Patented Tidelands and Swamp & Overflowed Lands

[Brad Luken]

In researching the subjects of Tidelands and Swamp & Overflowed Lands surveys and properties that were patented from said surveys, I am hoping to get some clarification/confirmation of the statements below:

Tidelands were not part of the public domain and do not entail any Public Trust.

Tidelands' boundaries are subject to Civil Code 670(the state is the owner of all land below tide water, and below ordinary high water mark, bordering upon tide water within the State) but if the tidelands are patented, the owner would have fee simple title to the land.

Swamp & Overflowed Lands were part of the public domain, but were granted to the State upon identification of a public land survey, and would be subject to the Public Trust

Swamp & Overflowed Lands, when patented, grant fee simple title to the patentee.

Any information on the above issues would be greatly appeciated.

[E_Page]

Originally Posted by Brad Luken

In researching the subjects of Tidelands and Swamp & Overflowed Lands surveys and properties that were patented from said surveys, I am hoping to get some clarification/confirmation of the statements below:

Tidelands were not part of the public domain and do not entail any Public Trust.

CA Tidelands in General

Tidelands are the portion of land lying between the OHWM and the LWM. The State Constitution prohibits the sale of tidelands within 2 miles of any city or town, and fronting on any harbor, bay, etc., and there has been an absolute prohibition by statute since 1909.


Public Trust in General

Under the Equal Footing Doctrine, CA gained sovereign title to the beds of all navigable waters and to all lands subject to the regular rise and fall of the tides (tidelands). Sovereign lands of the State are those held in trust for the public and generally cannot be alientated from public control or ownership. The seminal case on this point is Illinios Central Railroad v. Illinois (1892) 146 US 387, in which the grant from the State to the railroad of lands lying within the bed of Lake Michigan was held to be invalid, not due to any defect in the patent, but because the State was legally incapable of disposing of its sovereign land free of the public trust.


Public Trust and Tidelands in CA

In CA, holding somewhat to that principle, yet deviating from it some, the courts have held title to patents from the State for tidelands which otherwise did not run afoul of the constitutional prohibition to be valid but to be subject to the Public Trust. So essentially, the owners have a parcel of tideland that they are unable to do anything with that is inconsistent with public trust use.

So in short, tidelands are most certainly subject to the Public Trust, and it has nothing to do with whether it was or was not part of the Public Domain.

Originally Posted by Brad Luken

Tidelands' boundaries are subject to Civil Code 670(the state is the owner of all land below tide water, and below ordinary high water mark, bordering upon tide water within the State) but if the tidelands are patented, the owner would have fee simple title to the land.

A patent conveys fee title, but that does not free it from the public trust easement.

Originally Posted by Brad Luken

Swamp & Overflowed Lands were part of the public domain, but were granted to the State upon identification of a public land survey, and would be subject to the Public Trust.

Swamp & Overflowed Land in General

S&O lands were segregated from the Public Domain and so, like meandered bodies of water, were considered to be lands omitted from the Public Domain (similar to a "Not A Part" parcel of a more modern private subdivision).

Unlike tidelands, S&O lands are not considered to be sovereign lands. There have been many statutes addressing the sale of S&O lands, some of which provided for the confirmation of earlier grants which may have had some manner of defect as a matter of procedure (known as corrective acts). S&O lands, generally, have as their upland boundary the GLO segregation line, or in cases where the GLO survey occurred prior to 1855, the meander line may have been run along the edge of the swampy area rather than along the bank or shore of the waterbody and so serves as the segregation line between S&O lands and the more arable uplands of the Public Domain. The waterward boundary of S&O lands in CA is the LWM.


Public Trust and S&O Lands

The Public Trust Easement lies over all lands waterward of the OHWM, so any portion of S&O lands lying between the LWM and the OHWM would be subject to the Public Trust Easement.

Originally Posted by Brad Luken

Swamp & Overflowed Lands, when patented, grant fee simple title to the patentee..

Again, a patent conveys fee title but does not do so free of the public trust where natural conditions dictate the PTE exists.

Originally Posted by Brad Luken

Any information on the above issues would be greatly appeciated.

