Water Boundaries OR Part 2 - PLSO...Water Boundaries OR - EAP 12 Fixed Water Boundaries Artificial...

01/06/2014

Water Boundaries OR - EAP 1

Water BoundariesA Review of Basic Principles With

Specific Reference to OregonPart 2

PLSO Annual Conference

January, 2014

Evan Page, PLS© Evan A. Page

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General PrinciplesA Brief Review

What is the Boundary? It’s a matter of law.

BoundaryDesignation

Waterway Designation

Navigable Non-navigable

Pacific Shore StreamsMeandered

Lakes

Non-meandered

Lakes

Non-meandered

Streams

Edge of UplandOwnership

LWM Before07/05/1947

-------MHTL After07/05/1947

OHWM

Meander Linesor Last NauralShore Before05/25/1921*

Center or

Completion ofRegular Aliquot

Portion

Thread

Edge of Public UseVegetation

Line**OHWM

OHWM orMeander Line

OHWM*** OHWM***

*State retains title to dry land as result of accretion, reliction, etc. after 05/25/1921

**Based on Prescriptive Rights of the public recognized and codified by Legislature in ORS 390.605 to 390.620

***Public navigational easement if waterway has "the capacity to afford the length, width and depth to enable [small] boats… to make successfulprogress" or If "capable of being navigated by oar or motor propelled small craft."

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General Principles - A Brief Review

Where is the Boundary?

It’s a matter of facts.

Documents & Maps Filed, agency, private survey maps

Navigability Reports, Exploration Journals,News accounts

Physical Evidence Bank location, edge of vegetation,

change in character of soil.

Historic Aerial Photos

Historic Ground-LevelPhotos showing use.

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GeneralPrinciples -A Brief Review

Putting thebasics alltogether andvisualizing theterms.

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Non-Tidal, Navigable WatersBoundary of Sovereign Title

•Federal Common Law = OHWM

•Sovereignty succeeded to the OHWM

• ORS 274.025 : OHWM on streams

•Oregon exception: OHWM of 05/25/1921 ormeander line on lakes. ORS 274.430 & 274.440

•US Supreme Court has recognized states’ rightto define edge of navigable waterways.Barney v. Keokuk, 94 US 324 (1976).

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Non-Tidal, Navigable WatersRecap

• Boundary along navigable streams at OHWM

• Boundary along shores of navigable lakes at OHWM asit existed on 05/25/1921 or at meander line and are nolonger ambulatory.

• Lake boundaries will retain an ambulatory nature iflawfully drained, but only so far to fill out the leastaliquot subdivision of the parcels adjoining the lake.

• The State owns natural accretions & relictions and maysell or lease those lands. The owners of parcelsadjacent to the accreted lands have preference topurchase accreted lands if State offers them for sale.

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Non-Tidal, Navigable WatersVisualizing the terms

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Water BoundariesIn Descriptions

•Expressly called for: “along the bank”, “along theshore”, or “along the edge of the Rogue River”

• Implied calls: “Lot 99 of the map of BlissfulShores”, where Lot 99 shows to be a waterfrontlot on the map, “along the meanders of”, “withthe meander line”, or a recitation of coursesidentical to surveyed meander lines.

•Express or implied, all are calls to the statutorywater boundary.

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Shore MovementGenerally

•Accretion (also erosion)= slow & imperceptible

• Movement due to accretion = ambulatory boundary oncoast and on streams.

•Oregon exception: Title to lands formed by accretionor reliction attaches to upland title if prior to May 25,1921, but claimed by State if after. ORS 274.430, 274.440

•Avulsion = sudden & violent

• Movement due to avulsion = fixed boundary at the lastnatural location before the avulsion.

• Islands formed by an avulsive change to the channel fixesthe boundary at the old channel. Title to new islandremains with upland parcel it was formerly a part of.

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Apportionment of Lands Addedby Accretion, Reliction, or Other

Natural Processes•No particular method prescribed by common law.

•Several methods exist and are commonly used.

•No precise procedures exist for deciding whichmethod to use or to implement the chosenmethod.

•Courts seem to prefer the method which affordsthe most equitable division of the added landsamong the adjacent riparian parcels.

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Apportionment of AccretionsOn Navigable Streams

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Apportionment of AccretionsOn Lakes, Generally

Blue : RemainingBed

Aqua : Accreted(or Relicted)Area

Green = UplandbetweenMeander Lineand OHWM

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Blue : RemainingBed



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Blue : RemainingBed



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Apportionment of AccretionsOn Lakes, in Oregon

Blue : RemainingState Ownership



Purple = Area tofill least aliquotdivisions

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Is a water boundary always ambulatory?

