The Creek That Moved Twice
In 1948 Hollis conveyed the Kerns a 42-acre bottomland tract "bounded on the north by the run of Bear Creek, thence with the thread of the run..." The tract has been farmed continuously since. Until 1972 Bear Creek was a slow, 30-ft-wide stream. In June 1972 a tropical storm cut a new channel straight across a 60-ft-wide neck of Kerns bottomland, abandoning about 900 ft of the old channel. Aerial photographs from 1971 and 1973 document the change. From 1980 to 2010 the outer bank of the new channel migrated westward at roughly 0.9 ft per year; it has been stable since. The current channel lies 27 ft west of its 1973 position. The neighbor to the north, whose deed calls for the creek, has now fenced to the present water and claims to the thread of the run as it exists today.
1. Characterize the 1972 event and the 1980–2010 movement, and state which boundary rule governs each.
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Two different doctrines apply to two different events.
1972 - avulsion. A sudden, perceptible change in a single storm event. The boundary does not move. Title remains where it was immediately before the flood: the thread of the run of the old channel. The 60-ft neck that was severed and the abandoned bed keep the ownership they had - the Kerns still own up to the pre-1972 thread, and the neighbor owns the far half of the old bed.
1980–2010 - accretion. A gradual, imperceptible addition by the water. The boundary follows the water, so the Kerns' north line has moved 27 ft west with the bank, and the neighbor's south line has followed correspondingly on his side.
So the boundary is the thread of the 1972 pre-flood channel, plus the 27 ft of accretion, not the present thread. Documentary support comes from the 1971 and 1973 air photos; the abandoned channel scar, relic vegetation, and soil differences will confirm it on the ground.
2. The neighbor has built a fence to the present water and claims the entire strip between the 1972 thread and today's channel. Assess that claim.
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He can only take what the doctrines give him, and they give him little.
- Avulsed land is not gained. The 1972 avulsion transferred nothing. The strip between the old thread and the new channel on the Kerns' side is still the Kerns' - the water simply crosses it now. The neighbor's fenced enclosure of it is occupation, not title.
- Accretion runs the other way for him. His 27 ft of gain, if any, is on his own side of the new channel, not on the Kerns' side.
- A fence to the water is not a boundary. As with any uncalled-for occupation line, it is evidence relevant to adverse possession or boundary by agreement, not original survey evidence. Note the timing - enclosure from about 2010 is far short of the 20-year period, and possession of land under water or subject to flooding raises separate questions of what is capable of possession.
Deliverable: show the 1972 thread, the present thread, and the occupation line separately on the plat, with the avulsion and accretion annotated, and refer the title question to counsel.
3. Before you stake any line on the creek, what threshold question about the stream must be resolved, and how does the answer change your survey?
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Navigability. If Bear Creek was navigable in fact at the time of the grant, the State owns the bed, the riparian owner's boundary is the ordinary high-water mark, and the 1948 call to the "thread of the run" reaches no further than the OHWM. If it was non-navigable, the riparian owner holds to the thread and the deed call is effective as written.
Evidence to assemble:
- Historical accounts of commercial use, and any State or federal navigability determination.
- The stream's dimensions, gradient, and ordinary condition - a 30-ft slow coastal-plain stream with a long history of farm crossings suggests non-navigability, but that is an inference, not a finding.
- The 1948 deed itself and the chain back to the original grant, since navigability is tested as of the date of severance.
Effect on the survey: if navigability is unresolved, you must locate and show both the thread of the 1972 run and the ordinary high-water mark of the present and former channels, state the assumption underlying any line you compute, and make clear that the surveyor is not adjudicating title. Do not stake a single line and call it the boundary when the legal premise is unsettled.