    [From the U.S. Government Printing Office, www.gpo.gov]

                           ~~~~  * ~~~~~~~University of Wyoming                                           r.!i~fFIi
                e~~~~~.  ~~~~~~  ~~~~ ~College of Law                                                  'A1

                                                                                     A~~~P~\PR 08 1981y

    ~~ --~~~- ~~~                         REPRINTED FROM:                 LA   RVIEWNr/*:~-
    -~~~~~ ~~~~~ ~~VOLUME Xlii                                                      1978                    _____

                                          The ordinary high water line is typically defined as the boundary be-
                                     tween privately-owned riparian uplands and publicly-owned lands beneath
      ~~ *~~*~~~~--7~~~                    non-tidal navigable waters. Dean Maloney considers the definition of the or-
                                     dinary high water line, the question of whether federal common law controls
    ."~~ -~~ ~-  --'k-'- ~~the definition of the line, the use of the meander line as at! alternative hound-
        -                                 a~~~~~~~~~~ry, the necessity of an ambulatory line, and the question of whether a def-
                                     inition based on statistic~al averaging would be legally valid.

                                         THE ORDINARY HIG H WATER

                 _                       ~~MARK: ATTEMPTS AT SETTLIN G

                                      -AN UNSETTLED BOUNDARY LINE

                                                            Frank E. Maloney*

               ~~ ~~~                       .. ~~~~INTRODUCTION

                                        It would seem that something as basic to the determina-
                                   tion of property rights as the method for establishing the
                                   boundaries of laads bordering navigable inland waters would
                                   be more than well-settled in the law. In most states and in the
                                   federal system the ordinary high. water line' (0OHWL) is the
                                   boundary between privately-owned riparian uplands and pub..
                                   licly-owned sovereignty lands beneath non-tidal navigable

                      .'-~~~~~        Copyright�c 1978 by the University of Wyornin-,j
                                        *Professor of Law and Dean Emeritus, University of Florida Law. Center-, B.A.,
              ~~~'-  ~~~~~ ~1939, University of Toronto; J.D., 1942, University of Florida. Dean Malaoney is
                                         the Principal Investigator of the Water Resources Scientific Information Center of
          -~~~~~ ~~~~~ ~Competence in Eastern Water Law.
                                             The preparation of this article has been supported by the Department of Nat-
                                         ural Resources, State of Florida, and by the Office of Water Resources Research,
                                         United States Department of the Interior, as authorized under the Water Resources
                                         Research Act of 1954.
                                             The assistance of Brain D. E. Canter, J.D., 1977, University of Florida, is
          -                                    graL~~~~~~~~~pfully acknowledged.
       ~~Y~~~i'    ~~~~~ ~1. Most cases defining ordinary high water line or ordinary high water mar-I use the
                    ~~~~~ ~~~two terms interchangeably. Even though the word "1mark" seems to describe a
                                        point on the bank rather than a continuous line, most cases clearly recognize that
                                         Imark" or even "point" means "line" in this context. See, e.g., Tilden v. Smith,
                                         1ny3So." 70ty 712 (anha.ttan)A leachtv  ontelu  cas hal. sttd that the term ad 483,
          -�-~~~-~ s-~                         113 Sny ou." City 712 Manha.t92t.an Beachtv Conel cas Cal . stt d 653t 7he te.m are 483
                                         487 (1938). See generally 19A WORDS AND PffRASES 50 (1970); 30 WORDS AND
      ~~~   ~ ~ ~   -~~~~~ ~PHRASES 429 (1972); BLACK's LAW DiCTIONARY, 1763 (4th ed. 1951). For pur-
                                         poises of consistency, this article will use the term ordinary high water line (OIIWL)
                 ~~~~~~ ~~~~as inclusive of all other variants of wording.

                             ~~~-'~~~~~~~  ~~~4

    I~~~~~4r~~~~;tz
                         $.'~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~T1 01 -t*

                        -  2                      LAND AND WATER LAW REVIEW    Vol. XIII

                              waters.2 Ironically, the determination of the OI-WL is as con-
                              fused as it is important.

                                   The most significant aspect of the OHWL is its operation
                              as a boundary for purposes of title. It delineates the riparian
                              upland with its concomitant entitlement to certain rights not
    ~'~,~'~T"�~-~~~162            available to the public generally3 from the submerged bed
    ~ZO-~.~g                      owned by the sovereign4 and usually held in trust for public
                              use, enjoyment and protections  Additionally, the title to
                              lands below the OHWL is held subject to the paramount pow-
     FL-f~                         er of Congress to regulate commerce and navigation.6

    M;-~fr~:="~�~-~T~AST~-              The OHWL is not the only standard used to separate pub-
                              lic and private interests in navigable water bodies. A number
    ~}.?'~ -of states7 have chosen the line of ordinary low water' to ac-
                              complish this purpose. The low water line allows the riparian
    :/~5: dZ-U~                     owner a greater property interest and, where seasonal influ-
                              ences cause significant fluctuation in water elevation, would
    -~;g;r~=�~;~-s="~L-_           include title to the exposed  shore  as=ell.  In states recogniz-
                              ing the OHWL, any such exposed  -a between the OHWL
                              and the actual water level at the moment is part of the public
                              domain and the public may be allowed to travel along it or
                              even recreate there.9
                                 2. It is important to understand at the outset the scope of applicability of the OHVWL
        Sr~.- is ~definition. It applies to non-tidal, navigable water bodies, generally inland from the
                                    coast. It does not apply to inland non-navigable, and therefore privately-owned wa-
                                    ter bodies, although. it may have some relevance in that context where the extent
    L~'~?~Zg~5~ ~of surface usage of riparian owners must be defined. Cf., Diana Shooting Club v.
                                    Husting, 145 N.W. 816 (Wis. 1914); Duval v. Thomas, 114 So.2d 791 (Fla. 1959);
    .-,,-,5".-~. h                         Publix Super Market, Inc., v. Pearson, 315 So.2d 98 (Fla. 2d Dist. Ct. App. 1975).
                                 3. See generally TRELEASE, WATER LAW: RESOURCE USE AND ENVIRONMENTAL
    :r :.'~               '               PROTECTION 238456 (2d. 1974).
    '.:r:,a�                           4. The interests of the state in ownership and control of the bed, e.g., navigation, rec-
    -   .            �reation, conservation, are quite different from the traditional property interests of
                                     the individual upland owner. The distinction has taken on added significance since
                                     the case of Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973), which suggests that
                                     the nature and extent of sovereign ownership and control may be limited according
       "~:-~    .                         to the interests which the public actually has in maintaining title to the bed. In
                                     some situations, for example, sovereign ownership may be limited where the value
                                     of the bed is restricted to particularized public uses such as navigation and recrea-
                                     tion.
                                 5. Jllinois Central R.R. v. Illinois, 146 U.S. 387 (1892).
                                  6. Oklahoma v. Texas, 258 U.S. 574 (1922), appeal denied, 260 U.S. 711 (1922); The
                                   Abby Dodge, 223 U.S. 166 (1912); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).
                A                  ~~~~~7. Including Alabama, Delaware, Illinois, Indiana, Louisiana, Massachusetts, Mlinne-
                 F~~-;4~~               sota, Missouri, Montana, North Carolina, Pennsylvania, South Dakota, Tennessee,
             ; r~yT~ ~~~ ~Virginlia and West Virginia. See 78 AM.JURI 2d  Voater 386 (1975) for a compila-
            7.,5'''~~~   ~~~tion with case citations.
                                  8. The ordinary low water mark may be defined to be the usual and common or ordi-
                                     nary stage of the river, when the volume of water is not increased by rains or fresh-
                                     ets, nor diminished below such usual stage or volume by long continued drouth, to
                                   extreme low water mark. Nance v. Womack, 2 Shannon's Cases 202 (Tenn. 1877).
                                  9. Some jurisdictions, however, have denied public use of the shore on the theory that
                                     it interferred with the riparian owner's "exclusive privileges." See, e.g., Doeml v.
                                     Jantz, 180 Wis. 225, 193 N.W. 393 (1923), criticized in Waite. Public Rights to Use

    . . e- : , diT

       ::.                                                                                      4.'4.  =_
            _:-____- ~a-z;t<,:~~ %--~.-, ,~z:-.~ i;S.%*-..:>   ~fz~Tc~  ~5'2,,- t:': - 'cs5 Z~ .~, -_ iF$?                           aT
          %'�: :.~   '.~12 '~'.~.t~.' : '_ '~  a~.+& ?2~:- %7~'=-~,;2'; d-::v   ::  T- :<: :,".?.'~ .~  .~.-~)C..--4-~   .z5-Z-'d�' '":Z': :-/~_-:

            . ,.~.~-:: %      ~       1978           ORDINARY HIGH WATER MARK                         3

                                           It should also be noted that there are lands within the
                                      United States which were acquired from Mexico and Spain
                                      and which included submerged lands under navigable waters
              2;-.~~.~.:J~  ~previously conveyed to private ownership. The general rule is
                                      that the foreign law in force at the time of the grant will gov-
                                       ern the area, nature and extent of such conveyances."0  In
                                       other words, a valid grant of title to submerged lands into pri-
                                       vate ownership before such lands were ceded to the United
              ~   L_%i~i~.-~/        States would be preserved," thereby preventing the acquisi-
          ~';5~;4~-3-/~-~%7~tion of title by the state through operation of the equal foot-
                   A i m~'-~L~~~      ing doctrine which granted to new states the same "right, sov-
                                       ereignty, and jurisdiction . . . as the original states possess
                                       within their respective borders",12 including title to lands un-
                                       der navigable waters.
                     _'___'': .  ~The  OHWIJ  should be clearly distinguished from the
          ~.--'~:~'-~~j? _  ~mean high tide line of waters subject to tidal influence.1 The
          Q::,je.-?~rf-~:~            primary distinction is that the latter is determined through a
                          :.~ ~      ~ ~ ~statistical averaging technique"  while the former is generally
                                      ascertainable by reference to the physical characteristics of
                   ~/~ ~  ~~~         the banks and bed of the water body.15 The leading defini-
                                       tiofn of the OHWL emphasizes the actual, physical nature of
             ~ --~~~~' ~~ ~          the line.
                                           This line is to be found by examining the bed and
                                           banks and ascertaining where the presence and action
            &CW4:"~:-~ ~_.>."of waters are so common and usual and so long con-
                                           tinued in all ordinary years, as to mark upon the soil
                                           of the bed a character distinct from that of the banks,
                                           in respect to vegetation, as well as in respect to the
               ~7~W~:~.C,~               ~ nature of the soil itself.16

                                       Thus, the determination of the OHWL depends in large part
                                       upon several factors which are physical characteristics of the
                                            and lHave Access to Navuigable Waters. 1958 WIS. L. REV. 335, 371-74. See general-
                                            ly MALONEY, PLAGER & BALDWRN, WATER LAWY AND ADMINISTRATION Chs. 4-5
                                            (1967).
              ?ZX~~~~~ ~~~ ~10. See Hill, Spanish and Mexican Land Grants Between the Nueces and Rio Grande, 5
                                            S. TEX. L.J. 47 (1960).
                                        11. Knight v. United Land Ass'n, 142 U.S. 161 (1891); State v. Grubstake Inv. Ass'n,
                                            117 Tex. 53. 297 S.W. 202 (1927); Apalachicola Land & Development Co. v. Mc-
                                            Rae, 86 Fla. 393,98 So. 505 (1923).
    X~~'f',::   $.-~--;'-fz-_~          12. Mumrnford v. Wardwell, 73 U.S. (6 Wall.) 423, 436 (1867); Pollard's Lessee v. Hagan,
                         __i: 0         13. ~44 U.S. (3 Hlow.) 212 (1845).
         ~:.~.~r, _ ~",~:.  [-13. See generally Maloney & Ausness, The Use and Legal Significance of the Mean High
                                            Water Line in Coastal Boundary Mapping, 53 N.C.L. REV. 185 (1975) [hereinafter
                ~'~J~  :~..i,.<."~iJ=-%.~.  cited as Coastal Boundary MAapping].
                                         14. Id. at 195-98.
                                        15, Willis v.  United States, 50 F. Supp. 99 (S.D. W.Va. 1943); Kelly's Creek & North-
                                            western R.R. Co. v. United States, 100 Ct. Cl. 396 (1943).
      A t._~-'.~-:':f ' -_.--          16. Howard v. Ingersoll, 54 U.S. 381, 427 (1851) (Concurring Op. of Curtis, J.).

           54E...?/,-m"

                     i-
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      ' -'-jFP~:6X;~-             4             LAND AND WATER LAW REVIEW             Vol. XIII

         !- -4-//,. '~ 5~y~ ~-~obed and banks.'7 The efficacy of the determination depends
                                   upon how closely these physical indicators correlate with the
                                   common and ordinary level of the water.

                                       Three recent cases from the United States Supreme
                                   Court'8 provide the major impetus for this article. These cases
                                   raise questions regarding traditional legal theory associatedT'
                                   with the OHWL and the role of the state and federal courts-
                                   in its determination. In order to cover these questions as fully-
       '"':C'3-~-~  '--~-.Y.:2. ~~_~as possible, this article will address what the author considers
                                   to be the most critical points: the definition of the OHWL,
                                   the question of whether federal common law controls the
    ________Y ~-..~~ ~~~~definition of the line, the use of the meander line as an al-
                                   ternative boundary, the necessity of an ambulatory line, and
                                   the question of whether a definition based on statistical aver-
                                   aging would be legally valid.

                                        DEFINITION OF THE ORDINARY HIGH WATER LINE

                                       The source of the modern definition of the OHWL is the
       __'"~~~~ ~:~~F~�f~4I,~~    leading case of Howard v. Ingersoll. At issue was the mean-
                                   ing of a call in a deed conveying land from Georgia to the
                                   United States, which land later became part of the State of
                                   Alabama. The boundary was described as running up the
                                   western bank of the Chattahooche River.20 The three opinions
                                   rendered in the case do little, however, to establish a clear
                                   definition.
                                       Mr. Justice Wayne speaking for the majority construed
                                   the language of the call to mean the "water line impressed
                                   upon the bank."2' But, rather than clarifying his definition,
                                   his explanation was confusing and tended toward what with
                                   hindsight we would call over-breadth.

                                       When banks of rivers were spoken of, those boundaries
                                       were meant which contain their waters at their high-
                                       est flow.... [The line] neither takes in overflowed
                                       land beyond the bank, nor includes swamps or low
                                     17. See text accompanying notes 28 to 35. infra.
                                     18. Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co. 'U.S.  97 S.Ct.
                                        582 (1977); Utah v. United States, 425 U.S. 948 (1976), for full text see Report
                                        of Special Master reproduced in 1976 UTAH L. REV. 245; Bonelli Cattle Co. v.
          ~-'~'-~'~'~' ~ t~~~~~ '~ ~"~ ~-Arizona, 414 U.S 313 (1973).
                                     19. 54 U.S. 381 (1851).
                                     20. Id., at 397.
                                     21. Id.. at 415.

