I could be wrong but I think it's Ca. Dept. of Fish & Game that enforces this type of thing around here. I'll probably never do it but it's tempting. Problem is that during dry months the water level can get pretty low and pumping could hurt the few fish that are there, during rainy season it rages and just dumps into ocean a couple miles away. Ethically I wouldn't have any problem pulling during the short rainy season but couldn't store enough to get through the dry summer months. I've thought about building a huge water tower but the County would get on my nuts for that if they knew. It's fu&@ed! Meanwhile my water bill is astronomical just to keep a small lawn and landscaped area going through summer. On top of that, by County code I'm not allowed to drill a well because I'm on public water system.?ÿ
Thanks for posting, this makes me feel much better when we discuss water issues where Cali, Nev, Colo, ect are trying to take our water. They still seem to be backwards with respect to water......the last few years with the Supreme Court fight here was a more comedy than reality. Here's a few bucks, hand slap now go away.?ÿ
I've studied a bit of Ca history and water has been a huge thing. LA shouldn't even be allowed to exist! They've constructed huge aqueducts to bring water from Northern to Southern CA. Go to the Eastern Sierras walk around and you'll see signs saying no trespassing, lands of LA County and this hundreds of miles away. They've practically killed Mono lake which will take hundreds of years to recover if at all. We should really have two states.?ÿ
We are talking about a presumption, it doesn't mean that the bank can't be the boundary, just that the Court will presume the centerline unless there is evidence otherwise. A presumption shifts the burden of proof to the person that wants to claim the bank is the boundary.
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it is now the Department of Fish and Wildlife.
I'll give that to you if top of bank equals edge of water / high water more or less but no one mentioned that. I don't know state laws and court cases like you, I just survey using basic common sense and reason. I imagine that's what courts do as well. It's worked for me so far.?ÿ
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.?ÿ
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.?ÿ
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We were talking about boundaries not water rights. Riperan rights for a boundary is the right to claim accretions ( and conversely the ability lose due?ÿ to erosion). This has nothing to do with water rights. In some areas a riperan boundary right does imply a water right. But a lack of water rights does not mean anything for a boundary.
Our proffesional licence means we need to understand at least the basics of riparian boundary rights. They exist in every state.
I'm all for getting terms correctly, there have been a few terms used here that I've never heard outside of this forum, such as "on the grid".
So here are a couple of references:
From an SEO Document: "Wyoming does not recognize riparian rights. Wyoming is a Prior Appropriation Doctrine state and a permit is required in order to divert water. There is a provision in the law that provides for the use of water for instream stock use."
Blacks Law: Riparian Rights "The allocating of rights to use a body of water by individuals who own property around said body of water."
There are more references available, however, riparian rights are generally used in context as Blacks Law defines the term.?ÿ
My point to the OP is do states that recognize riparian WATER rights treat a deed like the one posted a bit differently than states that do not recognize riparian water rights? From some of the posts it appears that they do.?ÿ
Of course, boundaries can be defined by riparian elements and those can be a monument to locate the boundary. Accretion and avulsion are well understood terms everywhere and boundaries can shift by accretion actions regardless of how the state treats riparian rights.
CCCP 2077?ÿrules for construing the descriptive part of a conveyance of real property
"The following are the rules for construing the descriptive part of a conveyance of real property, when the construction is doubtful and there are no other sufficient circumstances to determine it:
One--Where there are certain definite and ascertained particulars in the description, the addition of others which are indefinite, unknown, or false, does not frustrate the conveyance, but it is to be construed by the first mentioned particulars.
Two--When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are paramount.
Three--Between different measurements which are inconsistent with each other, that of angles is paramount to that of surfaces, and that of lines paramount to both.
Four--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 thread of the stream is held under another title.
Five--When tide water is the boundary, the rights of the grantor to ordinary high-water mark are included in the conveyance. ??When a navigable lake, where there is no tide, is the boundary, the rights of the grantor to low-water mark are included in the conveyance.
Six--When the description refers to a map, and that reference is inconsistent with other particulars, it controls them if it appear that the parties acted with reference to the map; ??otherwise the map is subordinate to other definite and ascertained particulars."
CCCP 2077?ÿrules for construing the descriptive part of a conveyance of real property
Is that California (or some other state the starts with a C) Code of Civil Procedures or are you from Russia 25 years ago?
If the former, is the civil procedure binding on all people, including licensed surveyors/engineers, or just to the courts? Do you have additional legislation or professional codes specific to surveyors/engineers on boundary practices?
