Locally, many people will not buy or sell land beyond the bank of a creek or the margin of a rural road.
Their true boundary may be the centerline, top bank, low bank or gradient boundary.
They do this so they either have water rights or not and to not pay any taxes on land that is inside a public county road.
The result in time is that they do own to the original boundary because the long gone owners of the little strips of land either reverts to the county or to the adjacent land owner.
There are several subdivision around that the back lot line is the top bank and from bank to bank is still under title to long gone developers.
The city or county does not want these strips of land along creeks or roads.
I've seen developers deed these strips to non profit organizations as a gift to get ride of the property tax burden and gain an enormous gift value right off.
We have the gaps and gores rulings that bring adjoining properties together along a boundary to remedy some of these type of problems.
Then there is somebody that did that for a reason so they would own the road to their house or farm and own the water rights to the creek.
Water is a valuable entity these days, so I can understand why someone would want to own a creek.
Since it has been contained by culverts, it is probably not spring water anymore and is not portable without some processing, so it is just runoff water and not that valuable anymore.
Title research has revealed that the City owns the creek. They were granted, by a metes and bounds description, what amounts to the easterly 120 feet of a city block in 1897, and the creek ran through it. By 1907, they had granted away in one deed the lands west of the creek (in this block) up to a line ÛÏparallel to and 8 feet westerly of the westerly bank of the creek, and in another deed, the lands east of the creek (in the area this survey entails) two parcels up to the easterly bank of the creek, leaving the strip of land they have retained fee title to up until today.
The culvert was constructed in 1937/38.
No record was found of any of these boundaries changing or being adjusted, and then, in 1964, when the developer of the ÛÏabout to be builtÛ apartment complex purchases both parcels on each side of the historic creek, the description in the grant deed contains the new call ÛÏ10Ûª offset from the centerline of the culvertÛ for each parcel. The grant deed is recorded some 3 weeks after the date stamped on the building permit. No record of any grant of lands from the City, or any easement to cross their lands, was found. From 1964 on, the developmentÛªs driveway access has been from the public street, across the easterly parcel and westerly parcel, and the CityÛªs strip of land in between. Clearly, the developer intended to acquire fee title to all of the grantorÛªs lands in this area for his driveway. The CityÛªs actions created the need for the cleanup today. A number of landowners occupy, and have improvements on, their lands in this area today.
The creek is a small creek up in Sonoma County. It seems highly unlikely it ever was a navigable creek, but IÛªll heed the advice to make sure.
eapls2708 wrote (BTW, how do you all insert parts of otherÛªs posts?)
ÛÏÛ?then the boundary is still the last natural location of the banks of the creek at that location. There is probably reasonably reliable mapping to re-establish those locations with a good degree of certainty. If I'm reading your post correctly, you've been able to re-establish those locations, that the alignment of the culvert with a supposed 20' wide strip centered on it doesn't follow the old creek course closely in all locations, and that is the basis for your gap and overlap statements. Am I following correctly so far?
That is correct.
Barring navigability being an issue, and with there being no ÛÏdirect evidence of the intent (of the parties to either create or to retain ownership of some narrow strip of land) to overcome the presumption against gaps or overlapsÛ (JPS), it seems the path to remedy the situation is clear.
Though..Û?The City would execute grant deeds, rather than quitclaim deeds, now that itÛªs clear they own the creek, no?
LA Stevens, post: 355964, member: 2391 wrote: How have you determined that the creek is owned by the City. Unless you have a specific grant to the City of fee, I don't believe they do. When was the creek parcel created?
A Streets and Highway Code 905 precluded cities from owning fee title prior to 1955 for highway purposes. It was repealed in 1961. I don't know if anything similar exists for drainage.
Regarding cities, counties, or the state being precluded from owning fee right of way, there's this in AG Opinion 04-809:
"Accordingly, neither section 905 prior to 1955 nor its predecessor, section 2631, prohibited fee ownership of public roads by counties or other government agencies." See https://oag.ca.gov/system/files/opinions/pdfs/04-809.pdf?
I'm interested in this subject so I'm curious where did you get your information? Thanks.
eapls2708, post: 356015, member: 589 wrote: In the area where Dean practices, you can't assume that the waterway is not navigable simply because it is named Somethingorother Creek. There are a number of creeks in that area that carried ship traffic inland several miles as those creeks are in flat tidally influenced areas, but then the creeks rapidly narrow as one continues upstream from the head of navigation as they come down out of the mountainous and hilly areas.
