A Levee Break, a Slow Bank, and 4.3 Acres
A 40-acre parcel in Sutter County is bounded on the south by the Feather River, a navigable waterway. The 1871 patent describes the south line as running "to the bank of the Feather River, thence down said river." Between 1955 and 1995 the south bank moved south, away from the parcel, about 65 ft; everyone agrees the movement was gradual and imperceptible. In February 1997 a levee break sent the river across a 190-ft-wide neck of the parcel in about 36 hours, leaving the old channel dry and the river flowing on a new alignment that cut off a 4.3-acre triangular piece. The landowner has farmed that triangle since 1998 and now claims it, plus the 65 ft of slow movement. The State Lands Commission asserts title to both.
1. Who owns the 65 ft of gradual bank movement, and why?
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The riparian owner, under the doctrine of accretion.
Where the water boundary moves gradually and imperceptibly, the boundary moves with it. Accretion - land added by slow, natural, imperceptible deposition - belongs to the upland owner, and erosion correspondingly takes land away. California codifies this at Civil Code §1014, and the rule applies even where the state owns the bed of a navigable river: the state's proprietary bed title does not defeat the upland owner's right to natural accretion.
Conditions to check before relying on it:
- Natural cause. Accretion produced by artificial works - a wing dam, a levee realignment, dredge spoil - does not move the boundary. Ask what, if anything, was built upstream.
- Imperceptible. If a witness can say where the bank was on a given day, it was not accretion.
- The correct line. On a navigable river the boundary is the ordinary high water mark, not the meander line of the patent. Meander lines are not boundaries.
Document the 1955 and 1995 bank positions from aerial photography and any physical evidence, and state the basis of your opinion.
2. Who owns the 4.3-acre triangle cut off by the 1997 levee break?
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The landowner, and the state does not acquire the old bed by the event.
A sudden, perceptible change of channel is an avulsion. The rule is that an avulsion does not change property boundaries: the line stays where the ordinary high water mark was immediately before the event. So the triangle remains the landowner's land, now separated from the balance of the parcel by the new channel.
What the landowner does not get is the new channel bed. The public trust easement follows the water; the state's interest in the navigable waterway attaches to the new alignment for navigation and trust purposes, but the underlying fee in land that was formerly private and is now covered by an avulsive channel remains with the owner, subject to that easement.
Note the common-law qualification: the owner may lose the right to reclaim the severed tract if he does not act within a reasonable time. He has farmed it since 1998, which helps, but the question is whether he has effectively reclaimed it. Also check whether the levee break was a natural event or the result of artificial diversion, which could change the analysis.
3. How do you document both claims on a map or report?
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Separate the two events and give each its own line.
- Pre-1997 OHWM: reconstruct it from aerial photography, historical survey maps, and any found bank monuments, and state the uncertainty of each source. This is the controlling line for the avulsion analysis.
- Post-1997 OHWM: locate it in the field and by photo, and show the triangle.
- Accretion line: show the 1955 and 1995 bank positions and the 65-ft shift, with evidence that the movement was gradual and natural.
- The levee: show its location and note the date of failure.
Label every line by the doctrine it depends on, cite the sources, and avoid drawing a single "boundary" line where the law gives two different answers to two different questions. If the state and the owner will not agree, the map and report are the evidentiary foundation for a quiet title action, and they should be prepared with that audience in mind.