              � rrmrh~A, cVO;rr=-~jlpa.~_� . -" .  '- I,~r~ L"' -.:,-, - ,--jI~."'~..,,      ._

                                  1978         ORDINARY HIGH WATER MARK                      5

                                      grounds liable to be overflowed, but reclaimed for
                                      meadows or agriculture..   Such a line may be found
                                      upon every river, from its source to its mouth. It re-
                                      quires no scientific exploration to find or mark it out.
                                      The eye traces it in going either up or down a river, in
                                      any stage of water.22

                                  The main problem with this version is that it apparently con-
      i- :,,~.~..-. Y.~.~        templates drawing the line at the "highest flow" or stage of
                                  the river.

                                      In a concurring opinion, Mr. Justice Nelson brought thi~
      ~'-'~:~e~:'_.~5.~- 1-~.~   line closer to the normal or ordinary stage of the river.

                                       [T] he true boundary line.  . is the line marked by
    ' _:,~    ~                      the permanent bed of the river by the flow of the wa-
                                       ter at its usual and accustomed stage, and where the
                                       water will be found at all times in the season except
                                       when diminished by drought or swollen by freshets.
                                       This line will be found marked along its borders by
      -?,k,?Z   ~:~._~               the almost constant presence and abrasion of the wa-
                                       ters against the bank. It is always manifest to the eye
                                       of any observer upon a river, and is marked in a way
                                       not to be mistaken?21

                                   Although this was generally more accurate, the idea that the
                                   line is "always manifest" is over-simplistic, especially where
                                   property rights are involved. It was left to the final concur-
    z.~.                          rence to develop a more practical and usable definition.

                                       Mr. Justice Curtis emphasized the importance of a line
                                   which would "promote the convenience and advantage of the
                                   parties" rather than any fixed line on the bank. To this end
                                   he defined the line by reference to several ascertainable phy-
                                   sical characteristics of the bank.24

                                       banks, and ascertaining where the presence and action
                                       of water are so common and usual and so long con-
                                       tinmed in all ordinary years, as to mark upon the soil
                                       of the bed a character distinct from that of the banks,
                                       in respect to vegetation, as well as in respect to the
                                       nature of the soil itself. Whether this line    will be
                                    22. Id., at 415-16.
                                    23.  Id., at 424.
              ~_T~?,~:-'~c~-, ~_-,~-~  24. Id., at 427. It should be noted that Justice Curtis was here also referring to the
      %z?._~.~]~%~:w~. ~c-.-=-~:a-~    legal rule for interpretation of the language of the deed in the absence of the clear
                   h:'.M~-'~'- _ z~~'2- 4~_v.intent of the parties.

                                                  .r~-~e~'~' '&~-2   . :-~--'~

                     7S  Z6             LAND AND WATER LAW REVIEW    Vol. XIII

                          found above or below, or at a middle stage of water
                          must depend upon the character of the stream.25
                      Although the opinion speaks mainly of differences in the soil,
                      and  the  manner  in  which  vegetation2s  relates  to  this differ-
                      ence, later cases27 have distilled out soils and vegetation as
                      well as other related factors for more distinct treatment.
                          Before discussing those cases, it is helpful to delineate the
                     factors more fully.2 It is important to note that unlike the
                      mean high water mark of tidal waters,29 the OHWL refers to
                      an observable physical mark caused by the action of water
                      upon the banks.0 The OHWL represents the point at which
                      the water prevents the growth of terrestrial vegetatiorf.31 The
                      Curtis opinion pointed out that this test does not require the
                      absence of all vegetation, but only of terrestrial vegetation.  2
                      Obviously, a vegetation line may mark the division between
                      land-based and aquatic plant species. Another aspect of the
                      vegetation test emphasized by Justice Wayne is that it should
                      exclude from the bed land which is fit for agricultural pur-
                      poses.3  Probably more useful tlt  the vegetation test in
                      most areas is the soil test.4 .The (OWL represents the point
                      at which the character of the soil of the bank differs from
                      that of the upland. This includes surface markings, such as
                      -erosion, shelving and  litter,35 as well as sub-surface  geological
                      characteristics.
                       25. Id.
                       26. The opinion emphasizes that the water may not necessarily denude the bed of vege.
                           tation, but that aquatic vegetation may exist there. The test requires an absence of
                           terrestrial vegetation. Id.. at 428.
                       27. The subsequent decision of Alabama v. Georgia, 64 U.S. (23 How.) 505 (1860), in-
                           volving the same boundary as in Howard v. Ingersoll attempted to clarify the defi-
                           nition. "[T]he bed of the river is that portion of its soil which is alternately cov-
                           ered and left bare, as there may be an increase or diminution in supply of water.
                           and which is adequate to contain it at its average and mean stage during the entire
                           year, without reference to the extra-ordinary freshets of the winter and spring, or
                           the extreme droughts of the summer or autumn." Id. at 515. As to the validity of
                           averaging to determine the OHWVL, see the text accompanying notes 174 to 204.
                       28. Beyond their apparvt legal significance, these factors have a great deal of impor-
                           tance with regard to the surveying effort. The convenience and accuracy of surveys
                           of the OHWL should be kept in mind in order to appreciate the utility, or lack
                           thereof, of the various factors.
                       29, See, Coastal Boundary Alapping, supra note 13, at 195-8.
                       30. See note 15, supra.
                       31. See note 26,supra; Hayes v: State, 496 S.WV.2d 372 (Ark. 1973).
                       32.  Howard v. Ingersoll, supra note 19, at 428.
                       33. Id., at 415416.
                        34. See Borough of Ford City v. United States, 345 F.2d 645, 648 (3d Cir. 1965), cert.
                            denied, 382 U.S. 902. "The vegetation test is useful where there is no clear, natural
                            line impressed on the bank. If there is a clear line, as shown by erosion, and other
                            easily recognized characteristics such as shelving, change in the character of the
                            soil, destruction of terrestrial vegetation, and litter, it determines the line of ordi-
                            nary high water .... These are not really two separate tests but must, of necessity,
                            complement each other."
                        35. Id.

    x~~~~~~~~~~~~~-. ~ ~ ~ ~  ~        ~       ~       ~       FNE
      ~~~~~s~~~~~~~~f  ~~~~.;an~ebr

                                    1978            ORDINARY I-IGH WATER MARK                            7

                                         1  The federal cases defining OHWL after Howard often in-
                                    volve the question of navigable servitude,36 rather than the
                                    physical limits of ownership. Under federal law, the bed be-
                                    neath navigable waters is subject to an easement or servitude
                                    in behalf of the government to maintain or improve navigabil-
    ~-~L~%- ,~.~                     ity.37 Often-cited dictum in the opinion of Harrison vu. Fite 3
                                    adopts the Howard definition for OHWL and applies it to the
                                    question of the limit of the government's navigable servitude.

                                         The bed of the river is that soil so usually covered by
                                         water that it is wrested from vegetation and its value
                                         for agricultural purposes is destroyed. It is the land
    __ ~;4~_~--~-~<q'                    upon which the. waters have visibly asserted their do-
        , ~-iki    ?                     minion, and does not extend to or include that upon
                                         which grasses, shrubs, and trees grow, though covered
                                         by the great annual rises."

                                    Thus, the orientation of the Ctirtis opinion toward the ascer-
                                    tainment  of physical  factors was  ultimately adopted  and
                                    strengthened .40

                                         Recent cases demonstrate some of the potential pitfalls in
                                    applying this OHWL  definition. In Borough of. Ford City v.
                                     United States4" the question of damages caused to the city's
                                    gravity-flow sewerage system by the construction of a dam
                                     on the Allegheny River by the United States raised the issue
    ~-, ~- S~-~'~ T~-~T~seu -.-of the location of the OHWL before construction of the dam.
    ~.~. :~_ ~_~_.. ..-~ .-:-~v~rThe District Court adopted the findings of Ford City's witness
                                    who  used the vegetation test exclusively, and appeared to
                                    ignore three government witnesses who considered shelving,
             :_.~.,~.:~..   _,.o~.~  erosion and litter, as well as vegetation, in setting the OH\WL
                                      36. See generally Martz, The Role of the Federal Government in State Water Law, 5
                                          KAN. L. REV. 626 (1957); Sato, Water Resources Comments Upon the Federal-
                                         State Relationship, 48 CAL. L. REV. 43 (1960); Trelease, Federal Limitations on
    ~' ~--~- ~,z~-~- ....... State Water Law, 10 BUFFALO L. REV. 399 (1961).
     =__,,,..:.A,' ~z                 37. The case of United States v. Chicago, M., St. P. P. R.R. Co., 312 U.S. 592 (1941)
    ,..~..   =. ~;~'~ ~.~ ~'~             embodies the several principles of the servitude. It extends to the OHWVL of a nav-
             ~4;~4~'~:~-    igable stream. The bed is subject to the servitude regardless of who owns the bed.
       ~- ,~:':~'.:~L.--....~;t~ .--v=-yand the government may take the land below the OH\VL without payment of
                                         compensation. If lands above the OHWVL are taken, however, the owner of such up-
                                          lands must receive just compensation. United States v. Kansas City Life Ins. Co..
        .-~.._-,                          339 U.S. 799 (1950). But no compensation need be paid where the rights taken are
    --~"~'~'-~._ :~.-~e,,> -. ~.~~~ ~     dependent on or derive their values from the flow of navigable waters, since owner-
                                          ship of the flow is already in the public. United States v. Virginia Elec. & Power
     ',~k4f             . ~ .~-~;~        Co., 365 U.S. 624 (1961). See also United States v. Commodore Park, Inc., 324
             ~~~~~~~ ~.;',~,~~.U.S. 386,390 (1945).
                                      38. 14S F. 781 (Bth Cir. 1906).
                                      39. The opinion cites a state court which follows Howard v. Ingersoll in this respect.
              ;2 ,~.k~,'~.~.~. ~.~ ~-~   ~Id., at 783.
                                      40. See also Paine Lumber Co. v. United States, 55 F. 854,865 (E.D. Wis. 1893) (emra
                                          phasizing the usefulness for agricultural purposes in charge to the jury).
                                      41. 345 F.2d 645 (3d Cir. 1965), cert. dented, 382 U.S. 902 (1965).

    And       ' S s

              ~ 8           LAND AND WATER LAW REViW               Vol. XIII

              at a somewhat higher point." According to the Court of Ap-
              peals, the initial problem was that the City's witness failed to
              consider at what point the soil could not be used for agricul-
              tural purposes while at least one government witness did.?3 In
              applying the vegetation test of Harrison v. Fite, the court em-
              phasized one aspect.

                  What the river or action of the water actually destroys
                  is the value of its soil for agricultural purposes. The
                  difference [between this and the general absence of
                  vegetation test] is vital here and generally and is read-
                  ily discernible. It is merely a question of using the
                  proper norm."

              The court apparently did not recognize the practical difficul-
              ties inherent in a judgement of the "value for agricultural
              purposes" of a given tract of land.45 Fortunately, this appar-
              ent overemphasis of one aspect of the basic test has not been
              strictly followed by later courts.

                  The case of Snake River Ranch_.-.Jnited States46 demon-
              strates the difficulty in applying an-ne test of OHWL to all
              navigable rivers in the country.47 The court- held in a quiet
              title action by a private landowner, the Government had not
              sustained its burden of proof in attempting to show gross
              fraud or error in a meander line survey in that the meander
              line was so divergent from the actual water boundary as to
              manifest an intent not to delineate a water boundary." The
              difficulty was in the nature of the Snake River. Specifically,

                  [It] is characterized as braided, and has multiple in-
                  terlacing flow patterns, during low periods, around
                  alluvial lands within its channel. The braiding is caused
                  by the carrying of a large sediment load on a steep
                  gradient at high velocity, eight feet per second in the
                  vicinity of the Snake River Ranch, which has result-
                  ed in the formation of a wide, shallow channel with
                  either no clearly apparent thalweg . . .49 at a given
                  p-6int in time or a shifting thalweg over time.5"
               42. Id. at 649-50.
               43. Id. at 649.
               44. Id. at 651
                45. This is the type of judgment which would be difficult for a surveyor to make, for
                   example.,
               46. 395 F. Supp. 886 (D. Wyo. 1975).
                47. See also Motl v. Boyd, 286 S.W. 458. 469-70 (Tex. 1926).
                48. Snake River Ranch v. United States, supra note 46, at 900.
                49. This is defined as the point of deepest and most rapid flow. Id. at 893.
                50. Id.

                  ~~~~ ~~~~~~~ ~~~~~~  ~ ~ ~ ~ ~ e
    ~~~~  z;~~~~~~~~~~~~~  ,~~~~~~~~~~ ~~~~~~~  ~ ~ ~ ~ ~ ~ ~   ~~~~~~~    C~~~~~~~~~C~~~~~~~5C    C   '-~~~~~~~~~~~~~~~~~~~~~~~~~ '~~~-e

                                      1978         ORDLNARY IIGH .ANVATER  lARK                 9

              ~:~~    4i:;-:-.k'J. '   _-The court recognized the necessity for a departure from the
                                      traditional definition of OHWL in such a situation.

                                          The "mean high water mark" of the banks of the
                                          main channel, while properly defined as the point of
              ,v2::i !_%~-X?~.-- ~      separation between surrounding vegetation and the
                                          water is more appropriately characterized on the
                                          Snake River as the outer boundaries of the braided
                                          channel that carries water during the substantial part
                                          of the snowmelt high-flow period from May to Sep-
             ?B~"~_4~.~_~,~.~_~'s�'i~yT Utember of most years.51

                                      The court apparently felt it was necessary to look beyond the
          ..A pt.:~ : .~z~_~;~       definition to the practicalities of the situation. Clearly, the
                                      reasonable expectations of landowners would be that the
                                      boundary extends to the spring limits of the bank. Further,
                                      the public interest in the maintenance of navigability by the
                                      sovereign owner of the bed favors such a result.

