In researching the subjects of Tidelands and Swamp & Overflowed Lands surveys and properties that were patented from said surveys, I am hoping to get some clarification/confirmation of the statements below:
Tidelands were not part of the public domain and do not entail any Public Trust.
Tidelands' boundaries are subject to Civil Code 670(the state is the owner of all land below tide water, and below ordinary high water mark, bordering upon tide water within the State) but if the tidelands are patented, the owner would have fee simple title to the land.
Swamp & Overflowed Lands were part of the public domain, but were granted to the State upon identification of a public land survey, and would be subject to the Public Trust
Swamp & Overflowed Lands, when patented, grant fee simple title to the patentee.
Any information on the above issues would be greatly appeciated.
Thank you,
Brad Luken, LS
This is in regards to the State of California & it's Civil Code
Navigable lakes and navigable streams are normally owned by the state. Acquisition of these happens at statehood, under what is called the Equal Footing Doctrine. The feds still owned the swampland along with other upland. Under the Swamp Land Act, states were allowed to select low and overflow swamp land, usually based upon the GLO survey and descriptions of the terrain, frequently listed as "low and overflow swamp land" right there in the field notes. Once the land was transferred to the state, the state could do anything with it, including sell it. I am not sure if CA put their own restriction on that in order to keep it in the public trust, but I don't think they did. The states sold much of their swamp lands they got from feds to levee districts and other governmental entities. The entities in turn sold a lot of it to the private sector, and the state sold some to the private sector.
Swamp lands and the ordinary high water mark of a lake or river that flows through or adjacent to a swamp are a crazy thing. For example, swamps usually get water in them each year, so if one were to use a river gage or a supposed imprint upon nature that shows an ordinary high water mark, all Hell can break loose if the river or lake gets high enough annually to back up into the swamp. Some states will want to claim the swamp land even if they themselves received it under the Swamp Land Act and patented it to private citizens a hundred years ago as Swamp Land.
I pose this question: Assume a swamp is next to a lake, and each year the lake gets high due to spring rains and backs up into the swamp (which his extremely common on rim swamp lakes). Does that mean that the swamp is below the ordinary high water mark and STILL OWNED BY THE STATE? I have my own opinion, but I'd like to hear from others on this.
See my reply on the CLSA forum. Much of it is right in line with what Frank posted, but addresses some differences particular to CA.