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Navigable river boundary lines  

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bama7x57
(@bama7x57)
5+ posts Registered

I'm working on a boundary survey where part of the boundary line is the center of a navigable river. The same river also turns and runs across the property splitting it in half.
I was hoping someone could provide me some links to research on how to deal with navigable rivers. Opinions are also welcomed. Thanks

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Posted : October 9, 2017 11:12 am
Hollandbriscoe
(@hollandbriscoe)
50+ posts Registered

I did one a while back that was similar except the entire exterior boundary except for one line was river. We ended up using aerial photos brought into carlson to figure out that part of the border. This actually worked out very well since i was able to bring the photos in at a 1/100 scale and they were tied to state plane. I will admit it was a little odd doing a 140 acre job with that little field work but it worked out perfectly. The fun part is that it was a sod field so it was perfectly flat and completely open, except for the one line we had to run,it was an overgrown mess.

Where are we going and why are we in this basket

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Posted : October 9, 2017 11:49 am
Dan B. Robison
(@ddsm)
1,000+ posts Registered

Get a copy of Jim Simpson's "River and Lake Boundaries".
DDSM

"Sudden fits of inadvertence will surprise vigilance, slight avocations will seduce attention, and casual eclipses of the mind will darken learning." – Dr. Samuel Johnson

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Posted : October 9, 2017 1:04 pm
foggyidea
(@foggyidea)
2,500+ posts Registered

What's the question?

GEOMAGICIAN
"Outstanding in the Field"

Donald T. Poole PLS MA#32662, CFedS#1499 (expired)
www.outermostlandsurvey.com
www.cfeds.org

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Posted : October 9, 2017 1:22 pm
Howard Surveyor
(@howard-surveyor)
100+ posts Registered

What are your state statues about navigable rivers? In Washington, it's determined by the thalweg, I believe in Oregon it is the distance midpoint between the banks (don't quote me on that one).

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Posted : October 9, 2017 2:10 pm
John Evers
(@john-evers)
100+ posts Registered

If you were in Ohio, I hope it is not the Scioto River you are speaking of 🙂

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Posted : October 9, 2017 2:41 pm
thebionicman
(@thebionicman)
1,000+ posts Registered

The answer is State and case specific. If the original parcel was created prior to Statehood the Federal rules will likely hold.

CFedS, PLS ID-OR-WA-UT-NV

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Posted : October 9, 2017 3:00 pm
eapls2708
(@eapls2708)
1,000+ posts Registered

We've all gotten a variation of the question from a shopper (a.k.a. prospective client): "How much for a survey?", without any other details. The O.P. questions sounds a lot like that to me.

1st, find out if your State claims sovereign ownership of the beds of navigable waterways. If they do, determine if they claim to the ordinary high water marks (OHWM), the low water marks (LWM), or to some other shoreline definition. If they don't, find out if your State recognizes the center of a river as being defined by a) the midpoint between the banks of the main channel, b) midpoint between the banks of the entire navigable portion of the waterway (might be same as (a) or it might be different if multiple channels exist), c) the thalweg, which is generally the deepest point at any location along the length of the main channel, or the path the flow would take if reduced to a mere trickle.

2nd, determine if the description is consistent with State law. If the State claims to the OHWM, then a boundary call to the center of channel is rather meaningless as the boundary would be truncated at the OHWM and the client is left thinking he just got cheated out of half the river bed. Exceptions do exist in some states depending upon the source of base title (US patent, State patent, or pre-US grant from foreign sovereign), and occasionally depending upon the date of the original patent or grant.

3rd, even if the State does not make a claim of sovereign title to the bed, if the waterway is navigable for title purposes (a Federal question, not a State question), then the Public Trust exists over the waterway. The existence, extent, and the rights involved are far too complex to discuss properly in an internet post to a general question. The basic rights associated with the Public Trust are travel, commerce, and fishing. Some rights have been added or recognized by the courts at the Federal level. Some states have added or recognized others. Depends on how broadly the courts for particular jurisdictions interpret the Public Trust.

