An original survey created a Lot 5 (sw4ne4) in section 2. The Lot shown is almost a full 40 at 39.2 acres, the east line of the lot being the west line of the river. Then the river creates a new channel and an island. The original channel us still there, but the main channel has shifted west leaving only 1/2 of the original lot remaining west of the river. This all happened at least 60 years ago. My client wants to know if this avulsion shrank the lot. Then the state will have a greater share of an oil well, instead of.8a.c. of the 40 they will have 1/2 interest in the well. I say they don't.
"the main channel has shifted"... how and when? Key points.
this my be relevant, have not read it in a while: http://supreme.justia.com/cases/federal/us/429/363/
What State?
Is the river navigable?
Was the island created by the avulsion or did it grow out of the bed after the avulsion? In other words was the island part of the upland on the opposite side of the river prior to the avulsion? I am assuming the island was part of the upland and is now located between the old and the new channels.
If not in Arkansas, which has some special circumstance laws on this issue, and if the river is navigable then if (and a big if) it was truly an avulsive change in the location of the river the boundaries became fixed at the time of the avulsion.
Briefly, an avulsion is a rapid and perceptible shift of a river channel from one bed to another without washing away and destroying the intervening upland.
In the case of Nebraska v. Iowa, 143 U.S. 359 (1852), the U.S. Supreme Court first defined erosion and accretion and then turned to avulsion by stating:
"It is equally well settled, that where a stream, which is a boundary, from any cause suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary; and that the boundary remains as it was, in the center of the old channel, although no water may be flowing therein. This sudden and rapid change of channel is termed, in the law, avulsion. In Gould on Waters, sec. 159, it is said: "But if the change is violent and visible, and arises from a known cause, such as a freshet, or a cut through which a new channel is formed, the original thread of the stream continues to mark the limits of the two estates"
Jerry
Montana, yes it's navigable. The state owns the river and more important for this issue the minerals.
I'll post some pictures when I get back to my computer, typing on my phone now.
Have you studied the 2012 U.S. Supreme Court case, PPL Montana v. Montana, regarding the navigability in the Great Falls area? Very interesting read, but not particularly applicable to your case.
The following is a quote from Arizona v. Jacobs, 380 P. 2d 998 (1963) which cites the law and gives citations that are meaningful to your case.
"Where, however, as in this case, the stream changes its course suddenly or in such a manner as not to destroy the identity of the land between the old and new channels, the change is termed an avulsion. Brown v. Wilson, [***6] 348 Mo. 658, 155 S.W.2d 176 (1941); Wyatt v. Wycough, 232 Ark. 760, 341 S.W.2d 18 (1960); Hirt v. Entus, 37 Wash.2d 418, 224 P.2d 620 (1950).
In boundary disputes between states, as in those between riparian owners, the rule is established that where a stream which forms a boundary line suddenly leaves its old bed and forms a new one, by the process of avulsion, there is no alteration of the boundary line. The boundary remains in the middle of the former stream channel, although no water may be flowing in it, Arkansas v. Tennessee, 246 U.S. 158, 38 S.Ct. 301, 62 L.Ed. 638 (1917); Nebraska [*340] v. Iowa, 143 U.S. 359, 12 S.Ct. 396, 36 L.Ed. 186 (1892). Subsequent changes in the course of the river as it flows through the new channel do not affect the boundary line, Arkansas v. Tennessee, supra, so long as the river does not return to its former course and again flow along the boundary."
Note that an avulsion does not "destroy the identity of the land between the old and new channels".
I worked in Montana from 1970 to 1974; mostly in the Drummund and Helena areas. Great place to work and to eat huckleberries.
Jerry
Question
Does water still flow in the original channel? That is, are both channels actively flowing?
We have a very large island between two flowing channels. The newer channel was a slough that nearly touched the older channel and over five miles long. Over a long period of time the newer channel began flowing more than the older channel. Today, probably 90 percent of the flow is in the new channel. Eventually it will be 100 percent.
The river is still the old channel. The lots are no longer being impacted by erosive action in the old channel, so things are pretty well fixed. Meanwhile, the new channel which is passing through standard aliquots is moving routinely. Some land that was entirely on one side of the slough is now on both sides.
Question
A bit of thread drift here - different country and different laws, I'm shortly going out to survey a large tract of land, tens of acres, between a public roadway and the sea. Since the late 1970's, when the sea lapped the edge of the road, the coast has been building seawards by around 25 feet per year. Fortunately for the landowner we're in a part of Scotland where land ownership extends to the 'lowest ebb' almost by default. It's up the Crown to establish otherwise (elsewhere, they own the foreshore).
The landowner's one of my happiest clients! The new land is beautiful white sand which he sells, outside the sand pit he grazes his cattle.
Question
Water boundaries vary by State in the U.S.
Generally here The State of California owns below the ordinary high water mark which has been defined as the mean high tide line. The State owns the bed of navigable rivers below the OHWM under tidal influence or below the ordinary low water mark otherwise. There are exceptions in the Rancho lands which were granted out under Mexican law.
Thanks for the information, and yes I've been checking into case law and passing it to the title people, they are more into the mineral implications than I am for sure.
Now that I'm back at my computer I can post more info.
This is the plat:
And here is the actual located section lines over google. Only the east 1/4 is an original stone, everything else is monumented with secondary monumentation except the S1/4.
The question of course is: does the state hold estate in the new channel?
the original channel east of the island still flows water year round and has shifted a bit east. If it is the boundary then Lot 5 has actually expanded (getting there to survey will be by boat-a bit dangerous right now). The extreme position for the state would be that it retains estate between the far west and far east OHWL's also owning the island.
For my client it really doesn't matter who owns what, they just need to be sure for title purposes that they get it right.
My opinion is worth exactly what you pay for it, but, here it is anyway. I believe the original channel is going to hold as being THE channel, at least for the present time and possibly indefinitely. As has been mentioned, every State has their own interpretation, so anything is possible. I think the key is that the river did not completely abandon the original channel but merely added an island. What is west of the original channel is still Lot 5 and should stay that way.
That is my opinion also, but........
I am no hydrologist, they really need to get one on board for this. And a really good title person who really knows this exact issue, the state laws and how they work for this river, I know the state is really protective about what is going on here.
Usually rivers in this area are fairly easy to pin down, they break through an oxbow or they push into a turn, one is clearly avulsion and one is clearly accretion. But this one...... Looks like both are happening!
I suppose I can just go with the GIS, it shows the old Lot 5.;-)
take a peek at Harding V Savoy
Mt Sup Ct 02-251 2004 MT 280 Just for some perspective.
take a peek at Harding V Savoy
Ha, got some friendly neighbors there, these court cases read like a bad reality show.;-)
Pretty close to what I'm working with, but with out the state factor, and think about this...... those lot lines moving take minerals with them:-O