...
If this portion of creek was part of a grant from the State to the City, then it would have been a transfer that placed the City as trustee of sovereign lands (bed of a legally navigable waterway), which means that they can't simply convey their fee interest away. Legally, it would make no difference that the waterway is no longer navigable in fact. I'm not saying that it couldn't be done at all, but that it won't be as simple as you hope. It may be simpler for the City to lease a corridor for B's driveway over the historic location of the creek bed. Just what hoops would need to be jumped through would be a question for our legal staff.
Just wondering... Hypothetically... If this "creek" does turn out to be a navigable stretch and part of the sovereign lands, the stream would be considered as held in trust for use by the public as part of the national highway system. Upon statehood, the jurisdiction was transferred to the state and portions subsequently transferred to the City. The City subsequently fills in the channel and places an underground pipe that handles the flow.
Assuming all of that is the case, would the former location of the creek bed, now flush with the surrounding surface, be still considered part of the highway system and open for public travel? I know, it's a curious thought. I've seen cases where a navigable channel was filled in and claimed to still be sovereign land. Wouldn't it's purpose for sovereignty still hold true? If so, wouldn't the adjoining parcels front on a public highway and have no need for an easement, other than possibly an access permit?
I know this thought is out there. But it never hurts to ask the question...
JBS
DBarberio, post: 356094, member: 6106 wrote: Title research has revealed that the City owns the creek. They were granted, by a metes and bounds description, what amounts to the easterly 120 feet of a city block in 1897, and the creek ran through it. By 1907, they had granted away in one deed the lands west of the creek (in this block) up to a line ÛÏparallel to and 8 feet westerly of the westerly bank of the creek, and in another deed, the lands east of the creek (in the area this survey entails) two parcels up to the easterly bank of the creek, leaving the strip of land they have retained fee title to up until today.
The culvert was constructed in 1937/38.
No record was found of any of these boundaries changing or being adjusted, and then, in 1964, when the developer of the ÛÏabout to be builtÛ apartment complex purchases both parcels on each side of the historic creek, the description in the grant deed contains the new call ÛÏ10Ûª offset from the centerline of the culvertÛ for each parcel. The grant deed is recorded some 3 weeks after the date stamped on the building permit. No record of any grant of lands from the City, or any easement to cross their lands, was found. From 1964 on, the developmentÛªs driveway access has been from the public street, across the easterly parcel and westerly parcel, and the CityÛªs strip of land in between. Clearly, the developer intended to acquire fee title to all of the grantorÛªs lands in this area for his driveway. The CityÛªs actions created the need for the cleanup today. A number of landowners occupy, and have improvements on, their lands in this area today.
The creek is a small creek up in Sonoma County. It seems highly unlikely it ever was a navigable creek, but IÛªll heed the advice to make sure.
eapls2708 wrote (BTW, how do you all insert parts of otherÛªs posts?)
ÛÏÛ?then the boundary is still the last natural location of the banks of the creek at that location. There is probably reasonably reliable mapping to re-establish those locations with a good degree of certainty. If I'm reading your post correctly, you've been able to re-establish those locations, that the alignment of the culvert with a supposed 20' wide strip centered on it doesn't follow the old creek course closely in all locations, and that is the basis for your gap and overlap statements. Am I following correctly so far?
That is correct.Barring navigability being an issue, and with there being no ÛÏdirect evidence of the intent (of the parties to either create or to retain ownership of some narrow strip of land) to overcome the presumption against gaps or overlapsÛ (JPS), it seems the path to remedy the situation is clear.
Though..Û?The City would execute grant deeds, rather than quitclaim deeds, now that itÛªs clear they own the creek, no?
I'd agree. You definitely have a title issue to clear up between the two alignments. I wouldn't, however consider it a problem of "overlaps or gaps." It's simply a clean-up to fix conflicting descriptions. I'd look at two possible solutions, depending upon what the City really wants to accomplish.
