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Accretion, Reliction, Avulsion Essay

3003 words - 13 pages

Real Property Boundaries Along Bodies of Water

Rivers have been used as boundaries at least as long as civilizations have recorded their history. It is likely that before recorded history, nomadic tribes were bound by waterways. Historically, civilizations have developed on the banks of the world’s rivers for several basic reasons. Rivers create a natural defense against invasion, as well as a source of sustenance and commerce. The primary disadvantage is that a river tends to change its course. Either gradually, through erosion, reliction, and gradual accretion, or by avulsion, violently breaking through one of its banks, creating a new arm at some distance from its previous bed (1). The ...view middle of the document...

Control over the waters was the privilege of Parliament, and viewed as a public right of way in order to facilitate navigation and commerce. Any waterway subject to the “ebb and flow” of the tide were deemed navigable, and the beds of those navigable waters were owned by the Crown. This language makes sense for England, since all waters of significance to commerce are subject to tidal forces. All streams or bodies of water which were not affected by the tides were non-navigable, and the adjacent landowners held title to the center of the stream or lake (1).
In contrast to this early view, the Supreme Court ruled in Daniel Ball v. U.S. 77 U.S. (10 Wall.) 557 (1870), that waterways deemed navigable in fact are navigable in law regardless of the presence or absence of a tide (3). The rule that landowners adjacent to non-navigable water hold title to the center of the water has been adopted from English common law by both Federal law, and most states. According to 43 U.S. Code § 931, “All navigable rivers within the territory occupied by the public lands, shall remain and be deemed public highways; and, in all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both.” The issue of navigability of a body of water is often a central issue when resolving disputes involving accretion, reliction, and avulsion. As such, a discussion of these issues should begin with an understanding of what the Federal Government defines as a “navigable”.
Navigable Waterways
The federal definition of navigable, and the affect it has on real property ownership, begins with the ratification of the Treaty of Paris (1783). This document recognized the central government as a sovereign power, and acted as a type of quitclaim deed by Great Britain. As the bureaucracy began to take shape under the Articles of Confederation, it became apparent by 1786 that, among other deficiencies, there was a lack of central authority over foreign and domestic commerce. By 1788 the U.S. Constitution had been ratified, and would include provisions to address the issue of commerce and navigation (4). Article 1, Section 8, Clause 3 of the U.S. Constitution, is known as the Commerce Clause, and reads as follows: “(The Congress shall have power to) regulate commerce with foreign nations, and among the several states, and with the Indian tribes” (5). Early on, the Supreme Court ruled in Gibbons v. Ogden, 22 U.S. 1 (1824), that the power to regulate interstate commerce encompassed the power to regulate interstate navigation. This provision has withstood the test of litigation on many occasions. "The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States.... For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress." United States v. Rands, 389 U.S. 121...

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