The Creek That Moved 300 Feet in One Storm
A 60-acre farm is bounded on the east by a non-navigable creek. The 1948 deed conveys 'the west 60 acres of the northeast quarter, bounded on the east by the east bank of Mill Creek.' From 1985 to 2018 the creek moved westward about 2 feet per year, adding roughly 60 feet to the farm. In a single storm in 2019, the creek cut a new 300-foot channel across the farm and abandoned the old channel. The neighbor now claims the abandoned channel and the 300-foot strip. The farm owner wants the surveyor to establish the boundary at the pre-2019 bank and to ignore the new channel because 'the creek is not the boundary anymore.' The county has no recent survey of the creek line, but aerial photography from 2018 is available.
1. Distinguish accretion from avulsion and state where the boundary should be located.
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Gradual and imperceptible movement is accretion; the riparian owner gains or loses the moved bank. Sudden, visible change is avulsion; the boundary remains where it was before the avulsion. The 1985-2018 movement of about 2 feet per year is accretion, so the farm's east boundary moved west with the east bank and the owner gained roughly 60 feet. The 2019 storm cut a new 300-foot channel in one event, an avulsion. The boundary did not jump to the new channel. The neighbor cannot claim the abandoned channel or the 300-foot strip. The boundary is the east bank as it existed immediately before the avulsion.
2. What evidence should the surveyor use to locate the pre-avulsion bank?
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Use historical aerial photography, old surveys and plats, fence lines, vegetation changes, soil profiles, stream-gauge and flood records, and testimony from long-time residents. The 2018 aerial photograph is strong evidence of the old bank. The surveyor should show the pre-avulsion bank, the new channel, and the abandoned channel, and label the avulsion. If the old bank is uncertain, show the range of evidence and explain the uncertainty. The surveyor should not treat the new channel as the deed boundary merely because it is the current water line. The survey should also note that the legal effect of accretion and avulsion is ultimately a question for the court.
3. Does the deed's 'east bank' call make the creek's meander line the boundary?
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No. A meander line is generally a reference line, not a boundary, when the deed calls to the water. Here the deed expressly bounds the farm on the east bank of Mill Creek. That call makes the bank the boundary, not a meander line. Because the creek is non-navigable, a deed to the creek could reach the thread of the stream under common-law rules, but this deed's east-bank call is more specific. The surveyor should follow the express call and the accretion/avulsion doctrine, not a mapped meander line. The surveyor should also avoid implying that the 2019 channel automatically changed the boundary.