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The Curt Brown Chronicles

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Chapter One

Notes on Swamp Lands, Navigable Streams, and Lakes

March 1960

Recently (Dec. 4, 1959) I was fortunate enough to be asked to speak at the Eleventh Annual Surveyors Institute at the University of Wisconsin. During the course of the program, it was informative and worthwhile to note the differences in water laws.

In the sectionalized land states, the beds of the rivers and lakes originally resided in the Federal Government. As patents to lands were issued, the new landowner, adjoining waters, was granted title to the bed of all non-navigable streams and lakes. The government retained title to the beds of navigable lakes and streams. Upon admission to the Union, title to the beds of navigable lakes and streams passed to the state. After acquiring title, a state could dispose of its rights as it saw fit.

In Wisconsin, it appears that the state has relinquished its rights in the beds of lakes to the adjoining landowner. But not so for navigable streams. Further, the State Courts of Wisconsin have taken the attitude that the remotest possibility of navigation makes a stream navigable. I believe the definition is, "a navigable stream is any stream capable of floating a log or the lightest possible boat." The test seems to be whether a canoe of the least draft (about 2 inches) is capable of floating and moving after any rain. This, in effect, means that practically any watercourse can meet this test at some time during a heavy rainy season.

The state is the sole judge as to matters between itself and its citizens and such a ruling can be enforced. However, as between the state and un-patented land of the Federal Government, such a state rule would probably not be enforceable. In Oklahoma, the state passed a law declaring that under certain a conditions stream was navigable; hence, they owned the bed and the oil under it. But a tribe of Indians objected and the Federal Court decided that they (the courts) were the sole judge as to navigability. In this case, the stream was declared non-navigable; the Indians got the oil.

After the land has been patented by a citizen and the land is repurchased by the U. S. Government, it will undoubtedly be controlled by state laws. Since most government lands of Wisconsin are repurchased lands, the state rule of navigability will probably hold in most cases. Apparently, in Wisconsin the object of trying to declare all possible streams navigable is for the purpose of retaining public fishing rights in the streams. Since I dearly love to fish for trout, I am highly in favor of it, even though there seems to be a tinge of unfairness to it.

In California and many western states, just the reverse is closer to the picture. Under the Spanish rule, water can be appropriated. It is far more important to use water for irrigation than it is to permit it to remain in a stream as a fish bath. Few streams are declared navigable; the water is diverted for irrigation. In one state, I believe it is Arizona, they boast that there are no navigable streams. Of course, the fact that they have little water has something to do with it.

In Wisconsin, while the beds of lakes reside in the adjoiners, the State maintains an easement in the water for purposes of navigation and fishing. In order to create a means of access to these lakes, the platting law requires that at half-mile intervals a road shall be provided all the way to the lake. I believe this law to be reasonable and fair. In California (San Diego County), our prize asset is ocean frontage. The County has passed an ordinance requiring the dedication of a street adjoining the ocean and extending all the way to the ocean. Eventually there will no longer be private beach rights. This, of course, is confiscation without remuneration. Frankly, it is a bit sneaky but seemingly legal.

Swamplands are a special problem in Southern California. The Federal Government meandered and reserved these lands. Upon application by the State, the lands were given to the state. After the State acquired these swamplands, it sold the lands to private parties. In numerous instances, these so-called swamplands are semi-fresh lagoons adjoining the ocean. Normally the meander line of a body of water does not constitute the boundary line; the water itself is. In the case of swamplands, the land is supposed to be alternately inundated and dry. If this is so, it is non-riparian. For this reason, the boundary of swamplands is the meander line and not the water line. We must, in such cases, reestablish lost meander lines.

Swamplands had to be applied for by the State and granted to the State by the government. Any swampland not applied for and duly granted, does not come under the swamp act, and hence does not necessarily possess a meander line as a boundary line.

– CURTIS M. BROWN

DETERMINATION OF OWNERSHIP BOUNDARIES ALONG SEASHORES

Curtis M. Brown

Circa 1965

In the past the primary value of the seashore was for commerce, recreation and harvesting foods such as clams, lobsters and fish; court decisions pertained to these interests. In recent times the discovery of mineral wealth in tidal and offshore areas has led to fee title disputes and U. S. Supreme Court decisions.

