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Strip and Gore Doctrine - Streams, Rivers, and Roads

Updated: Oct 21, 2019

Land use professionals routinely apply common rules of construction in interpreting deeds, wills, and express easements. Under these rebuttable presumptions, monuments generally control over measurements, with area given little weight at the bottom of this list of priorities. However, there are many other rebuttable presumptions that courts apply when determining the intent of the parties to a conveyance. The priorities listed above are only the beginning of a longer list of analogous principles applied by the courts.

Although Starr v. Child [1] is an early New York opinion dating back to 1838, it should not be dismissed as irrelevant by modern land use professionals. It has been quoted directly by numerous later courts, including Virginia [2], West Virginia [3], Maine [4], Ohio [5], and Tennessee [6] to name only a few. More broadly, the underlying principles that it emphasizes are found in courts across the nation.

This decision—and the two appeals that followed—highlight one of the classic challenges faced by surveyors engaged in retracement of river boundaries, and they represent early benchmark cases for the “Strip & Gore Doctrine”. Though this specific moniker primarily is restricted to decisions from Texas and West Virginia, the concepts behind it are solidly grounded in rulings nationwide.

1838 Decision—Starr v. Child

The background information recorded in Starr v. Child is fairly straightforward. A one hundred-acre parcel was divided into multiple tracts by means of two partition deeds. The 100-acre description was offered as the source of title by both the plaintiff and the defendant. The Genesee River was one of the boundaries of this tract, and was called for in the description of “mill-seat lot no.12”.

Both parties stipulated that the title of the original 100-acre description extended to the center of the Genesee River—a small non-navigable river. The ultimate issue was determining ownership of the bed of the Genesee River based on the subsequent division of the parent parcel.

The description of the Cobb tract (a portion of mill-seat 12) included the phrase “thence eastwardly parallel with Buffalo Street about 45 feet to the Genesee River; thence northwardly along the shore of said river to Buffalo Street.” This language includes a patent ambiguity. While the phrase “to the river” would generally be construed to extend ownership to the center of the river, the following call with the “shore of the river” might well be interpreted to limit the conveyance to the riverbank. (A significant portion of the court discussion was devoted to proving that the terms “shore” and “bank” would be considered synonymous in this instance.) The decision was further complicated by the fact that each mill-seat would be allowed to take water from an existing raceway.

A second deed of the same date conveyed the remainder of mill-seat 12 to Thomas Morgan and included this property description: “beginning at the southwest corner of the premises conveyed to Cobb, running thence southwardly along the east bounds of the mill-yard 25 feet; thence eastwardly along the north bound of an alley and parallel with Buffalo Street to the Genesee River (nearly fifty feet); thence northwardly along the shore of the Genesee River to William Cobb's corner…” Again, there is a distinct lack of clarity in the description of the river boundary.

The attorney for the defendants was adamant in his claim that the descriptions cited above would limit the title of the owners of mill-seat no. 12 to the bank (or shore) of the river. However, the majority opinion rejected this interpretation and concluded that the descriptions to Cobb and Morgan would extend title to the center of the Genesee River.

Two important principles were set forth by the New York court to justify their decision:

“Prima facie, a proprietor of each bank of a stream is the proprietor of half the land covered by the stream. The bank and the water are correlative. One cannot own one without touching the other. But the bank is the principal object; and when the law once fixes the proprietorship of that, the soil of the river follows as an incident, or rather as a part of the subject-matter, usque filum aquae. Fresh rivers do, of common right, belong to the owners of the soil adjacent.”

“Upon construction of law, which does not require express words for the grant of every part, as houses, fences, mines, or the elements of water or air, which all pass by the word "land;" and, as a grant of land by certain boundaries, prima facie passes all such parts to the grantee, usque ad caelum et ad infernos; so, within the same principle, it passes the adjoining fresh-water stream, usque ad filum aquae. … and surely it would be more absurd for the law to give a man the shore or side of a fresh-water river; and yet, by saving the bed to the grantor, make the owner of the land a trespasser, every time he should slake his thirst or wash his hands in the stream.” [7]

The court emphasizes that the ambiguity places the burden of proof is on parties seeking to prove the exclusion of the riverbed.

