Boss has got me doing a love job for his cousins who both inherited equal shares in two adjoining properties bounded on the north and west by a river. They have planning approval to subdivide the two properties into equal parts so the cousins can get a property each.
The two properties were originally surveyed back in 1860 and the river has moved (presumably slowly and gradually) accross the right line surveyed boundaries (see image below). I understand the US case law is split 50/50 on whether the right line boundaries become riparian boundaries. Here in Oz I'm not aware of any case law on the matter and the legislation is silent on such situations.
Any help appreciated.
Thanks Seb - The paper does not specifically deal with a watercourse crossing over a right line (surveyed) boundary. As the bed of the river would be Crown Land, I guess the Crown have a riparian boundary that has the ability to move via accretion etc.
Looks like you may need more evidence, but not sure if these apply jurisdictionally or not. The one mentions that it is not normal for rivers to gradually shift in that area of australia, so you need to actively prove that it has (assumption being sudden change).
http://www.lpi.nsw.gov.au/__data/assets/pdf_file/0003/25941/section6.pdf
The other link posted seems on topic as well. Not sure what you mean by "right line boundary". Isn't that merely bearing and distance? But you also said the river is the boundary, so hasn't it also been identified in the language conveying the tract? In the U.S. these calls (if in conflict) would be resolved in favor of the natural landmark. So the question would still be, is the line where the landmark was at the time of conveyance or has the line moved with the river.
Thanks Duane, The original (Crown) Grants do not make mention of the river which to my mind means the parcels did not originally have a riparian boundary. The bed of the river and any land that was originally between the bed and the propoerties would have been Crown land. Assuming the river has moved gradually over the years the question is whether or not the properties now have riparian boundaries.
Okay, that is an interesting question. My guess is that the right line is the line and the client now has a river running through their land that they may access until such time as it moves on outside the boundaries. I've been discussing kind of a similar situation with my students (and a recent consulting project), due to a recent high court decision in NY. The court moved away from the traditional consideration of language of the deed to a more "common sense" approach. Stating something like "if the parcel is "near" navigable water then the intent is to convey riparian land (with some exceptions if the parcel is indicated to be for some specific uses). I'll be interested to hear if you turn up anything more on how australia might deal with the situation.
Maybe this will help. Or maybe it will further confuse.
I have a local case involving a river and a large slough. The original Government survey platting this area into sections handled this situation in the standard fashion. That is, along rivers the sections were split differently than anywhere else. Oddly shaped Government lots were identified, instead of the standard squares, for areas of less than forty acres bounded by a river. Thus, for those lots, all sides would be normal except for the one running down the center of the river. Yes, the river was owned by the entryman to the center from either side.
In this case, there was a slough that primarily filled and drained with backwater from the river as it rose and fell. The far upper end of the slough happened to be a fairly short distance from the river. The area between the slough and the river was quite wide in places and quite narrow in others. The total area being something on the order of several square miles. Perhaps about 70 years after the establishment of the sections and lots an historic flood occurred overtopping the river bank and flooding into the top end of the slough. This breach lasted long enough that after the flood there was a smallish trench cut between the river and the slough. During periods of high water the flow would follow both the river and the slough. Eventually, the trench was enlarged such that the water routinely flows down both channels, effectively creating an island of several square miles in between them. The original western channel is identified as "the river" and the original slough, which now carries more water than the the river, is known as "the cutoff".
Property continues to be owned as it was in the beginning. Properties crossed by the slough remain intact despite there being what most laymen would call a river slicing them in two. Meanwhile the river lots will continue to exist along a stretch of river that is slowly dying.
So, what I'm saying here, is that where we had normal properties we now have properties that would appear to have riparian boundaries, but do not.