If they want to have an easement for their pipeline and to transfer their fee to the adjoining parcels... Execute a quitclaim deed (or grant deed if required) for the area retained by the city after the transactions in and out. It's always a bit tricky attempting to describe what the city retained when there is no description of record. I'd suggest describing it as all of the property they received in 1897, less the property conveyed by 1907, as contained within (or adjoining) the perimeter description of the adjoining parcels. That way, you are assured of conveying all of the City's interest in any remaining property and don't need to make an attempt to locate the former creek bank. [sarcasm]Some surveyor in the future will likely find "better" evidence and claim you did it wrong anyway.[/sarcasm] ;o) Once their interest is released, reciprocate the release with a grant of easement for the pipeline harmonizing with the current adjoining deeds.
If they want to retain fee ownership, then have the City quitclaim (or grant) any right, title or interest they hold in the current descriptions of the adjoining properties. They'll be left holding the remaining 20' strip. Then have the City grant easements for the driveway crossings.
JBS
PS To quote someone's post, just highlight the portion you want to quote and select the "+Quote" button next to the "Reply". It adds the selection to a list that can then be added to your post wherever you want by selecting the "Insert Quotes" button that appears below and left of the text entry box.
JBStahl, post: 356113, member: 427 wrote: Just wondering... Hypothetically... If this "creek" does turn out to be a navigable stretch and part of the sovereign lands, the stream would be considered as held in trust for use by the public as part of the national highway system. Upon statehood, the jurisdiction was transferred to the state and portions subsequently transferred to the City. The City subsequently fills in the channel and places an underground pipe that handles the flow.
Assuming all of that is the case, would the former location of the creek bed, now flush with the surrounding surface, be still considered part of the highway system and open for public travel? I know, it's a curious thought. I've seen cases where a navigable channel was filled in and claimed to still be sovereign land. Wouldn't it's purpose for sovereignty still hold true? If so, wouldn't the adjoining parcels front on a public highway and have no need for an easement, other than possibly an access permit?
I know this thought is out there. But it never hurts to ask the question...
JBS
John,
Some of this explanation may get a little elementary in places, but it's to lay foundation and to help those with less experience who are following along.
Although travel, or navigation is one of the original underlying purposes of the Public Trust Doctrine, the waterways subject to the PTD are not considered to be part of the highway system. In fact, the PTD pertains to both the water within the waterway and the land beneath it, and those two things can become separated. Unlike the lands on which the highway system exists, these are not acquired rights of way but public sovereign lands. Technically, the states did not obtain title from the federal government, but assumed title when sovereignty passed from the federal government to the state government when the respective acts of statehood became effective.
The difference between lands held as sovereign lands and those granted by the federal government (swamp & overflow lands, school lands, certain other land grants which vary by state) or otherwise acquired and held in fee is that there is a trust duty to the public which is inalienable from the lands. As surveyors, we are concerned with the lands that comprise the beds of the waterways, and not necessarily the waters within them. That was a key concept I had to get my head wrapped around before the principles, but to a greater extent the nuances of water boundaries started falling in place for me.
In the past 8 years, I've found that there are probably more differences in how differing states approach the idea of sovereign responsibilities under the PTD than there are in just about any other area of boundary law. Prior to statehood, and consistent with common law developed from and built upon English Common Law, the sovereign was considered to hold title in trust for the people over the beds of navigable waterways up to the ordinary high water mark (OHWM). So that makes sense why meanders are run to approximate the top of bank or the OHWM. When sovereignty passed on the date of statehood to the State Government, sovereign ownership, and the State's trustee duties under the PTD passed to the OHWM.
The sovereign is not considered capable of conveying title to sovereign lands in a manner that alienates the rights of the public under the PTD (historically, navigation, commerce, & fishing) from the lands (Illinois Central RR v. Illinois, 146 US 387, 1892), but may convey such lands as long as the public's use is not unduly impaired (Shively v. Bowlby, 152 US 1, 1894).
The combination of those concepts is how some states are able to assert ownership to the OHWM, while others, by legislation have asserted to the low water mark (LWM), and still others assert no ownership at all over the beds of navigable waterways. They still have the responsibility to ensure the public's unimpaired ability to use the waterways and the lands beneath them up to the OHWM. The states don't have the capacity to eliminate that title right over the sovereign lands.
However, in some cases they can terminate the trust over certain lands if the location of that trust no longer serves a valid public purpose and it is mitigated by placing it over a more suitable location. That's likely an easier process in many jurisdictions than it is here. There seems to be no lack of interests within and outside of government in CA that likes to make such things as difficult as possible. but I digress.
