RIparian Rights

I am an Australian Land Surveyor, not USA, but in Oz, my interpretation would be that the Riparian rights retain with the remaining land in the original title as the description by metes and bound on the plan restrict ownership and rights to the metes and bound. If the top of bank of Snake River impinged upon any allotments, then the allotment would be eroded as well as long as the change in Snake River was natural (slow and gradual change over time).
Grant Leith

All lots 1 through 5, and 10 through 13 of this subdivision are riparian lots. Your client's description does not include any portions which may lie between the subdivision meander line and the actual edge of the River along the waterfront of the lots not included in his deed.

A call to "the bank or the Snake River" states that the lines described are meander lines, and is the same as calling to the riparian boundary, whether it be at the OHWM or at the LWM in your state (some states go to the Ordinary High Water Mark, some to the Low Water Mark). Meander lines are not the true boundary, but are approximate representations of the true ambulatory boundary. The purpose of meander lines is to facilitate mapping and calculating land areas, not to fix the boundaries at an arbitrary set of courses near a natural boundary.

Specific bearings and distances yield to the call. In some jurisidctions, even if the call of "along the bank" was not made, but the boundary is the waterward boundary of a waterfront parcel, the courses along that waterward boundary are considered to be meander lines - unless there is specific language in the grant or on the subdivision map which clearly reserves a strip of land between the boundary courses and the water body. In CA, the presumed meander rule is defined in Lechuza Villas West v California Coastal Commission (60 Cal App. 4th 218).

I will post additional cases tomorrow if I have time.

I'd assume riparian rights.... not that they technically did it, but that the lot owners probably ASSUMED that they had them. Just to avoid a fight. I'd extend the lot lines, out to C/L, and show it as likely riparian water access, or appurtenant to the lots. If it mattered much to my client, I could hatch it. But, I could not hide the fact that I believe that in 1964, they were assumed.

N

Your clients deed is a remainder parcel, so the language is not controlling. It may however shed light on the intention of the grantor in the 1964 subdivision if your clients deed was written at or near the same time. If it was written years after the fact, then not so much.

In either case I'm not sure a court would make it to that analysis. Probably they would limit to the actual description and circumstances of the 1964 subdivision. Some courts have said that "to and along the bank" is restrictive enough to reserve the riparian rights to the grantor. But, that does not show up on the 1964 subdivision map. Then you have the extreme bank at the limits of the subdivision in 1964, but that also does not show on the map. All you really have on that map is a bunch of lots shown more or less next to a river, but not touching the river. And lots are conveyed only by reference to map. As Nate mentioned, one could easily infer that a riparian lot is offered for sale from this map.

This one is a real toss up that might be swayed heavily by testimony of parties if they are available.

Of course as Dave mentioned, if other statements exist on the map or in covenants, they may be persuasive as well.

And, if the lots were limited to the bank, they may be riparian now if there has been enough erosion to the east, as you mentioned.

I agree with Evan, and I hope to see the relationship of the called for "bank of the river" to the actual river course.

If they weren't supposed to have riparian rights, why would they call out "along the bank.." so clearly?

ANdy

A 2010 decision by the Court of Appeals of Arkansas answered a similar question:

Rio Vista, Inc. v. Miles

This quiet-title case involves competing claims to a narrow strip of land along the northeast bank of the Spring River at Hardy. The river is navigable and runs northwest to southeast. A common grantor once held the land on both sides of the river; in 1931, it conveyed some land to L.L. Ward and Frances Ward, which was "bounded on the east by the North and East Bank of Spring River...." The successors of the common grantor conveyed a tract on the other side of the river to Bridge North, Inc., which included a direction "to the Northerly Bank of Spring River; then run along said River Bank as follows: ... to the Southerly right-of-way line of Burlington-Northern Railroad; then leaving said river bank...." The common line, therefore, was the northeast bank of the Spring River.
In 1956, L.L. Ward, Jr., acquired his parents' property and recorded a plat of Rio Vista subdivision as drawn by W.D. Cobb. This plat indicated that the river and its islands were contained within Ward's property. It also reflected a handwritten notation on a line drawn near the northeast bank of the river, which stated: "Top Bank of River Property Line of L.L. Ward, Jr." Appellant Rio Vista, Inc., acquired Ward's land from a successor, James Bobo, in 1975. The legal description in its warranty deed referred to the recorded plat. Bobo gave appellant a quitclaim deed in 1980, which stated "per plat of W.D. Cobb...."
That appellees' deeds referred to Newell's plat did not limit their lots to a line short of the river bank. The plat contained the same language referring to the river bank as did the deed to Bridge North, which platted the property. The river was the natural monument, and it controlled, as Sitz testified. Arkansas law is clear that in deeds, quantity yields to course and distance, and course and distance to artificial and natural objects.