The court recognizes that elements of an existing tract of land may be excepted from a conveyance. In addition, portions of parcel may belong to third parties based on other principles such as prescription or estoppel. Despite these qualifiers, they conclude that the mere omission of a specific item from a grant does not create a presumption that the item is to be excluded from the grant.

1842 Decision—Child v. Starr

This legal fiasco did not end with the 1838 ruling. Starr v. Child was not unanimous and the dispute was revisited by the New York courts on two later occasions. While clearly upholding the general legal principles stated in the 1838 opinion, Child v. Starr (1842) reversed the earlier ruling with an 11/10 split decision. This reversal was based not on a repudiation of the principles previously stated but on re-interpretation of the construction of the deeds and consideration of the likely intent of the parties. The discussion in these opinions indicates the difficulties inherent in decisions based on ambiguous deeds.

The 1842 decision also expanded the scope of precedent implied by this case. Chancellor Walworth stated that conveyances adjacent to roads, party walls, and ditches also follow the same general presumption and boundaries are presumed to extend to the center of these called for monuments:

“The common law rule, as I understand it, is that the riparian proprietor is, prima facie, the owner of the alveus or bed of the river adjoining his land, to the middle or thread of the stream; that is, where the terms of his grant do not appear and show that he is limited…. It has also been decided that the same principle applies to the construction of grants bounded generally upon highways, party-walls, ditches, etc., which constitute natural boundaries between the lands granted and the adjacent property.”

Another viewpoint from the 1842 opinion amplifies on this presumption:

“Reasons founded on public policy and general convenience forbid the disjunction of the ownership of the bed of the river and the adjacent land. It would, in many instances, present a line of boundary as uncertain and variable as the edge of a cloud. Although one may own the land, and another the adjacent stream or the land covered by it, yet the intendment of the common law will apply in favor of the riparian proprietors in all cases where there is no evidence to rebut it; and will equally apply in all cases even of doubtful construction” [8]

1846 Decision—Starr v. Child

Four years later, the parties were back in court yet again, this time with one final and critical piece of evidence. Additional research revealed that the original 100-acre tract cited in the 1838 opinion was part of a 20,100-acre tract which only extended to the bank of the Genesee River. Therefore, the final ruling found that the riverbed was never included in the original 100-acre parcel at all. [9] The 1846 decision is also another cautionary tale demonstrating the confusion that results when decisions are based on insufficient deed research.

Strip & Gore Doctrine for Streets

Although these New York rulings dealt primarily with ownership of waterways, common law in many states has applied these general principles in other situations. Several states have considered the Strip & Gore Doctrine as it relates to strips of land along both public and private roads. In addition, it may be applied to narrow strips inadvertently left in limbo by poor quality re-surveys of existing parcels where monumentation set for the re-survey does not precisely reflect the location of the original boundary lines.

Of particular interest for surveyors may be the scenario where an old recorded plat depicts lots, streets, and alleys for a proposed subdivision. While state statutes regarding the express dedication of roads for public use vary, many early subdivision plats were recorded before such statutes existed. Others were recorded without fulfilling the statutory requirements for express dedication and acceptance. In either situation, the underlying fee simple title of the land within the street limits may remain vested in those individuals who purchased lots on either side of the streets.

The Virginia Law Register discussed this topic in 1925, stating “The rights of purchasers by the plat or map are different from those of the general public, the abutter takes the fee to the middle of the street in front of his lot…” [10]

Even in states such as Virginia—where current statutory dedication and acceptance of a public road transfers fee simple title to the local governing body—situations may be found where the recorded plat was not properly approved before recording.