The effects of artificial changes to the course of the bed of a navigable waterway are treated differently in different jurisdictions. In CA and many others, if a course is changed by artificial channelization, accretion due to the placement of some manmade structure, or due to any other effects where some man caused condition is a proximate and prominent reason, then the boundaries of the sovereign land become fixed at the last natural location of the channel.
In this case, if the boundaries are described as the banks of the creek, or in relation to the centerline of the creek (navigable or not), and those banks and the entire channel is changed or eliminated due to the earthwork associated with rerouting the creek through a culvert, that's an artificial cause and the boundaries become fixed at the last natural location.
If navigable, the City would have had to gain title by a grant from the State. That grant would designate the City as the trustee of the public's rights under the PTD, and they would have the same responsibility to protect those rights as the State would have. They could conceivably convey the lands if they also maintain the public's right to travel or "navigate" over it, but that does the present adjacent landowner no good. They could also terminate the trust (although that might require State involvement, I would need to review the grant statutes for that) if the present landowner had more suitable lands of equal or greater value to convey to the state for the purpose of mitigating the lost sovereign lands - sovereignty and the PTD is transferred to the new location. The sovereign title and associated PTD does not cease to exist, and in the eyes of the law, cannot cease to exist, but in certain circumstances, it can be moved to better serve the public.
Navigability is not dependent upon the present condition of the waterway. If it was susceptible to commercial navigation by the customary methods for that area at the time of statehood, then it is navigable for title purposes. There are waterways that may only carry enough flow to fill a 36" culvert in the wet season and be bone dry in the height of summer now, that were free flowing and fully navigable 150 years ago. It's very difficult for many to accept at this time that those waterways are still considered to be navigable for title purposes.
Since these lands are not held like a highway right of way, they cannot simply be abandoned. The courts have defined the rights and responsibilities associated with sovereign title and the PTD and have very much limited how that title must be honored and worked with.
If the creek is not navigable, that makes the circumstances much easier to remedy.
I'm going to send you something I put together to teach water boundaries to those studying for the LS exam. It really goes way beyond what they need to know to get by that exam, but I also designed it to be a reference for the practicing professional. If you have the time and inclination, your comments will be appreciated.
eapls2708, post: 356213, member: 589 wrote: Some of this explanation may get a little elementary in places, but it's to lay foundation and to help those with less experience who are following along.
To simplify it a bit further with regard to the question I was throwing out there...
I was referring to the Federal Statute Sec. 2476 which declared "All navigable rivers, within the territory occupied by the public lands, shall remain and be deemed public highways; and, in all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both."
The RS2476 couples with the California Enabling Act of Sept 9, 1850, which states "that all the navigable waters within the said State shall be common highways, and forever free, as well to the inhabitants of said State as to the citizens of the United States, without any tax, impost, or duty therefor..."
It would seem to me that the so called "sovereign lands" were withheld by the U.S. Gov't for the purpose of extending the highway system and when title was granted to the State, the condition was imposed that they remain "common highways."
If the "navigable river" channel were filled in, would the public highway remain, just accessible to surface travel rather than by boat?
JBS
John,
I'm a bit unclear about your ÛÏsimple clean-upÛ to fix the conflicting descriptions. The City wants to have an easement for their pipeline and to transfer their fee to the common adjoining owner on each side of the creek. I believe I get that there is no gap or overlap, due to there being no intention to create or to retain ownership of some narrow strip of land, butÛ?
You stated ÛÏI'd suggest describing it as all of the property they received in 1897, less the property conveyed by 1907, as contained within (or adjoining) the perimeter description of the adjoining parcels.Û I'm just not clear how this cleans it up for all to see clearly into the future.
Isn't the crux of the ÛÏproblemÛ with the conflicting descriptions that what the City still owns (and I too would also describe their remaining lands just as you state) is neither contained within or adjoining the perimeter of the parcel on the westerly side of he creek as described in all grant deeds from1964 on. The intent of that 1964 deed was to convey to the creek banks, but that wasn't what was described. Does just using the word convey clearly clean up the conflict - ÛÏadjoining the lands conveyed in Document 1ÛÏ or might ÛÏadjoining the lands intended to be conveyed in Document 1ÛÏ be clearer, or possibly even better ÛÏadjoining the lands described in Document 2 (the older description with the original calls to the bank), being the same lands as those intended to be described in Document 1Û. Or perhaps refer to the Record of Survey - ÛÏadjoining the lands conveyed in Document 1, as those conveyed lands are shown on that certain Record of Survey...ÛÏ
Am I missing something?
