The Curt Brown Chronicles: Notes on Swamp Lands, Navigable Streams, and Lakes

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March 1960
Recently 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 San Diego, 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.

Hughes v. State of Washington (pertaining to accretions)
March 1968

The US Supreme Court in a dispute decided an unusual case December 11, 1967, over the ownership of accretions. The Washington State rule by State Supreme Court decision is: "The upland owners’ title rights extend to the point where vegetation ceases as of the date of admission of Washington to statehood (1889)." Thus, accretions cannot belong to the upland owner. In Louisiana, the same is true by statute law (not by court interpretation as in Washington).

Mrs. Stella Hughes owned a parcel that was patented prior to 1889 and she claimed to the mean high tide line as per Federal rule. After the state court denied her 561 feet of land between the mean high tide line and the line of vegetation, the US Supreme Court took up the matter. Two points were involved: (1) Did her land go to the high tide line; and (2) if so, did her land include accretions accumulated after statehood? The decision of the court was:

The question for decision is whether federal or state law controls the ownership of land, called accretion, gradually deposited by the ocean on adjoining upland property conveyed by the United States prior to statehood. The circumstances that give rise to the question are these. Prior to 1889, the United States, except land that had been conveyed, owned all land in what is now the State of Washington to private parties. At that time owners of property bordering the ocean, such as the predecessor in title of Mrs. Stella Hughes, the petitioner here, had under the common law a right to include within their lands any accretion gradually built up by the ocean. Washington became a state in 1889, and Article 17 of the state’s new constitution, as interpreted by its Supreme Court, denies the owners of ocean-front property in the state any further rights in accretion that might in the future be formed between their property and the ocean. This is a suit brought by Mrs. Hughes, the successor in title to the original federal grantee, against the State of Washington as owner of the tidelands to determine whether the right to future accretions, which existed under federal law in 1889, was abolished by that provision of the Washington Constitution. The trial court upheld Mrs. Hughes’ contention that the right to accretions remained subject to federal law, and that she was the owner of the accreted lands. The State Supreme Court reversed, holding that state law controlled and that the State owned these lands. 67 Wash. 2d 799, 410 P. 2d 20 (1966). We granted certiorari. (385 US 1000) (1967). We hold that this question is governed by federal, not state, law and that under federal law Mrs. Hughes, who traces her title to a federal grant prior to statehood, is the owner of these accretions.

This brings us to the question of what the federal rule is. The state has not attempted to argue that federal law gives it title to these accretions, and it seems clear to us that it could not. A long and unbroken line of decisions of this Court establishes that the grantee of land bounded by a body of navigable water acquires a right to any natural and gradual accretion formed along the shore. In Jones v. Johnston, 18 How. 150 (1855), a dispute between two parties owning land along Lake Michigan over the ownership of soil that had gradually been deposited along the shore, this Court held that "Land gained from the sea either by alluvium or dereliction, if the same be by little and little, by small and imperceptible degrees, belongs to the owner of the land adjoining." (18 How., at 156). The Court has repeatedly reaffirmed this rule, County of St. Clair v. Lovingston, 23 Wall. 46 (1874); Jefferis v. East Oniaha Land Co., 134 US 178 (1890), and the soundness of the principle is scarcely open to question. Any other rule would leave riparian owners continually in danger of losing the access to water which
is often the most valuable feature of their property, and continually vulnerable to harassing litigation challenging the location of the original water lines. While it is true that these riparian rights are to some extent insecure in any event, since they are subject to considerable control by the neighboring owner of the tideland, this is insufficient reason to leave these valuable rights at the mercy of natural phenomena which may in no way affect the interests of the tideland owner. See Stevens v. Arnold, 262 US 266, 269 – 270 (1923). We therefore hold that petitioner is entitled to the accretion that has been gradually formed along her property by the ocean.

The judgment below is reversed, and the case is remanded to the Supreme Court of Washington for further proceedings not inconsistent with this opinion.

As of now, it appears that US riparian land patented prior to 1889 follows the Federal rule whereas land patented after 1889 follows the state law.
–Compiled by Michael J. Pallamary, PS

Author Michael Pallamary has compiled the writings and lectures of the late Curtis M. Brown. These works are published in The Curt Brown Chronicles.

A 123Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE