I have my own opinion about the following, but I'd like input from others.
1. John Doe owns a lake that was once a large river channel thousands of years ago. The lake is not navigable and not claimed by the state. Much of the river silted in over time. Approximately half of Doe's land is on the east side of the lake The other half is west side of the lake. John Doe also owned the lake.
2. Doe decided to give the land on the east side of the lake to his two daughters Mrs. Easterly and Mrs. Eastwick. He had the land east of the lake surveyed into Lots 1 and 2. The surveyor meandered the high bank of the old river channel on the east side of the lake, and each lot was shown to contain 100 acres on the plat. The high bank was shown, and the lake water edge was sketched in. The deed was transferred as 100 ac to each and per the survey. The deed also said that the land was east of the lake.
3. The deed in Item No. 2 said that the remaining land, not donated, was west of the lake. Let's assume it was 200 acres.
4. A dispute arises. The heirs of John Doe (on the west) claim entire lake all the way up to the meanders on the east side of the lake and block Mrs. Easterly and Mrs. Eastwick from even going to the edge of the water. Their basis for claiming the lake is that the meanders on the east side followed the high bank.
My position is that the meander lines are not the lake boundary, and at a minimum, the Easterly and Eastwick families own down to the edge of the water as it existed when the overall tract was divided by John Doe.
Discussion?
Most of the cases I have read and been associated have had State specific laws applied in the rulings. I have no experience in Louisiana Riparian Law, I'm sure it fills volumes, though.
In the absence of the lake being called for as a boundary in the deed, I would have a tendency to believe that the boundary is fixed, not riparian. Especially in light of the fact that the lake bed was in private ownership.
my $0.02
Fixed boundary. Location of water irrelevant. My opinion only.
So John Doe owned 400 acres total including the Lake?
East High bank is boundary
>The surveyor meandered the high bank of the old river channel on the east side of the lake, and each lot was shown to contain 100 acres on the plat.
OK.
>The high bank was shown, and the lake water edge was sketched in.
High bank was shown as what, the prop line, or just as the bank? What was shown as the property line? Sounds like the survey may have been poorly drawn.
>The deed was transferred as 100 ac to each and per the survey.
So the survey holds at least equal weight to the deed. Be nice if it competently showed where the property line was.
>The deed also said that the land was east of the lake.
Contains ambiguity. Mobile, Alabama is east of the lake.
>The deed in Item No. 2 said that the remaining land, not donated, was west of the lake.
So there may be conflicting deed elements. The weight of evidence would go to the one more certain. To me the preceding elements of the deed and the survey have more precision, but this last deed statement has more accuracy. It clearly indicates that the lake separates the two (OK, three) properties. The preceding deed elements and the survey may have some ambiguity to them... is the prop line the edge of water, or the meander line, or the high bank? That is less certainty. This last deed statement clearly indicates that the lake is in between the two properties. That is more certainty. More certainty should prevail.
I am assuming in this discussion that there is new deed description for the west property or you would have mentioned it. They used the original description less and except, right?
>My position is that the meander lines are not the lake boundary, and at a minimum, the Easterly and Eastwick families own down to the edge of the water as it existed when the overall tract was divided by John Doe.
I agree that the west prop owners position is faulty. The east owners have lakefront property.
Stephen
Where I have worked if a meander line is used in a description, the presumption is that the land is riparian and goes to the body of water.
Need to see some plats, sketches, diagrams or whatever to get an idea of what the problem is.
I know you will have the right answer!
Keith
Sounds to me like another boundary problem caused by a surveyor. The surveyor making the land division should have been clear on the location of the boundary so no ambiguity is left to cause future issues. But... water under the bridge.
The problem that is confronted is the basic presumption of law regarding parcels of land fronting on water. The upland parcel is presumed to have rights to the water, if navigable, and ownership of the bed, if non-navigable. In order to overcome the presumption of law, it takes direct evidence.
The fact that the surveyor ran the meander line is not contrary to the presumption that title extends to the center of the lake. There are numerous cases which recognize the common practice of running meander lines for the purpose of determining the upland area (the fundamental principle wasn't invented by the PLSS). It was also common practice to attribute value only to the upland area, not for the bed of the stream (or lake)(another fundamental principle not invented by the PLSS).
Direct evidence which would overcome the presumption would be found in the subsequent actions of the grantor (subsequent conveyance of the lake bed), or possibly by the subsequent actions of the lot owners.
I don't see any evidence presented which would yield an intent contrary to the presumption. In my opinion, the platted lots include ownership extending to the thread of the lake.
JBS
I would be very hesitant to lay out a common law solution in this situation.
Louisiana is a civil law state, not a common law state. There appears to be very little case law from LA on this subject.
Common law states sometimes have supported the already recited common law principle, but it is not evenly applied. See City of Geneva v Henson, 195 N.Y. 447, 462-463
Littoral rights can therefore differ from riparian rights even in the same state, in addition to differing from state to state.
A typical response, in that the assumption is the original surveyor screwed up. Why do surveyors despise themselves so much? If the intent was to donate all of the land west of the high bank of the lake, then the surveyor did his duty and THIS would be my assumption. Unless contrary evidence can be found (maybe the acreage call, this is not clear yet), the little old ladies own to the high bank and nothing else.
Surveyors seem to operate under some grandiose but false belief that we must copy the irrational behavior of our courts.
The record description is not a controlling element for a surveyor. It must be a controlling element for judges and lawyers because they have no recognized professional ability to recover and evaluate controlling physical evidence.
