If a navigable river was not meandered by the GLO, and an island existed at the time of statehood and still exists today, who owns the island in the river? The state or the patentee's successors?
I own it.
I'll mail you a copy of the QC deed next week. For now, simply file a record of survey of my Island with my name shown on your plat as having title to the Island.
Have it done first thing in the morning please. Oh, and I don't expect this to cost more than $250.
Surveyin' ain't rocket science after all...
Is the river navigable, because of the fact that the State claims all water to be navigable within the State, or was it smaller in size (3 chains across) so that GLO guys did not meander it?
Gonna have to look at the original survey plat by GLO to see how the land was surveyed/lotted?
Keith
> If a navigable river was not meandered by the GLO
That pretty much sums it all up. The river doesn't exist in terms of patented ownership.
Now you are in the world of riparian rights, and that gets very complicated very fast. All states have their version of ownership rights, so good luck. And by all means, raise your fee by a considerable margin.
$0.02
Again with the question marks
O.K., I can see it in the first paragraph, that was a question; but the second?
Keith, you're making me crazy!
Don
> Is the river navigable, because of the fact that the State claims all water to be navigable within the State, or was it smaller in size (3 chains across) so that GLO guys did not meander it?
>
> Gonna have to look at the original survey plat by GLO to see how the land was surveyed/lotted?
No lotting. I think the GLO did not meander because of the 3 chain rule, but the river is significant is size (for this area anyway). I've been researching some, and at this point maybe "navigable" in Idaho isn't real clear (at least from what I've found so far).
Here's what I've found:
"The State of Idaho holds title to the beds of all navigable bodies of water below the natural high water mark for the use and benefit of the public." Kootenai Environmental Alliance, Inc. v. Panhandle Yacht Club, Inc., 105 Idaho 622, 625, 671 P.2d 1085, 1088 (1983)."
Idaho Code: 58-1202. Definitions. For the purposes of this chapter, the following definitions apply:
(1) "Beds of navigable waters" means those lands lying under or below the "natural or ordinary high water mark" of navigable waters.
(2) "Natural or ordinary high water mark" means the line that water impresses on the soil by covering it for sufficient periods to deprive the soil of its vegetation and destroy its value for agricultural purposes. When the soil, configuration of the surface, or vegetation has been altered by man's activity, the natural or ordinary high water mark shall be located where it would have been if no alteration had occurred.
(3) "Navigable waters" means those waters that were susceptible to being used, in their ordinary condition, as highways for commerce on the date of statehood, under the federal test of navigability.
(4) "Private property rights" means the property rights located above the beds of navigable waters.
(5) "Public trust doctrine" means the common law rule relating to the title to the beds of navigable waters adopted by inference in section 73-116, Idaho Code.
AND
Idaho Code: 36-1601. Public waters -- Highways for recreation. (a) Navigable Streams Defined. Any stream which, in its natural state, during normal high water, will float cut timber having a diameter in excess of six (6) inches or any other commercial or floatable commodity or is capable of being navigated by oar or motor propelled small craft for pleasure or commercial purposes is navigable.
(b) Recreational Use Authorized. Navigable rivers, sloughs or streams within the meander lines or, when not meandered, between the flow lines of ordinary high water thereof, and all rivers, sloughs and streams flowing through any public lands of the state shall be open to public use as a public highway for travel and passage, up or downstream, for business or pleasure, and to exercise the incidents of navigation -- boating, swimming, fishing, hunting and all recreational purposes.
(c) Access Limited to Navigable Stream. Nothing herein contained shall authorize the entering on or crossing over private land at any point other than within the high water lines of navigable streams except that where irrigation dams or other obstructions interfere with the navigability of a stream, members of the public may remove themselves and their boats, floats, canoes or other floating crafts from the stream and walk or portage such crafts around said obstruction re-entering the stream immediately below such obstruction at the nearest point where it is safe to do so.
OK,
I've found another case: 589 P.2d 540 (1979) 99 Idaho 793, HECKMAN RANCHES, INC
"It is also settled law in this state that title to islands that existed within a navigable stream at the time Idaho was admitted to statehood do not pass to patentees of land by the sale of border lots by the United States."
It appears that the determination of navigability is the key.