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.
This is not correct for New Jersey for non title, non navigable streams and rivers.
Baker v. Normanoch Ass'n, Inc., 136 A. 2d 645 - NJ: Supreme Court 1957:
The call to the Bank would not be enough to sever the title to the centerline any more than the call to the sideline of a street in New Jersey is enough to sever title to the fee simple ownership in the street.
That being said I have found cases where the intention has been to call to the bank, and the adjoinor?ÿ retaining title to the stream to the far bank.
The location can only be determined by knowing the common law and the intent of the parties at the time the stream became the boundary.
I'm all for getting terms correctly, there have been a few terms used here that I've never heard outside of this forum, such as "on the grid".
So here are a couple of references:
From an SEO Document: "Wyoming does not recognize riparian rights. Wyoming is a Prior Appropriation Doctrine state and a permit is required in order to divert water. There is a provision in the law that provides for the use of water for instream stock use."
Blacks Law: Riparian Rights "The allocating of rights to use a body of water by individuals who own property around said body of water."
There are more references available, however, riparian rights are generally used in context as Blacks Law defines the term.?ÿ
My point to the OP is do states that recognize riparian WATER rights treat a deed like the one posted a bit differently than states that do not recognize riparian water rights? From some of the posts it appears that they do.?ÿ
Of course, boundaries can be defined by riparian elements and those can be a monument to locate the boundary. Accretion and avulsion are well understood terms everywhere and boundaries can shift by accretion actions regardless of how the state treats riparian rights.
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I believe the citation in the Florida case is correct.?ÿ All states recognize the common law rule.?ÿ
But there is some confusion when talking about the conveyance as having the "nature of a riparian conveyance" v. "a conveyance of riparian rights".?ÿ Presumably, the provision for in stream stock watering recognizes that an owner who doesn't have other riparian rights, still owns the bed of the stream, otherwise it would be trespass to allow the stock into the stream?
If the "Polomar" citation in the Florida case is correct (and it's very authoritative research), then on a non-navigable stream title to centerline would need to be "taken" by the state via eminent domain, rather than a mere writing of a regulation that gives title to someone else.?ÿ Unless of course CO at statehood said there are no non-navigable bodies of water in the State.?ÿ But that would seem to prove the "Palomar" citation wrong.
The NY high court decision is problematic and may cause more litigation than it tries to solve.?ÿ They claim if the conveyance is "riparian in nature" then presume it goes as far as title goes, regardless of whether the description touches the monument or not.?ÿ The obvious question then is; how close to the water does it need to be??ÿ If it's 15 varas away like the Texas case posted, is it still riparian in nature? I can envision a case like the Texas one being decided the other way under the new NY rule.
Still, the question is not one of common sense or what any individual surveyor thinks of the law or equities of the situation.?ÿ For those that like the bank as the boundary, Colorado may be the State for you, but this is an old case and I don't know if still valid:
I think this is a poor decision, but unless it's been modified by something more recent I would have to follow it in CO, not show the boundary where I think it should be.
I'm all for getting terms correctly, there have been a few terms used here that I've never heard outside of this forum, such as "on the grid".
So here are a couple of references:
From an SEO Document: "Wyoming does not recognize riparian rights. Wyoming is a Prior Appropriation Doctrine state and a permit is required in order to divert water. There is a provision in the law that provides for the use of water for instream stock use."
Blacks Law: Riparian Rights "The allocating of rights to use a body of water by individuals who own property around said body of water."
There are more references available, however, riparian rights are generally used in context as Blacks Law defines the term.?ÿ
My point to the OP is do states that recognize riparian WATER rights treat a deed like the one posted a bit differently than states that do not recognize riparian water rights? From some of the posts it appears that they do.?ÿ
Of course, boundaries can be defined by riparian elements and those can be a monument to locate the boundary. Accretion and avulsion are well understood terms everywhere and boundaries can shift by accretion actions regardless of how the state treats riparian rights.
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I believe the citation in the Florida case is correct.?ÿ All states recognize the common law rule.?ÿ
But there is some confusion when talking about the conveyance as having the "nature of a riparian conveyance" v. "a conveyance of riparian rights".?ÿ Presumably, the provision for in stream stock watering recognizes that an owner who doesn't have other riparian rights, still owns the bed of the stream, otherwise it would be trespass to allow the stock into the stream?
