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 .
The legal effect of a change in the line between land and water, such as is above referred to, is frequently- regarded as based on positive rules of law, that is, it is said in effect that one acquires land which is added to his land by the gradual action or recession of water, and that likewise one loses land which is gradually washed away or encroached upon by the water. It appears, however, to be open to question whether there are, properly speaking, any such rules of law, and whether, so far as the legal effects of such physical changes are concerned, they are not rather the result of a general rule for the ascertainment of boundaries, a rule of construction, in effect, that if the boundary of land is determinable with reference to the sea or any body or stream of water, the boundary is presumably intended to vary as the particular physical feature referred to may vary, provided the variation the intention in naming such boundary was to convey land only extending to the line of such edge as it then existed.4a The question whether there is a distinct doctrine of accretion, or whether the so called doctrine is merely a rule for the ascertainment of boundaries on water, appears to be clearly presented by cases involving the right of one, whose non riparian land has become riparian by the gradual encroachment of the water, to claim land subsequently formed by the action of the water. In such a case, the intention of the grantor of the present proprietor, or of some person anterior to him in the chain of title, was to convey land extending only to a boundary away from the water, and consequently if, because his land has become riparian, he is given the benefit of accretions thereto, he is in effect given what it was never the intention of his predecessor in title to convey. If there is a rule of law that accretions belong to the riparian proprietor, he is entitled to the accretions,5 while otherwise he is not so entitled.6 The most extreme application of the former view appears to be found in a Connecticut case,7 in which it was decided that when the land of A. which was originally on the East side of a river, but was not
2. In re Hull & Selby Ry. Co., 5 Mees. & W. 327; Warren v. Chambers, 25 Ark. 120, 4 Am. Rep. 23; Steele v. Sanchez, 72 Iowa, 65, 2 Am. St. Rep. 233, 33 N. W. 366; Cox v. Arnold, 129
Mo. 337, 50 Am. St. Rep. 450, 31 S. W. 592; Bouvier v. Strick-lett, 40 Neb. 792, 59 N. W. 550; Town of East Hampton v. Kirk, 84 N. Y. 218; Wilson v. Shiveley, 11 Ore. 215, 4 Pac. 324.
In the first place, if we recognize a distinct doc trine of accretion, in effect a rule of law that an owner of land shall have whatever adjacent land may be created by the gradual action or change of the water, the intention of the parties interested in the delimitation of the boundaries of the land is immaterial. In the presence of such a doctrine, the fact that, in conveying the property to its present owner, the grantor expressly retained all future accretions, would be immaterial, as would be the fact that the conveyance, in describing the land, made no reference to the body or stream of water, or to any incident or characteristic thereof. "We do not find any case which explicitly decides that one can, in conveying property bounding on water, retain any subsequent accretions thereto, but there are dicta to that effect.3 The effectiveness of intention in this regard is also indicated by judicial assertions that when the boundary is fixed by the deed at a specified line without reference to the water, the grantee cannot claim accretions beyond such line.4 And in accord with this view are occasional decisions denying any right to accretions in favor of land bounded on the edge of an artificial pond, on the ground that
3. People ex rel. Burnham v. Jones, 112 N. Y. 597, 20 N. E. 577; Minneapolis Trust Co. v. Eastman, 47 Minn. 301, 50 N. W. 82, 930; Frank v. Goddin, 193 Mo. 395, 112 Am. St. Rep. 493, 91 S. W. 1057.
4. Perry v. Sadler, 76 Ark.
43, 88 S. W. 832; Bristol v. Carroll County, 95 111. 84; Swerin-gen v. St. Louis, 151 Mo. 348, 52 S. W. 346; Frank v. Goddin. 193 Mo. 395, 112 Am. St. Rep. 423, 91 S. W. 1057; Volcanic Oil and Gas Co. v. Chaplin, 27 Ont. L. Rep. 34, 484.
4a. Cook v. Mcclure, 58 N. L. 437, 17 Am. Rep. 270; Eddy v. St. Mars, 53 Vt. 462, 38 Am. Rep. 395; Holden v. Chandler, 61 Vt. 291, 18 Atl. 310.
5. That he is entitled to the accretions in such a case, see Peuker v. Kanter, 62 Kan. 363, 63 Pac. 617; Crandall v. Allen, 118 Mo. 403, 22 L. R. A. 591, 24 S. W. 172; Widdecombe v. Chiles, 173 Mo. 195, 61 L. R. A. 309, 96 Am. St. Rep. 507, 73 S. W. 444; Welles v. Bailey, 55 Conn. 292, 3 Am. St. Rep. 48, 10 Atl. 565; editorial notes in 16 Harv. Law Rev. 527, 26 Id. 185.
6. That he is not entitled to the accretions in such a case, see Ocean City Ass'n v. Shriver, 64 N. J. L. 550, 51 L. R. A. 425, 46 Atl. 690; Allard v. Cur-ran, - S. D - , 168 N. W. 761; Stockley v Cissna, 119 Fed. Rep. 812; 3 Farnham, Waters at p. 2498. See also Gilbert v. El-dridge, 47 Minn. 210, 13 L. R. A. 511, 49 N. W. 679; Maw v. Bruneau, 37 S. D. 75, 156 N. W. 792; Volcanic Oil & Gas Co. v. Chaplin, 27 Ont. L. Rep. 34, 484.
7. Welles v. Bailey, 55 Conn. 292, 3 Am. St. Rep. 48, 10 Atl. 565.
Described, in the conveyance to him, with reference to the river, came to lie on the West side, by reason of a gradual Eastward change in the location of the river, the fact that it became, in the course of the change, riparian land on the West side of the river, entitled its owner to claim by way of accretion all the land over which any further Eastward change in the river caused it to pass. Applying such a doctrine, if there were a number of lots, no matter how many, over which a river gradually passed, in the course of a transverse change in its location, the owner of the lot on which the river first impinged, it being made thereby riparian land, would be entitled to all the lots over which the subsequent changes in the river caused it to pass. The law in regard to the effect on property rights in land of a gradual change in the location of water is adopted by the common-law writers from the civil law,8 and that in the latter system the so-called doctrine of accretion or alluvion was, properly considered, a rule for ascertaining the intention as to the boundaries of land, may perhaps be inferred from the fact that it had no application when the limits or boundaries of the lands were fixed, that is, when they were what were known as agri limitati.9 A like idea, that the doctrine of accretion does not apply if the boundaries of the land are fixed, not with reference to the water on which the land happens to border, but by other objects or by measurements, is occasionally indicated by the common law writers.10