Friday, November 11, 2016
Water issues in agriculture are significant. The headline-grabbers are the stories involving the allocation of water due to drought. Last year, in California, we all heard about the impact of the drought on California farmers and ranchers. Similarly, water issues loom large in the Great Plains and the battle between water usage between Colorado eastern slope farmers and the Denver-area suburbanites has been well documented.
But water allocation issues are not the focus of today’s blogpost. There’s another water-related issue that’s important to rural landowners. It’s an issue that involves a tract’s boundary. That’s the focus of today’s blog post.
How is a Watercourse Boundary Defined?
Typically, the description of the boundary of a watercourse bed is defined by state law. Most states use the ordinary high water line of the boundary, but a few states use the low water line as the boundary. This difference in definition may be significant in terms of access along navigable streams. If the water level in a stream fluctuates, the bed below the ordinary high water line may be exposed. This means that the owner of upland property, if the property ends at the ordinary high water line, is separated from the stream by a strip of public land during times of low water. The public may be entitled to access over this. If the low water line is used, a strip of public land will not appear adjacent to the stream, and there may not be any public use of the bank allowed.
How Does the Watercourse Move?
Agricultural landowners owning land adjacent to a watercourse may be faced with a changing property line due to shifts in the size and location of the watercourse. The property boundary may be slowly eroded away or may change suddenly as the result of a flood or similar natural disaster. In general, the location of the new boundary depends upon whether the watercourse is navigable or non-navigable, and how fast the change has occurred.
An accretion occurs when soil is deposited in an area that was once under water, thereby creating new land. An accretion need not be continuous in the time sense. Alternatively, an avulsion is a change in a watercourse boundary that is not gradual or imperceptible. If a watercourse shifts bodily, taking a new course without removing piece by piece from its bank, it is said to shift by avulsion. Consequently, avulsion may be defined as a lateral movement discontinuous in the space sense. In the time sense, the actual avulsion is almost instantaneous. In one Nebraska case, for example, the creation of bridges and dams caused a river to split into two main channels creating a braided stream. The court determined that the doctrine of avulsion applied to determine the boundary between the properties. Anderson v. Cumpston, 258 Neb. 891 N.W.2d 817 (2000).
In general, slow changes (accretions) that occur through such things as erosion or any other similar process, results in a shift in the property boundary. Thus, a landowner whose property is being slowly eroded will have a constantly changing land area. If the change is rapid (avulsion), then the boundary lines do not shift, and ownership disputes should not arise as frequently.
The issue of whether a boundary had moved due to a gradual accretion was involved in a case decided by the U.S. Supreme Court in 2010. Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al., 560 U.S. 702 (2010). Under the facts of the case, owners of Florida beachfront property sued local governments and the state on the basis that the governments’ beach restoration projects (which the state had approved) were unconstitutional takings of their property. The Florida Supreme Court determined that no takings had occurred, and the U.S. Supreme Court agreed. The projects involved placing sand along beaches seaward from the mean high-water line, which was the boundary between the state's submerged land and the owners' properties. The beachfront owners claimed that the state's ownership of the new dry land out to the sea deprived the owners of their rights to accretion and a water boundary, and that the state court's decision was a taking of the owners' properties. The U.S. Supreme Court disagreed with the beachfront owners because the change in the mean high-water line resulted from a relatively sudden avulsion, rather than a gradual accretion. As a result, the previous mean high-water line remained the boundary between the state and the beachfront owners. Thus, the newly exposed land belonged to the state. However, a plurality of the Court did note that the takings clause applies as fully to the taking of a landowner’s riparian rights as it does to the taking of an estate in land.
Boundary issues are not infrequent in agriculture. But, when a watercourse forms the boundary some rather unique issues can arise. The facts surrounding the movement of the watercourse will go a long way to determining the proper boundary. Understanding the basic rules is also very helpful.