stake; Thence…..
So, does title carry to the centerline of the brook?
Thanks!
Brings to mind another question. Is the 1180 measured along the meandering brook or in a straight line? Here in leftwing Massachusetts it is common to measure along the meander but is that correct?
- Posted by: Dave Karoly
I’m not knowing what they mean by medial line.
In California, the Courts have said the boundary is the thread between the low water banks, not the centerline between the high water banks.
The medial line is a center line. It is usually calculated from the ordinary high water line, but in some cases ordinary low water, or even the gradient line is appropriate. The problem with just saying center line (or thread) is that there are an almost infinite number of methods to actually calculate it for a winding river. The medial line method solves that problem by describing the exact method to use. The legal boundary is actually the median line, but for practical proposes it is simplified to the medial line (see manual sections 8.62-8.69).
I use this method even for non-federally created boundaries, just because there is not much guidance that says to do it any particular way from the states.
- Posted by: HackPosted by: Sergeant Schultz
Looking at a deed. In part it says, ….southwesterly to the bank of the brook; Thence northwesterly along the brook approximately 1180 feet to a stake; Thence…..
So, does title carry to the centerline of the brook?
Thanks!
Brings to mind another question. Is the 1180 measured along the meandering brook or in a straight line? Here in leftwing Massachusetts it is common to measure along the meander but is that correct?
The specific circumstances would have to guide you here, but using a distance like this would be a last resort.
- Posted by: aliquotPosted by: HackPosted by: Sergeant Schultz
Looking at a deed. In part it says, ….southwesterly to the bank of the brook; Thence northwesterly along the brook approximately 1180 feet to a stake; Thence…..
So, does title carry to the centerline of the brook?
Thanks!
Brings to mind another question. Is the 1180 measured along the meandering brook or in a straight line? Here in leftwing Massachusetts it is common to measure along the meander but is that correct?
The specific circumstances would have to guide you here, but using a distance like this would be a last resort.
Not quite sure which solution you favor Aliquot.
- Posted by: Hack
.Not quite sure which solution you favor Aliquot.
I think language like that usually means along the meandering brook, but I wouldn’t give my opinion much weight, because local practice there may dictate otherwise. The other problem is that the distance would have been along the brook at the time the description was written, so any changes to the brook would require you to try to try to recreate the former position of the brook to determine the position of the sideline. Hopefully you have something else to go on to locate the side line.
Based solely on what you have presented, I would say center of the waterway. Clearly the regulations of each state may have something different to say, or the adjoining/previous record documents may ring in with an opinion.
The scrivener here did nobody any favors!
- Posted by: aliquotPosted by: Hack
.Not quite sure which solution you favor Aliquot.
I think language like that usually means along the meandering brook, but I wouldn’t give my opinion much weight, because local practice there may dictate otherwise. The other problem is that the distance would have been along the brook at the time the description was written, so any changes to the brook would require you to try to try to recreate the former position of the brook to determine the position of the sideline. Hopefully you have something else to go on to locate the side line.
Aliquot I agree with all you say in regards to local practice as well as original location. The reason I bring it up is that recently I read in “Interpreting Land Records” by Wilson that seems to be a reliance on holding a straight line distance.
Giving it more thought raises several questions. In the case of a serpentine brook what would most likely have been the intent of the parties to follow the meanderings of the brook or a certain distance from one corner to the next.
Hack
- Posted by: aliquotPosted by: Dave Karoly
I’m not knowing what they mean by medial line.
In California, the Courts have said the boundary is the thread between the low water banks, not the centerline between the high water banks.
The medial line is a center line. It is usually calculated from the ordinary high water line, but in some cases ordinary low water, or even the gradient line is appropriate. The problem with just saying center line (or thread) is that there are an almost infinite number of methods to actually calculate it for a winding river. The medial line method solves that problem by describing the exact method to use. The legal boundary is actually the median line, but for practical proposes it is simplified to the medial line (see manual sections 8.62-8.69).
I use this method even for non-federally created boundaries, just because there is not much guidance that says to do it any particular way from the states.
I don’t think the boundary is calculated. Our Courts have reasoned that the thread of the low water channel is the boundary because both owners need and are entitled to access to the water without committing a trespass. There’s no calculating involved, both owners can access the water’s edge and own to the center of the channel. Using the medial line between the high water banks could result in one side not having access to the water in summer or drought years which defeats the purpose of a water course boundary.
- Posted by: Dave KarolyPosted by: aliquotPosted by: Dave Karoly
I’m not knowing what they mean by medial line.
In California, the Courts have said the boundary is the thread between the low water banks, not the centerline between the high water banks.
The medial line is a center line. It is usually calculated from the ordinary high water line, but in some cases ordinary low water, or even the gradient line is appropriate. The problem with just saying center line (or thread) is that there are an almost infinite number of methods to actually calculate it for a winding river. The medial line method solves that problem by describing the exact method to use. The legal boundary is actually the median line, but for practical proposes it is simplified to the medial line (see manual sections 8.62-8.69).
I use this method even for non-federally created boundaries, just because there is not much guidance that says to do it any particular way from the states.
I don’t think the boundary is calculated. Our Courts have reasoned that the thread of the low water channel is the boundary because both owners need and are entitled to access to the water without committing a trespass. There’s no calculating involved, both owners can access the water’s edge and own to the center of the channel. Using the medial line between the high water banks could result in one side not having access to the water in summer or drought years which defeats the purpose of a water course boundary.