Your quite welcome. I highly recommend two references for these and other riparian/littoral boundary and title matters:

Shore and Sea Boundaries, 3 volume set, by Shalowitz, published by the Coast & Geodetic Survey. It's no longer in print, but can be found in PDF form here: http://www.nauticalcharts.noaa.gov/hsd/shalowitz.html

Water Boundaries, Demistifying Land Boundaries Adjacent to Tidal or Navigable Waters by Flushman, published by Wiley.


Flushman's book is my favorite on the topic, being well organized and well written, and providing an incredible amount of authoritative reference. This is the one I go to for checking my knowledge, filling in the gaps, and sometimes getting the answers. If you are going to have only one book on water boundaries, I highly recommend this one, especially for the CA surveyor.

[bruce hall]

Ask and you shall receive!!

[LS_8750]

Great topic Brad. I was hoping Evan would chime in. I'm reading Flushman's book now, between diaper changes or whatever spare time I might be able to scrape together. It is a must read.

Cheers,
Clark

[Brad Luken]

First off, Mr. Page thank you for your input, your comments lead me to “dig in” a little more to verify the information discussed. The reasons for these questions are I am reviewing deeds of the Bay that were part of the Tideland surveys & Swamp and Overflowed surveys.

Some of the Tideland surveys are still below the Ordinary Low Water Mark and so, if I am understanding correctly, as long as these lands were patented prior to 1909, the patentee would be fee owner of that portion of the Bay, even if the property is still submerged, subject to public trust and Civil Code 670 could not be used to reclaim the land. In my case, the Public Trust may be a point of contention since the State of California issued a Legislative Grant, which conveyed “all of the right, title and interest of the State of California held by said State by virtue of its sovereignty in and to all those tidelands and submerged lands…” The Legislative Grant doesn’t specially state that public trust has been absolved and appears to be something additional to research.

In reviewing the ’73 & ’09 BLM manual, it states Swamp and Overflowed lands were part of the public domain (p. 7, sect. 1-17 ’09 Manual), and “are not generally considered to be subject to the public trust.” (The Surveying Handbook, 2nd ed., Brinker & Minnick). This is also stated in Boundary Control and Legal Principles, p. 224 9.8, “Swamp and overflowed lands were originally part of the federal public trust domain. They were granted by the government to the public land states beginning in 1849. They are not subject to the same public trust provisions that attached to tidelands.” This appears to be further segregated by if the Swamp and Overflowed lands were received from the federal government grant or under the equal footing doctrine. Minnick states that if the lands were established by the State’s sovereignty, then they may be subject to the Public Trust. In the property I am reviewing, the upland boundary line of the Swamp and Overflowed lands was that of a Rancho, which was approved in 1865, and the Swamp and Overflowed lands were then surveyed by the US Government. I would like to assume that this would cause the Swamp and Overflowed lands to be granted to the State and subsequently not be subject to the Public Trust Doctrine.

This is all for the exercise of understanding and interpreting information. I am greatly appreciative of all opinions and do enjoy this discussion.

Thank you all again,

[Jim Koepke]

In regards to Evan’s post I believe that he is correct in most of his statements. Per the Manual 1-17 “…the swamp and overflowed lands, though public domain, passed to the States.” The land was and was not segregated out. It is shown in rough surveys on the township plats but has to be identified by survey, a list of these lands filed with the U.S. for approval, and an approved list returned to the State by the U.S. and a federal patent issued to the State. Once the patent is issued to the State it is then issued to the Patentee. So one could conclude that it is not fully segregated from sale, there is just a roundabout way of obtaining title and that title has to pass through the State. One unique aspect is even though the title passes through the State, the land in question is not sovereign so there is no Public Trust passing with the title.

As for the waterward boundary of swamp and overflowed lands, these lands are generally characterized as lying between the OHWM or MHTL and Higher High Water. According to Flushman’s “Water Boundaries” 5.3.1 “The waterward boundary of swamp and overflowed lands is the ordinary high water mark”. One must remember that this statement is within a section of his book relating to tidal areas. Swamp and overflowed lands are determined by characterization more than a line of elevation. Swamplands are lands requiring drainage to make them fit for cultivation; overflowed lands are subject to periodic overflow or flooding. These definitions and Flushman’s statement make tidal areas pretty easy to determine but for navigable non-tidal lakes and rivers there could be a broader definition.

