Transcript Shoreline and Marine Boundaries Datums, Jurisdictions and

Shoreline and Marine Boundaries
Datums, Jurisdictions and Policy
THE PUBLIC - PRIVATE BOUNDARY
through the eyes of the courts
© 2005 by Chuck Karayan, L.S.
Geolex Surveying, Consulting & Educational Services
P.O. Box 160192
Sacramento, CA 95816
GOALS and SCOPE
 A basic understanding of the traditional
“Ordinary High Water Mark”
 How California’s “OHWM” differs from
Federal and common-law
 A basic understanding of the common-law
definition of “Navigability”
 How California’s definition of Navigability
differs from Federal and common-law
Historic Ordinary High Water Mark
 Natural Boundaries have the disadvantage
of being ambulatory
 Both the water-level and the landform are in
a state of constant change
 The general rule is that the public-private
boundary is where the two meet
 Natural boundaries have the advantage of
being identifiable by the average person
Historic Ordinary High Water Mark
 Lord Matthew Hale in De Jur Maris (1666)
“the foreshore, which is overflowed by
ordinary, or neap, tides – which happen
between the full and change of the moon –
are sovereign lands”.
Historic Ordinary High Water Mark
 Attorney General v. Chambers,
17 Eng. Ruling Cases 555 (1854)
“The principle which gives the shore to the
Crown is that it is land not capable of
ordinary cultivation or occupation…land
which is for the most part not dry or
maniorable.”
Historic Ordinary High Water Mark
 Howard v. Ingersoll, 54 US 381 (1851)
The OHWM is found by examining the bed and
banks and ascertaining where the presence and
action of the water…mark…a distinct character in
respect to vegetation as well as the nature of the
soil itself.
The court was speaking of a riparian environment,
but much of the concept can be applied to littoral
regimes as well.
“Modern” Ordinary High Water Mark
 Borax Consolidated v. City of L.A.,
296 US 10 (1935)
Citing USC&GS Special Publication No.
135, the court said that the physical “mark”
is not the boundary – rather it is where the
elevation of the mean high tide line
intercepts the land
Statistical Means of a Mixed Tide
“Modern” Ordinary High Water Mark
Borax Consolidated v. City of Los Angeles

No direct connection between “water mark”
and “mean water level” – they are different!

Federal Rule applies when the source of
title is from the United States

California Rule applies when the source of
title is from the State of California
Spring and Neap Tides
California Ordinary High Water Mark
Teschamaker v. Thompson, 1 C 10 (1861)
California State Lands Commission announces policy
of using federally defined mean high water (1938)
People v. William Kent Estate Co.,
242 C App 2nd 156 (1966)
Antoine v. California Coastal Commission,
8 C App 4th 641 (1992)
ORDERED DEPUBLISHED by California Supreme Court
Sovereign Ownership
 Original 13 States were “successor
sovereigns” – they own the bed of navigable
waters.
Martin v. Waddell, 41 US 367 (1842)
 Subsequently admitted states are on an
“equal footing” with the original 13.
Pollard’s Lessee v. Hagan,
44 US 212 (1845)
Initial Definition of Navigability
The Steamboat Thomas Jefferson,
23 US 425 (1825)
 The ocean, together with all of its arms,
bays, coves and inlets, and inland rivers
where the tide ebbs and flows are navigable
waters.
 Under Federal Law the above is a
Conclusive Presumption
 Under California Law the above may be a
Rebuttable Presumption
Expanded Definition of Navigability
The Daniel Ball, 77 US 557 (1871)
 “Tidality” is just one test of navigability
 If a body of water is “navigable-in-fact” it is
“navigable-in-law”
 A body of water used, or capable of use, as
a highway of commerce is “navigable-infact”
California Definition of Navigability
 Some authority for the idea that the “tidality”
test was not adopted in California, but the
“navigability-in-fact” test was adopted.
Bohn v. Albertson,
107 C App. 2nd 738 (1951)
People ex rel. Baker v. Mack,
19 C App. 3rd 1040 (1971)
California Definition of Navigability
 Under Baker & Bohn, tidal marshes, deltas,
estuaries, etc. below the MHW line that
were not “navigable-in-fact” could not be
held as sovereign ownership. This might be
the majority of such lands.
 Earlier California Supreme Court decisions
indicate that both tests apply.
Wright v. Seymour, 69 C 122 (1886)
Los Angeles v. San Pedro R.R. Co.,
182 C 652 (1920)
Shoreline and Marine Boundaries
Datums, Jurisdictions and Policy
THE PUBLIC - PRIVATE BOUNDARY
through the eyes of the courts
© 2005 by Chuck Karayan, L.S.
(916)455-5262
[email protected]