In the following example, representatives of Lancaster County, Virginia contended that a previously existing recorded plat had effectively transferred fee simple title in an existing road to the county. The reply by the court was emphatic: “The 1992 plat was not submitted for approval as required by the subdivision ordinance, nor was it in compliance with various requirements of the Virginia Code. This plat apparently was not intended by the landowner to be a subdivision plat. The 1992 plat is of no consequence in resolving the issue before the Court.” [11]

Oregon is one of several states to embody elements of the Strip & Gore Doctrine in their statutes. ORS 93.310: Rules for Construing Description of Real Property includes this statement: “(4) When a road or stream of water not navigable is the boundary, the rights of the grantor to the middle of the road, or the thread of the stream, are included in the conveyance, except where the road or bed of the stream is held under another title.”

Exceptions to the Presumption

The presumption against the conveyance of narrow and useless strips of land is a legitimate consideration for the court, but numerous exceptions to this doctrine exist. These presumptions are rebuttable and may be disregarded when significant evidence indicates that the presumption is not appropriate for the case at bar. In addition, individual states vary in their application of this doctrine—particularly in descriptions of lands adjoining railroads. The U.S. District court in Idaho considered a railroad right of way that had been converted to trail use and concluded: “The conveyance of strips of land in fee is disfavored in some states as a matter of public policy and therefore gives rise to a presumption that the conveyance of a strip of land is an easement rather than a fee. This is commonly referred to as the “strip and gore doctrine.” However, the Idaho Supreme Court has expressly declined to apply the strip and gore doctrine to railroad deeds.” [12]

In addition, this presumption requires that there be some ambiguity in the deed description, and does not control in situations where the plain meaning of the grant specifically reserves a narrow strip of land. Finally, the doctrine cannot be applied where the owner of the parent parcel does not have title to the center of the stream or road.

Texas Decisions

Significant discussion of the Strip & Gore Doctrine is found in Texas Supreme Court records. One of the best summaries of the principle follows: “It is well known that separate ownership of long narrow strips of land, distinct from the land adjoining on each side, is a fruitful source of litigation and dispute. To avoid this source of contention, it is presumed that a grantor has no intention of reserving a fee in a narrow strip of land adjoining the land conveyed when it ceases to be of use to him, unless such fee is clearly reserved…unless it clearly appears in the deed, by plain and specific language, that the grantor intended to reserve the strip.” [13]

The Texas courts recognize a fundamental conflict with other principles of retracement in this type of dispute. While the presumption against useless strips of land is well established, conflicts with another important principle—the presumption that each deed should stand on the basis of its own specific language. “There is an inference that the grantee is entitled only to the land described within the limits of the boundaries in the deed, but there is also a presumption that the grantor did not intend to retain a narrow strip along an outside line. [14]

The responsibility remains for land use professionals to read each deed in the light of the circumstances surrounding its execution, and to retrace the deed in accordance with the intent of the original parties. The courts routinely apply legal presumptions such as those described above, particularly in the case of ambiguous descriptions. The Strip & Gore Doctrine is considered a legitimate “rule of construction” and is as legitimate as are other, more familiar rules.

List of Sources:

1. Starr v. Child; 20 Wend. 149 (1838) N.Y.

2. French v. Bankhead: 52 Va. 136 (1854)

3. State v. Lillie Mounts: 108 W. Va. 53; 150 S.E. 513 (1929)

4. Mansur v. Blake: 62 Me. 38 (1873)

5. Dayton v. Cooper Hydraulic: 10 Ohio Dec. 192 (1900)

6. Holbert v. Edens: 73 Tenn. 204 (1880)

7. Starr v. Child; 20 Wend. 149 (1838) N.Y.

8. Child v. Starr: 4 Hill 369 (1842) N.Y.

9. Starr v. Child, 5 Den. 599 (1846)

10. Virginia Law Register; Vol. 10, no. 10, February, 1925

11. Humphreys v. Arnold; 33 Va. Cir. 126 (1993)

12. Hash v. U.S.A.; U.S. District Court, Idaho; Case No. CV 99-324-S-MHW (2001)

13. Cantley v. Gulf Production Co.: 135 Tex. 339; 143 S.W.2d 912 (1940)

Town of Refugio v. Strauch: 29 S.W. 2d 1041 (1930)

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