Not always…

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Fixed Water BoundariesNo Longer a Water Boundary

•When a meander line followed something otherthan the bank of a water body.• Edge of swamp land or heavy brush at margins of

riparian corridor.• Secondary bank which is significant distance from

waterway.• Grossly inaccurate or fraudulent meander.

•When there has been enough accretion betweenthe meander line and water body to justify anadditional lot occurring between the time oforiginal survey and federal patent.

•All such lands are subject to future survey andsale by the federal government.

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•Avulsion: “A sudden and perceptible loss oraddition to land by the action of water, or asudden change in the bed or course of astream.” Black’s Law Dictionary, 6th Ed.

•Where a bank or shore has been artificially oravulsively altered. Boundary fixed at lastnatural location of OHWM.

•Meander may be best or only evidence ofthat location.

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•Where a conveyance expressly excepts areabetween the meander line and the actualedge of the waterway.

•Where the area between the meander lineand the actual edge of waterway had beenpreviously conveyed.

•Where there has been a Boundary LineAgreement between the upland owner andthe sovereign owner of the bed of anavigable waterway.

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•Where there has been a Boundary LineAgreement between adjoining riparian ownersalong a non-navigable waterway as to the riparianboundary.

•Where accretions have accumulated along theshore of a meandered, navigable lake, or wherethe lake has been lawfully drained beyond fillingout the least aliquot divisions of the uplandparcels as addressed in ORS 274.430 & 274.440.• Effective against State patents? Certainly.• Effective against Federal patents? Maybe, maybe not.

Tested in Federal Court?

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Fixed Water BoundariesArtificial Influence

•Typical examples: jetties, groins, breakwaters,dams, weirs, dredging, intentionalrechannelization, and canals that add orremove water.

•When artificial influence has affected thenatural process on the bank, the boundarybecomes fixed according to the last naturallocation of the bank.

•To fix the boundary, the artificial influencemust be the direct and proximate cause.State of California ex rel. State Lands Commission (Lovelace),11 Cal 4th 50 (1995). (Fd no OR case on point)

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Fixed WaterBoundariesArtificial Channel

Last NaturalChannel

DredgedChannel

DredgedChannel

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This portion of the Willamettemay be the result of naturalprocesses, but appears tohave been intentionallyrechanneled. No assumptionsshould be made in such acase, but the history ofdredging activity and ofpossible avulsive eventsshould be investigated.

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Fixed Water BoundariesAvulsive Channel

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Fixed Water BoundariesAvulsive Channel

Last NaturalChannel

AvulsiveChannel

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Fixed Water BoundariesArtificial Influence – Jetties

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Litt

ora

lDri

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Fixed Water BoundariesArtificial Influence – Groins

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Fixed Water BoundariesArtificial Influence – Seawall & Fill

Seawall & FillNatural BankLocation?

Sandbar?Tug Boat?

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Fixed Water BoundariesNo, it’s an F-15

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Fixed Water BoundariesArtificial Influence – Encroaching Fill

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Fixed Water BoundariesArtificial Influence – Encroaching Fill

1929

1946

1973

2007

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Fixed Water BoundariesArtificial Influence – Dam & Canal

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Fixed Water BoundariesArtificial Influence – Dam & Canal

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Swamp & Overflowed Lands•The Act of September 28, 1850 (ArkansasSwamplands Act) granted to several states theswamp and overflowed lands within theirrespective borders. Extended to Oregon by Actof March 12, 1860.

•“Swamp lands, as distinguished from overflowedlands, may be considered such as requiredrainage to fit them for cultivation. Overflowedlands are those which are subject to suchperiodical or frequent overflows as to requirelevees or embankments to keep out the water,and render them suitable for cultivation.”Irwin v. San Francisco Savings Union, 136 US 578 (1890)

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Swamp & Overflowed Lands•Swamp lands require drainage to make fit forcultivation

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Swamp & Overflowed LandsOverflowedlands areperiodicallycovered bywater andrequiredrainage andlevees orembankmentsto make fit forcultivation.

© Northern California Aerial Surveys, www.sfoap.com

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Swamp & Overflowed Lands

•S&O lands lie above the OHWM but below morearable uplands

•S&O lands, granted to Oregon by the Act of1860, were listed to the State as they wereidentified in the original GLO surveys.

•The State patented S&O lands to privateowners. Oregon Swamp Lands Act 10/26/1870.

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Swamp & Overflowed LandsThe Challenges – The Federal Level• Identification & treatment of S&O surveys was not

adequately clarified in GLO Instructions until 1864.