                                          The case of Goose Creek Hunting Club, Inc. v. United
                                      States52 provides a final illustration of the application of the
                                      OHWL definition in the federal courts. The United States had
                                      constructed a dam on a navigable stream which was two wa-
                                      terbodies downstream from the plaintiff's land. That is, water
                                      in the non-navigable stream on which the plaintiff's tract bor-
                                      dered flowed into a navigable stream that in turn flowed into
                                      the stream upon which the dam was constructed.53 The result
                                      was the permanent flooding of 110 acres of the plaintiff's
                                      land which had previously been flooded only during the wet
                                      season.54 The court noted that the OHWL had been defined
                                      in various ways by the federal courts:55

                                           El .g., as the line where that water stands sufficiently
                                          long to destroy vegetation below it .  .,4 or, the line
                                          below which the soil is so usually covered by water
                                          that it is wrested from vegetation and its value for
                                          agricultural purposes destroyed .  .;57 or as the line
    ri~l",,�-~~:.~~::-V                  below which the waters have so visibly asserted their
                                          domain that terrestrial plant life ceases to grow and,
                                        51. Id. at 893. This case is a good one to demonstrate the types of factual analyses that
                                         . are necessary to determine the OHWL using physical characteristics as determninants.
                                        52. 518 F.2d 579 (Ct. Cl. 1975).
                 2.~~ ,~r-'.~~:,;.:   ~53. Id. at 581-82.
                                        54. Id. at 581.
                           .-: .''    -.:55.  Id. at 583.
    A';'~.-'2> ~ ~L-~--~4P-~--~2?~-~2~.4~:.~we  56. Citing Kelly's Creek & Northwestern R.R. v. United States, 100 Ct. Cl. 396, 406
               ~,t""�s~-~-~.~s~f~"'-~'~; 57. (1943).
                                        .57 Citing Harrison v. Fite, 148 F. 781, 783 (8th Cir. 1906).

          ,_ -S *'-'-� cs ;-":
                 ~~~~~~r
    ,~=-'>f-~�~i~i: ~ ;�~~s
      '� 't''i                                        _ _ _ _ _  _  _ _ _ _ _

                        a r m'~=~- 4     10            LAND AND WATER LAW REVIEW                 Vol. XIII

                                              therefore, the value for agricultural purposes is des-
           h~ ~f6--~'~�~~ ~troyed  ..;.  or as the line below which the soil is
                                              kept practically bare of vegetation by the wash of the
                                              waters of the river from year to year in their onward
                                              course.5 9

                                          Yet whatever differences the court discerned in these defini-
                                          tions, by any of them the land in question was above the
                                          OHWL60 and not subject to the navigational servitude of the'
                                           government.61  In particular the opinion noted that the land
                                          was "covered with good grass during the dry season" and-
                                          contained several species of terrestrial trees, among them wil-
                                          lows, bitter pecan, and overcup oak trees.62 The court gave-
                                          the plaintiff a judgement for damages for the property tak-
                                          en.

    ___-1 =~-~                                A number of state courts64 have put their stamp of approval
                                          upon the traditional definition of the OHWL. One of the
                                          leading cases is Diana Shooting Club v. Husting,65 where the
                                          owner of the upland66 sued a hunter who had rowed his boat
                                          into the wild aquatic vegetation at the edge of a navigable
                                          river. The court adopted a fairly bro0definition of OHWL:

                    ~-~ _ :;5~                By ordinary high water mark is meant the point on
                  __N                         the bank or shore up to which the presence and ac-
              ';____ ;~.~.~tion of the water is so continuous as to leave a distinct
                                              mark either by erosion, destruction of terrestrial vege-
        ..... :=- _.. ~;-~                    tation, or other easily recognized characteristic.67

                                          The definition was held to apply whether the waters be deep
                                          or shallow, clear or covered with vegetation,6s and in this case
                                          to preclude the trespass action.

        V._~, A -~,~?t~_=~2-:~_~[  .~:.     58. Citing Borough of Ford City v. United States, 345 F.2d 645, 648 (3d Cir. 1965),
                                               cert. denied, 382 U.S. 902 (1965).
               :K.?~'~_~?.'?~--- -s- ~59. Citing Oklahoma v. Texas, 260 U.S. 606,632 (1923).
                       ~,~.,~-f�,:~_~i.:.,  60. 518 F.2d at 583-84.
                                            61. Id. at 583.
                 :~_:~*.5~.: ,~..~.~.~~ ~62. Id. at 584.
                                            63. Id. On its demands for the determination of damages the court made a very inter-
                                               esting determination. It held that since 49 acres of land above the 110 which were
      :V*,~.-t'~.a:"-"-' 'fab,~?.~?~?          clearly inundated would be "permanently damaged" because of the raised water
              e~,~~~~~..~,~,~�~[�~-~ ~;_~%--table, damages, would lie for these acres as well.
                                            64. See, e.g., Tilden v. Smith, 113 So. 708 (Fla. 1927); Sun Dial Ranch v. May Land
                       c:A2'./4: <,_' s=  ~"~;Co., 119 P. 758 (Ore. 1912), which quoted 2 FARNHAM, WATER AND WATER
                                                RIGHTS � 417 for the traditional definition taken from Howard v. Ingersoll.
                                            65. 145 N.W. 816 (Wis. 1914).
    �2-, " :   e ?-:66. Here the owner of the upland also had a valid exclusive lease of the bed of the river
                                                in the area of the alleged trespass. In Wisconsin the beds of navigable rivers are pri-
                                               vately owned subject to the public right of navigation and rights incident thereto.
                                            67. Id. at 820.
                                            68.  Id.                           .

                                    A; .         ' -..
                         w~~~~~~~~~~~~~~~~~~~~~~~~~~~"',

                                           1978          ORDLNARY HIGH WATER MARK                     11

                                               It is important to note that it would be impractical and
                      ..:~:~<,~_:~ ~,~   unrealistic to 'strictly apply the OHWL definition where the
                                           situation calls for some departure. The state courts have fol-
           ~'~T-~. ?4~.4ff~:~z~at~      lowed the lead of the Snake River Ranch court in the avoid-
                                           ance of ridiculous results through flexible application of the
                                           definition. Certainly the presence or absence of vegetation is
            ;~:~    .....,t'     ...:-:  not always conclusive. The Iowa Supreme Court stated in
     ~:~;-~-~-7~'-~-J~'~~.~-~~State v. Sorenson,69 for example, that large trees may some-
                  ~j._ ~.~ _~:f ~_e~-~ '  times continue to grow although covered with water at their
                                          bottoms for some period. The court relied on the testimony
                                           of a botany expert that trees of the size and character involved
                          j-::->~  .... could easily have gained a foothold and grown below the
             ~w.~;:'''....> ?._        QOHWL notwithstanding the fact that small vegetation could
                                           not grow there.7  This and other cases71 imply the converse
                                          as well. That is, even where aquatic vegetation is found some
                                           distance inland, in marshland or other poorly drained areas,
                                           for example, the finding of a realistic OHWL should not be
                                           upset.

                                               As noted above, most state courts addressing the prob-
                                           lem72 have simply adopted word for word the definition of
                                           Justice Curtis in Howard v. Ingersoll. State v. Bonelli Cattle
                                           Co.,73 a case which was reversed on other grounds74 which
                                          will be discussed later,75 conforms to this pattern. In holding
                                           that the state rule regarding avulsion applied to vest in Arizona
                                           title to land exposed as a result of a federal channelization
    '   A~       ~7;V~                 project, the opinion adopted the Curtis statement of the def-
                                           inition.76 In addition the court attempted a clarification.

                                               [Ordinary high-water mark] is not the line reached
                                               by unusual floods, but it is the line to which high wva-
                                               ter ordinarily reaches. "High-water mark" means what
       __~_,-~~=~'- :._ ~'~.'~C~            its language imports-a water mark. It is co-ordinate
                                               with the limit of the bed of the water, and that only
                                               is to be considered the bed which the water occupies
                                               sufficiently long and continuously to wrest it from
              g; r---                    69. 271 N.V. 234 (Iowa 1937).
                  ..,-~_~ ~L -~ '-~ f.~~-70. d. at 236.7.
                                            71. See, e.g., Hayes v. State, 496 S.W. 2d 372 (Ark. 1973).
                        \-j .-~,~":x:: ,it--~-:.%-  72. This article does not purport to analyze even a small fraction of these state court
                                                cases. Particularly instructive are the recent decisions in Belmont v. Umpqua Sand
      tte.-~-'~_  .'~ ~?:_~~,.~             and Gravel, Inc.. 542 P.2d 884 (Ore. 1975); Hayes v. State. 496 S.W.2d 372 (Ark.
              :g. �~-~,~2.~ _.. :~i,.a.~-'C:.>  1973); Dep't of Nat. Resources v. Pankratz 538 P.2d 984 (Alas. 1975).
                                            73. 108 Ariz. 258,495 P.2d 1312 (1972).
                                            74. Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973).
        ._, .2~.~.2.~~-~c': ,            75. See text accompanying notes 96 to 107 infra.
                                            76. State v. Bonelli Cattle Co., supra note 73, at 1314.

    .- a,                                                                         - a -.     - -
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                  12            LAND AND WATER LAW REVIEW              Vol. XIII

                     vegetation, and destroy its value for agricultural pur-
                     poses.7
                  This emphasis on physical markings has been reinforced by
                  usage in other state courts. In Florida, the OHWL was ex-
                  pressly defined in Tilden v. Smith,78 adopting language from a
                  Minnesota opinion, Carpenter v. Hennepin County."

                       [The] high-water mark, as a line between a riparian
                      owner and the public, is to be determined by examin-_
                      ing the bed and banks, and ascertaining where t.e
                      presence and action of the water are so common ait/
                      usual, and so long continued in all ordinary years, as
                       to mark upon the soil of the bed a character distinct
                      from that of the banks, in respect to vegetation, as
                      well as respects the nature of the soil itself. "High-
                       water mark" means what its language imports-a wa-
                      ter mark 80

                  Thus, it appears that most state definitions conform substan-
                  tially with each other and federal ladn the definition of the
                  OHWL.

                          DOES FEDERAL COMMON LAW CONTROL THE
                                    DEFINITION OF THE OWHL?

                       It appears from the previous discussion that the federal
                   and state definitions of OHWL are all derived from the same
                   source and, thus, are substantially the same. However, the
                   question of whether federal common law controls is an im-
                   portant one for several reasons. Under some circumstances
                   the state might think it desirable to fix the line relative to
                   some point in time.8  Moreover, the definition of OHWL
                   carries with it a number of corollary property concepts relat-
                   ed to accretion, reliction and avulsion. If the federal courts
                   retain jurisdiction over these matters in all cases, it would
                   mean that the extent of basic property rights, traditionally
                   left to the states for determination, would be litigated at the
                   federal level.82 Although these substantive issues are dis-
                    77. id.
                    78 113 So. 708 (Fla. 1927). It should be noted that the Tilden court was not called
                        upon to define the limits of sovereignty lands. However, it is fairly clear that the
                        definition given was intended to cover title questions as well. Id. at 711.
                    79. 56 Minn. 513, 58 N.W. 295 (189.)
                    80. Tilden v. Smith,supra note 78. nat 712 (emphasis in original).
                    81. See, e.g.. FLA. STAT.  253.151 (3) (a) (1975);: State v. Florida National Properties,
                        Inc.. 338 So.2d 13 (Fla. 19761: United States v. Washington, 294 F.2d 830 (9th
                        Cir. 1961), cert. denied, 369 U.S. 817 (1962).
                    82. See generally Note, Artificif Additions to Riparian Land: Accretion. 14 ARIZ. L.

              .-~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~7

    _  ~~~~~~~~~~~~~~~~~~~~~~~satr

                                1978          ORDLNARY HIGH WATER MARK                     13

                                cussed later in this article,83 it is necessary at the threshold
                                to attempt to' delineate the circumstances under which federal
                                law has been held to control their determination. Obviously,
                                if the federal definition controls, the question of what the
                                states can do to clarify their own definitions is wholly aca-
                                demic.84
                                    The landmark case of Borax Consolidated, Ltd. u. Los
                                Angeles85 set forth the rule that federal law would apply to
                                determine tidal boundaries where a federal question was in-
                                volved. In that case the upland owner, Borax, received title
                                through a federal patent to its predecessors. As to whether
                                this situation called for the application of federal common
                                law the Supreme Court declared:

                                    The question as to the extent of this federal grant,
                                    that is, as to the limit of the land conveyed, or the
                                    boundary between the upland and the tideland, is
                                    necessarily a federal question. It is a question which
                                    concerns the validity and effect of an act done by the
                                    United States; it involves the ascertainment of the es-
                                    sential basis of a right asserted under federal law.86

                                This principle was subsequently applied to accretion in the
                                Washington and Hughes cases discussed below.

                                    United States v. Washington8  concerned the ownership
                                of accretions to littoral land owned by the federal'govern-
                                ment along the coast of Washington. The primary issue was
                                whether state or federal law applied. It was argued that fed-
                                eral law followed the common law position and recognized
                .i~.~z~_~-     the ambulatory nature of tidal boundaries. Under state law,
                                however, the boundary was fixed as of the date of statehood,
                                and subsequent accretions were owned by the state rather
                                than the littoral owner.
                                    The federal court of appeals, reversing the trial court,
                                held that the Borax case was controlling and declared that,
                                     REV-.315 (1972); Comment, Federal Common Law Determines Ownership of Re
                                     Exposed 'auvigable River Beds, 50 WASH. L. REV. 777 (1975); Young, Riparnan
    F~f~:            ,3." !;.~--~_]  Owner, Not State. Owns Bed Deserted by River, 60 A.B.A.J. 221 (1974).
                                 83. See the discussion regarding "The Necessity of an Ambulatory Line" beginning at
                                     p. 29, infra..
      God~"~                    84. The Florida National Properties case, infra, which declared Florida's boundary stat-
                                     ute unconstitutional, illustrates this point. See text at page   for an analysts of
                                     the present status of this opinion.
            God    ~   - ~~~~   85. 296 U.S. 10 (1935).
                                 86. Id. at 22.
              ;L>$.^;3-s~ ~87. 294 F.2d 830 (9th Cir. 1961), cert. denied. 369 U.S. 817 (1962).

                          ,P~p~�;-~�~:~-~E~,�"             L
                                                                        ~sr         ~       Pr~-n�~-��~,"IM

    ~ig~t~si~�t-~;~ ~14                 LAND AND WATER LAW REVIEW             Vol. XIII

    m1.~3~                accordingly, federal law would prevail over state law. The
    -� LT~t   �Zzi        court stated that, while Borax had not been directly concerned
    Mi~ '~~with accretion, the principle of that case is equally applicable
                         because accretion is an attribute of title and "the determina-
                         tion of the attributes of an underlying federal title, quite as
    /,~'-'-~~;            much as the determination of the boundaries of the land re"-
                         served or acquired under such a title, 'involves the ascertain-
                          ment of the essential basis of a right asserted under federal
    -'~--.                law.' s88

    X.~                       The rule in the Washington case was reaffirmed several
                         years later by the Supreme Court in Hughes v. Washington. s
                         The issue involved whether the plaintiff, successor in title to
    ~%7-'.~ ~an original federal grantee, was entitled to the gradual and
                         imperceptible accretions added to her land both before and
                         after the admission of Washington to the Union. The state
    ;~~L~I~�i- ~          trial court, relying upon the Borax and Washington decisions,
    S~::/~                held that federal law applied and confirmed title to the ac-
    ;'~ '�~~creted lands in the plaintiff. The-tate supreme court, how-
                         ever, reversed, declaring that st*  rather than federal law
                         governed in this instance. Since under the law of Washington
                         the boundary was fixed as of the date of statehood, the court
                         held that all accretions since that time belonged to the state
    '~fW-~i~              rather than the littoral owner.

