The 2Point Way - Is a Contour a Boundary Line?
Lake shorelines can be problematic for surveyors attempting to determine the location of associated property boundaries and the extent—if any—of incidental rights. Among the many questions that arise when dealing with littoral boundaries, two questions of immediate importance here are:
-- Is the lake navigable for title purposes—i.e. does the state own the bed under the Public Trust Doctrine??
-- Is the lake natural, artificial, or a natural lake that has been enlarged by construction of dams or canals?
Answers to these questions are key in determining the limits of ownership, and the associated incidental rights (if any). The three cases that follow illustrate the real differences between resolutions on natural vs. artificial lakes—and the courts’ opinions of surveyors who are ignorant of relevant principles.
Natural Navigable Lake:
Stamper v. Bienville Parish: 153 So. 2d 503 Louisiana (1963) is of interest in part because of its detailed discussion of the significance of contour lines and meander lines. The significance of this decision extends far beyond the state of Louisiana.
Located on Lake Bistineau, the Stamper tract was burdened by an existing state highway that was to be widened. The original dispute over easement appropriation for the project grew into a title dispute between Stamper and local government officials.
Stamper claimed that his deed and the original government survey—showing a meander line near the lake shore—granted him title to the original edge of this natural lake. Government officials asserted that the meander line (also referred to in this case as the ‘traverse line’) comprised the limits of ownership. Neither party disputed that the lake bed itself was state land.
Three original government surveys in the area were completed between 1830 and 1842; the latter included a representation of the subject parcel with acreage calculated using the meander line. Original field notes were consistent with these surveys and neither party disputed the location of the meander line.
Previous government surveys of the lake had established the 148.6 ft. contour as the normal lake level at the time of the original government surveys. The significance of this elevation is that it represents the original natural limit of the lake at the time of the original grant—it did not derive from an artificial spillway elevation or other arbitrary benchmark.
The difference between the location of the contour and the meander line varied in some areas by over 200 feet, resulting in a disputed parcel of 2.53 acres. The ultimate issue in the case was whether the contour line or the meander line controlled the limits of private ownership.
One difficulty with the contour line as the limit of ownership is its precise determination in this relatively flat, swampy area. This time-consuming operation is admitted as one of the reasons that the original government surveyors used meander lines on their original surveys. Another justification for the meander line was its use to establish ‘dry-land’ areas for the calculation of the purchase price for riparian and littoral parcels.
Despite these conventions, the court upholds the long-standing rule that meander lines were only intended as a rough approximation of the edge of the water itself. Citing a Minnesota dispute that eventually ended up at the U.S. Supreme court, Judge Gladney observes: “Meander lines are run in surveying fractional portions of the public lands bordering upon navigable rivers, not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream, and as the means of ascertaining the quantity of the land in the fraction subject to sale, and which is to be paid for by the purchaser.”
“In preparing the official plat from the field notes, the meander line is represented as the border line of the stream, and shows, to a demonstration, that the water-course, and not the meander line, as actually run on the land, is the boundary.”
The original patent description is not intended to include all of the particulars of the original government grant—rather, the goal is a description sufficient to locate a given lot on the ground. The court concluded ‘unquestionably’ that the disputed area belonged to Stamper and the shore contour was the limit of title.
Contour lines remain one of the more common delimiters of property rights adjacent to artificial lakes. This is a reasonable expedient based on the intent of the original builder to obtain permanent rights to inundate former uplands to a specific water level. In contrast with the previous example, the contour elevation usually will be chosen based on geographical and engineering constraints of the project and on the actual construction of the spillway.
As a result, the original contour in this case is itself the controlling monument, rather than being a representation of a previously existing lakeshore.
Many large lakes built across the country exist as a direct result of legislative acts intended to create new sources of hydroelectric power. Others were intended to supply water for growing metropolitan areas. Corporations or quasi-public entities often were granted the power of eminent domain by state legislatures in order to acquire lands sufficient for construction and operation of the proposed reservoir. In many instances, these lakes were built long after the original government surveys and the associated conveyance of lands to private ownership. Due to the circumstances of their creation, many of the rules commonly associated with natural watercourses may not be applicable to artificial lakes.
Roberson v. Red Bluff Water: 142 S.W.2d 248 (1940) is a Texas case that highlights the differences between rights on natural vs. artificial lakes. Circa 1936, a dam was built across the Pecos River by a corporation authorized under Texas law, for purposes of irrigation and to produce hydro-electric power. The original Roberson tract (Section 16) did not border on the Pecos River, but a portion was sold to the power company as part of the project that created the lake.
The Board of Directors of Red Bluff Water Power Control District had established rules for limited public use of the lake for fishing or recreational purposes, consistent with the maintenance of water quality in the reservoir. These rules included a specific permitting process, but the limited rights granted were contractual in nature rather than permanent private interests in lake.
As an adjoining property owner, Roberson claimed riparian rights to use the lake after it was constructed, based on a presumed original right to the Pecos River. In reliance on this conclusion, he began operating a boat-rental business on the lake shore. The Appellate court rejected his claims and affirmed a lower court decision which stated in part: “Section 16 has no riparian or littoral rights in law; that Roberson and Stratton had no right to go upon the property of the Water Company without permission; that the Company had the right to fence its property on Section 16 and erect all improvements incident thereto and to adopt and promulgate reasonable rules in control of its properties…”
Questions Left Unanswered
Turpin v. Watts: 607 S.W.2d 895 (1980) is a Missouri dispute over a subdivision on the shore of Lake of the Ozarks, a popular resort destination that originated as a hydroelectric dam completed circa 1930.
The boundary location in this instance was controlled by the 660-ft. contour. In this instance, the elevation was specifically identified by deed as the ‘fill line’ of the proposed lake, rather than representing the edge of a pre-existing natural lake.
The ultimate issue in this case was the location of building setbacks rather than the boundary itself. However, in order to determine the setback limits, the original boundaries had to be established. This dispute involved two surveyors, each with his own conclusions regarding the location of the shore boundaries and associated setbacks. For convenience, they will be referred to as “Surveyor A” and “Surveyor B.”
Surveyor A, who had performed two separate surveys in the area, stated that he had determined the actual location of the 660-ft. contour based on benchmark elevations at the time of his first survey. However, the line on his map had been sketched freehand before he measured the limits of the contour.
The court was unimpressed with this testimony. Surveyor A: …was examined closely about both surveys; it is sufficient here to say that that examination disclosed [Surveyor A] made a number of assumptions, and there are probably inaccuracies in both surveys.
Testimony by Surveyor B indicated possible artificial fill, enclosed by a retaining wall. As a result of the alterations of the shore, he said he was unable to determine the original location of the contour line with certainty. Evidence presented by other witnesses indicated the possibility of two artificial walls—old and new—along the shore.
Ultimately, the court was displeased by both surveyors: The mystifying aspect of the surveyors’ evidence was that there was an “old” and a “new” sea wall built around the perimeter of Chimney View subdivision. The trial court was left to speculate, as are we, for what purpose or by what right the “sea wall” was constructed by the littoral owners. It is not even clear who constructed the sea wall.
The frustration expressed by the judge highlights the lesson to be learned from this decision. Neither party presented the necessary information for the clear resolution of the case. Neither expert understood the relevant riparian principles or the nuances of law that controlled the outcome. The ultimate result was frustration and continued litigation for all parties involved.