In regards to that portion of Brad’s post about tidelands being waterward of OLWM, my opinion is that the original survey depicted the tidelands on that date at that time. There are also questions as to the waterward or low water surveyed line and if that line represents more of a meander or a physical mean low water survey. Barring any major artificial influence that would not only influence the MHTL but also the MLTL and fix any surveyed boundaries, the MHTL and MLTL would remain ambulatory and would be located as they exist today and would change as time moves on.

[E_Page]

Originally Posted by Brad Luken

I am reviewing deeds of the Bay...

Any BTLC lots? Are any portions of the TLS or S&O lands within areas designated Salt Marsh by the GLO? Some areas around the Bay originally identified by the GLO as Salt Marsh were later redesignated S&O, listed to the State, and then sold as S&O to private parties.

Originally Posted by Brad Luken

Some of the Tideland surveys are still below the OLWM and so... as long as... patented prior to 1909, the patentee would be fee owner... subject to public trust and Civil Code 670 could not be used to reclaim the land.

Fee, maybe. Are the patents dated before or after ratification of the State Constitution? (5/7/1879) Reclaim the lands, not likely. Subject to PT, definitely.

If they are prior to 5/7/1879, then generally, yes, fee title subject to public trust. If later and within 2 miles of any city, town, harbor, etc... the tideland patents may be void.

Originally Posted by Brad Luken

(T)he Public Trust may be a point of contention since the State ... conveyed “all of the right, title and interest of the State of California held by said State by virtue of its sovereignty in and to all those tidelands and submerged lands…”

All the State's patents say that. The patent from the State of Illinois to the Illinois Central RR said something very similar. The US Supreme Court still voided the patent because of the legal inability of the State to alienate itself from sovereign lands.

Sovereign lands are held in trust for the people of the State, and the States are not permitted to violate their stewardship by conveying sovereign land to private parties free of the public trust.

Review
Illinois Central Railroad v. Illinois (1892) 146 US 387
People v. California Fish Company (1913) 166 Cal 576
City of Berkely v. Superior Court (1980) 26 Cal 3d 515
State of California v. Superior Court (Lyon) (1981) 29 Cal 3d 210
and
Summa Corp. v. California ex. rel. Lands Commission (1984) 466 US 198

There are several others, but these should be enough to convince you.

Flushman had this to say to summarize and drive the point home:

"Swamp and overflowed lands can be readily disposed of in accordance with the granting and authorizing legislation. Dispositions of state sovereign lands are, on the other hand, subject to very stringent restrictions. The intent of such restraints is to prevent or undo unlawful or improper alienation of the state's property interes, an interest held in public trust. These strictures may be constitutional, statutory, or based on common law as developed by the courts.

The author cannot overemphasize the importance of understanding these restrictions. They limit a state's power to dispose of such lands. They condition or make void or voidable what otherwise might appear to be absolute conveyances from the state to private persons." (Flushman, Bruce, Water Boundaries, Demystifying Land Boundaries Adjacent to Tidal or Navigable Waters, Wiley 2002)

Originally Posted by Brad Luken

(T)he.. BLM manual states S&O lands were part of the public domain (§1-17 ’09 Manual), and “are not generally considered to be subject to the public trust.” (The Surveying Handbook, 2nd ed., Brinker & Minnick). This is also stated in BCLP, § 9.8, “S&O lands were originally part of the federal public domain. They were granted by the government to the public land states beginning in 1849.

The BLM Manuals are written from the Federal perspective. The feds, and most states consider the limit of upland ownership to be at the OHWM whereas CA, by statute has placed it at the LWM for navigable, non-tidal water bodies. The PTE however, still goes to the OHWM (states cannot alienate themselves or the people from the public trust use).

By Federal rules, that statement is correct, since the waterward boundary of the S&O lands would be the OHWM, it is not subject to the public trust. In CA, the public trust, as a matter of sovereign law, continues up to the OHWM although the state recognizes upland fee to the LWM. Therefore those portions between the LWM and the OHWM are subject to the public trust, but as an easement right rather than as sovereign ownership.

The Act of Sept 9, 1850 (Arkansas Swamp Land Act) coincidently occurred on the same day CA became a State, although its effective date was 09/28/1850. It provided that all S&O lands identified as such were granted to the States.

You have corrected me on one of these points. The S&O lands were not omitted lands as I previously characterized them, but were segregated from other uplands to be listed to the states (listed because the Act was effectively the grant). In some instances, mainly prior to 1855, S&O lands were omitted with the water bodies by the meander lines.