                             The case was then brought before the United States Su-
                         preme Court. The issue before the Court was whether or not
    X'~"~3;~:i� ~ '~. '~.   a state could alter the ambulatory boundary between its tide-
                         lands and uplands patented by the federal government prior
    "  1-, =.'?# .J        to statehood by declaring that boundary to be permanently
                         fixed at the line of ordinary high tide on the date of admis-
    ~-~ ~. ~              sion to statehood, thereby depriving the uplands owner of
    Xff 74, ~natural accretions occurring since that date. The Supreme
                          Court held that this question was controlled by federal law,
                          not. state law and, therefore, the littoral owner was enti-
                          tled to the accretions. The Court relied on the Borax case to
    7~!_~S                 reach its decision: "While the issue appears never to have
                          been squarely presented to this Court before, we think the
                          path to decision is indicated by our holding in Borax, Ltd. v.
                          Los Angeles ..  No subsequent case in this Court has cast
                           88. Id. at 832.
                           89. 389 U.S. 290 (1967).

    /- .                                   _WI;;J-
                  He   _ew~~~~~~~~~~~~~~~~~~~~~~~~~~~~-sfS\\

                                    ; -?-,  1978  ORDINARY HIGH VAT.TER MARK                 ].5
    I,.c. *>s:  ? '-& -
                                    doubt on the principle announced in Borax.""� The Court
         : .i>~-'~? ;[~,~           reached its decision in spite of the fact that the Borax case did
                                    not deal with accretions. It nevertheless declared:

                                        While this is true, the case did involve the question as
                                        to what rights were conveyed by the federal grant and
                                        decided that the extent of ownership under the feder-
                                        al grant is governed by federal law. This is as true
    ~.%~,:-~[-?_ '~'~                  whether doubt as to any boundary is based on a broad
                                        question as to the general definition of the shoreline
                                        or on a particularized problem relating to the owner-
                                        ship of accretion.1
                }.;tT                  The right asserted by Mrs. Hughes, whose predecessor in
          A-.~_~.~-~-.~-~rL~~ ~title had acquired the upland before statehood, was a right as-
                                     serted u ider federal law. Under federal faw accretion belonged
                                     to the upland owner. The main policy behind the federal
                                     common law was to protect the riparian owners' access to the
                                     water.92 Therefore, the accretion to Mrs. Hughes' property
                                     belonged to her, and not to the state. In a concurring opin-
                                     ion, Mr. Justice Stewart recognized Washington's fixed
                       ~-~~:a-~,___  ~boundary rule as a change in the state's water law. He argued
                                     that Mrs. Hughes' right to accretion should be based on the
                                     principle that the application of state law was a taking of
                                     property without compensation.93

                                        Thus, both the Washington and the Hughes cases recog-
                                     nized the ambulatory boundary as a part of the federal law
                                     and held that this principle would prevail over a contrary
                                     state rule. While Hughes involved a federal patent made prior
                                     to statehood, both Washington and Borax involved patents
                                     made after statehood. These decisions would therefore sug-
                                     gest that federal law will govern wherever a federal patent is
                     ~.~, i,--_-.  ..involved. This would virtually destroy the efficacy of any
    e~:~-~..~.<::~5~.~;,-~~ ~state law that attempted to establish a fixed boundary as far
                                     as those states carved out of the federal domain are con-
                                     cerned,94 including well over half of the coastline of the
                                     United States. The validity of these decisions, at least as they
                                     might have applied to inland non-tidal navigable water bodies,
                                     is now in question, however, since the rendering of a very
    J".,~*f_<-c -*~:["~,,,5~  ~-1     90.  Id. at 291-92.
                                      91. Id. at 292.
           ,;t- ~  ~  ~ ,~?.~ �i;"~c;-92.  Id. at 293.
         ..~.:~..;>'~'9-�--~x~. 4-,~t-C" ~93. Id. at 294-98.
                                      94. Note, Florida Sovereignty Submerged Lands: What Are They? Who Owns Them
                                          and Where Is the Boundary?, 1 FLA. ST. L. REV. 596, 630 (1973).

    .�'0f.;~'~ --~"~Z-. :-~~-.? .-7
           4.}qo~'  '~- ~',W -~-'-qB     n
    � ~: {'~

     16             LAND AND WATER LAW REVIEW    Vol. XIII

    recent United States Supreme Court decision to be discussed
    later, Oregon v. Corvallis Sand and Gravel Co.s95

         Another decision by the Supreme Court, Bonelli Cattle
     Co. v. Arizona96 further extended the applicability of federat
     common law when the Court took the position that when
     states are successors in title to the federal government, they
     are subject to federal common law with respect to boundaries
     of land abutting on all navigable waters. Bonelli involved a
     dispute between an upland owner and the State of Arizona,
     as owner of the bed of the Colorado River, over title to land
     exposed by rechanneling the river. The Arizona Supreme
     Court considered the exposed land to be the result of avulsion
     since a sudden change in the character of the land was in-
     volved, and held that title to the exposed land remained in
     the State.97 The Supreme Court of the United States reversed.
     Although urged to apply the Hughes analysis-that a federal
     question was involved because the upland owner traced his
     title through a federal grant-the Court sidestepped this argu-
     ment98 in favor of a broader rationale.99 A federal question
     was involved, the Court reasoned, because the State acquired
     its title to the riverbed under the equal footing doctrine.�' Fur-
     ther, the State's title was held to be a limited one in that it
     held the beds of navigable waters for the purpose of public
     navigation."�   In cases in which the channeling project en-
     hanced the state's interest in the navigability of the river, the
     Court decided that as a matter of public policy the State
     should not be permitted to acquire the exposed land in what
     would amount to a "windfall, since unnecessary to the State's
      95.  _U.S._, 97 S.Ct. 582 (1977).
      96. 414 U.S. 313 (1973).
      97. State v. Bonelli Cattle Co., 107 Ariz. 465,489 P.2d 699 (1971).
      98. "[1] t is unclear whether at the time of Santa Fe Pacific's patent, the portion of the
          l and which ultimately became Bonelli's parcel was actually riparian." Bonelli Cattle
          Co.v. Arizona, supra note 96, at 321 n. 11.
      99. The court made an important distinction between questions of riparian rights
         '- granted by the states in sovereignty beds (determined by state law said the court),
          and questions of the extent of state ownership of sovereign lands (determined by
          federal common law). "We continue to adhere to the principle that it is left to the
          states to determine the rights of riparian owners in the beds of navigable streams
          which, under federal law, belong to the State . . . The issue before us is not what
          rights the state has accorded private owners in lands which the state holds as sov-
          ereign right; but, rather, how far the State's sovereign right extends under the equal.
          footing doctrine...."ld. at 319.
      100. The states which entered the Union after its formation were admitted with the
          same rights as the original states within their respective borders. Mumford v. Ward.
          well, 73 U.S. (6 Wall.) 423 (1867). Title to lands under navigable waters passed to
          the new states under the equal footing doctrine. Pollard's Lessee v. Hagan, 44 U.S.
          (3 How.) 212 (1845).
      101. Bonelli Cattle Co. v. Arizona, supra note 96, at 322-23..

    Em 1E;'C

    -.-x - -: ~    ~                       1978            ORDINARY HIGH WATER MARK                          17

    ~'~i~--"   > ,-. -                      purpose in holding title to the beds of the navigable streams
                                           within its borders."'0   To avoid this windfall to the State,
         '<~7-;,~a'~�%.?' --~. ~'-.~ %~which would have resulted from classifying the drying up of
                                           the bottomlands as avulsion, the Court in effect redefined
                                           avulsion and accretion, no longer emphasizing the speed with
                                           which the change was brought about, but rather finding ac-
    "-'' '-~'~-* -"                         cretion because of the lack of "navigational or related public
                                           purposes.""'03 Lack of such interests, said the Court, called
                                           for application of the accretion theory, which gave the land
                                           to Bonelli, the adjoining landowner.

                                               Obviously  the holding of Bonelli implied  far-reaching
                                           consequences. The majority apparently intended through use
                                           of the equal footing doctrine to broaden the applicability of
                                           federal common  law under Borax beyond  those relatively
                                           limited'l  lands to which title derived from a federal patent.
        _ -~t~'=~'~~ ~i-'g"-~'             Under the equal footing rationale the only submerged sov-
                                           ereignty land that would be excepted would be that under
    -~-~: :--~,~-.-,,~    ....~-~.>~        navigable waters situated in the original thirteen states and
                                           Texas, where the federal government was not the source of
           ~T~j.:L~  - ~-~-._-~     :utitle. It was this seemingly irrational exclusion against which
         ........ ~    ''~~~~a"~ ~-~~~Mr. Justice Stewart dissented.105 The i-pact of the decision
                                           was to shift the basis of the holding that federal law applies
                                            when there is a finding that title to the upland derived from a
                                            federal grant'06 to a determination of the extent of state in-
                                            terests in sovereignty land under  the equal  footing doc-
                                            trine.'07 The effect was to require an analytical focus on the
                                            extent of sovereignty land as a federal question, rather than
                                            on the extent of riparian land.

          ,           c~;.'~(;'~ -.f~_~.~"~J  � Despite the fact that Bonelli was so recently decided and
                                           by a seven-to-one majority, its treatment of the equal footing
              .*-a.~.     .... .a.&-?'..-__ ~-~--:102. Id. at 328.
                 .sz-:-/7- _ ~~~~~~ ~~~~~103. Id. at 329.
       .- -~yW=:~:7-:.'.J~:-.2:p -.~-~..~   104. The. Borax rule was relatively limited in that it apparently applied only to those
                                                 states carved out of the federal domain.
     2~..%'*>~._..t. "   ~.~'(~.z'..* . '.-!l ~105. "I think this ruling emasculates the equal footing doctrine . . . The upshot of the
     I,' p__ [        . ~&~'?:!                 Court's decision is that the 13 Original States are free to develop and apply their
        . :own rules of property law for the resolution of conflicting claims to an exposed
            ?~:~.--i}  "'jiE'z, 5 -.~-. C * -'57~  bed of a river, while those States admitted after the Constitution's ratification must
                 :. t.?-<�r.-~~;~.~-:'-:.,~.~.~.~L'-~'7':  under today's decision knuckle under to this court's supervisory view of 'federal
         ?':,-574 5~'?-s-- .'='5-'.... -~        common law.' A later-admitted State like Arizona is thus not at all on an equal
           {'~,'=~-:~'?~-- gt?.~":~ f = '2'9E~   footing with the original States in the exercise of sovereignty over real property
     ~.~-~__':-l.'_~~i "~-~ ~'~2' 7'-. *s D_'-u-:ck-  within its boundaries." Bonelli Cattle Co. v. Arizona. supra note 96. at 336.
                                            106. Borax Consolidated, Ltd. v. Los Angeles, 296 U.S. 10 (1935); United States v.
                                                 Washington, 294 F'.2d 830 (9th Cir. 1961), cert. denied, 369 U.S. 817 (1962);
                  U?-:-?:._~. ,--CS.-a--:~.''-'~-' '-v  :-Hughes v. Washington. 389 U.S. 290 (1967).
                                            107. 414 U.S. at 321 n.ll.See note 100. suDra.

                 NN1 ~~~~~~~~~~~. �

      .yS~_gaq;~-                    ;- '>:,>~-~i~-,,_-.                                          :,~=~-,;  ' - '
     '-:  ~S-"--.~  ,_X',�~.w:>~T,  -.--~~~  -. r$ %;-.  ?Z.,~:if-,'.:;;.;"';?~O~,.a, .--~:~'z~*%,'--;, --:~~~ ,,~:-~.'x.-':"x-~"t-P .....rr

                ~%{~...~f~ ~18                         LAND AND WATER LAW REVIEW              Vol. XIII

                    ;:'~>--~::~   doctrine as a source of federal common law has been express-
                                        ly overruled by Oregon v. Corvallis Sand and Gravel Co. 108os
                                        Corvallis concerned a complicated situation involving a "cut-
                                        off" formed during a flood of the Willamette River in Oregon.
              ~g~.-.&~;?./-~~During the flood a wide bend in the main channel of the
      '  ~:e--,:        Iriver became a secondary branch when the force of the water
                                        cut across the neck of the peninsula formed by the bend. 109
                                        Corvallis Sand had been excavating in the new riverbed for
                                        forty to fifty years without a lease from the State. The State
             e,:~ _,,._ '-~v.-~.brought an ejectment action against Corvallis to recover eleven
                                        parcels of riverbed as well as damages for the use of the par-
             f':75-~~'.~-~':=           cels. The trial court awarded parcels to each party and set
                                        damages for previous use by Corvallis of parcels awarded to
         g z.;    : '- ~~ _-.'the State."'  Both parties appealed from that court to the
                                        Oregon Court of Appeals. The question there was whether
                                        the landowners in the area of the cut retained title under
                                        avulsion theory, or whether the title reverted to the State. In
                                        a sense, the issue was whether Bonelli could be applied in re-
                                        verse."'  The Oregon Court of Appeals clearly held that
                :e*w-e'~'z.':.1Bonelli required the application of federal law to determine
                f  k.~ .--~ ~-.~~.whether the change was avulsive.1m2
              ~,.j~o~ ~_.~ ~ ~~Arizona, dissatisfied with the decisions of its own courts,
                                        successfully carried its case to the United States Supreme
                                        Court on petition for certiorari. The Court's opinion was de-
                ~7--~~~-~~ '....livered by Mr. Justice Rehnquist.
                                            Our analysis today leads us to conclude that our deci-
              ~ '.-M~ ~.~'-~ ~sion to apply federal common law in Bonelli was in-
                 Ai5~ -                    ~~~correct... Although federal law may fix the initial
                                            boundary between fast lands and the riverbeds at the
                                            time of admission to the Union, the State's title to
              :.:,;-,~   ~~~~~the riverbed vests absolutely as of the time of a State's
    1T':.'----"-1'' =                       admission and is not subject to later defeasance by
                                            operation of any doctrine of federal common law.113
             :-~~~ ~~~~                  The Court, then, elaborated upon the proper scope and effect
                ~z-~'~"'~f-~:'~:of the equal footing doctrine.
                                         108. 429 U.S. 363 (1977) [hereinafter cited as Corvallis] .
         -''Q     ~~f;~-- r;            109. Oregon v. Corvallis Sand & Gravel Co., 526 P.2d 469,473-74 (Ore. Ct. App. 1974).
                                         110.  Id. at 472.
                     ,,:.,  :.,~.-~::zx.111. "While Bonelli involved title to lands formerly under the main channel that had
          s7.,.[2~~                         since become dry, the basic public policy discussion is equally applicable to the
              ~:~.[~:~[-~,<-~..c            ~~~~~case where certain lands which were not under water are presently under water."
                                             Id. at 475.
                      _____L'~~  ~112. "The State relies heavily upon Purvine v. Hathaway 238 Or. 60, 393 P.2d 181
               ~__,k   ~ ~?-,~~~~~ A(1964), to support its position that this change was not avulsive in nature. First, it
                      ,r.~_&:~5_;.[~6  ~     should be noted that federal common law controls ownership questions under
                  e^--'>f.  ~~v~5~~'~~.~~ RBonelli, and thus, state cases are of limited applicability," Id. at 476 n.5.
          X}-;"Y:-~.                     113. Corvallis, supro note 108, at 370-71. (emphasis added).