If the "Polomar" citation in the Florida case is correct (and it's very authoritative research), then on a non-navigable stream title to centerline would need to be "taken" by the state via eminent domain, rather than a mere writing of a regulation that gives title to someone else.?ÿ Unless of course CO at statehood said there are no non-navigable bodies of water in the State.?ÿ But that would seem to prove the "Palomar" citation wrong.
The NY high court decision is problematic and may cause more litigation than it tries to solve.?ÿ They claim if the conveyance is "riparian in nature" then presume it goes as far as title goes, regardless of whether the description touches the monument or not.?ÿ The obvious question then is; how close to the water does it need to be??ÿ If it's 15 varas away like the Texas case posted, is it still riparian in nature? I can envision a case like the Texas one being decided the other way under the new NY rule.
Still, the question is not one of common sense or what any individual surveyor thinks of the law or equities of the situation.?ÿ For those that like the bank as the boundary, Colorado may be the State for you, but this is an old case and I don't know if still valid:
The thread of the brook would be my choice since the deed references the along the brook, however, it is ambiguous and other information could clear that up.
I will assume that western states will tend to use the bank more often, I've seen the bank as boundary in many deeds, it's easier to fence out in a fence out state for one thing.
I also assume that the stock watering exception is more because it's impossible to enforce a restriction to stock watering when the stream is on the land. I believe it was added after the constitution and statutes set up the system.?ÿ
I'm now doing an enlargement to a reservoir to include stock, the original 2002 filing did not include stock so the state is requiring the enlargement to allow the stock to drink from the reservoir, otherwise the rancher will be required to fence the reservoir to stop them, so the exception has limits.?ÿ
Well, the court said it was not ambiguous and so was incorrect to allow testimony of the grantor at trial level that the intention was to convey to the center.?ÿ So, back to the OP, if in CO, no you can't have any more info, it's inadmissible anyway:)
I presume the enlargement calls for payments from the rancher??ÿ In this area there's so much water people only argue about recreational access mostly, rather than productive uses.?ÿ Well, more correctly, recreation is a productive part of the tourist economy so gets argued over.
"A professional engineer or land surveyor licensed under the Code shall practice and perform engineering or land surveying work only in the field or fields in which he/she is by education and/or experience fully competent and proficient.
Nothing in this regulation shall be construed: (1) to prohibit a professional engineer from signing plans which include engineering work in areas other than that in which he/she is fully competent and proficient, if such work was performed by other engineers who were fully competent and proficient in such work; (2) to prohibit a professional engineer from performing engineering work or a land surveyor from performing land surveying work in areas which involve the application of new principles, techniques, ideas or technology; (3) to prohibit a professional engineer from supervising other engineers or a land surveyor from supervising other land surveyors who may respectively be performing engineering work or land surveying work in areas other than those in which the supervising professional engineer or supervising land surveyor is fully competent and proficient; and (4) to prohibit a professional engineer from signing plans which include engineering work, portions of which were designed or required by any governmental agency."
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Unfortunately, many of the surveyors that practice are unaware of the codes and court cases that provide direction on how to determine boundaries.
Well, the court said it was not ambiguous and so was incorrect to allow testimony of the grantor at trial level that the intention was to convey to the center.?ÿ So, back to the OP, if in CO, no you can't have any more info, it's inadmissible anyway:)
I presume the enlargement calls for payments from the rancher??ÿ In this area there's so much water people only argue about recreational access mostly, rather than productive uses.?ÿ Well, more correctly, recreation is a productive part of the tourist economy so gets argued over.
The enlargement doesn't need any payment (beyond the costs of doing it and filing fees), it was originally permitted for fish and wildlife. Because of that domestic, irrigation, stock are forbidden, the enlargement will allow for some irrigation and stock watering. The reservoir isn't going to be physically enlarged, only it's use will be enlarged, it's an odd phrasing built into the system.?ÿ
I always discourage filing for fish and wildlife, too many restrictions.?ÿ
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.
This is not correct for New Jersey for non title, non navigable streams and rivers.
Baker v. Normanoch Ass'n, Inc., 136 A. 2d 645 - NJ: Supreme Court 1957:
The call to the Bank would not be enough to sever the title to the centerline any more than the call to the sideline of a street in New Jersey is enough to sever title to the fee simple ownership in the street.
That being said I have found cases where the intention has been to call to the bank, and the adjoinor?ÿ retaining title to the stream to the far bank.
The location can only be determined by knowing the common law and the intent of the parties at the time the stream became the boundary.