In general, prior to these court cases, the upland riparian owner, with some exceptions as given below, had a fee title which extended seaward to the mean high tide line. Most coastal states believed that they had a fee title extending from the mean high tide line oceanward at least three geographical miles. The Federal Government claimed to the continental shelf. Disputes arose over oil leases issued by California in the Santa Barbara area. Both California and the Federal Government claimed fee title to the submerged lands existing between low water line and the three mile limit and both claimed benefits from oil discovered in this area.

The rule for the limits of ownership between the riparian upland owner and the State has always been that states (Texas excepted) owned below the mean high tide line. As an incident of ownership, each State had and still has the right to sell, lease or otherwise dispose of the fee title to their tide lands. In several instances this was done.

A Massachusetts colonial ordinance granted to riparian owners tidelands between the mean high tide line and the low water mark, but not more than 100 rods (1650'). New Hampshire and Maine adopted similar laws (see Reference #1). Grants made prior to the ordinance were held to extend only to the high water mark in Massachusetts and to the low water mark in Maine.

In the State of California the legislature did authorize the sale of tidelands from the mean high tide line to the low water line, and in a number of places, such as San Francisco Bay, San Diego Bay and Moro Bay, this was done.

In three Supreme Court cases, United States v California (332 US 19 in 1947), United States v Louisiana (339 US 699 in 1950), and United States v Texas (339 US 707 in 1950), the Federal Government won exclusive ownership of the fee below ordinary low water line. In the words of the court, "California is not the owner of the three-mile marginal belt along its coast, and the Federal Government rather than the State has paramount rights in the power over that belt, an incident to which is full dominion over the resources of the soil under the water area, including oil."

The Federal Government's victory was short lived. If the United States owned lands to the three mile limit, it could deed these lands to the States. By the submerged Lands Act of 1953 (Public Law 31) offshore lands were granted to the various States.

Apparently, at the time of the passage of the act, there was fear that the courts might decide that the bed of the Great Lakes belonged to the Federal Government; rights to the bed of the Great Lakes were granted to the adjoining States by this act. Also it appears that some of the congressmen were not at all pleased with the Supreme Court's ideas since the committee wrote, "The Court believed it to be in the past." Since the time of the packing of the Supreme Court during the Roosevelt Administration, many unexpected decisions have been handed down. Whether this is good or bad is not for me to say. One thing is certain, this concept of Federal fee ownership below the ordinary low water mark was the reverse of all previous expressions or expectations.

The submerged Lands Act provided among other things:

1. All rights of the Federal Government to mineral resources, fee title, etc., were quit claimed to the States for a distance of three geographical miles seaward in the Atlantic and Pacific Oceans.

2. The fee title, mineral rights, etc. in all bays and inland waters (including the Great Lakes and excepting lands acquired by the Federal Government) were quit claimed to the States.

3. Within the Gulf of Mexico, States could claim to the extent of their boundaries at the time of their admission to the Union but not more than three marine leagues (nine geographic miles).

4. The U. S. reserved lands between the three geographical mile limit and the continental shelf into itself. The United States reserved the usual rights to control commerce, navigation, national defense, etc.

5. The Act defines the three geographical mile limit as being measured from "the line of ordinary low water."

Since the passage of the act, the U. S. Supreme Court has decided that Texas and Florida, at the time of their admission to the Union, had rights to nine geographical miles, hence they could claim nine geographical miles into the Gulf of Mexico. Louisiana, Mississippi and Alabama were limited to three geographical miles.

California is contending for three geographical miles beyond the headland line of certain "historic bays" such as Monterey Bay. As yet, this decision has not been handed down though the special master has expressed his opinion.

As of the present time, the limit of demarcation between the riparian owner and the state can be in any one of several locations depending upon the general laws in force at the time of the alienation from the sovereign to the individual. These locations are:

1. Mean high water line (most States)

2. Ordinary low water line

3. Mean low water line

4. Mean lower low water line

5. One hundred rods (1650 feet) seaward of the mean high water line (Massachusetts, New Hampshire and Maine)

6. Mean Higher high water line (In Texas adjoining Spanish and Mexican land grants)

7. Meander lines (Swamp lands only)

In the State of Texas many Spanish and Mexican grants were made. Spanish law at the time of these grants was said to reserve in the sovereign all lands to the highest winter wave. As a practical matter the Texas supreme court interpreted this as "the mean of the higher high tides (See Reference #4). Thus, lands granted to private parties by the Spanish or Mexican governments within Texas did not extend seaward as far as those which were granted by the State of Texas. To my knowledge this rule has not been applied in other rancho land grant States such as parts of Alabama, Florida and California.