                                   kr><:~~~~~~~~~~~~~~-..,- -_-

                               1978         ORDINARY HIGH WATER MARK                   19

                                   Once the equal footing doctrine had vested title to
                                   the riverbed in Arizona as of the time of its admission
                                   to the Unidn, the force of that doctrine was spent; it
                                   did not operate after that date to determine what ef-
                                   fect on titles the movement of the river might have.
                                   Our error, as we now see it, was to view the equal
                                   footing doctrine enunciated in Pollard's Lessee v.
                                   Hagan as a basis upon which federal common law
                                   could supercede state law in the determination of
                                   land titles. Precisely the contrary is true.114

    �%;.-~         r           Thus, the Bonelli decision's broadening of the applicability of
                                federal common law beyond the holding in Borax by use of
                                the equal footing doctrine is no longer valid.

     ___r'p~C~�r~Cc~ i~-~Z~:;.     The origin and development of the equal footing doctrine
                                required that the Bonelli interpretation be undone. In 1845,
                                the Supreme Court held in Pollard's Lessee v. Hagan"5 that
                                new states joining the Union were entitled to the soil under
                                navigable waters within the state, which had not previously
                                been conveyed, just as were the original thirteen states upon
                                forming the new nation. The rule in Pollard's Lessee was re-
                                affirmed in Weber v. Harbor Commissioners"'  which held
                                that California entered the Union as sovereign over all its soils
                                under tidewater within its borders with the right to dispose
                                of such title in any manner considered proper, subject only
                                to the federal government's paramount authority over naviga-
                                tion to facilitate foreign and interstate commerce. In 1891,
                                Packer v. Bird'"7 was decided, holding that the high water
                                mark constituted the limit below which the United States
                                could not convey lands bordering navigable waters because
                                such lands belong to the state under the equal footing doc-
                                trine. Importantly, the Packer Court went on to rule that
                                while state law could not define the boundaries of a federal
          ---~i-~f! t          grant nor impair the use and enjoyment of that property,
           ~t~-,    ~ Istate law was determinative as to the rights attached to the
                  -Ir�J-r-V.f  property conveyed."'

                  , � " I ~        The Bonelli expansion of the equal footing doctrine to
                                make federal common law applicable to determine disputed
                                  114. Id. at 371.
                                  1 115. 44 U.S. (3 [low.) 391 (1845).
                                  116. 85 U.S. (18 Wall.) 57 (1873).
                                  117. 137 U.S. 661 (1891).
       _V_                        118. Id. at 672.

                           ~~~~~c~~~~~~~~~~~~~~~~~~r�-~~~~~~~~~~~~~~~7-~~~7 ?,Z-71- Z_:
                                C.~~~~~~~ -                           3t  zt
                                             .'C~~~  .~~ ~~  . C '~~~~ ' " A   A~~~.**...

                                      ~~: ....~T �.-

                            X20               LAND AND WATER LAW REVIEW   Vol. XIII

           ._4~       r        oinland navigable water boundaries created an inequality be-
                            tween the original thirteen states and Texas, whose source of
                            title was  not  the federal government, and all other states in
                            the  Union.  This  interpretation  was  contrary  to  the  very
          7           -~;~   ~ meaning  of  "equal  footing"  and  the notion that new  states
                            were admitted to the Union on  an equal basis with the origi-
          <.~ ~              nal thirteen states which  included equality in the exercise of--
                            sovereignty  over the  beds of navigable waters. The  Corvallis
          X;~:~              ~ decision has put the "equal" back into the equal footing doc-
                            trine as it was envisioned by the Supreme  Court in Pollard's
                            Lessee.
    2K.~
                                 In addition to ruling that federal common law must be
                            applied to resolve disputed inland navigable water boundaries,
                            the Bonelli decision fashioned a new federal law of accretion
                            under which courts were to balance the state's interest in nav-
          _m~~ ~igational and related public interests'1  against the traditional
                            principles  for  determining  ambulatory  boundaries.'20   The
          Xf/~               ~ Bonelli court tied sovereign ownership of the beds of non-
    - <                         tidal navigable  waterbodies  to the  urposes underlying  the
          ~'.~!N      ~       public trust doctrine. When those p:rposes were determined
          it~        ~       not to exist in the circumstances undier consideration, owner-
          _ .~ ~ship of the bed by the State was no longer thought essen-
    __                          tial.12  Carrying  this  to its logical extreme  would  arguably
          ____8 _             mean that a state need not own the beds of any navigable va-
          ~-~@~ ~             terbody within its jurisdiction. A navigable servitude would
                            be enough to protect the public interest in such lands.122' The
          X'-~'~~~            ~ 119. The Court would apparently approve an expansive definition of related public in-
    %-.t ' Lo                          terests. "The extent of the State's interests should not be narrowly constructed be-
    -:~:~- Ncause it is demonstrated a navigational purpose" Bonelli Cattle Co. v. Arizona.
            .As_~~            ~~~ 4,supra note 96, at 323 n.15 (Citing Zabel v. Tabb, 430 F.2d 199 (Sth Cir. 1970).
    Hi.'*2'-*                     20cert. denied, 401 U.S. 910 (1971)).
    e-:bb 120. The Bonelli court analyzed the policies behind accretion and reliction: "There are
     ~*.._                             a number of interrelated reasons for the application of the doctrine of accretion
    ...                                First, where lands are bounded by water, it may well be regarded as the expectancy
    ',,'r'    aof the riparian owners that they should continue to be so bounded. Second, the
    '-- '-r :                          quality of being riparian, especially to navigable water, may be the land's 'mrost
            5~ ~~--F~r~    ~valuable feature' and is part and parcel of the ownership of land itself. Hughes v.
    '.:~,',                            Washington, 389 U.S. at 293; Yates v. Milwaukee, 10 Wall. 497, 504 (1871). Ri-
            -� ffiffi-,  ~~               ~~parianness also encompasses the vested right to future alluvion, which is an 'essen-
    - f- ,                           . tial attribute of the original property.' County of St. Clair v. Lovidngton, 23 WVall.
                         ,_46, 68 (1874). By requiring that the upland owner suffer the burden of erosion and
            s-*  ~~-~~'~ ~.~by giving him the benefit of accretions, riparianness is maintained. Finally, there is
            7;_~.~'~~~~  ~a compensation theory at work. Riparian land is at the mercy of the wanderings of
            ~'Sw~~~f~]]~   ~the river. Since a riparian owner is subject to losing the land by erosion beyond his
            l_~J-~~~~~ ~control, he should benefit from any addition to his lands by the accretions thereto
     .'j:              ,which are equally beyond his control." Bonelli Cattle Co. v. Arizona, supra note
                                  96s at 326.
                             121. "Since the State asserts no public need for ownership of the subject land we do not
    e ,' .-'                           attempt to define the exact parameters of the permissible public purpose." See
    '..                                note 119,supra.
    '_:~,' j'''   '122. Obviously this would not be enough in many circumstances. If the bed is in private

                       T.                              3-

            ____ e_                                                                          ..-~'t., -~--~~- :~-"c':w

       2.- i -" .~.-~~5<->
                                     1978          ORDINARY HIGH WATER MARK                      21
     Z~ :._;-.::. .-~ >7 ~~.:~-
                                     Corvallis opinion, in expressly overruling the equal footing
         ,.~Y~-~'.~~ ~             doctrine as a basis for applying federal lawv, makes it unneces-
                                     sary for the states to adopt this balancing of interests ap-
      - ;4.~(i:::~.".               proach formulated in Bonelli. Title determinations to lands
                        .-ie:  ~    bordering navigable non-tidal waters in those states which
            ,:~ :- M/~ : '-:joined the Union under the equal footing doctrine are now
    /:3~ ~-lTi~~~-                  controlled by state law. A state could, however, choose to
            ~;~:~2~5;~:5~     ~     follow the principle enunciated in Bonelli, that when a state
                                     changes the course of a waterbody or lowers water levels so
                         t'':- %that formerly submerged lands are exposed and no navigation-
                y_-~,4~: -~ ~'related public goals remain in the exposed lands, the exposure
                                     will be treated as accretion with a resultant transferring of
                                     title to the accreted lands to the adjacent riparian owners.
            :I|72~-'x -J--~-The significance of the Corvallis decision is that the applica-
                                     tion of the Bonelli principle is no longer required of the states.
    _ :S'<P;-=ii .',8:<t           That much of the Supreme Court's opinion seems clear. Not
                                     so clear, however, is the effect of Corvallis on the principle
                                     enunciated  in Hughes-that  federal common  law  governs
                                     boundary disputes involving lands whose title derived from a
                                     prior federal patent.

                                        "In the words of Mr. Justice Marshall, dissenting from the
                                     Corvallis majority opinion.

                           ..-:..       The Court holds that federal common law governs
                                         only the determination of the initial boundaries of
                                         the grant; all other questions are to be determined
                                         under state law.'23

                                     Such a holding would constitute a return to the limited prin-
                                     ciple originally pronounced in Borax that federal law will
            ~;:~_-'3~?-~ ~          govern the determination of the boundary that demarks the
                                     extent of a grant as originally conveyed by the United States,
                         .:.-  ~ and a retreat from Hughes' expansion of Borax to make fed-
          w--~  |. ~4:..~j   ]eral law equally applicable to the resolution of title disputes
            7i6*~i  g ~  ~~to lands added by the process of accretion to the original fed-
    Lii.     ~                      eral grLnt.'24 More significantly, Corvallis seems to implicitly
                                          ownership the state's authority to control the taking of minerals, etc. from the bed
    By. *-.'->f~ R �                     is severely diminished. If there is any lesson to be learned from recent environmen-
                                          tal skirmishes, it is that state ownership allows for flexibility of alternatives while
                                         * private ownership does not. Clearly, it would be a mistake to irrevocably fix the in-
                                          terests of the public in this manner.
                                      123. Corvallis Sand, supra note 108, at 385.
                                      124. "[A]s the Court is certain to announce when the occasion arises, today's holding
      Z,                                also overrules Hughes v. Washington, 389 U.S. 290 (1967)." Id. at 593 tDissenting
                      *                  Opinion, Marshall, J.).

              ~.~ .~:�..-x=~                       . 7*4.
                                  ,-' -.-- ,.   -.    -'-,-;     -. .-'..t,-'  -.e:r -..-?:   .:--'' _ '�4  -?',- -.

                                   22           LAND AND WATER LAw REVIEW            Vol. XIII

            AZ~x;~7~~L~*:( ~reject the whole idea that the existence of a federal source of
                                 title will constitute a proper basis upon which to apply fed-
                                   eral common law to non-tidal navigable water boundary dis-
                                   putes. After rejecting Bonelli's novel application of the equal
             ;~.~%;.   '   f4~      footing doctrine, the Corvallis majority observed that the
            .2-~-~c~<-~?%'x         only other basis for applying federal law in that case was the
            ~~ .-J~~ ~~             fact the Bonelli's property was part of a conveyance previous-
            ?.~~'-'- 'I- ~~ly patented to the Santa Fe Railroad by the federal govern-
                                   ment. The Court found this second basis equally deficient to
            H%;~ :._   ~ ~i~:~justify superceding Arizona's own law because the land in
            ~---.r:-:.~~Le.]question "had long been in private ownership and, hence, un-
                                   der the great weight of precedent from [the United States Su-
            .... """~ -~'-~~ ~preme Court] , subject to the general body of state property
            ...... -~~ ,~-'law."125 This perfunctory language, without elaboration by
            ;6;:?.*-g:'"-~    ~     the majority, might be explained by the Supreme Court's de-
            P,~~~ ~~cision in Corvallis not to reconsider Hughes, since that case
                     _'-~- "--had not been cited by the Oregon courts nor relied upon in
             _"'' =""~"-''- ' ~Bonelli.12  It is obvious that reconsideration of Bonell's use
            ,5~.~m~_ .....~         of the equal footing doctrine as a basis for applying federal
                                   law to inland navigable water boundary disputes was the fo-
                                   cus of the Corvallis opinion. Nevertheless, there are comments
    ,"'',' -                  ' -~ ~_ ~ ~in the Corvallis opinion that clearly suggest the existence of a
                                   prior federal patent does not require application of federal
                 i,7    .~'~ -  ~  common law and, therefore, that the holding in Hughes has
                                   been implicitly overruled in this respect.
                                       In the first place, as discussed above, the majority of the
                                   Court concluded that it was wrong to have applied federal
                                   law in Bonelli-not merely that the equal footing doctrine
                                   was inapplicable to justify its use. Secondly, after elaborating
              .gr~-.:'-'.-:-        upon the proper scope of the equal footing doctrine, the Cor-
                                   vallis Court stated:

                                       Thus, if the lands at issue did pass under the equal
                   .2g:;}- ~-~.  ~footing doctrine, state title is not subject to defeas-
             ~'-~'~~<"' ~-�~~~ ~ance and state law governs subsequent dispositions. A
             ,~_~-~-.~-m_~�~.~similar result obtains in the case of riparian lands
                                       which did not pass under the equal footing doctrine.i27

                                   Use of this broad language is another indication by the Court
                                     125. Id. at 587, citing Wilcox v, Jackson, 13 U.S. (13 Pet.) 266 (1839). In his dis-
                   ~~~~~~ ~~~~senting opinion. Justice Marshall found Wilcox unsupportive of the majority's posi-
                  ~;~:~e/~-.-,~~.~-'~   tion. Id. at 595-96.
    -''e,~~-:~.'.w. '  -126. Id. at 377 n.6.
         :~~~9127. Id. at 378.-

    :. A    -- --,-.,%T-...%-...                                     -

    :':.=.?.

                                       ,1978        ORDINARY HIGH WATER MARK                     23

    ; <-~?--.~-~-'~..-~ Wthat the existence of a prior federal grant would not alter the
         A_,2~~~~ . sr&~~I2>          necessity for state law to control the boundary determina-
                                       tion. Finally, the majority's rejection of Hughes was implied
                                        when it cited the case of Joy v. City of St. Louis128 for the
    K f.-- ~.~..-;~;~da�~:�          proposition that a claim to accretions to land patented to
         -'-4-.---._- .;              one's predecessor by the federal government was not a basis
                       Ad_~  _           ..__.. for the application of federal common law.2       -

                                           We also think there was no other basis [besides the
                                            equal footing doctrine] in that case [Bonelli], nor is
                                           there any in this case, to support the application of
    -~:t:+�'~-~-' ~-~.4�s x;_~federal common law to override state real property
                                            law 30

                                            Thus, while prior to the rendering of the Supreme Court's
                                        decision in Corvallis, federal law likely would have governed
                        '~'-%-- .:: ~-  whenever a federal patent was involved based upon the hold-
                                        ings in the Washington and Hughes cases, that would seem to
                                        no longer hold true. The Supreme Court appears to embrace
                                        again the language of its older decisions."'3  Corvallis does sug-
                                         gest, however, that Hughes may still control title determina-
                        I--~:.e,.~-    ...tions in regard to lands bordering the ocean due to the "vital
                 ~      .-:'.>  .....--~.'-  � interest" of the federal government in the marginal sea.