•Many early GLO surveys incorrectly meandered themargin of S&O lands rather than the banks of rivers.(early/mid 1850s)

•Many early GLO surveys segregated S&O landsincorrectly. (late 1850s/early 1860s)

•Many surveys misidentified S&O lands or did notidentify them at all. Sometimes corrected by replat.

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Swamp & Overflowed LandsThe Challenges – The Federal Level

Survey made in 1853.Meandered “Edge ofwillow thicket” thoughmost of township.

Federal govt laterissued patent to Statefor all lands in thetownship, lyingbetween the meanderlines, excepting thebed of the navigableriver.

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Swamp & Overflowed LandsThe Challenges – The Federal Level

What itreallylooks like.

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Swamp & Overflowed LandsThe Challenges – The State Level (in CA; OR??)

•Many early patents for S&O lands wereactually tide lands.

•Many state S&O patents to individualsmade prior to being listed to State byfederal government.

•Poor early record keeping systems.

•Poor system of ensuring proper surveywas performed.

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Swamp & Overflowed LandsThe Challenges – The County Level (in CA; OR??)

•S&O lands were “surveyed” by the local CountySurveyor as part of the application process forpatent.

•A few County Surveyors appeared to haveperformed careful surveys.

•Most S&O surveys appear to have been poorlyperformed or not actually surveyed at all.

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Swamp & Overflowed LandsA County S&O Survey

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Swamp & Overflowed LandsAn Alleged County S&O Survey

Typical of S&O surveys in thisarea, Begins at MC, follows GLOmeanders to nominal aliquotline, follows nominal aliquotrather than meander of actualbank, then closes. Created fromGLO records rather than actualmeasurements.

Field notes orTavern notes?

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References and Resources•Oregon Division of State Lands, www.Oregon.gov/dsl

• Attorney General Opinion No. 8281, 04/21/2005

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References and Resources

•Other State Agencies• ODOT, www.Oregon.gov/odot• Water Resources, www.Oregon.gov/owrd• Parks & Recreation, www.Oregon.gov/oprd• State Archives, http://sos.oregon.gov/archives

•Local Government• County Surveyor• County or City Department of Public Works• Irrigation Districts

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References and Resources•Federal Agencies

•Bureau of Land Management• www.blm.gov/or, www.glorecords.blm.gov

•Bureau of Reclamation, http://www.usbr.gov/pn/

•Forest Service• http://www.fs.usda.gov/r6

•Bonneville Power Administration• www.bpa.gov

•Corps of Engineers• www.nwp.usace.army.mil

•National Archives• www.archives.gov

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References and Resources•Government Publications

Shore and Sea Boundaries (3 Vols.),Shalowitz, A (Vols. 1 & 2),

Reed, M (Vol. 3),USC&GS

Manual of Surveying Instructions(Yr. as applicable), BLM

Various Technical Reportsregarding methods or

projects

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References and Resources•Texts & Other Materials

Standard General Boundary References• Boundary Control & Legal Principles• Evidence & Procedures for Boundary

Control• Clark on Boundaries

Seminar Handouts &State Association Publications

Water Boundary References• Water Boundaries, Cole, G.• River & Lake Boundaries,

Simpson, J.• Water Boundaries, Flushman, B.

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Water BoundariesPractice Questions

1. The natural process that causes a water boundary tobecome fixed is called ________________.

2. When a water boundary becomes fixed due to naturalprocess or artificial influence, what determines the boundarylocation?__________________________________________________

3. List five examples of artificial influence upon a riparian orlittoral boundary.

_______________________ ______________________________________________ ______________________________________________

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Water BoundariesPractice Questions - Answers

1. The natural processthat causes a waterboundary to becomefixed is called

Avulsion.

AvulsiveChannel

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2. When a water boundary becomes fixed due to naturalprocess or artificialinfluence, whatdetermines theboundary location?

The last naturallocation of thebank, shore, orchannel.

Last NaturalLocation

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3. List five examples of artificial influence upon ariparian or littoral boundary.

Dam or Weir Seawall or HeadwallRevetment (Rip Rap) Canals GroinFill Rechannel BreakwaterJetty Material Removal

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4. True or False: Meander lines are always a fixedboundary on navigable lakes in Oregon?

5. Give three examples of conditions or actionsthat can cause meander lines to become fixedboundaries.

_________________________________________________________________________________________________________________________________

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4. True or False: Meander lines are always a fixed

boundary on navigable lakes in Oregon? (ref 274.430,440)

Boundary fixed at natural location of the OHWM as itexisted on 05/25/1921. The meander line may be thebest or only evidence of that location. If a lake is lawfullydrained, riparian owners take the exposed lands of theformer bed to the extent that the least aliquot division oftheir fractional upland parcel is completed. Riparianowners may lease or buy lands accreted after05/25/1921, or exposed lands adjacent to their completeleast aliquot division from the State.