DDSM:beer:

I would consider the call to the bank of the river to mean exactly that, not to the actual water so I wouldn't show riparian rights to any of the lots. While the property calls for bearings and distances along the bank, I would also consider those lines to be just the tie lines across an irregular line. If the river has moved then the top of bank still holds and they may gain or lose area, only up to the top of the bank.

the legal description on the face of the plat calls the lines "along the bank", that to me is enough to prove the intent was to make these lines along the bank.

I would expect a 'by the river' call in order to convey Riparian Rights. I would expect your statutes and cases vary from mine anyhow.

Please note that we basically have a 80-100 foot cliff edge to this river, it's not a typical "river bank" with gentle slope to the water.

My answer yesterday was based upon the assumption that the Snake River is considered to be navigable at this point. In some states in the Eastern part of the country, title of the upland owner, even with navigable streams, goes to the center or thread of the main channel (IL & MS, as noted in Hardan v. Jordan, 140 US 371, 1891), but these are the exception. In Idaho, the State has retained ownership of the beds of navigable streams up to the Ordinary High Water Mark (OHWM).

In PLSS states, the Federal govt passed title to the beds of navigable lakes & streams, and the beds of all tidewaters to the states upon entering the Union (Equal Footing Doctine as defined in Pollards Lessee v, Hagan, 44 US 212 (1845)). On the date of statehood of any of these states, the title of the beds of the waterways passed up to the OHWM. So the OHWM was the boundary between the State's sovereign lands of the beds and the upland owners.

The US Supreme Court has recognized the rights of the individual states to dispose of these sovereign lands in the beds of navigable waters subject to the rights of the public to navigate, fish, etc. (exercise their rights under the Public Trust doctrine over waters which are navigable by "oar or motor propelled small craft", Idaho for Industry v. Hayden Lake Watershed, 112 Idaho 512, 733 P.2d 733, 1987, citing People ex rel Baker v. Mack, 19 Cal App 3d 1040, 1971)), and to define what constitutes the riparian boundary (i.e. OHWM as received from the US, or the LWM as adopted by several states), Barney v. Keokuk, 94 US 324 (1876).

The Snake River is a navigable stream. The GLO recognized it as such in the original survey (December 1868), and numerous court cases have accepted the Snake's navigability as dicta.

When the GLO ran meanders, and when the BLM runs meanders today, they start out describing the lines run as they did in T6N, R5E, B.M.: "Begin at the corner to Fractional Sections 19 & 24 in the West boundary of the township and on the right and East bank of the river. And run thence down stream with the meanders of the right bank of said River..."

By the time they got to Govt Lot 5 of Section 5, they were running along the top of the bluff. But the meander line is still not a fixed boundary.

From §3-159, 2009 BLM Manual: "The traverse that approximates the margin of a permanent natural body of water, e.g., the bank of a stream, lake, or tidewater, is termed a meander line. Numerous decisions in the United States Supreme Court assert the principle that, in original surveys, meander lines are run, not as boundaries of the parcel, but (1) for the purposes of ascertaining the quantity of land remaining after segregation of the bed of the water body from the adjoining land, (2) for defining the sinuosities of the water body for platting purposes, and (3) for closing the survey to allow for acreage calculations. The ordinary high water mark (OHWM), or line of mean high tide (line of MHT) of the stream, or other body of water, and not the meander line as actually run on the ground, is the actual boundary."

It goes on to explain in §3-162 that “Such riparian boundaries are ambulatory,
not fixed in position.”

In the case of Heckmanan Ranches v. State of Idaho, 99 Idaho 793, P. 2d 540 (1979), the main point of contention was the ownership of land that was an island only at high water flows, but it also discusses the relationship between meander lines and the OHWM in depth and references a boat load of previous cases. The court reaffirms, or recognizes well established law that the meander lines are not lines of a fixed boundary but representative of the actual riparian boundary (OHWM in ID).