The early swamp land act of the United States has created difficult boundary problems for those resurveying swamp lands. In the early history of the United States, the Federal Government passed a statute law whereby the various States could apply for certain swamp and overflow lands. After these lands were acquired by the States from the Federal Government, the States could dispose of them, and they often did. Some of these so-called swamp lands adjoined the ocean. Theoretically a swamp has no definite water line limit; it is an area subject to flooding part of the year and dryness at other times. It cannot be said that a swamp has a definite water line such as a river or ocean shore; the land may be merely a bog without a standing surface pond or lake. Most States have ruled that lands acquired via the swamp lands act are not riparian and ownership is limited to the meander lines. Many of the California coastal lagoons that are permanently cut off from the ocean and were acquired via the swamp land route come under this rule (Important: The lands must have been granted to the State in compliance with the swamp lands act).

Accretion laws add confusion to the upland owners' limit of ownership. Soil attaching itself to the riparian owners land by slow and imperceptible means belongs to the riparian owner. Land gradually eroded is lost to the riparian owner. Often accretion or erosion is caused by a man made barrier. For example, if a rock jetty is built from the shore into the ocean and the offshore currents are southerly, sand is apt to deposit northerly of the jetty. In Mission Beach, California, about 100 acres of sand were added to the shore because of just such a cause. According to the Federal rule of law, accretions belong to the riparian owner regardless of the cause; according to the California rule of law, accretions caused by man made barriers belong to the State. (The Federal rule of law does not apply to fills or sudden causes.)

Since the limits of the boundary of a State's ownership now extends three geographical miles beyond the ordinary low water line, and if the same Federal rule of law for mean high tide is applied to the ordinary low water line, I suppose a State could increase its area of jurisdiction by constructing numerous jetties out from its shores, thus moving the ordinary low water line seaward by the process of accretions.

Thus far, numerous terms have been used without precise definitions. Ordinarily, legal terms are not subject to mathematical definition, and it is often times difficult to translate a court decree into an exact location on the ground. Fortunately, the courts have been precise in many shore definitions and have in general adopted meanings as proposed by the Coast and Geodetic Survey. It is easy to misunderstand tide datum definitions and thus locate lines in error.

According to the court rules of law, mean high tide line (also ordinary high tide line) is the average of all higher tides at the spot being located. This is a simple definition but one that is exceedingly expensive to put into effect. Most surveyors are prone to say, "I will take the average elevation for a mean high tide line as published by the USC&GS and use this value to determine a level tide line along the shore." This can be right in a few selected locations, but more often it is wrong.

The datum of the USC&GS is based upon the general adjustment of 1929 wherein sea level as observed at 26 tide stations (21 in the United States and 5 in Canada) was held fixed. This must not be confused with local mean sea level which is the datum referred to in court cases. While the two may be identical in a few places and may approximate one another in other places, investigations should be made to determine the differences.

In determining the local average sea level or local mean high tide line or local mean low tide, numerous considerations make this problem complex.

Tides are the result of gravitational pull of the moon and the sun. Superimposed on the predictable causes of the tide are such unpredictable factors as barometric pressure, wind velocity in one direction, land barriers, ocean currents and other items. In addition, the ocean is gradually rising at an imperceptible rate due to the melting of ice caps. Also, lands rise or fall due to various geographic causes. Taking all of the periodic factors into account, the USC&GS has concluded that an average of 18.6 years of observation is necessary to obtain a correct value for sea level. From this it can be seen that sea level varies from day to day, month to month and year to year (See page 63, reference 3).

Table of expected variation of sea level from

day to day 1 ft. or more month to month 1 ft. or less year to year .1 to .2 accumulative

For any given location the error of sea level determination can be reduced by using the method of comparison (see reference 2) with the nearest tidal station that has records of 19 year tidal observations. When using this method, the probable error will be in about the following range (this varies with the distance from the tidal station and the local conditions):

1 day of observations .25 foot error 30 days of observations .10 foot error 365 days of observation .05 foot error

(Continues...)

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Excerpted from The Curt Brown Chronicles by Michael J. Pallamary Copyright © 2011 by Michael J. Pallamary, PLS. Excerpted by permission of AuthorHouse. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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