DBarberio, post: 356270, member: 6106 wrote: John,
I'm a bit unclear about your ÛÏsimple clean-upÛ to fix the conflicting descriptions. The City wants to have an easement for their pipeline and to transfer their fee to the common adjoining owner on each side of the creek. I believe I get that there is no gap or overlap, due to there being no intention to create or to retain ownership of some narrow strip of land, butÛ?
You stated ÛÏI'd suggest describing it as all of the property they received in 1897, less the property conveyed by 1907, as contained within (or adjoining) the perimeter description of the adjoining parcels.Û I'm just not clear how this cleans it up for all to see clearly into the future.
Isn't the crux of the ÛÏproblemÛ with the conflicting descriptions that what the City still owns (and I too would also describe their remaining lands just as you state) is neither contained within or adjoining the perimeter of the parcel on the westerly side of he creek as described in all grant deeds from1964 on. The intent of that 1964 deed was to convey to the creek banks, but that wasn't what was described. Does just using the word convey clearly clean up the conflict - ÛÏadjoining the lands conveyed in Document 1ÛÏ or might ÛÏadjoining the lands intended to be conveyed in Document 1ÛÏ be clearer, or possibly even better ÛÏadjoining the lands described in Document 2 (the older description with the original calls to the bank), being the same lands as those intended to be described in Document 1Û. Or perhaps refer to the Record of Survey - ÛÏadjoining the lands conveyed in Document 1, as those conveyed lands are shown on that certain Record of Survey...ÛÏ
Am I missing something?
Don't focus on the problem. Focus on the documents that give the city its fee title. You want to ensure that the city releases all of its fee title within or along your clients frontage. Whatever the city received (in 1897) less whatever they've conveyed (in 1907) and anything else that I'm unaware. That combination of documents defines what the city owns. Convey that fee title to the adjoiner. Don't worry about attempting to prepare some metes and bounds description as someone, somewhere in time, will find fault with it. If the City simply conveys their fee based upon the current descriptions in the title record, then they're out of the picture.
Once that's completed, the adjoining owner can grant back to the city a new easement for the pipeline, or the city could reserve an easement for the pipeline in the grant. I'd suggest the first as there is more opportunity in the easement grant to impose restrictions, etc. There is also the possibility that the easement may not be wholly contained within the City's fee title. You'd know more about that.
Once the fee title is conveyed to the client, I'd suggest either merging the City creek parcel with the adjoining parcels to eliminate any vestige of the old creek in the record.
JBS
So the only mention of the "problem" will be on the Record of Survey where discrepancy between described line and intended line will be shown with an explanatory note. In new title documents, referring to the current deed description with changed calls will be fine? I have no intention of preparing a metes and bounds description for the City's conveyance, just wanting to be clear where the title issue of cleaning up conflicting descriptions actually gets cleaned up. It seems you're saying - by not focusing on it - the intent is clear - in the end, merge the parcels. There is no problem, in the highly unlikely event anyone says there is will have to produce direct evidence of the intent to retain ownership of a strip of land to overcome the presumption against gaps or overlaps. (Am I putting too many words in your mouth?)
I know this "closing the gap issue" has been discussed at length before in the CA CLSA forum and I remember there being differences of opinion. I'll have to review it.
Thanks for your help.
DBarberio, post: 356357, member: 6106 wrote: So the only mention of the "problem" will be on the Record of Survey where discrepancy between described line and intended line will be shown with an explanatory note. In new title documents, referring to the current deed description with changed calls will be fine? I have no intention of preparing a metes and bounds description for the City's conveyance, just wanting to be clear where the title issue of cleaning up conflicting descriptions actually gets cleaned up. It seems you're saying - by not focusing on it - the intent is clear - in the end, merge the parcels. There is no problem, in the highly unlikely event anyone says there is will have to produce direct evidence of the intent to retain ownership of a strip of land to overcome the presumption against gaps or overlaps. (Am I putting too many words in your mouth?)
I know this "closing the gap issue" has been discussed at length before in the CA CLSA forum and I remember there being differences of opinion. I'll have to review it.
Thanks for your help.