In 1987, the 9th Circuit ruled that the waterline (OHWM in this case) is the boundary even in a case where the meanders were made erroneously if the plat indicates the lot to be a waterfront lot. USA v. Pappas, 814 F. 2d 1342 (1987).

In Marks v. Whitney, 6 Cal 3d 251 (1971), and again in Lechuza Villas West v. Coastal Commission, 60 Cal App 4th 218 (1997), the California courts noted that a mapped or described waterward boundary is presumed to be a meander line rather than a fixed boundary unless it is clearly stated otherwise. Marks involved a tidelands patent. Lechuza involved a private subdivision.

As we know from following GLO/BLM meander notes generally, and the notes of this township specifically, the meanders are "along the bank". An express call "along the bank", as in GLO/BLM notes and as in the description on the face of the subdivision in the O.P. of this thread is a clear and inarguable description of a meander line.

If it is navigable for title purposes - that is if the State owns the bed of the River, then the waterfront lots are riparian, they are not limited to the meander courses shown. The exception would be if the stream was not navigable for title purposes and the upland owner would normally be presumed to own to the middle or thread of the stream, but for this example, the upland owner owns both sides of the stream. In such a case, if the grant for the upland portion on the East had as its westerly boundary the "top of East bank" of the stream, everything below and West of that line would have been retained by the grantor. But that exception is not the case along a navigable river such as the Snake River in Idaho.

From what Deano has posted, there is nothing that has clearly reserved any portion of land between the meander lines of the subdivision run "along the bank" and the actual OHWM of the Snake River. Unless there is such a reservation in the record of the conveyance of the parent parcel of the subdivision, in the original conveyances of the subdivision lots, or elsewhere on the face of the map, there is no doubt that those lots have riparian rights and that their waterward boundaries are at the OHWM of the Right Bank of the Snake River. What he did describe as being a portion of his client's description, Govt Lot 5 except lands included in the private subdivision, describes the uplands to the East of the subdivision as near as I can see. It does not create a reservation along the River counter to the presumption that a depicted waterward boundary is a meander line and that a meander line is merely an approximation of the true boundary at the natural monument of the River. If you have to read into it, the reservation is not nearly clear enough to be able to infer intent to have made that reservation.

By the way, my job....

By the way, my job for the past 5 years has been almost entirely focused on the boundaries of riparian and littoral parcels. A large part of my job is to find and study the case law pertaining to water boundaries and to rights of the public under the Public Trust Doctrine.

With the exception where the presumed boundary would be to the middle or thread (non-navigable waters in most states, navigable fresh-water lakes & streams in a very few states), I have not found a case that would not interpret a call "along the bank" as being descriptive of meander lines.

If anyone is aware of any such case, I would appreciate you sending it to me or posting a link to it.

Deano,

Note that those who have opined that the lots are not riparian are either from Colonial states or other states which have significantly different water boundary laws, or are just plain guessing. Some of the colonial states, once out of tidal influenced waters, have presumed ownership to the middle or thread, so a call to a bank would be contrary to the legal presumption. Idaho (and other PLSS states) do not have such a presumption.

Where the legal presumption is ownership to the water's edge (OHWM or LWM, depending on the state and patent date), the courts have been pretty consistent that a call to the bank is equivalent to a call to the water's edge.

By the way, my job....

That would be consistent with the strips and gores doctrine too.

I see now the certificate is on the plat itself. Still, did they run along the bank to limit the conveyance or because there's an 80 foot cliff? Or did they do it because it's customary to use meander lines in that location as mentioned in threads below?

What do the deeds for the excepted lots

call for? From just scanning the documents shown my first thought would be yes they do have riparian rights, but I would certainly need more research before I could give an "informed" opinion.

Andy

I originally thought the lots along the Snake River had riparian rights, and still believe that they do, especially considering all that has been posted and discussed here. I still need to measure the existing OHW line and ascertain its relationship to the subdivision's west line.

The Snake River here is considered navigable at this location and the original GLO Survey has it meandered. I also need to lay out the meander line. I don't think there as been a disclaimer of interest for lands upward of the OHW line to the Meander line... more research... more field work!

By the way, my job....

Thanks, Evan...Lot's there to digest! I appreciate your response and time to gather and present the info.