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What am I missing? Baker v. Normanoch is a case about a lake. Arnold v. Mundy is about a navigable body of water. Can you point me in the right direction?
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.
This is not correct for New Jersey for non title, non navigable streams and rivers.
Baker v. Normanoch Ass'n, Inc., 136 A. 2d 645 - NJ: Supreme Court 1957:
The call to the Bank would not be enough to sever the title to the centerline any more than the call to the sideline of a street in New Jersey is enough to sever title to the fee simple ownership in the street.
That being said I have found cases where the intention has been to call to the bank, and the adjoinor?ÿ retaining title to the stream to the far bank.
The location can only be determined by knowing the common law and the intent of the parties at the time the stream became the boundary.
?ÿ
What am I missing? Baker v. Normanoch is a case about a lake. Arnold v. Mundy is about a navigable body of water. Can you point me in the right direction?
Yes Baker V. Normanach is about a lake but the NJ Supreme Court reaffirms the common law presumption of the title carrying to the centerline of a non tidal, non navigable stream or river unless expressly stated otherwise.?ÿ It then goes on to apply that to a man made pond, ie a mill pond. title would carry to the centerline of the stream as if the pond were not there.?ÿ The Court?ÿ also explains that in the case of a natural pond or lake the grant extends to the water's edge.?ÿ The applicable portion of the case is below:
If the plaintiffs have any rights in the instant case, they are individual only and must come from a grant or prescription.
Thus, do the plaintiffs in Class 2 of the pretrial order, i.e., those whose deeds convey to the shore line or edge, have by virtue of such grants any rights to the recreational use of the lake? The determination of this question rests upon the answer to the question whether the grants by the Proprietors from 1767 to 1851 of property contiguous to the lake and previous in time to Niles passed title to portions of the bed so that the present owners of such adjoining property have littoral rights to the recreational use of the lake.
The common rule of construction or presumption employed in the absence of an expressed intention is that a grant bounding upon a river or stream above tide water carries the title of the grantee ad medium filum aquae. *417 Arnold v. Mundy, supra; Simmons v. City of Paterson, 84 N.J. Eq. 23, 28 (Ch. 1914); Bailey v. Driscoll, supra, 19 N.J. at page 367. But the rule with respect to natural fresh water lakes and ponds is different. Angell in his treatise on Watercourses, ?? 41, p. 35 (1850), states the rule as follows:
"When land is conveyed bounding upon a lake or pond, if it is a natural pond, the grant extends only to the water's edge; but if it is an artificial pond, like a mill pond, caused by the flowing back of the water of a river, the grant extends to the middle of the stream, in its natural state."
Although without a direct holding upon this point, our cases have recognized the rule stated by Angell, that the grant extends only to the water's edge. See Kanouse v. Slockbower, supra, 48 N.J. Eq. at pages 49-50; Fowler v. Vreeland, 44 N.J. Eq. 268 (E. & A. 1888), affirming per curiam opinion below.
We recognize, as the cited cases indicate, that the prime consideration in determining the extent of a grant is the intention of the parties. The burden of proof in showing such intention is upon the party claiming title, in this instance, the plaintiffs. Those plaintiffs, who by deed own to the edge or shore, failed to show that the intention of the Proprietors was to convey to each contiguous owner title to a portion of the lake bed. Indeed, the record indicates the contrary. If valuable rights in the waters had been conferred upon their remote grantees by the Proprietors, the present deeds should have contained language to that effect. In ascertaining the intention of the Proprietors it is significant that in the conveyances to John Rutherford in 1834, the bounds of which contained a portion of the lake, the Proprietors expressly reserved the area covered by the waters of the lake. Moreover, in ascertaining the intention of the parties the ancient deeds must be construed in the light of the circumstances existing at the time of the grants. The primary value of Culvers Lake at that time was in its commercial uses, such as milling and logging, and not for *418 recreation. It is, therefore, not strange that the Proprietors, while granting adjoining property, would have intended to reserve to themselves title to the lake. For a judicial recognition that at least as early as the 1870's the Proprietors were aware of the fact that they had reserved title to the beds of many of the inland lakes in this State, even though much of the surrounding territory had been conveyed, see Proprietors of Eastern New Jersey v. Force's Executors, 72 N.J. Eq. 56, 65 (Ch. 1896). We conclude that the class of plaintiffs previously referred to have failed to show legally or factually that the grants of property adjacent to the shore of the lake, previous in time to Niles, passed any title to the bed of the lake.
