This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
8. See per Lindley, J., in Foster v. Wright, 4 C. P. D. 438 at p. 447.
9. Dig. 41, 1, 16. See Municipality No. 2 v. Orleans Cotton Press, 18 La. 122, 36 Am. Dec. 624; Smith v. St. Louis Public Schools, 30 Mo. 290; Frank v. Godden, 193 Mo. 395, 112 Am. St. Rep. 443, 1 S. W. 1057; Salkow-ski's Private Roman Law, 399;
Effect that one cannot claim land as an accretion which first formed as a bar in the stream, and subsequently became attached to the mainland by the gradual filling in of the intervening space.13 As regards these latter decisions, the view might, it is submitted, more properly be taken, that when land is conveyed as bounding on the edge of a stream, or on the seashore, it is to be regarded as continuing so to bound, irrespective of the direction of the accretion which causes a gradual change in the position of the boundary named.14 The owner of the mainland is not entitled to the accretions to an island, and there might consequently arise, on occasion, a question of some difficulty whether a particular formation away from the shore could be regarded as an island,15 but there is quite as considerable difficulty in the practical application of the view that accretions, in order to belong to the owner of the mainland, must commence at the edge of his property and work outwards. In the first case, it is impossible to say in which direction accretions grow, since bars ordinarily form beneath the water, and subsequently become connected with the main land by the filling up of the intervening space, and there is no logical reason for distinguishing in this regard between a bar a few inches below the surface of the water, and one a few inches above it. The question might furthermore be suggested, does the rule that accretions cannot be "saltatory," as it has been expressed, apply to a leap of an inch or two inches, and if not, at what distance does it commence to apply. Finally, it may be remarked, the place of the inception and the direction of progress of a gradual alluvial formation are ordinarily at the time matters of negligible importance and interest, and the memory thereof by witnesses, testifying perhaps after an interval of a number of years, is peculiarly apt to be fallacious, even when not intentionally false. It appears to be undesirable to make property rights dependent on testimony of such an ordinarily untrustworthy character.
Hunt's Boundaries & Fences (6th Sd.) 47.
10. In Britton, Bk. 2, ch. 2, pl. 7, it is said that one is entitled to the increase "if certain bounds are not found." And so it is said in Sir Matthew Hale's De Jure Maris, ch. 1, that it is immaterial that the alteration be by insensible degrees, if "there be other known
Adopting the view of the subject of accretion above indicated, that it is, in the last analysis, a rule, or aggregate of rules, of construction rather than of law, it would follow that there exists, in the case of land bounding on water the bed of which is in the state, a presumption that in so far as the original grant from the state, or any subsequent conveyance in the chain of title, bounded the land on the water or on any physical feature incident thereto, it was the intention that the location of the boundary should change as the line of the water, or of the specified physical feature, might gradually change in the future. And so when the line of demarcation between lands belonging to two individuals is some stream or body of water, or a particular feature thereof, such as the edge or the centre of the channel, it is presumed that, in so bounding the land, it was the intention to have the boundary change as the particular feature of the water referred to might thereafter change. That the rules in regard to accretion are rules for the ascertainment of the boundary, rules of construction, in effect, has occasionally been judicially stated.11 A further argument in favor of this view is to be found in the consideration that when land is bounded on the center line of a stream or body of water, the boundary moves as such center line moves, although in such case the doctrine of accretion is apparently inapplicable.11a
The only decisions which appear to be absolutely opposed to the view of the subject as a rule for the determination of boundaries are those above cited, that a non riparian owner becoming a riparian owner is entitled to accretions,12 and several decisions to the boundaries as stakes or extent of land."
11. Jefferis v. East Omaha Land Co., 134 U. S. 178, 33 L. Ed. 872; Chicago Dock & Canal Co. v. Kinzie, 93 111. 425; Le Beau v. Given, 37 Mo. 556; Meyers v. Mathis, 42 La. Ann. 471, 21 Am. St. Rep. 385, 7 So. 605; Minto v. Delaney, 7 Ore. 337; Camden & Atl. Land Co. v. Lippincott, 45 N. J. L. 405.
11a. Post, Sec. 536, note 21.
12. Ante, this section, note 5.
13. Hammond v. Sheppard, 186 111. 235, 78 Am. St. Rep. 274,
57 N. E. 867; Crandall v. Smith, 134 Mo. 633, 36 S. W. 612; De Lassus v. Faherty, 164 Mo. 361,
58 L. R. A. 193, 64 S. W. 183; Nix v. Pfeifer, 73 Ark. 201, 83 S. W. 951; Fowler v. Wood, 73
Kan. 511, 6 L. R. A. N. S. 162, 117 Am. St. Rep. 534, 85 Pac. 763; Linthicum v. Coan, 64 Md. 439, 54 Am. Rep. 75, 2 Atl. 826.
14. It is so decided in King v. Young, 76 Me. 76, 49 Am. Rep. 596.
15. Post, Sec. 542, note 53.