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5. Give three examples of conditions or actions that cancause meander lines to become fixed boundaries.

1. When GLO Surveyor followed something otherthan bank of water body (i.e. edge of swamp)

2. Where meanders grossly inaccurate orfraudulent (i.e. no lake or stream where reported)

3. Where enough accretion occurred after GLOsurvey and before patent to create additional lots.

4. Where grantor expressly reserved or previouslygranted land waterward of the meander line. Intentto do this must be clearly stated, not merely implied.

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6. What is the status of large portions of accreted landwhich formed prior to patent of the adjacentgovernment lot, or of lands within fraudulentmeander lines?

7. What is the status of lands which have accretedwithin the meander lines of navigable lakes inOregon?

8. What is the status of lands which have accretedalong streams after all adjacent upland parcels hadbeen patented?

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6. What is the status of large portions of accreted landwhich formed prior to patent of the adjacentgovernment lot, or of lands within fraudulentmeander lines?

Such lands are part of the Federal Public Domain,subject to future survey and disposal.

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7. What is the status of lands which have accreted withinthe meander lines of navigable lakes in Oregon?

State of Oregon claims ownership of accretionson navigable lakes occurring after 05/25/1921.Accretions shown to have occurred prior to thenattach to the title of the adjacent upland parcel.Accretions occurring after that remain sovereignlands of the State. If no reliable evidence of thepre-1921 lakeshore can be produced, themeander line is the boundary.

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8. What is the status of lands which have accreted alongstreams after all adjacent upland parcels had been patented?

Accretions along stream banks attach to title ofadjacent riparian parcels. Accretions formingislands (Emergence) within navigable streams aresovereign lands of the State. Accretions formingIslands within non-navigable streams belong tothe upland owner of the near bank, or to ownerson each side if in the middle of the channel.

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9. List three methods of apportioning accretions toadjacent upland parcels…A. Along the bank of a river or stream?B. Within a non-navigable lake?C. Within a navigable lake in Oregon?

10.Which is the best or standard method ofapportioning accretions…A. Along the bank of a river or stream?B. Within a non-navigable lake?C. Within a navigable lake in Oregon?

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9. List at least two methods of apportioning accretions toadjacent upland parcels…A. Along the bank of a river or stream?

Proportional (by bank length or by area); RightAngle or Bisected Angle; Extend upland side lines.

B. Within a non-navigable lake?

Proportional Long Lake; Right Angle Long Lake;Round Lake or Pie; Extend upland side lines.

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9. List at least two methods of apportioning accretions toadjacent upland parcels…C. Within a navigable lake in Oregon?

IF lawfully drained, or if per purchase or leasefrom State, extend lines of least aliquot divisionup to existing shore or end of least aliquotdivision, whichever is more landward.Otherwise, there is no apportioning of accretions.They belong to the State.

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10. Which is the best or standard method of apportioningaccretions…

A. Along the bank of a river or stream?B. Within a non-navigable lake?

Same answer for A & B – There is no best or standardmethod. It is best to use the method which is mostequitable to the adjacent riparian owners.

C. Within a navigable lake in Oregon?

Only method is to extend to the least aliquot divisionrepresented by the fractional upland parcel IFapportionment is even applicable. Normally, accretionsare not apportioned. They belong to the State.

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11. _____________ lands require levees to keep out periodic highflows in order to make the land suitable for agricultural use.

12. _____________ lands require drainage to make the landsuitable for agricultural use.

13. Would a person wanting to purchase swamp & overflowedlands apply for a patent through the (Federal) General Land Officeor through the (State) Board of Commissioners for the Sale ofSchool and University Lands?

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11. Overflowed lands require levees to keep out periodic high

flows in order to make the land suitable for agricultural use.

12. _____________ lands require drainage to make the landsuitable for agricultural use.


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11. Overflowed lands require levees to keep out periodic high flowsin order to make the land suitable for agricultural use.

12. Swamp lands require drainage to make the land suitable for

agricultural use.


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11. Overflowed lands require levees to keep out periodic high flowsin order to make the land suitable for agricultural use.

12. Swamp lands require drainage to make the land suitable foragricultural use.

13. A person wanting to purchase swamp & overflowed landswould apply for a patent through the (Federal) General Land Office

or through the (State) Board of Commissioners for theSale of School and University Lands, predecessor to

the State Land Board.69

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14. In which set of Instructions to the Surveyors Generalwere the identification and segregation of swamp &overflowed lands finally completely addressed?