> > If a navigable river was not meandered by the GLO
>
> That pretty much sums it all up. The river doesn't exist in terms of patented ownership.
>
> Now you are in the world of riparian rights, and that gets very complicated very fast. All states have their version of ownership rights, so good luck. And by all means, raise your fee by a considerable margin.
>
You weren't just whistling Dixie: Mesenbrink v Hosterman
Jim simpson water boundaries. or BLM manual 2009 chap 8 I think. Most of Simpson's work is in that chapter. Both of these are not in hand so I guess i'll have to get back to this later.
Just as a side note, Montana claims all water as navigable and hence State owned and is dead wrong in BLM terms.
What does Simpson say about Idaho?
Hey, there is a riparian expert there in BLM in Boise that could answer your questions very good.
Keith
Yes, the determination of navigability is the key.
Sort of like an island in the creek and not meandered and goes with the upland patent.
Some flippant answers on my part, and this subject can get complicated in a hurry.
Buy me a plane ticket and will come up there and look at your survey and the record surveys.
And have a glass of wine while looking at it.
Keith
I have to imagine that my friend Jerry Knight is looking at this and will give you a very good answer.
Huh , Jerry?
Right now, I'm just researching so I can talk intelligently with a prospective client. No job yet, but it probably will lead to one.
Keith, I'd fly you up if I could just for the wine and conversation, but for now that will have to wait until March.
The Mesenbrink case seems fairly comprehensive, so I'll have to study it a bit more. I'll have to do more research into what "navigable" means in Idaho though.
I do have a more complicated survey coming up later this fall that involves section 18, the Salmon river, 9 lots, a meander line or two, and several resurveys that may make a good case study though.
I'll be in the field all day tomorrow, but I'll check back in tomorrow evening.
My understanding of the situation is that the island lies within a patented aliquot part or government lot. If that is true then the patentee’s successors would own all the land within that aliquot part except for the bed of the navigable water. Patents from the federal government act as quit claims, so all parts of the patented aliquot part the federal government had authority to patent would pass to the patentee. If however, the patent was merely to the bank of the river, and the island existed before statehood the island would still be in the public domain.
> If a navigable river was not meandered by the GLO, and an island existed at the time of statehood and still exists today, who owns the island in the river? The state or the patentee's successors?
If the navigable river was not meandered nor lotted against, then the aliquot part was patented including the land on both sides of the river and the island (everything above the high water mark). The only land not included would be the bed of the navigable waterway which was conveyed to the State at statehood.
One should consider whether or not this is truly an island. The navigable waterway is likely defined as following the "main channel" of the river, not necessarily both channels on both sides of the island. If the navigable channel is the only bed conveyed to the state, then the upland owner could potentially own both the bed of the non-navigable channel and the island.
The Island, unless formed from by sediment deposits upon the navigable bed after the original survey and/or patent, would not be considered "the bed of a navigable waterway" as it is above the high water mark.
JBS
I think aliquots opinion is correct except that it the land was patented by aliquot part, the patent would not have excluded the island, as it would not have been identified by meanders of the river. Therefore, the island would have been included in the patent of the aliquot part.
But, it is a question of navigability and how the State of Idaho claims it. As I stated before, Montana claims all water as navigable. I know that back in the 60's the State was claiming this and BLM was leasing beds of rivers and lakes that they/we considered non-navigable.
I am assuming that is still the case.
It is the general rule and as stated by Jim Simpson in his book that " . . . the beds of water that were navigable at the time of statehood are owned by the state,. . ." I did several "studies" of beds of water to determine if in fact the water body was navigable at the time of Statehood and if it was determined, for instance, that there was a history of commercial shipping on the water at the time of Statehood; that was an easy call that it was navigable.
There are many court cases, including the U.S. Supreme Court and I don't think I know the current definition of navigability as defined by the courts.
Also, just the fact that the island was not meandered, does not make the river non-navigable, but is a sure sign of what the GLO thought at the time.
Keith
> The Island, unless formed from by sediment deposits upon the navigable bed after the original survey and/or patent, would not be considered "the bed of a navigable waterway" as it is above the high water mark.
>
> JBS
I suppose that might depend on how you define "High Water Mark"
There was some controversy, a few years back, as to where to draw that "line" along the Columbia River.....
Dugger