A medial line between the ordinary low water lines (unlike OHW) would almost never be out of the water.
I haven’t read California case law extensively, but the only cases I have seen that use the thread are noted as deviating from the norm because of the importance and difficulty of access. Is it adopted as universal assumption in California? The reason most jurisdictions have stayed away from using physical features below ordinary water levels is the obvious difficulty of surveying a feature that is always under water. The methods used to find the thalweg of a major river like the Mississippi don’t work to well in a mountain stream.
Dave Karoly you usually are quick with the legal references. What is your take on distance by straight line or meandering? Like I said previously the local practice here is to measure along the meander but with a serpentine brook the difference can be significant.
- Posted by: HackPosted by: aliquotPosted by: Hack
.Not quite sure which solution you favor Aliquot.
I think language like that usually means along the meandering brook, but I wouldn’t give my opinion much weight, because local practice there may dictate otherwise. The other problem is that the distance would have been along the brook at the time the description was written, so any changes to the brook would require you to try to try to recreate the former position of the brook to determine the position of the sideline. Hopefully you have something else to go on to locate the side line.
Aliquot I agree with all you say in regards to local practice as well as original location. The reason I bring it up is that recently I read in “Interpreting Land Records” by Wilson that seems to be a reliance on holding a straight line distance.
Giving it more thought raises several questions. In the case of a serpentine brook what would most likely have been the intent of the parties to follow the meanderings of the brook or a certain distance from one corner to the next.
Hack
I think what the cases say is that when a bearing and distance are given, the presumption is the line is intended to be straight. In this case no bearing is given, and the distance is qualified as approximately. The more certain language is the brook (a natural monument) and the stake (an artificial monument). The stake is likely not there anymore, but historically artificial monuments have been memorialized or accessory evidence has been placed in reliance on them (including any improvements built at or nearer to the time of the original description) so that it’s possible to determine the original location with a fair degree of certainty.
Basically, if an adjoiner called me complaining about a retracement survey of this and asking if they should retain my services for a second opinion, and the survey showed 1180 feet, either along the brook or straight line, I would counsel them that yes I would probably have a different opinion of the line. May or may not be in their favor, but definitely looks like evidence was missed. I can’t envision holding that distance under any circumstances, but theoretically I guess if that is the only option I would hold the solution that best matches the acreage.
- Posted by: aliquotPosted by: Dave KarolyPosted by: aliquotPosted by: Dave Karoly
I’m not knowing what they mean by medial line.
In California, the Courts have said the boundary is the thread between the low water banks, not the centerline between the high water banks.
The medial line is a center line. It is usually calculated from the ordinary high water line, but in some cases ordinary low water, or even the gradient line is appropriate. The problem with just saying center line (or thread) is that there are an almost infinite number of methods to actually calculate it for a winding river. The medial line method solves that problem by describing the exact method to use. The legal boundary is actually the median line, but for practical proposes it is simplified to the medial line (see manual sections 8.62-8.69).
I use this method even for non-federally created boundaries, just because there is not much guidance that says to do it any particular way from the states.
I don’t think the boundary is calculated. Our Courts have reasoned that the thread of the low water channel is the boundary because both owners need and are entitled to access to the water without committing a trespass. There’s no calculating involved, both owners can access the water’s edge and own to the center of the channel. Using the medial line between the high water banks could result in one side not having access to the water in summer or drought years which defeats the purpose of a water course boundary.
A medial line between the ordinary low water lines (unlike OHW) would almost never be out of the water.
I haven’t read California case law extensively, but the only cases I have seen that use the thread are noted as deviating from the norm because of the importance and difficulty of access. Is it adopted as universal assumption in California? The reason most jurisdictions have stayed away from using physical features below ordinary water levels is the obvious difficulty of surveying a feature that is always under water. The methods used to find the thalweg of a major river like the Mississippi don’t work to well in a mountain stream.
This question of bank vs. thread is not one I have personally encountered in practice. I haven’t read all the cases Miller & Starr cites and the ones I have read have more circumstances than just a bare question of “does the bank equal the thread?” California Courts typically don’t make a lot of rules governing specific fact situations like other States sometimes do. It tends to be more of an inquiry into what do the facts show the parties actually did. The few cases I have read have additional circumstances backing up the ruling, such as the grantee accessed the water for over 30 years, this is strong evidence that the call to the bank carries out to the thread. The California Courts will accept a practical interpretation by the parties as long as the language of the Deed is reasonably susceptible to that interpretation. Our Parol Evidence rule is one page with 80 pages of exceptions in Witkins Summary of California Law.
- Posted by: Hack
Dave Karoly you usually are quick with the legal references. What is your take on distance by straight line or meandering? Like I said previously the local practice here is to measure along the meander but with a serpentine brook the difference can be significant.
If I had a Deed that intersected a creek or street with a distance to a point of intersection of the next sideline departing from the creek or street then I would look for superior evidence of that sideline and use the distance along the creek or street as a check to support that I’m at the correct sideline.
It can be tough to find legal citations on specific fact questions because that isn’t what they are for, typically. No Court is going to pronounce that the rule is a distance along a creek is always a straight line or always meandering, it’s a question of fact unique to each case. Old cases may provide some guidance in the reasoning to be used when picking one over the other.
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