4th, or perhaps 1st is to get copies of Water Boundaries by George Cole, River and Lake Boundaries by Jim Simpson, and perhaps (but certainly if on the West Coast) Water Boundaries by Bruce Flushman. Spend a few days reading through whichever general Water Boundaries text you get (Cole or Flushman), and look for examples with similar sets of facts as your survey in Simpson.

5th, refine your questions as necessary to address specific matters or applications regarding water boundaries and bring them back here for more specific answers.

Evan A. Page, PLS

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Posted : October 9, 2017 3:03 pm
Jim in AZ
(@jim-in-az)
2,500+ posts Registered

John Evers, post: 450211, member: 467 wrote: If you were in Ohio, I hope it is not the Scioto River you are speaking of 🙂

Isn't AL = Alabama?

Knowledge is wonderful but understanding is the key.

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Posted : October 9, 2017 3:39 pm
John Putnam
(@john-putnam)
500+ posts Registered

Howard Surveyor, post: 450206, member: 8835 wrote: What are your state statues about navigable rivers? In Washington, it's determined by the thalweg, I believe in Oregon it is the distance midpoint between the banks (don't quote me on that one).

That is for non-navigable waters. Typically the state owns the bed of navigable rivers and lakes. All bets are off when the channel has been effected by engineering works.

John Putnam, PLS
OR, CA, WA & ID

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Posted : October 10, 2017 6:34 pm
Skeeter1996
(@skeeter1996)
250+ posts Registered

In Montana the Chief legal Counsel, Forestry &Trust Lands Montana Department of Natural Resources &Conservation, Tommy H. Butler presented a seminar at a MARLS Conference. Navigable waterways criteria was determined for each State by the U.S. Supreme Court in Martin v. Waddel 41 U.S. 234(1842).
Butler's Perspective defines all the Meandering Waterway terms so any bonehead Surveyor should get a very good understanding of this subject.
Being a bonehead Surveyor myself I do not know how to upload his Perspective to this forum. If you email me I will send you a copy of his Perspective. At the back of his paper he lists all the navigable Waters of Montana and defines their termini. Very enlighting. I would have never guessed some of the rivers he lists we're navigable upstream so far.

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Posted : October 10, 2017 8:41 pm
Scott Ellis
(@scott-ellis)
500+ posts Registered

Surveying a navigable will get you in a lawsuit quick, the reason is the river is mostly likely in a different place than when the tract was first surveyed , or the adjoiner across the river was surveyed . One tract is most likely losing land and another tract is gaining land, this could be do to natural river flow, or a sudden natural event. Each one has its own separate effect on the Boundary.

I would recommend finding a Surveyor in your State who is an expert in River Boundaries, sub the job out to them, with the agreement you are there to help and learn.

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Posted : October 11, 2017 6:55 am
John Putnam
(@john-putnam)
500+ posts Registered

Okay, I might need to add an * to my previous comment. It applies to PLSS states.

John Putnam, PLS
OR, CA, WA & ID

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Posted : October 11, 2017 7:02 am
eapls2708
(@eapls2708)
1,000+ posts Registered

John Putnam, post: 450396, member: 1188 wrote: That is for non-navigable waters. Typically the state owns the bed of navigable rivers and lakes. All bets are off when the channel has been effected by engineering works.

Generally, this is true for all states, PLSS and non-PLSS. However, the US Supreme Court has recognized the rights of states to individually decide to where or even if they assert sovereign title up to the OHWM. For PLSS states, sovereign title passed at the moment of statehood up to the OHWM for the beds of navigable waterways. Some states retained sovereign title to the OHWM, some abdicated title between the LWM and the OHWM, and still others abdicated sovereign title to these beds altogether. In non-PLSS states, the high limit is still the OHWM because that has been the long-recognized point in common law.

More non-PLSS states than PLSS states claim no sovereign title to the beds of navigable rivers.

As I stated in my previous post, the rights of the public under the Public Trust Doctrine exist to the OHWM of navigable waterways regardless of the State's claim, or lack of claim to sovereign ownership. The US Supreme Court stated that the States are incapable of disposing of sovereign lands in a way that alienates the Public Trust (Illinois Central RR v. Illinois, 146 US 387, 1892). That includes those instances where the State has partially or wholly abdicated sovereign title to navigable waterways.

