Water Boundary Question

[Jim Frame]

I have a boundary survey under way in which one side of the parcel is described as "along the centerline of the creek." The creek is a perennial non-navigable (I think -- still looking into that) stream that meanders through a channel roughly 300 feet wide. The channel started life as a natural waterway, but was excavated to enhance flow in the late 19th century. Further improvements in the mid-20th century established levees about 600 feet on each side of the stream. The low-water channel looks like a natural creek -- the early excavation served to deepen and possibly widen the natural channel rather than substantially realign it. It features mature riparian vegetation, and the water is free to wander within it the channel. However, a dam about 20 miles upstream (circa 1940s) controls the flow, as do intervening withdrawals for ag and domestic water supplies.

My question: is the boundary fixed at the thread of the channel, or would it move should flow conditions ever cause such movement? Does the navigability question affect this?

TIA!

[E_Page]

Navigability is always a consideration. To be considered navigable for title purposes, the stream must have been susceptible to navigation in its natural and ordinary condition at the time of statehood using customary modes of waterborne commercial travel for that place and time.

If the stream is tidally influenced at this location, the law considers it as navigable for title purposes whether or not it was ever used or even whether susceptible to actual navigation (Phillips Petroleum v. Mississippi). If not tidally influenced, again, the test is not whether it was ever actually used for travel or commerce, but whether it was susceptible to such use. SCOTUS has said that the navigation need not be continuous or without difficulty. That means that it must be generally navigable, but the presence of a rapids or falls along the way, requiring a portage, does not end the navigability as long as the navigability in fact can continue once beyond the obstacle.

The present condition relative to actual navigability is of no concern. The condition in September, 1850 is what matters. If artificial influences have improved or decreased the ability to actually navigate the stream, the effect of those influences must be ignored. The stream must have been navigable in its natural condition.

A waterway does not gain or lose navigability for title purposes according to extreme natural variations in flows. The question is whether it is navigable in its ordinary condition. That means that a stream that can't be navigated most years but can be during a flood stage is still not navigable for title purposes. Conversely, a stream that can be navigated most years is still navigable for title purposes although a drought may render it impassible by boat.

The customary mode of waterborne commercial travel can vary considerably by region. In some places, the test might be whether a paddlewheeler made to carry freight and dozens of passengers could have used the waterway. Other areas, a smaller barge or riverboat might be the applicable test. And in still others, the customary mode of travel may have been a large canoe carrying a few hundred pounds of pelts, food, or other goods.

If non-tidal and navigable, the boundary between the upland owner's estate and the state-owned bed of the stream is the low water mark. If non-navigable, it is at the middle of the waterway. Middle defined as midway between the banks of the main channel.

In either case, the location is according to the last natural location of the channel. If the location has been altered or fixed due to artificial conditions (levees, dams, canals, etc.), you would need to determine where the stream channel last existed in a natural state according to the best evidence you are able to gather (the research for this can be a very time-consuming PITA). However....

The artificial influence must be both a primary and proximate cause of any deviation from the otherwise natural stream processes. For a small stream, if it was a small stream in September 1850 in its natural and ordinary condition, a dam which is 40 miles upstream most likely is not proximate nor would it be likely to have a primary effect on the stream at the location in question. The levees are a different matter.

If the levees were not in place, is there a possibility that the stream might have naturally meandered outside of that 300' wide corridor? Was the bottom of that 300' wide corridor reshaped in any way that would tend to restrict the channel to the approximate middle of the corridor (i.e. a gradual slope graded from the banks of the stream to the toes of the levees), then they would have both a primary and proximate effect on the present channel location.

If the levees were built such that the ground between remained essentially undisturbed, then the boundary may still be considered ambulatory and moving with the natural movements of the channel. The CA Supreme Court has also said that if a stream was once considered to have been affected by artificial influence, thus fixing the boundaries, but it has since taken on the character of a natural stream again, that it can regain its ambulatory nature.

There's a few things to make the topic as clear as the mud at the bottom of your stream. Actually, I hope this info helps you figure it out. Feel free to contact me at work if you need or want to discuss it in more detail.

[Jim Frame]

Thanks for all that info, Evan. Much of it I've seen before, but there are some unfamiliar things in there too. I'm going to save all of it as a quick-and-dirty stream boundary reference.

An interesting wrinkle on the navigability thing: the portion of the channel in question (currently known as the South Fork of Putah Creek) didn't exist in 1850. In the flood of 1871, the original channel (now known as the North Fork of Putah Creek, though it no longer flows anywhere) blew out with explosive force at a sharp bend. The waters ran up against the Central Pacific railroad tracks and started spreading out. They eventually created or enlarged a hole in the RR embankment and rushed due east along a farm road that followed the section lines. (Taking, as you might expect, any extant monumentation with it. Breaking down any of those sections now requires a lot of work.) It was this new alignment that the farmers decided to deepen and enlarge in an effort to control the creek. But the creek wasn't done with their canal, and in 1873 the creek burst the coffer dam built to restrain the waters during construction, rushed down the partially-completed canal (which was 200 feet wide and 6 feet deep), filling it with sediment and basically undoing all the work that had been done. The farmers came back, but the creek repeated its performance in 1875, 1876 and 1878, though each time it cut its channel a bit deeper. By 1880 the new channel was the same depth as the North Fork, at which point redirecting it to the South Fork channel became much easier.

For anyone interested in Yolo County history, there's a wonderful book written by David Vaught titled "After the Gold Rush." Highly recommended, an engaging and informative read.

[LS_8750]

Is it natural or not?

Quoting: "to be considered navigable for title purposes, the stream must have been susceptible to navigation in its natural and ordinary condition at the time of statehood using customary modes of waterborne commercial travel for that place and time." Clearly Mr. Frame, you are not talking about any sort of "natural or ordinary" condition.

The kids upstream built up a damn in the 1930s which made a bunch of swimming pools, the County then came in and built a bridge below the kid dam and constricted the old pre-logging days bridge that used to run over the creek before they hydroblasted the canyon back in the gold rush days. Really, how hard is it to call a boundary line in transit given the true definition of "natural and ordinary condition" these days? How many of these old watercourse boundary lines are actually in transit anyway? I don't see many in my neighborhood.