         :.;4zx\  e:;~i~,. ~ .Id         We are aware of the fact that Hughes gave to Borax
                                            the same sort of expansive construction as did Bonelli,
    __z,--.'_.'_~,:                       but we are likewise aware that Hughes dealt with
                                            ocean-front property, a fact which the Court thought
                                            sufficiently different from the usual situation so as to
                                            justify a "federal common law" rule of riparian pro-
                                            pnrietorship."32

                                        Disputes involving the nation's coastline would thus be re-
      : A,-d:-tz-~-~,;-~,-~:-;~        solved by application of the federal common law of ambula-
                                        tory boundaries and this would seem to hold true despite the
                                        absence of a federal patent in the chain of title and notwith-
                                        standing a state's participation in any such boundary contro-
                         i-..:~ _~.~. .  versy. The majority of the Court in Corvallis, by their refer-
                                        ence to Hughes as being distinguishable because of its ocean-
                                         128. 201 U.S. 332,343 (1906).
                                         129. Corvallis, supra note 108,at 377.
                                         130. Id. at 381.
                 ,.-&-'~z--e'. ~Z~-~ ~'~'~  131. E.g., "In our judgement the grants of the government for lands bounded on streams
                                             and other waters, without any reservation or restriction of terms, are to be con-
            g.. ~ -ai. ~ ..~ --~-'-.'--    strued as to their effect according to the law of the state in which the lands lie."
                                             Ilardin v. Jordon, 140 U.S. 371, 334 (1391).
                                         132. Corvallis, supra note 108, at 377 n.6.

                                          24             LAND AND WATER LAW REVIEW    Vol. XIII

          -     '-c�), , ':                 front property context, has seemingly broadened the Hughes
                                          precedent for the application of federal law. Instead of mere-
                                          ly standing for the application of federal law to determine
                         ~~~~ ~title to lands added by accretion to ocean-front property de-
                               .... 'rived from a federal patent, the Hughes decision has arguably
                                          been extended to support the application of federal law to--
                                          determine title boundaries on all coastal waters-the prior-
                                          federal patent element of the holding having been exorcised.

                I,'"~~~~~ :~  ~Since the decision in Corvallis, a federal district court in
                                          Iowa has rendered an opinion which lends further support to
                                          the proposition that state law will control the resolution of
               *'-'t?- .~-~'.              boundary disputes involving inland navigable waters.133 The
                                          United States, as trustee for the Omaha Indian Tribe, brought
                                          suit to establish title to lands bordering the Missouri River-a
                                          determination that required the court to decide whether the
                          = .-.~  ...movement of the River over a span of one hundred years had
                                          resulted in accretion to the riparian properties of the defen-
                                          dants or had  been an avulsive movement which might have
                                          placed title in the Omaha Indian Tribe. In holding that state
                                          law governed,134 the court began by citing Joy v. City of St.
                     ...... -,-~-Louis'135 for the general proposition that state law is applic-
                  't.::~.'~ ,    -,,able to determine not only title to lands within its jurisdic-
               - _ ;-~~~-~-.i~ ~tion; but "questions concerning the rights of riparian land-
                                          owners to accretion lands" as well.'36 As to whether the fact
                 :-;~_~_ . ,-   ~~~~that the United States as claimant to the land involved creat-
          ~"-.~--;~*.-;~-:~                  ed an exception to this general rule, the court expressly held
                                          that  it did  not.137  Hughes  v.  Washington'3   was  distin-
     ?:k- -.~ .,;~ -                        guished,l'39  as it was in Corvallis, as limited to ocean-front
               ~tSte;-~:~. _Rz              property involving the nation's international boundaries.40

               .1.,.e:t,.?,,*  i ~133. United States v. Wilson, 433 F. Supp. 57 (N.D. Iowa 1977).
               *"A-.,  <-.m~,:-~_.--~  ~    134. In this case, Nebraska law was applied on the authority of Nebraska v. Iowa, 406
                ;z->.r     -t6-~%-'~. '~:~.~U.S. 117 (1972). "The 1972 Nebraska-Iowa case began when Iowa claimed thirty
                -'~,~'- i-/_,f,_5.-~.~~  Bseparate parcels which were wholly on the Iowa Side of the 1943 compact line.
                .~~~~~~ ~~~~~~~                  For purposes of resolving the choice of law issues, the Court divided the thirty oar-
     :, .~::?.d.-2.- ,~- cels into two groups. The classification was based on whether the land in the pa--
      :-: ~: ...f--~-- ~ -' cels was formed before or after 1943 . . . Nebraska law would provide the rule of
                                               decision for land disputes as to river changes occuring prior to 1943, and Iowa law
      -.". -r-  '. '-: - --.'~'                   would provide the rule of decision for changes occuring after that date." Id. at 60.
                � ~.....~r:~ �,-~ -..~      135. 201 U.S. 332 (1906).
      ,>. .>,, t; <                          136. Wilson, supra note 133, at 59.
                                           137. Id. at 61. Citing Mason v. United States, 260 U.S. 545 (1923); United States v. Lit-
                  .E-.'~-:~ ;,53~ ~.l-~          tle Lake Misere Land Co., Inc., 412 U.S. 580, 595 (1973); 14 WRIGHT, FEDERAL
       -* :men,-~? :o1                             PRACTICE AND PROCEDURE, 141 n.4 (1976).
                                           138. 389 U.S. 290 (1967).
                                           139. Wilson,supra note 133,at 61.
     -,'--':+"-1:5z:-~'-,--.."-              140. "In any event, Hughes was concerned only with the question whether a title includ-
     .~,~;-.' ?~~.~  ~                            ed accretion lands deposited subsequent to issuance of a patent, not whether accre-
     --tv"% - %'~.'.--:'';,                       tion had in fact occurred." Wilson, supra note 133, at 61 n.3.

    Ra~ ~t -"AeB

    P'-]              1978          ORDLNARY HIGH WATER MARK                    25

    ' -Fr- ;The court then turned to a rationale not utilized in the
    m. ~             cases previously discussed.
    __ "t                 Under the Rules of Decision Act, 28 U.S.C. � 1652,14m
                           the Constitution, treaties and Acts of Congress must
                           be examined in each case to determine whether fed-
                           eral law supplants state law as the rile of decision.142
    ~t~               After examining these sources to ascertain whether the appli-
                       cation of federal law was required by any of them, the court
                       found that no such requirement existed and there was no
                       "federal policy broad or strong enough to supplant the strong
    a-:-~~i           local policy concerning title to land."'143 The district court,
                       in effect, found that the existence of a prior federal patent
    'i_ ,f~:-1 ~does not mandate the application of federal common law to
    [-                resolve boundary disputes involving non-tidal navigable wva-
                       terbodies either as a federal decisional principle or under the
                       authority of the Rules of Decision Act. Additionally, the spe-
                       cial circumstance of the federal government's paramount in-
                       terest in the nation's international boundaries reappears in
                       dicta in Wilson as the justification for federal law to control
         Igi""-  '    in cases involving coastal waters.
                                     USE:OF THE MEANDER LINE AS-
                                      AN ALTERNATIVE BOUNDARY

                        In a few exceptional cases, the meander line has been de-
                       signated the boundary separating publicly-owned submerged
    ~)h~-t~  jlands from private upland ownership. Most of these cases in-
                       volved disputes over boundaries of tidal waters but one not-
                       able case that will be discussed, Utah v. United States,"' con-
                       cerned the Great Salt Lake. Because it is conceivable that the
    :M -1q~-i!        meander line may be urged as an alternative boundary when
                       the location of the OHWL is in dispute, these cases are worth
    :tJ~ i 'examining here.

                           Meander lines are established by public survey and were
                       traditionally determined by the surveyor actually walking
                       around the shoreline of a navigable body of water to record a
    -j ' ,-.,fZ~-~"'   141. "The laws of the several states, except where the Constitution or treaties of the
                            United States or Acts of Congress otherwise require or provide, shall be regarded as
    -;-S~'~.%~~rt~;C,~+U~b~i~_~  rules of decision in civil actions in the courts of the United States, in cases where
    ?zrf -~-'~] -they apply."
                        142. Wilson, supra note 133, at 61.
    � :''143. Id. at 62.
                        144. 425 U.S. 948 (1976); see Report of Special Master reproduced in 1976 UTAH I..
                            REV. 245.

    ':?T -_
                                    ur_
                                                      7~~~:*Sc~S~
                                          p;~~pC'~~6~;jr~~y-,Possibi ities---

                                                     26                LAND AND WATER LAW REVIEW   Vol. XIII

                                                     line   which   purportedly   followed   the  sinuosities   of  the
                                                     shore.'45  The  meander line of a particular piece of land will
                                                     be a straight line or a series of straight lines connecting points
                                                     or monuments on the shore for use in dettermining the quan-
                                                     tity of public land in the subdivision being surveyed.146  It has
                                                     been  held in innumerable cases"47 that unless a clear intent to
                                                     make the meander line the boundary is shown,"1 it is not the
                                                     proper line of demarcation for title purposes, but the water
                                                     whose margin is meandered is the true boundary. Courts have,
                                                     nevertheless, occasionally declared the meander line to be the
                                                     property boundary where the water line was obscured in
                                                     some way.

                                                          In Trustees of Internal Improvement Fund v..Wetstone, 149
                                                     involving an island meandered under an original government
                                                     patent, the Florida Supreme Court reasoned that it was the
                                                     State's duty to establish the boundary between private and
                                                     sovereignty  lands. When  the  State failed to present any  evi-
                                                     dence as to the location of the mean high water line in an
                                                     area of dense mangrove grovwtlthe Florida high court ac-
                                                     cepted the meander line as the 1sundary.'50 Hawkins v. Alas-
                                                     ha  Freight  Lines,  Inc.,'51 was  a trespass  case  in  which  the
                                                     meander line was presumed to substantially indicate a mean
                                                     high water line obscured by fill and road construction.'2-  The
                                                     145. See generally U.S. BUREAU OF LAND MANAGEMENT, MANUAL OF INSTRUC-
                                                           TIONS FOR THE SURVEY OF THE PUBLIC LANDS OF THE UNITED STATES
                                                           f1902).
                                                     146. Den v. Spalding, 39 Cal. App.2d 623. 625, 104 P.2d 81, 83 (Ist Dist. Ct. App.
                                                           1940). See also 2 SHALOWITZ, SHORE AND SEA BOUNDARIES  89 (1962) note
                  'Qi;Ss~~-~~~~~ ~450, at 5.
            2.4 ;%.rL '~ ~-~.:~(                         147. E.g., Whitaker v. McBride, 197 U.S. 510 (1905); Hardin v. Jordan, 140 U.S. 371
          ,~3<j-~,~f~ -;~ .7'~ ...~J~(1891); Jeffry v. Grosvenor, 261 Iowa 1052, 157 N.WV.2d 114 (1968); Narrows
                                                           Realty Co. v. State, 52 Wash.2d 843, 329 P.2d 836 (1958).
                                                      148. Mitchell v. Smale, 140 U.S. 406, 414 (1891); Hardin v. Jordan, 140 U.S. 371, 380
                                                           (1891). The general statement of the rule is that "a meander line may constitute a
                                                           boundary where so intended or where the discrepancies between the meander line
                                                           and the ordinary high water line leave an excess of unsunveyed land so great as
           ' .~z;?~t*.~z  ~' .'~2:2~- ...-. '-~                 clearly and palpahly to indicate fraud or mistake." Lopez v. Smith, 145 So.2d 509.
      *;Q . E-';                                                  _ ................. 515 (Fla. 1962); cf. Udall v. Oelschlaeger, 389 F.2d 974 (D.C. Cir. 196S) (Where
                                                           the federal government refused to approve plaintiff's application for a patent under
       ;-~j:.:  _:__-_-{__54{,: "-~-'~-~ '~�'                   federal homestead legislation, cl3inlntm that the land in question had previously
                                                           been withdrawn from entry by a Department of Interior Public Land Order which
                                                           purported to withdraw from appropriation an area "parallel to and one mile di;-
             W >.x<;  -.~ ' >                             -    tant from the line of mean high tide of Turnagin Arm", a tidal inlet. The Interior
         a  :.f; "   *>-?.  *  t                                 Department construed "the line of mean high tide" to mean t:he meander !ine and
    '; ~5    .--:E    ;'                                         the Court of Appeals held that the Department's interpretation was controlliing for
            '-      -                         9': _              identifying the lands affected by its withdrawal order as lung as that interpretation
             A d . +.jg-~~..  _ .                               was not plainly unreasonable or unauthorized). 389 F.2d at 976.
                                                      149.  222 So.2d 10 (Fla. 1969).
               :-.3'    z,,.~_A4~ ~.9~-~.~j               150. The State, in fact, offered no evidence as to the boundary line. Id. at 11. Pointing
                4 . . ~_,--?~ ~':.    .~                        out that the meander line was in places several hundred feet offshore in naviabh'
                                                           waters, the dissent argued that the State had no authority to convey sovereignty
                                                           lands except in the public interest. Id. at 14-19.
                                                      151. 410 P.2d 992 (Alas. 19i66).
                                                      152. The purpose of the presumption was to determine whether a trespass had occurred

            ~bs S ,~i,~;f~�'.-' ro -?_~.::~?~:-~:":~"-c~:q':~v,~4~X 'A'dZ:':z ^��c4.:
            ~-_                                        :-.                          .        :-                    . .
         ,~- ..     ,    ..~'x. d.,.-Z;"-z-;-,.~,x -'. '--''.-.  -:~__ -                                            -.
    ~.,        ~--',.-. -..    .. i -.1                  -.l;,,,,,c;,,~  -;.�.--'~-,` � '~ -,-'--'',*,>/-.~~~.,----~ : .  ~-. ~-~"~...~,c~.~,---~,- .--
       ~~~~iz'~.i~~*-~-, ~::';--7            ~ ~~-~:.z"~ ~'~...'~,-~:tg.,~.&-,,   .~.ad:~.~.-.~;                    :-~-'.~,~.-_ ' .:.-  -~-

            .4(A.:d?,,;:4-~~        1978         ORDINARY HIGH WATER MARK                     27

            a~:~!:;;:~ -~   ~       Alaska court, however, did not intend that the meander line
               w a~~~~ _;vt*would be presumed the boundary for title purposes.

              d:~[f~:-~4:~j�'~In 1966 the State of Utah brought an action within the
             .+j�vti�~~lf  ~original jurisdiction of the United States Supreme Court to
                     -7.:.' ?  ~~obtain a judicial determination of the proper boundary sep-
     :::':---4,'*:;                 arating state and federal landholdings surrounding the Great
                                    Salt Lake. A Special Master was appointed in 1972 to con-
    - n"-    ~        i              duct proceedings and submit reports to the Court.'53 The
                                    Special Master's first report, recommending that the doctrine
                                    of reliction not be applied to the Great Salt Lake, was adopt-
            :'--"'-~  - -~ "-ed in 1975.1'5 In a second report, the Special Master recom-
            j~]~ ~-'-  ~ :~          mended that the. meander line be designated the boundary
    ..g-z                           between the State's submerged lands and the federal uplands
    " ," "--*~~~~surrounding the Lake. The Supreme Court subsequently adopt-
            g ; .~-.-~ ~'.~~ -~ed this second report also.'55

                    *- 214~ ~~The parties to the proceedings both stipulated that the
                  e.:.':3 *:.   ~    ordinary high water mark is the legal measure of the bed of
                                    inland navigable waters.'56  Nevertheless, because the land
                          -2 : -.surrounding the Great Salt Lake is extremely flat, small fluc-
                  ~,-_  -:.:tuations of the Lake's elevation cause inundation or exposure
          4~" 7-~ '' ~~'      . -of large areas of land in a short period of time. Moreover, veg-
                                    etation and erosion lines are incapable of determination on
                    ....i~' "'the shores of the Lake.'57 The absence of these indicia made
                          ? -.~    ~ determination of the OHWL nearly impossible. Because the
                                    meander line was considered by the Special Master to be the
                          i' : :"most reliable evidence of the OHWL, he adopted that altern-
                          i- '--ative boundary as urged by the State of Utah.'5s Of special
                          I..;  ,     interest are the criteria that the Special Master used to solve
                           I 2:      the boundary problem.