This is another area where my opinions differ significantly from others regarding the duty of the surveyor. I was taught what most surveyors still practice but I've learned another way that I prefer. I no longer document "problems" whether real or supposed. I work on the survey until the problem is resolved, then I simply document the "solution." Once the city conveys its title and receives the new easement, and once the properties are merged, that is when I'd look to finish the survey. The survey would then show a single parcel of land (if that's what the landowners ultimately accomplished) and I'd show the easement.
I figure, what's the point having a survey prematurely placed in the record that documents a problem which no longer exists? I initiate my contract's suspension clause until such time as the problem discovered has been resolved to my satisfaction. Then I will resume the contract and complete the survey. By suspending the initial survey contract, it gives you time to work with the client and the neighbors to resolve any problems and properly document the resolution. Once that's completed, there is no "problem" to show on the survey.
JBS
A Harris, post: 355879, member: 81 wrote: The calls of the creek were the boundary then and remain the boundary today.
The relocation or straightening of the creek by man does not change the original boundaries and location of the creek at the time of the original conveyance.
I found the best decision in many cases would be a boundary line agreement to be recorded on Land Record if all parties are on the same page.
It means that "we are not sure where the property line is by we like established and staked property line".
JBStahl, post: 356269, member: 427 wrote: To simplify it a bit further with regard to the question I was throwing out there...
I was referring to the Federal Statute Sec. 2476 which declared "All navigable rivers, within the territory occupied by the public lands, shall remain and be deemed public highways; and, in all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both."
The RS2476 couples with the California Enabling Act of Sept 9, 1850, which states "that all the navigable waters within the said State shall be common highways, and forever free, as well to the inhabitants of said State as to the citizens of the United States, without any tax, impost, or duty therefor..."
It would seem to me that the so called "sovereign lands" were withheld by the U.S. Gov't for the purpose of extending the highway system and when title was granted to the State, the condition was imposed that they remain "common highways."
If the "navigable river" channel were filled in, would the public highway remain, just accessible to surface travel rather than by boat?
JBS
Those statutes essentially codify one of the historic uses under the common law Public Trust Doctrine. Note that both were enacted long before there were federal or state highway systems. These statutes do not declare the title to be the same as other (roadway) highway rights of way. The difference is in the permanent nature of these rights as declared by each statute. A highway right of way, as commonly understood, can be extinguished. The public's right to use navigable waterways as highways cannot be extinguished, regardless of what happens to the waterway or the land comprising the bed. It can be moved by deliberate act of the sovereign, but it cannot be extinguished. That's the nature of the Public Trust over sovereign lands.
If the waterway which was navigable (or susceptible to navigation) at the time of statehood becomes no longer physically navigable as a waterway either because irrigation and other water uses upstream have deprived the waterway of its historic flows, it has been filled in and the remaining flows artificially diverted elsewhere, or for any of several other reasons, then theoretically, yes, the public still has the right to travel over the dry land where the water once flowed up to the location of the last natural OHWM.
Thinking of it from a practical use standpoint, it doesn't make a lot of sense because most such dry, former waterways aren't of much practical use as ways of travel. From a property rights standpoint, it makes more sense. If all it took for a riparian owner to expand their upland holdings and gain ownership of the waterway itself was to ensure that the waterway were made to be impossible to navigate, then you can bet that unscrupulous investors would have found a way to gain title to most riparian lands and then divert the flows, perhaps into several smaller channels, or to impede navigation on the main channel, whichever they could have done in a manner where their lawyers could claim "Ah uhshure you that it's aaawwwwlll puhfectly legal (heh, heh, heh)".
When dealing with sovereign title, that permanently held in trust for the public, there's a whole different set of law than that which applies to most other title. It's far more limiting as to what the property can be used for, how it can be conveyed, and how adverse claims can be made against it (essentially, they can't). It is also far more limiting in what portions of the title are capable of being conveyed.
The American River in Sacramento originally flowed through the rail yards north of downtown. It was moved a mile or two north in the 19th century. The State Lands Commission has been involved in the rail yards project but that's all I know. Evan would know a lot more about it.
Dave Karoly, post: 356779, member: 94 wrote: The American River in Sacramento originally flowed through the rail yards north of downtown. It was moved a mile or two north in the 19th century. The State Lands Commission has been involved in the rail yards project but that's all I know. Evan would know a lot more about it.
