West Bank of a creek

Merry Christmas by the way.

I don't know anything about Georgia, but I would interpret is as top bank. Although it's more or less where do the distances land? Next question is navigability.?ÿ

Definitely not a navigable stream. One side lands short of the top of bank by quite a bit, the other goes almost to the center of the creek.

I agree with the TOB @stlsurveyor mentioned. I would also note on the survey the date you measured the TOB because as we all know these type"waterways"?ÿ have a tendency not to stay in one place. ?????ÿ

Michael, first I would research the deeds and find where the "bank of he creek" came from.?ÿ If it was originally split from one parcel then I would agree with the previous comments about the top of the bank.?ÿ I would also have a chat with the client/attorney to be sure they note on the written easement form that the easement extends to the property line, wherever that is.

Andy

" You know what I mean, right?"

That's what the seller said to the buyer back in whatever year it was the split took place.

As surveyors, we show location, and as the legal description so describes, subject to occupancy rights that ripen into legal rights by the various doctrines of property law, including, but not limited to, the following: adverse possession, prescription, acquiescence, practical location, agreement, estoppel and respose. I am from Georgia as well and riparian issues are problematic. I have placed below Georgia Law (subject to change). Of course, I would check all the adjoiners to see if there is an issue developing, and then proceed from there.

O.C.G.A. 44-8-2?ÿ The beds of nonnavigable streams belong to the owner of the adjacent land. If the stream is a dividing line between the two parcels of land, each owner's boundary shall extend to the thread or the center of the main current of the water. If the current changes gradually, the boundary line follows the current.?ÿ If from any cause the stream takes a new channel, the original line, if identifiable, remains the boundary. Gradual accretions of land on either side accrue to the owner of that side.

?ÿI think the term "bank" has more to do with vegetation than topography. "A bank is defined as the continuous margin where vegetation ceases." I believe that this is from the 1902 GLO Manual. James Simpson in RIVER & LAKE BOUNDARIES?ÿindicates that it was cited in (14 Penn. St. 59).

Consider West bank of creek to mean approach the stream from the West. You cannot interpret West bank of the creek without reviewing the deed for the parcel to the East of the creek. If it does not say to the West bank of same creek there is more interpretation than the face of the words. Distances do not control, so I would put the easement to the top of West bank.

Paul in PA

?ÿ

Giving a distance to the bank doesn't mean it's the property line, even if the distance were not more or less.?ÿ What's the intent of the "storm easement"??ÿ If there will be increased flows due to manmade structures, for a public purpose, such that the stream location could be altered in one event, then you're getting into possible exceptions to the general rule of riparian law.?ÿ Could be a mess waiting in the future if not careful.

The bank of the stream is analogous to the sides of a channel. Unless the description is more specific I would not assume that a bank meant either the top or the bottom. My map would show the stream location and note the date of the measurement.?ÿ

@andy-bruner

Thanks for your input.

Parent tract plat states "west bank" as well. I am leaning towards noting on the drawing that the easement ends at the west bank as located on 12/11/2019.  I know(?) that it can't extend to the center line/thread due to the limiting language in the legal description of "to the west bank and along the west bank".

Of course the creek has moved since the plat was done in the 1950's. Legal description for property on the opposite bank calls for the center line of the creek to be the line. Seems like there might be a strip of "no man's land". I don't believe that O.C.G.A. 44-8-2 would apply in this case since the west bank is called for in the deed and on the plat.

I'm trying to figure if I should go with the west top of bank or west bottom of bank.

@not-my-real-name

I hate to assume as well. I plan on noting on the drawing that the west bank is shown as located on 12/11/2019.

Thanks for the input.

@michael-geigerI 

I don't know about GA in particular, but all the states I am familiar with interpret a call to a bank to be a call to the CL of non-navigagable waterways, unless the bed is explicitly excluded. In this case the opposing deed calls for the centerline making it even more clear that the boundary is the CL. In no state is it appropriate to interpret deeds to leave a small useless strip of "no-man's land".