                           ;- .,:..[I] t would seem that custom, mutual acceptance and
            -~-.:..:~~.'~-~ ~  ~recognition, congressional and executive conduct, as
            y~.-~?l:-:~?~_~-~�~         well as scientific data, are allowable aids to the solu-
                                        tion of the present problem.... In combination those
            "j:�.~%~"?:~~.-~;factors seem to the Special Master to point to the
              ':' - ?.'-'~?~-''-~ S !in fact on certain private property. Since the trespass consisted of fill and road con-
                      -'-~--~'~'.'-~-q - Istruction that had obliterated the actual water line, the court felt that it was unfair
             ~'�~'? ~--::'t2,~?.~..'.    ] _to require the property owner to produce evidence of the actual boundary
          '_-~- - _r'?j..- '-;!: I  153. Utah v. United States, 406 U.S. 940 (1972).
                                    154. Utah v. United States, 420 U.S. 304 (1975).
            ,;~-~2.A~.f'. 7'-- '~  i   , 155. Utah v. United States, 425 U.S. 948 (1976).
            /~~c._~~"~11r..-;~'    1  ~~~~156 See note 144,supra. at 255
                         i;,4~-- ';.158.  Id. at 306-7.

                      4''e C.
    go

    - i-<!4s - Ai

      :.;r;h-z';                 28             LAND AND WATER LAW REVIEW               Vol. XIII

             ;i'~*?~?~i~      ~      surveyed meander line as the most rational delinea-
                                      tion of the statehood boundary now avaiiable.159

             ~.~i~ .~  t~~Use of the meander line as an alternative to the ordinary
                                  high water line presents both practical and legal problems.
           �. ~?:_~ ;~          The meander line may be highly inaccurate, reflecting errors
                                  in surveying or failing to reflect changes in the shoreline since
            ::?_~:. :~ .~the original survey. If the meander line is below the OHWL
                                  the state may lose ownership and control of a valuable re-
            Skiu:~-,:~,~         source, while if the line is significantly shoreward of the
                                  OHIWL, the riparian owner may lose some of his valuable-
                                  riparian rights.

                                      From the legal viewpoint, the meander line is arguably
                                  unacceptable as a standard boundary line because the private
                                  owner may not be deprived of his riparian rights to accretion
                                  without due process. Since meander lines do not fluctuate
            ~-~2~-   ~~~         with changes in water levels or land contours, they are anal-
                                  ogous to the attempts by some states to fix boundaries as of
                                  statehood which have been declared unconstitutional.'60 Con-
                                  versely, a meander line below the OHWL would not adversely
                                  affect the riparian owner, but the validity of such a boundary
                                  designation would depend upon the state's concept of the
                                  public trust doctrine. Because that doctrine is regarded as a
                                  judicial restraint on the power of the legislature to alienate
            -~~~-m~~ j :.lands except in the public trust,"' some courts might not
                                  recognize meander line boundaries which in effect give away
                                  sovereignty submerged lands.

             <~;~,~~    ~~Thus, the meander line does not appear to be a reason-
            ~.~?-~ '~~/�~able substitute for the OHWL as a general rule. It should be
                                  emphasized that the meander line has only been used where
                                  unusual circumstances caused the determination of the actual
                                  0OHWL  to be extremely difficult or even impossible. The
                                  meander line is "only an approximation"'62 or evidence of
            ?--'-L x..- ~..~  2~.159. Id. at 309. The meander line referred to in this case was pieced together from sev-
       "; - ../._  "_-~~--s, eral segment survevs; one made in 1855, three in 1856 and 1885. t;vo in 18S6,
                                       1887. 1899, 1906 and 1912, three in 1913 and 1928, and the closing survey was
            ':"---~'~..~.-?_ ~ ~.made in 1966, Id., n.24, at 265 Thus it did not conform to the water boundary
                                       of the Great Salt Lake as that boundary had ever actually existed.
            ;.'~-'~~!?'-[.:~  ~  160. Hughes v. Washington, 389 U.S. 290 (1967), (coastal waters); United States v.
             Ai-e;~.:~-~;~~~,~Washington, 294 F.2d 830 (9th Cir. 1961), cert. denied. 369 U.S. 817 11962)
    ~-.~'";-~~'-";                   (coastal waters). SLate v. Florida National Properties, Inc., 33S So.2d 13 (Fla.
             ;Aid)z"~-~'_ _-~B  ~~1976) (navigable lake).
       7.'-.re.... ~ '161. Note. Alry'lana's Wetlands: The Legal Quaogrmire, 30 MD. L. REV. 2-10, 261 1(19701.
      ~4%'~_--?.:[                    See Sax, The Public Trust Doctrine in Natural Rcsources Lcw: Effective Judicial
              '-~r-~..~.~.-~~_~~  ~    Intervention. 68 MICH. L. REV. 471, 557-65 (1970).
            �'~"D'~ "--~ r~~~l162. See note 144,supro, at 309.

                 ~~~~~~~~~~~~~~~~~~~~~~-                                            _'
                         S  *  _         :~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Ala_~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

                                               1978                ORDLNAARY HIGH WATER MARK                                       29

    w'%=-9'~?~-~?:595~-,%,g',                         the OHWL, and as a fixed line is not a satisfactory substitute
                                               for the actual water boundary which is ambulatory in nature.

                                                         THE NECESSITY OF AN AMBULATORY LINE

             555~T'-- ~w~ ~?~ '~. <-~2"~-'_-~Notwithstanding the furor over Bonelli ant' Corvallis, this
                                               much is clear: the states cannot fix the OHWL, relative to a
                                               point in time, without doing violence to the principles of ac-
                                               cretion and reliction. A very recent Florida Supreme Court
    -4 ?.    -�t;A-       -,-i"j                      decision,  State  v.  Florida  National  Properties,  Inc.,653  illus-
                                               trates this principle admirably.

                                                    In 1971 the Florida Legislature passed a boundary stat-
                                               ute"64 which is fairly representative of attempts by several
                         "I '*~' -*'  ,  Astates165 to fix the OHWL as of the date of statehood. The
                                               statute provided in part that the water's edge, as evidenced at
                                               the date of statehood, would constitute the boundary line of
                                               any navigable meandered freshwater lake.166

                                                    At  the trial level,'67 the circuit court found multiple con-
                                               stitutional  infirmities  in the  statute.  The  court said that an
                                               application of Hughes through Bonelli required two holdings:
                                                first, that  federal  law  applied  over  state law,L68 and  second,
                                               that any attempt by the state to deprive riparian landowners
                                               of their right to accretion was invalid under federal common
                                   .zL~          ~ law 169
                                               163.  33S So. 2d 13 (Fla. 1976).
                                                164.  FLA. STAT. � 253.151 (1975).
                '--'   "*'' ?:    . !               165. E.g., Harris v. Hylebos Indus., Inc., 81 Wash.2d 770, 505 P.2d 457 (1973); Vavrek
                               ~-'~.~ %g~-~"~"   |v. Parks, 6 Wash.App. 684, 495 P.2d 1051 (1972), Wilson v. Howard. 5 Wash.App.
                                  ~ ~~ ?5' .. ';  ~     169, 486 P.2d 1172 (1971). Washington, however, does not recognize loss of title
               !~:Z. -S,~-.Z.~? ~,5' �4:: --  �by erosion of land abutting lakes, bays or waters treated as lakes or bays if the land
                               I,                        was conveyed by federal grant prior to statehood. This rule relies on the theory
     -.'. .--",fa.--'�~i~�~ ~that the state may dispose of its land beneath navigable waters if it desires.
                :9=j-~'~- - "-'~ ~.~;~c'~-~-~?~(  '  166. "The boundary line shall be established by, or under the supervision of, the board
          z~ -f~-~oSTr- :~. ~-~ "~?'- t T(of trustees of the internal improvement trust fund) by use of one or more of the
                                                     following procedures: (a) where physical evidence exists indicating the actual wa-
                                                     ter's edge of any navigable meandered freshwater lake as of ihe date such body
                                                     came under the jurisdiction of the state, regardless of where the water's edge exists
                                                     as of the date of the determination of the boundary line, the water's edge as evi-
                                                     denced on the former date shall be deemed the boundary line." FLA. STAT. F
                                                     253.151 (3) (a) (1975) (emphasis added). The statute also established several al-
     . -,*2;;-.~.7:.> -'-..:r-'r,'-~ -- S~e-. l             ternative means for determining the OlIWLI, including physical inspection, affi-
                      - -~~~~~~~ �~~                           ~ ~davits of local residents, and statistical averaging of staee data.
                ,f.=_, .r >  '.  ._ ._ ~.           167. Case No. 74-5-7, Cir. Ct. Highlands County, May 3, 1974.
                             '.~~:    ;-~.~-'J f i.'!_  168.  "In order to establish the boundary line, the Court must determine the extent of
         e~-'.:..5~J~-'~, ~/~t;'~" "~'~_.. f~.~[~=5.'c~    the State's title, if any, and to the disputed area. Since the State acquired title to
                                                     the bottom lands from the Federal Government, the boundary line is necessarily
                           ___ 'Z{I '''      ' ~7'controlled by Federal law. Bonelli . . . Upon reviewing the applicable law, the court
                                                     has concluded that the boundary line between plaintiff's upland property and thu
                                                     sovereignty bottom lands of Lake Istokpoga is the present ordinary high water
           ~':T-~'T-"~"~;W                                  mark  . . This boundary is movable or ambulatory in character, and its location is
                                                     subject to change in the future as a result of the processes of accretion, reliction
     �    ~ ,t'~<-.-v~a=�~--'2(-~--~"r~-'~ ~and erosion." Case No. 74-5-7, Cir. Ct. Highlands County, May 3, 1976, slip op.
                                                     at A-36.
                             ' .169.   d. at A-41-42.

       =.Nr',...,.T./;'.,:'/~ ~nc:,  .v~                       i _? :': .,-, -.,;: -.                                    . ..  :_,.;-f-
                                                                  .3<""�s~�~'_                                                                     4

            ~-a.~,~   ,~,~.'-~30                    LAND AND WATER LAW REVIEW             Vol. XIII

                                          This position was subsequently adopted by the Florida
                                      Supreme Court."'0 That opinion would now be open to ques-
                                      tion as a result of the United States Supreme Court's decision
                A423:~-~-~  ~in Corvallis, discussed previously. The majority in Florida Na-
                                      tional Properties cited Hughes to hold Section 253.151 un-
                                      constitutional as a violation of the supremacy clause of the
                                      United States Constitution, in that it was an attempt by the
                                      State to regulate in an area governed by federal law.'  This
                                      basis can no longer be used after Corvallis' holding that state
                    ___-              law is determinative.

     ;[~: ..;...'                        Additionally, however, the Court held that the effect of
             .*I~~~~ ~the statute was to unlawfully take private property without
           .~,--~--:,--~~      ~      the payment of just compensation in violation of the due
                                      process clauses of both the federal and Florida constitu-
                                      tions."'  The attempt by the State to freeze boundaries of
                                      navigable meandered fresh water lakes ignored the principles
                __ ~"~--~-~ '~        of accretion and reliction which, according to the majority,
                    4w.~-a~t.        were rights vested in the owners of lands bounded by navig-
                                      able water.'3 This second basis for tding the statute uncon-
                                      stitutional is not dependent upon fieral common law for its
           m[-~;~  ~f~  ~    ~viability and has not been weakened by the subsequent ren-
                                    dering of the Corvallis decision.

                                               THE USE OF STATISTICAL AVERAGLNG TO
                                                        DETERMINE THE OHWL

                                          As noted at the outset, the predominating rule is that the
                                      OHWL  is to be determined from physical marks upon the
              I~- ~'~':~banks,"'4 and not through a statistical averaging process. 175
          _-;.__:                     Use of such a process in this context has in fact been declared
                                      to be reversible error.'76 However, there are several reasons
                                      why this type of methodology has been urged. In certain
          gs ~~~::, ~-areas of the country a stream or river may run wide and deep
                                      during. the wet season while containing little or no water dur-
                                      ingdry months. The application of accretion-reliction theory
          UA~~~~~~~ :-w.,';-under those circumstances is extremely difficult,'77 and an
                                       170 338 So.2d 13,17 (Fla. 1976_G).
                                       171.  Id.
                                       172. Id.
                                       173. Id.
     ~_~ ~ ' ~~ ,>:                   174. Howard v. Ingersoll, 54 U.S. (How.) 381 (1851).
            ,xi_ A-,  , '-.' '-:~e -~  175.  Coastal Boundarv Mafpping. supra note 13. at 195-98.
    ?~-~%'    ;-.:S;-, e176. Willis v. United States. 50 F. Supp. 99 (S.D. W.Va. 1943); Kelly's Creek & North-
               Fs'9iL i~~~~~=.:x.%        ~western R.R. Co. v. United States, 100 Ct.Ci. 396 (1943).
                                       177. See, e.g., Snake River Ranch v. United States, 395 F. Supp. 8SG (D. Wyo. 1975).
    W3 Y

              _    =_
                      ' -~.-                                                                  .
     :.~ ~      __       __.4�  �%                                                ~    ~     ;     --

                        -  ~a~.r' ;; -" ~ ~, i-~ ~ ~ ~.~_~.''_.(-.- -,:',-"q*--.-- .:-  ...'  -.-_ .,~' -C:.c ~;-..i.-iJ''~..-.,*.-':.

