Spring Creek Avulsion and the Deed Line
An owner holds Lot 8 in an unplatted 1978 subdivision by deed that calls for 'Lot 8, containing 38.5 acres, more or less, bounded on the south by the north bank of Spring Creek.' The 1978 surveyor's map shows the creek bank as the south line. In May 2019 a flood cut a new channel about 40 ft south of the old bank, leaving the former bank as a steep terrace. The adjoining owner has now fenced to the new channel and claims the strip, arguing that the deed follows the creek wherever it runs. You find a 1966 aerial photograph showing the old bank, two blazed oak witness trees on the old bank, and a 1998 survey by another licensee that also followed the old bank. The area to the new channel is 40.2 acres; to the old bank it is 38.6 acres. The client wants a survey and a recordable description before selling. A title company asks whether the boundary is 'settled.'
1. Characterize the movement of Spring Creek and determine where the boundary lies. Explain the legal and survey reasoning, including the effect of the deed's area call and the adjoiner's fence.
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The key distinction is avulsion versus accretion or erosion. The 2019 flood cut a new channel suddenly, leaving the old bank as a terrace; that is avulsion, not gradual erosion. Under the common-law rule applied in Oklahoma boundary practice, an avulsion does not move a boundary that is a natural monument. The deed calls to the north bank of Spring Creek, so the boundary remains the bank as it existed immediately before the 2019 flood. The area call of 38.5 acres is 'more or less' and yields to the monument call; the 38.6-acre area to the old bank corroborates that result, while the 40.2-acre area to the new channel does not control. The adjoiner's new fence is evidence of occupation, not title. It may support a claim of adverse possession or boundary by agreement if the statutory elements are met, but a surveyor cannot declare that result. The survey should show the old bank as the deed line, the new channel as a physical feature, and the discrepancy with the fence.
2. What evidence and procedures should you use to reestablish the old bank, and how should the result be shown and reported?
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Use the 1978 survey map as the primary record of the boundary as originally established, then corroborate it with the 1966 aerial photograph, the 1998 survey, and the blazed witness trees. Field-locate the blazes and tie them to the old bank; if the blazes are sound, they are strong evidence of the pre-flood bank location. Recover the old bank line by field evidence and, where the bank is obscured, by cross-sections and photo interpretation. Set durable reference monuments on the old bank line or on offsets that can be reestablished, and tie them to the client's and adjoiner's deed lines. Do not remove or rely solely on the new fence. Show both the old bank boundary and the new channel, label the avulsion, and state the basis for the old bank location. Report that the boundary is not 'settled' in the sense of a quitclaim or court determination; the surveyor can locate the deed line, but only the parties or a court can resolve the occupation claim.
3. Draft the operative boundary language for a new description, identifying any assumptions or qualifications.
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A defensible description would read: 'Beginning at the northwest corner of Lot 8 as shown on the 1978 survey by [surveyor], said point being [monument tie]; thence along the north bank of Spring Creek as it existed immediately before the May 2019 avulsion, the following courses and distances: ...; thence ... to the point of beginning, containing 38.6 acres, more or less.' The description should identify the old bank by reference to the 1978 map, the 1966 aerial, and the blazed witness trees, and should state that the 2019 channel is not the boundary. Include a qualification that the description locates the deed line only and is subject to any rights established by adverse possession, boundary agreement, or court order. Do not use the 40.2-acre area or the new fence as controlling calls.