You need to talk to a surveyor or attorney that knows riparian boundaries in GA, this is a very basic riparian boundary question, not a fringe case, and you should not rely on a forum full of surveyors from other states who do not have much riparian experience.

Posted by: @michael-geiger

Old plat just shows the creek and makes no mention of the bank.

And this evidence.?ÿ Seems that would make it the dividing line per the statute someone posted. Quick search I don't see any cases in GA interpreting call to the "bank", but did see GA is pretty strict on express easements.?ÿ Voided an easement due to uncertainty of location.?ÿ Pretty unusual.

128. Jones v. Water Lot Co. of Columbus
Supreme Court of Georgia. July 1, 1855 18 Ga. 539
Headnote: A grant of land bounded on rivers where the tide does not ebb and flow carries title to the middle thread, except that a grant of land bounded by the Chattahoochee river carries to the opposite bank; such bank, and not the river itself, being the boundary of the state.

3 Cases that cite this legal issue

Document Summary: [2.] In trespass, if the jury find for the defendant, when it is conceded that the plaintiff is entitled to recover nominal damages, another trial cannot be avoided by tendering to the plaintiff one dollar and costs. [1.] Every riparian proprietor, above the ebb and flow of tide water, is entitled to the land covered by the water to the middle thread of the river; on the Chattahoochee, this extends to the boundary of the State on the Western bank. [3.] In an action of trespass, the defendant may claim the locus in quo to be his soil and freehold, or the soil and freehold of a third person, by whose authority he entered. Trespass, in Muscogee Superior Court. Seaborn Jones brought suit against the Water Lot Company of the City of Columbus, for a trespass, in overflowing the water wheels of plaintiff's mill, by erecting and raising a dam below, and causing the water to flow back. Plaintiff claimed under a grant from the State of Georgia, and proved on the the trial the trespass...

131. Westmoreland v. Beutell
Court of Appeals of Georgia. February 21, 1980 153 Ga.App. 558
Headnote: Where boundary line is described as running to a nonnavigable stream, language which describes it as thereafter running ƒ??with,ƒ? ƒ??along,ƒ? ƒ??by,ƒ? ƒ??on,ƒ? ƒ??up,ƒ? or ƒ??downƒ? the stream will be construed to carry the title to the center unless a contrary intention appears from the instrument. Code, ?? 38-502.

1 Case that cites this legal issue

Document Summary: Judgment was taken from the White Superior Court, Kenyon, J., in a boundary line dispute. The Court of Appeals, Banke, J., held that where deed provided that boundary line commenced on west bank of Chattahoochee River at or near a ford, thence in an eastern direction across the river and in a northern direction up the river to a white oak tree near the bank, the deed was construed as conveying the entire riverbed. Affirmed.

132. Westmoreland v. Beutell
Court of Appeals of Georgia. February 21, 1980 153 Ga.App. 558
Headnote: Where deed provided that boundary line commenced on west bank of Chattahoochee River at or near a ford, thence in an eastern direction across the river and in a northern direction up the river to a white oak tree near the bank, the deed was construed as conveying the entire riverbed. Code, ?? 38-502.

1 Case that cites this legal issue

Document Summary: Judgment was taken from the White Superior Court, Kenyon, J., in a boundary line dispute. The Court of Appeals, Banke, J., held that where deed provided that boundary line commenced on west bank of Chattahoochee River at or near a ford, thence in an eastern direction across the river and in a northern direction up the river to a white oak tree near the bank, the deed was construed as conveying the entire riverbed. Affirmed.

Many times the seller does not intend to give the buyer access to water in a creek and most of the time those intentions are never really addressed in the deed. It would be great if there were a phrase stating that no water rights of the creek are given.

As surveyors, we can not describe that intent apart from stopping the boundary at the top of bank.

@a-harris

It is required in most States to explicitly exclude the bed.  Often a call for the bank is not sufficient to overcome the presumption that the boundary is the thread of the stream.

@a-harris

Stopping at the bank is contrary to the law. Dave has illustrated that the usual U.S. presumption that title goes to the center applies in Georgia. If a land owner wants to exclude the bed of a river they either have to explicitly say so, or simultaneously convey the land on the other side to the same bank.