      A

         :~!         1978          ORDINARY HIGH WATER MARK                     31

    i                 averaging technique might serve to stabilize land boundaries
         ~W~ ~       and, therefore, property rights.'78 Further, where statistical
         Ad~ ~       stage data is available, the determination of the OHWL could
                    arguably be brought closer to a scientific certainty. Such a
         g i~~~determination may have much greater relevance for regulE-
         *:~ ~tory purposes than does the traditional definition.'79 Finally,
                      since the examination of the bank of a water body with ref-
                      erence only to the traditional factors of the OHWL definition
                      often may reveal several lines of varying distinctness, statisti-
                      cal data can provide invaluable collateral or secondary infor-
         Sz-c~.      mation as to the OHWL's location.'80 For these reasons it is
                      helpful to examine some possible precedents for the use of
                      statistical data in this context, and also some of the potential
                      problems.
                          Language in the Supreme Court case of Oklahoma v. Tex-
         . __       sas,181 lends some support to the use of averaging. The ques-
                      tion for determination was the intent of the language in an
                      early Spanish conveyance which set the boundary along "the
         > ~~.       course of the southern bank of the Arkansas" River.'82 The
                      Court apparently did not read Howard v. Ingersoll as exclud-
         gs~ ~       ing the use of averaging. The Court stated:

                          The boundary intended is on and along the bank at
          ~<~~ ~          the average or mean level attained by the waters in
           ;~s~    ~      the periods when they reach and wash the bank with-
                        out overflowing it.183
                       In later proceedings'84 a method of determining the boundary
                      along the cut banks of the river which apparently included
         _. ~ ~ ~averaging was validated by the court.

                          For several reasons, the case can be distinguished from
          .~'~~  ~    more recent decisions defining the OHWVL for navigable water
         ~j    @~     bodies. First, the river had already been declared to be non-
         ei~,~       ~ navigable.'1 Second, and as a result of this finding, the Court
         t~ ~~        placed primary reliance on what is perceived to be the intent
         A}~  ~       of the parties expressed in the conveyance."6 Since this wvas
         a~.q~~ ~     178. See Motl v. Boyd. 286 SAV. 458 (Tex. 1926).
    . -"-. ,          179 See 33 C.F.R. � 209.120(d)(2) (h) (ii) (a) (1976).
         ~>-H ~.  ~   180. See FLA. STAT.� 253.151(3) (c) (1975).
         Be~~  ~181. 260 U.S. 606(1922).
         I.~. ~,-  ~182. Id. at 623.
         +.^~ -4~ i   183. Id. at 632. Alabama v. Georgia, 64 U.S. 505, 515 (1859) contains almost iden..ical
    ..  I                language and therefore can be cited to the samne proposition. See note 27, suprc
         a-~_'~ .   ,184. 265 U.S. 493 (1924).
         .-d'.-~~ f185. Oklahoma v. Texas, 258 U.S. 574 591 (1922).
                       186. Oklahoma v. Texas, supra note 181, at 633.

                 ___~~~~~~~~~~~M5 Deoiiztos                              --. fm4
                                                                        �n.

    M                                  4,i

     32            LAND AND WATER LAW REVIEW   Vol. XIII

     an arid area where water levels fluctuated drastically through-
     out the course of the year, the application of averaging ap-
     pears logically to be within this intent. Because of these
     major distinguishing factors, there is no reason the decision
     should be considered as precedent in cases dealing with the
     OHWL of navigable waters, and the later federal decisions dis-
     cussed above have uniformly adopted the physical test of
     Howard v. Ingersoll.

         One result of Oklahoma v. Texas, however, was the adop-
     tion by Texas of a similar cutbank definition for the deterrn-
     ination of the limit of the bed of navigable streams.187 In the
     case of Maufrais v. State'~ the Supreme Court of Texas as-
     serted that their definition is in "complete harmony"189 with
     Alabama v. Georgia and Howard v. Ingersoll.

         The bed of a stream is that portion of its soil which is
         alternately covered and left bare as there may be an
         increase or diminution in the supply of water, and
         which is adequate to contain-i; at its average and
         mean state during an entire yearnwithout reference to
          extra freshets of the winter or  pring or the extreme
          drouths of the summer or autumn.190
     The definition itself goes a long way toward explaining why
     such a method is necessary. Since floods are extremely pre-
     valent in Texas and similar geographic areas,191 and since dur-
     ing the dry season the same beds that flooded in spring may
     run almost dry, some method is necessary to equitably deter-
     mine a stable boundary.'92 It remains to be seen whether the
     Texas definition will retain its validity.93

          Although statistical averaging to determine the OHWL
     was  the method incorporated in a proposed draft regula-
      187. Motl v. Boyd, supra note 178.
      188. 180 S.W. 2d 144 (Tex. 1944).
      189. Id. at 147.
      190. Id.
      19'1. See Motl v. Bovd, 286 S.W. 458, 469-70 (Tex. 1926); Snake River Ranchv. United
           States, note 177, supra.
      192. Another reason that Texas has stuck to an averaging technique for the determina.
           tion of the OIIWL is that the definition of navigability of streams is determined by
           statute in a similar manner. "All strcams so far as they retain an average width of
           thirty feet from the mouth up shalt be considered navigable streams . . ." TEX.
           RLEV. STAT. art. 5302 (1962). The width of the stream necessary for this statutory
           navigability is measured by the width of the bed so defined despite the fact that
           the width of the waters in ordinary season does not meet the requirement. This
           helps to explain the acceptability of an averaging technique of OtWL determina-
           tion.
      193. Of course it is possible that the courts in recognition of the difficulty of applica-
           tion to arid areas of the traditional OIIWL definition, may .adopt some variant of
           statistical averaging.

    . .

                                                        w,~~~~-   -

            J':"-;"                    1978          ORDINARY HIGH WATER MARK                      33

                                        tion"'  promulgated by the Army Corps of Engineers to meet
                                        the requirements of the Federal Water Pollution Control
                                        Act,'95 the draft was subsequently discarded and the latest
                                        published rules and regulations of the Corps contain the tra-
      ~-'>~-:'':;-XS'- Js               ditional physical factors test.'96 Regardless of what definition
                                        is used by the Corps, it should be clearly borne in mind that
                                        the definition is promulgated for regulatory purposes only 1'
                                        and should not be considered an attempt to redefine propertie
                                        rights.98 As a regulatory measure under the police powe, it
                                        is not subject to the same potential constitutional infirm;co',
    9?~:..a~-�=..~-~:,/&?               as would be an attempt to redefine the traditional OHIWL
        ,-<~' - ~ ~ ';- '~?~ *�~        property boundary.
                                            Two federal cases are instructive as to why the use of sta-
                                         tistical averaging to determine the OIIWL for title purposes is
                                         objectionable. Willis v. United States"9  concerned a dam
                                         which the government had constructed to improve the navi-
                                         gation in the Kanawha River in West Virginia. One of the
                                         consequences was the flooding of a strip of plaintiff's land.
                                         The government's, argument that official river stage records
                                         should be used to determine the OHWL for compensation
                                         purposes was rejected. The court rearsoned that such a method
                                         would be inappropriate because any result reached would de-
                                         pend upon a time period and frequency of occurrence arbi-
    --- . -- --:_.--~~----,trarily selected by the individual analyst. While useful for en-
             ,~.-..~ak~z-..?            gineering purposes, the statistical averaging approach was
                                          utterly unreliable as a means of determining the respective
                                         rights of the United States and the riparian property own-
                                         er."200

                                            Another case involving the same river and a similar flood-
                                         ing situation, Kelly's Creek & Northwestern R.R. Co. v. Unit-
                                        ed States,20' also rejected the asserted averaging method. The
                                         Court of Claims adopted a variant of the traditional defini-
                                         tion202 and specifically rejected testimony regarding stage
              ..t..              .. ~-~,-~'~; :�z~.194. 33C.F.R. � 209.120(d) (2) (ii) (a) (1975).
                                         195. See 33 U.S.C. � 1344 (Supp. 1972); N.R.D.C. v. Callaway, Cir. No. 74-1242 (D.C.
                                           . March 27, 1975).
             ;~~::;.,., ....~:,/ _~'-196. 42 Fed. Reg. 37144 (1977).
       '-:',; _,-..:S .   ,:-e         197. See United States v. [ olland,373 F. Supp. 665 (M.D. Fla. 1974).
                                         198. As noted above, the private ownership of underlying beds of navigable water bodies
                                             has no bearing on the existence or extent of the dorninlnt navh<able SelviLUde.
                   kb-~'%.,~.,~_ ,-<~f:=   United States v. Chicago,. M.. St. P. & 1'. R.R. Co., 312 U.S. 592,596 (1941).
                                         199. 50 F. Supp. 99 (S.D. W.Va. 1943).
                                         200. Id. at 101.
         . -~   . ~.'::.::~:Uz.:,~'-{ ,-   201.   100 Ct. CI. 396 (1943).
                                          202. Id. at 406.

       AIj              -

                                         34           LAND AND WATER LAW REVIEW             Vol. XIII

        "g  G o~                        data as "wholly without value."203 Thus, it appears that_.- t
                                         federal courts are unwilling to accept a definition of 01 W L
                                         based on statistical averaging, at least wherf. property Thn-:
                                         daries are involved. 04

       c~c~c~c~c~c~c~c~~-~&.%~.  ~CONCLUSION

                                            Mr. Justice Curtis' definition of the OHWL in Howard v.-
                                        Ingersoll205 is the one most frequently applied in both state
                                         and federal courts. It makes determination of the OHWL de-
        c':~ZS~�-k'9~ ~-~T~�-   ~       pendent upon the examination of several physical factors in-
                                        dicating the common and ordinary level of the water.

                                            The Corvallis decision206 may have created uncertainties
                                         as to whether federal or state rules are to be applied in de-
                                         termining boundaries in tidally-affected areas, but it seems
                                         clear that state rules will now be applied in determining prop-
                                         erty boundaries along non-tidal inland navigable waterbodies.
              :~_4-~i~.,z~;:: :~4~      This does' not mean that the states 5e free to adopt whatever
        __J,��-R0r�;�-�~-~~�;~,�.5~     rules they please. Any attempt tol-ermanently freeze such
                                         boundaries such as those made by the states of Washington
                                         and Florida, would still run into state-as well as federal con-
                                         stitutional problems related to the taking issue.

                                            Moreover, the Bonelli concept, that rapid boundary
    .-~'g-"-~.-,-<~."~:~~~pi~3;=;~-'~�   changes may be treated as accretion where navigation-related
    -aci;' ' ~'~ig-~L-i. ;<~'-~�-.~'~'~4~  interests are not involved and riparian rights to navigable wva-
                                         terbodies are in need of protection,207 may still be adopted as
                                         state law in those states which desire to do so. Perhaps it is
                                         fair to conclude that while the states are now free to apply
                                         and develop their own rules of law with respect to non-tidal
                                         fresh water boundaries, the concept recently developed by
                                         the federal judiciary in Bonefli208 may lead to a re-thinking of
                                         such rules by the states, looking toward more equitable solu-
                       "~.~.~ - ~"tions to the problem created by the ambulatory nature of
                .,~~~~'-='?~~-~'L~""     such boundaries. The dynamnic character of the hydrologic
                                         203. Id.
         In, ~7~:1204. The recent Florida case, State v. Florida National Properties. Inc., 338 So.2d 13
                     *r~.^ biker (Fla. 1976), invalidated an averaging technique required by Florida statute. FLA.
                                             ; iSTT.  253.151(3)(c) (1975). This resultj.d, however, from a findinu that this
                                              provision was not severahle, and not from any analysis of the efficacy o, sta,:lticai
                                              averuaini.
                                         205. 54 U.S. 381,427 (1851).
                         ,._~li~ 9< ~206. Corvallis, supra note 108.
                                          207. Bonelli Cattle Co. v. Arizona. supra note 9G, at 328.
                                         208. Id.

                                  7~7                      ,.f- 7_
         .-iJ~: :..

        * -:-:';<r-% ~             1978          ORDINARY HIGH WATER MARK35

    .7---'"~,e�}K:_[~g.%.2:~':~ ~factors that play a part in the creation of the OHWL may call
                                   for flexible approaches by the states in resolving disputes
                                   over their inland navigable water boundaries.

                                       The ambulatory nature of the actual water boundary
                                   makes use of the surveyed meander line as an alternative to
    ~  -~&-.'~-f'~  ~              the OHWL impractical and legally problematic. Use of the
                                   meander line or any other fixed boundary, such as a natural
                                   water boundary frozen as of a particular date, is subject to
                                   constitutional challenge as a deprivation of riparian rights.
                                   While a determination of the OHWL by use, of mathmatical
    '~'--,~i~;5~-- ~-'.?~[~fa-~.   averaging would provide an ambulatory line, there is authority
    '?~-~-~ ~'4~                   holding such a method unconstitutional due to the inherently
                                   arbitrary nature of the selection of data for analysis.

                                       Consistent with the idea that the law should strive to con-
                                    form as nearly as it is practical and feasible to do so with the
       ~?~~-k' - ,-_ _.~.~..
                                    state of thing.s as they actually exist, the boundary for title
                                    purposes between sovereignty submerged lands and privately-
                                    owned uplands should be based on a delineation of the water's
                -..'~? ,~;;~,:-~   true boundary. In addition, because actual water boundaries
                                    are ambulatory in nature, the legal Uoundary for title purposes
                                    must change with the movement of the water's edge. After
                                    much controversy and debate, the OHWL, as determined by
                                    reference to physical indicators of the true water-land boun-
                                    dary, is still recognized by the courts, both federal and state,
                                    as the true boundary except in very unusual circumstances.
                                    In applying these legal rules to accurately locate the line on
                                    the ground, the legal profession will require the aid of experts
     ~.'~--"-~' - "---~/-_~.~':%~ '..from many disciplines, often including biologists, geologists
                                    and land surveyors. It is hoped that the legal guidelines set
      -'-,4%~;3~?:~  ~[~            forth in this article may assist the legal profession in working
    '~')-~ ~-- ~/~~_   ~:~::~."~:~'  with these experts to more accurately locate this sometimes
                                    elusive boundary line.
                .~_'~-~' Xn.~6~    ' --~-~-W -'--

    -'  -~a. ~- ~2  ..'_~

     -c.- _ - .._.~   .

            -'~..- ~g~~L.~.'4-~~..,~