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 ??with,? ??along,? ??by,? ??on,? ??up,? or ??down? 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.
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.
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.
I see absolutely no problem with deeding to the top of bank.?ÿ Not everyone wants to own half of a creek channel and pay taxes on it.?ÿ I agree it would be great if something was filed simultaneously to address that the remainder does include the entire creek up to the aforementioned top of bank, but, many times this would be a deed from the current owner to the current owner.?ÿ So, that would be a rare document.
Personally, if I don't need access to the creek, I would prefer to own to a series of lines close enough to the top of bank to build an impenetrable fence and prevent anyone from walking between my property line and the top of bank.?ÿ Creeks are a nuisance unless a water source is critical.
If you don't want the creek, you don't have to take it, but the deed needs to explicitly exclude it. There is no problem with that, unless the owner on the other side also doesn't own the creek. Then the potential problems are obvious.
I'm not sure what nuisances you would be avoiding by not taking the creek. I would think that many of the nuisances would still be there, but you wouldn't be able to do anything about them.
The deed does include the phrase "to the west bank of Nancy Creek, thence in a southerly direction along the west bank of Nancy Creek to a bridge over Nancy Creek, thence............"
Would that qualify as language explicitly excluding the bed of the creek?
You might be surprised what I could do to them. Especially if they have out of state license plates on their vehicle that used to run.
I'm not an expert in Georgia law but if I wanted to get a feel for it I would read those two cases and any which cite them.
Except the GA cases don't seem to have ever directly addressed the fact pattern. So, I would rely on the old plat, adjoining deed, and presumption per the Statute. They might look to other State law especially adjoining States. But whatever you do, don't quote TN river boundary law to the GA Judge:)
Yes after I posted I read the case...Starts on the bank, crosses to the other side then up the other so the Court said that is sufficient to rule the deed conveyed the entire river bed.
So it doesn't say "up the river" as in your post above? If it says "up the river" it clearly touches the monument (even if it ends at a stake on the bank), so no problem. But to the bank, then along the bank doesn't touch the monument (the water). Under traditional case law it has to touch the monument. Trend is certainly to give title to center with calls to and along the bank, but may not be what GA courts would say. Before our high court decision in Knapp v Hughes, NY a call to and along bank was sufficient to limit the conveyance, but any call touching such as HW, LW, the river, etc. carried to center.
3. Where a deed establishes a non-navigable stream as a boundary line, the owners on either side are entitled to the land running to the thread or center of the main current. Code § 85-1302. See also Pindar, Ga. Real Estate Law 451, § 13-19; 12 AmJur2d 564, Boundaries, § 22. Where the line is described as running to the stream, language which describes it as thereafter running "with," "along," "by," "on," "up," or "down" the stream will be construed to carry the title to the center unless contrary intention appears from the instrument. 6 Thompson, Real Property 718, § 3075 (1962 Ed.). The relevant language in the deed at issue in this case, however, does not provide that the line runs merely to the stream. Rather, it provides as follows: "Commencing on the west bank of the Chattahoochee River at a corner ... at or near a ford of said river, thence in an eastern direction across the river, thence in a northern direction up said river to a white oak near the bank of said river ..." (Emphasis supplied.) This description of the line as running across the river is consistent with the appellees' contention that the deed was intended to convey the entire riverbed. See 6 Thompson, Real Property 744, § 3082 (1962 Ed.); III American Law of Property 245-246, § 12.27 (1952). Although the appellants contend that there is other language in the deed which evidences a contrary intention to make the center line of the river the boundary, we do not find any language which would demand such a construction.
Made a survey for a client several years ago that the intent of the sale was to keep the creek up past a certain crossing where his cows were able to get water and then change sides of the creek so the buyer would have access to water if he wanted to dig out a slope in the deep bank creek for his cattle to get to water. I made the boundaries 10ft away from the banks of the creek.