15. What are some of the common problems or issueswith regard to S&O lands which may be encountered inGLO surveys conducted prior to these instructions oftownships containing swamp & overflowed lands?

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14. In which set of Instructions to the Surveyors General were theidentification and segregation of swamp & overflowed lands finallycompletely addressed?

186415. What are some of the common problems or issues with regardto S&O lands which may be encountered in GLO surveys conductedprior to these instructions of townships containing swamp &overflowed lands?

Meander lines may have followed edge of S&O Landsrather than bank of waterway. S&O Lands may havebeen misidentified or improperly segregated.

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McKenzie RiverBefore the Flood

The McKenzieis navigable.

Note areas ofaccretion onthe insides ofbends anderosion onthe outsidesof bends.

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McKenzie RiverAfter the Flood

16. Identify thesoutherlyboundary ofRebecca’sparcel.

17. Who ownsArea “A”between theold and newchannels?

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Water BoundariesPractice Questions16. The new channel was the result ofan avulsive event (the flood), so thesoutherly boundary of Rebecca’s parcelis the OHWM of the right (northerly)bank of the old channel.

17. When a new channel results from an avulsive event, theboundary becomes fixed at the pre-avulsion location of theOHWM. Sierra’s northerly boundary was the OHWM of the left(southerly) bank, and remains the OHWM of the left bank of theold channel. Area “A” belongs to Sierra.

Note that there are areas which need to be treated as the result ofavulsion, and areas to be treated as the result of accretion anderosion. 74


McKenzie RiverAfter the Flood

18. Who ownsthe bed of thenew channel?

19. Who ownsthe bed of theold channel?

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Water BoundariesPractice Questions18. Since the boundary becomesfixed as a result of the avulsiveevent, the bed of the newchannel is within the area ofSierra’s parcel. Sierra holds fee title to the bed of thenew channel subject to a navigational easement infavor of the public.

19. The bed of the old channel was sovereign landbefore the avulsive event and remains sovereign landeven though it is no longer navigable-in-fact.

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WaterBoundariesPractice Questions20. The navigability of the

Green River is beingquestioned.

a. Which entities may declarea waterway to be navigablein Oregon?

b. Which entity is empoweredto make the finaldetermination as tonavigability for titlepurposes?

c. If the Green River is navigable,identify the southerlyboundary of Marty’s parcel.

d. If the Green River is notnavigable, identify thesoutherly boundary of Marty’sparcel.

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WaterBoundariesPractice QuestionsAnswers

20a. The State Land Board mayassert sovereign ownershipbased upon navigability studyby the State LandsDepartment, or based upon afinding of navigability by acourt of competentjurisdiction.

20b. The final word onnavigability for title purposes iswith the Federal Courts.

20c. If the Green River isnavigable, the southerly boundaryof Marty’s Parcel is the northerlyOHWM of the natural channel.

20d. If the Green River is notnavigable, the southerly boundaryof Marty’s parcel is the thread ofthe natural channel.

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WaterBoundariesPractice Questions

21. Upon review of theGLO field notes forSection 8, you find thatthe Green River had beenmeandered. Where wouldyou find the meandercorners within Section 8?

22. What feature of the riverwere GLO Deputy Surveyorsinstructed to locate?

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WaterBoundariesPractice QuestionsAnswers

21. The MeanderCorners should belocated along theexterior lines ofSection 8, at or nearthe bank of the River.

22. Deputy Surveyorswere to locate thebank of the river,approximatelycorresponding withthe OHWM.

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Water BoundariesAcknowledgements

Credit for much of the information used in this presentationgoes to several predecessors and colleagues. Among thoseare Roy Minnick and Kelly Olin, each a past SupervisingSurveyor of the California State Lands Commission; RobertReese, past President of the CLSA; Chuck Karayan, formerCounty Surveyor for Clark Co., WA; and the surveyors I’ve hadthe privilege to work with at the State Lands Commissionsince 2008.

Many of the images herein were found on the websites ofpublic agencies or public organizations. Most color aerialimages are from Google Earth.

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Water BoundariesContact Information

Evan Page, PLSAssoc. Boundary Determination Officer

California State Lands Commission

100 Howe Ave., Suite 100 S

Sacramento, CA 95825

(916) 574-1845

[email protected]

Or

Evan Page, PLSP.O. Box 1448

Diamond Springs, CA 95619

[email protected]

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Water Boundaries OR Part 2 - PLSO...Water Boundaries OR - EAP 12 Fixed Water Boundaries Artificial...

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