For a surveyor, the only function served by the record is to define the area of search. Physical evidence controls the location of legal boundaries, not words.
Remember, surveyors must detect the existence and boundaries of 'Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law. See also Restraint on alienation.' (From Black's definition of Alienation).
What physical evidence of occupation and control is presently on the site?
Richard Schaut
> A typical response, in that the assumption is the original surveyor screwed up. Why do surveyors despise themselves so much?
It's not a matter of despise; I'm quite proud of our profession. What I am frequently disappointed with is our lack of understanding of basic legal doctrines which determine boundary locations. There is no reason for the initial survey to have not been conducted in a manner which would have eliminated today's question or confusion.
>If the intent was to donate all of the land west of the high bank of the lake, then the surveyor did his duty and THIS would be my assumption. Unless contrary evidence can be found (maybe the acreage call, this is not clear yet), the little old ladies own to the high bank and nothing else.
There is no reason to make assumptions when we are given the presumption of law. "Unless contrary evidence can be found" the presumption that title extends to the thread of the lake stands. I'm still vacillating a bit on whether it's the initial surveyor's fault for creating an ambiguity, or our fault for not understanding how a basic presumption stands as controlling until sufficient evidence is discovered to over come it.
JBS
Richard,
What has any of this got to do with water boundaries? Without the law and legal principles, we'd end up with complete anarchy both in the title record and the location of boundaries on the ground.
JBS
> The record description is not a controlling element for a surveyor. It must be a controlling element for judges and lawyers because they have no recognized professional ability to recover and evaluate controlling physical evidence.
> For a surveyor, the only function served by the record is to define the area of search. Physical evidence controls the location of legal boundaries, not words.
That’s crazy talk. If it is a controlling element for judges then it’s a controlling element for the land owners. To not treat as controlling what courts have ruled controlling would be professional incompetence. Evidence that shows occupation contrary to the record may be an indication of unwritten title transfer, but we still need to locate the record description. Now, if you’re talking about situations where the called for monument is 0.1' off record that’s another story....
I don't think I am one that understand all of the "legal doctrines" JBS is referring to. At least I am not as well-versed as Mr. Stahl.
When I write a new description, (or if I were creating a subdivision plat), and encountered a similar problem, I would try to clarify in my own language. I have often added language to the effect "then intent of this description is to describe all of...." or in the case above, I might put on the plat somewhere language such as "it is the intent of this plat to include to the water front for lots 1 and 2. (or to the thread or whatever the grantor told me he wanted). I would just find out from the grantor what he really wants.
As to interpreting an ambiguous plat, I will defer to Mr. Stahl's thoughts on that. His response makes perfect sense to me. Sometimes a little more study might help you decide which way to go with the ambiguity. If the number of acres of the lot seemed to match by the math on the plat to include to the centerline of the water or to the edge of the water, I would be swayed that way. If it was just an area to the meander line, I would still be considering it to be ambiguous. If there is ambiguity, courts often err against the grantor (or writer) of the deed. Something else to keep in mind. It is incumbent on the grantor to be clear what he or she is transferring, I think.
Ambiguity should be interpreted against the grantor. That's another reason for the lots to include lake access.
> > The record description is not a controlling element for a surveyor. It must be a controlling element for judges and lawyers because they have no recognized professional ability to recover and evaluate controlling physical evidence.
> > For a surveyor, the only function served by the record is to define the area of search. Physical evidence controls the location of legal boundaries, not words.
>
> That’s crazy talk. If it is a controlling element for judges then it’s a controlling element for the land owners. To not treat as controlling what courts have ruled controlling would be professional incompetence. Evidence that shows occupation contrary to the record may be an indication of unwritten title transfer, but we still need to locate the record description. Now, if you’re talking about situations where the called for monument is 0.1' off record that’s another story....
If you're using it to define the area of search, it seems like it would be the primary controlling element. How can you (he) even say it is not one; then the first thing done is to use it to find the corners. re: "Physical evidence controls the location of legal boundaries, not words."......yet you use the words? It sounds to me as though you can't even use or find physical evidence without the words.....yet you can definitely use the words without there being physical evidence.
I agree with you aliquot; crazy talk.
The high bank was shown, and the lake water edge was sketched in. The deed was transferred as 100 ac to each and per the survey. The deed also said that the land was east of the lake.
It sounds like there is a strip of land between the high bank and the waterline.
In a similar situation in Oregon against the Pacific the County took the land between the boundary line and the high water line. They said, if I remember correctly, that the boundary was clearly shown as a fixed boundary and not a meander line. It was about six feet short of the top of the high bank. If the high bank is labeled as a "meander line" it could be constued to indicate riparian rights, but there being two lines clouds the issue.
Of course, what applies in Oregon may not have anything to do with how things work in other states.
DJJ
Based on the way you presented the info., I'm feeling like the daughters own to the edge of the lake and the heirs have two parcels, one the lake bed and the other the land on the west of it.
Don't know what Louisiana says about littoral rights on private waters. There may not be any in a case such as this. Then the line would be the top of bank shown on the survey.
Generally there is no presumption held for the donee (as opposed to a grantee). Again, probably Louisiana specific.
Are you holding back? Is there some significance to the fact that it's an oxbow lake? Is the rest of the river still there in any form or completely silted? Not sure what some of this might mean without further info.
Also, are not the daughters heirs? They would normally be predemitted heirs, meaning they would have to be explicitly written out of the will in some very decisive manner in order to exclude them. Possibly the lake is owned by all the heirs and individual heirs own whatever lands around it they were given before the demise of Doe.