Similarly, Mormon Slough in the Stockton area of California, flowed right through what is now downtown. It was diverted south of its original channel. Also, most of its flow has been diverted by way of a canal build by the Army Corps in the early 1900's to now flow into the Calaveras River to the north. So even the rerouted channel is dry most of the time.
I have an 1851 map hanging in my office which shows conditions of that time. Anchorages, or head of navigation include Stockton Channel, Mormon Channel, McCloud's Lake, Fremont's Channel, and Lindsay's Channel through what is now, as pointed out, downtown Stockton. They still remain as bulkhead protected waterways.
Warren Smith, post: 356785, member: 9900 wrote: I have an 1851 map hanging in my office which shows conditions of that time. Anchorages, or head of navigation include Stockton Channel, Mormon Channel, McCloud's Lake, Fremont's Channel, and Lindsay's Channel through what is now, as pointed out, downtown Stockton. They still remain as bulkhead protected waterways.
Yep, I've seen this very map of which you speak! Some of the (hand drawn) pictures down at Haggin Museum also show some of the historical water frontage in Stockton. It is a city with a very interesting history!
3 Miller & Starr, Cal. Real Est. s8:68 (4th ed.)
Test for what is navigable. For title-boundary purposes, navigability is determined by federal law 7 as a question of fact. 8 The test of navigability is whether the lake or river was used or was susceptible of use in its ordinary condition as a highway for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water, 9 and whether it could be made useful through reasonable improvements. 10
Comment:
This test of navigability is not used in determining the scope of the public's right to use the waters for commercial, navigation, fisheries, or recreational purposes; in that context, all that is required is that sufficient water exist to float a boat or raft, however light of draft and regardless of whether it serves any commercial purpose. 11The use for navigation need only be available during portions of the year, 12 and if the body of water is susceptible to use, it is navigable even though the use is difficult and time-consuming. Thus, whether or not a body of water is navigable for purposes of determining land boundaries depends on whether it could be traversed by boat at least during some portions of the year on the date California was admitted to the Union in 1850. 13
Case Example:
In the late 1800's a river was used for the transportation of logs and it was alleged that this was sufficient to render the river ÛÏnavigable.Û While the court recognized that the occasional use of the river during times of high water did not make the river ÛÏnavigable,Û 14 the use in this case during April, May, and June was sufficient even though transportation was extremely difficult and time-consuming because of the shallowness of the river. 15
Footnotes:
8 Heist v. County of Colusa, 163 Cal. App. 3d 841, 849ÛÒ850, 213 Cal. Rptr. 278 (3d Dist. 1984); Hitchings v. Del Rio Woods Recreation & Park Dist., 55 Cal. App. 3d 560, 565, 127 Cal. Rptr. 830 (1st Dist. 1976); Bohn v. Albertson, 107 Cal. App. 2d 738, 742, 238, P.2d 128 (1st Dist. 1951).
9 Harb. & Nav. Code, å¤ 100. The The Daniel Ball, 77 U.S. 557, 563, 19 L. Ed. 999, 1870 WL 12737 (1870).
10 U.S. v. Appalachian Elec. Power Co., 311 U.S. 377, 407ÛÒ409, 61 S. Ct. 291, 85 L. Ed. 243 (1940).
11 People ex rel. Baker v. Mack, 19 Cal. App. 3d 1040, 1048, 97 Cal. Rptr. 448 (3d Dist. 1971); Bohn v. Albertson, 107 Cal. App. 2d 738, 747, 238 P.2d 128 (1st Dist. 1951). See å¤ 15:12 (public trust, navigation and conservation easements).
12 Bess v. County of Humboldt, 3 Cal. App. 4th 1544, 1549, 1549 n.2, 5 Cal. Rptr. 2d 399 (1st Dist. 1992); State of Or. By and Through Division of State Lands v. Riverfront Protection Ass'n, 672 F.2d 792, 795(9th Cir. 1982).
13 Bohn v. Albertson, 107 Cal. App. 2d 738, 742, 238 P.2d 128 (1st Dist. 1951). See City of Los Angeles v. Aitken, 10 Cal. App. 2d 460, 466ÛÒ467, 52 P.2d 585 (3d Dist. 1935).
14 U. S. v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 698, 19 S. Ct. 770, 773, 43 L. Ed. 1136 (1899).
15 State of Or. By and Through Division of State Lands v. Riverfront Protection Ass'n, 672 F.2d 792, 795 (9th Cir. 1982).