Artificial influences can be treated very differently by different jurisdictions. Some treat them like an avulsive event, fixing the boundary at the last natural or pre-avulsive location. Others ignore the artificial nature of the influence altogether and treat the movement as if it were by natural accretion and erosion. Sometimes, the effects of an artificial condition are difficult to discern. Some jurisdictions have ruled that once a portion of a waterway once affected by artificial conditions again takes on the character of a natural waterway, the rules otherwise applied to areas affected by artificial influence no longer apply, and it is treated as if in an uninterrupted natural state.

Skeeter1996, post: 450406, member: 9224 wrote: In Montana the Chief legal Counsel, Forestry &Trust Lands Montana Department of Natural Resources &Conservation, Tommy H. Butler presented a seminar at a MARLS Conference. Navigable waterways criteria was determined for each State by the U.S. Supreme Court in Martin v. Waddel 41 U.S. 234(1842).
Butler's Perspective defines all the Meandering Waterway terms so any bonehead Surveyor should get a very good understanding of this subject.
Being a bonehead Surveyor myself I do not know how to upload his Perspective to this forum. If you email me I will send you a copy of his Perspective. At the back of his paper he lists all the navigable Waters of Montana and defines their termini. Very enlighting. I would have never guessed some of the rivers he lists we're navigable upstream so far.

I'm always interested in the perspective of other experts. I'll PM you.

Scott Ellis, post: 450432, member: 7154 wrote: Surveying a navigable will get you in a lawsuit quick, the reason is the river is mostly likely in a different place than when the tract was first surveyed , or the adjoiner across the river was surveyed . One tract is most likely losing land and another tract is gaining land, this could be do to natural river flow, or a sudden natural event. Each one has its own separate effect on the Boundary.

I would recommend finding a Surveyor in your State who is an expert in River Boundaries, sub the job out to them, with the agreement you are there to help and learn.

You may be getting the impression that water boundaries can be much more complicated than you initially expected. If so, you would be right. Of all the case law in the US regarding boundaries, about 2/3 of it pertains to water boundaries. And because of the ambulatory nature, and the many different natural and artificial movement processes, you may find that case law to be a little less consistent at the Appellate level than most other boundary decisions. The consistency in the Federal courts is pretty good, and at the Supreme Court level of most states, the consistency is also good. But the treatment of water boundaries is an aspect of boundary law that has a lot of variation from one state to another. Advice given to you might be spot on for another state, and may even be generally correct for your State, but specific conditions and details in the fact set may render that opinion completely incorrect for that situation in your State.

If you have no experience surveying water boundaries, particularly river boundaries, navigable or not, I second Scott's advice to either subcontract that portion to a surveyor who has extensive experience and expertise with water boundaries, or to recommend such a surveyor to the client to have that surveyor do the entire boundary. If you can subcontract it and arrange to work with the other surveyor or have him take the time to explain his work and final opinions to you afterward, that could be a very valuable learning opportunity for you.

The fact that some properties gain land area and others lose due to river movements is simply the nature of owning riparian properties. The riparian owner has the benefit of waterfront property, but also must bear the risk of possible loss of upland area due to river movements. If you don't know enough about the processes to recognize whether the movements were accretive, avulsive, or artificial, and of the federal law and law of your jurisdiction to recognize how different types of movement affect the boundary locations, and know all that well enough to explain it accurately and with confidence, you are over your head (normally don't care for puns, but this one was almost unavoidable, so I'll take it) and can find yourself in a legal jam. Even if you're right, it could get expensive for you if you are unable to provide a clear and correct explanation for your decisions.

The ability to explain with clarity and confidence can mean the difference between having to pay large legal fees or having the court order the other side to cover your fees. Better yet, a clear and confident explanation can usually avert any threatened legal action and in many cases, even lead to acceptance of the results by the initially aggrieved party.

Evan A. Page, PLS

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Posted : October 11, 2017 9:08 am
Jim in AZ
(@jim-in-az)
2,500+ posts Registered

A Surveyor in my State recently had his license revoked due to his misunderstanding of riparian boundaries. It can be a dangerous subject...

Knowledge is wonderful but understanding is the key.

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Posted : October 11, 2017 10:05 am
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