BCLP is written for a national audience, so many of the principles and legal facts therein are subject to variance per statute and common law differences among the states. Most states hold to the OHWM as the limit of upland ownership, so the authors' statements are true for most states.

Originally Posted by Brad Luken

They are not subject to the same PT (as are)tidelands.”... further segregated by if the S&O lands were received by fed grant or by equal footing doctrine. Minnick states that if the lands were established by the State’s sovereignty, then they may be subject to the Public Trust.

Tidelands were recieved by Equal Footing Doctrine, S&O lands were recieved in CA either by operation of the AR Swamp Lands Act or in some cases the Fed by separate patent to the State. The public trust that each is subject to is the same. There are exceptions to every rule, but the exceptions of once sovereign lands being subject to the PT are very rare.

The authors are referring to the general instance in most states that S&O lands are fully above the OHWM where tidelands, by definition, are fully below it.

Salt Marsh is land that can cause confusion, both for the original GLO surveyors and for those of us 150+ years later who sift through a myriad of often conflicting facts and confusing laws pertaining to grants of tidelands and of S&O lands.

Salt Marsh is land of a swampy nature, like S&O lands. It differs from S&O in that it lies below the OHWM, and is therefore actually tidelands, subject to the same restrictions of conveyancing as are tidelands and other sovereign lands. Much of the Alviso area had been conveyed by the State by S&O patents when someone noticed that those lands were classified as Salt Marsh, and therefore were not legally available for the state to sell.

The GLO was convinced to reclassify and remap the township and the state legislature passed corrective legislation confirming the S&O titles. If your S&O patents are of land that is actually classified as Salt Marsh, no reclassification by the GLO occurred, and no corrective legislation happened, the patent may be void. The last corrective act was in 1872.

Originally Posted by Brad Luken

The upland boundary line of the S&O lands was a Rancho, approved in 1865, and the S&O lands were surveyed by the US Govt. I would like to assume... S&O lands... not be subject to the PT.

Ranchos are one of the very few titles that are superior to state sovereign title, and were not approved by the govt, but rather confirmed. The difference is if approved, the effective date of title is the date of approval. Being confirmed, the govt was merely recognizing existing valid title. The effective date of confirmed rancho title is the date it was granted by the Mexican govt, sometime prior to 09/09/1850.

If the rancho shows its waterward boundary as the bank of the waterway, LWM is presumed on non-tidal waterways and the OHWM along tidal waters. If the rancho's boundary is described to be the middle of a stream, it is the middle of the stream.

Originally Posted by Brad Luken

This is all for the exercise of understanding and interpreting information. I am greatly appreciative of all opinions and do enjoy this discussion.

Thank you all again,

Again, your welcome. Education for the professional continues throughout one's career. I appreciate it when I'm educated by others and am happy to pass along what I know to help others.

I want to reiterate though that there are a lot of exceptions to general rules, especially when dealing with riparian/littoral boundaries and the titles to the lands adjacent to them, and double especially when you get into areas like the Bay where there were tidelands, S&O lands, Salt marshes, changing classifications of land character, very early grants of each subject to various statutes before and following the grants, and a few state and federal court cases affecting how the facts define the character and quality of title. It's really best to have an experienced title expert (not a typical title officer, but one who has been around a while and has developed an intimate understanding of the issues that may affect title locally).

[E_Page]

Two notes:

1. I had to abbreviate and paraphrase some of your statements, Brad, in my reply to accommodate my probably too verbose answers. I tried to do so in a way that did not alter the meaning of your statements.

2. A potential point of confusion between Jim's explanations and mine: the Public Trust did not automatically pass with title of the S&O lands by virtue of their being S&O lands, or actually pass with that title at all. It simply remained on those portions of lands that were subject to it by virtue of being below the OHWM of an adjacent navigable water.

If the lands within an S&O patent are fully outside of the OHWM, then there would be no portion of that S&O parcel subject to the PT. S&O lands are subject to the PT in the same way as any other private parcels adjacent to navigable waterways would be, simply by virtue of their proximity to the navigable waterway and its OHWM.

I see Jim also jumped on my misstatement regarding S&O being part of the Public Domain and offered correction. Thanks, Jim.

Technically, it was removed from the Public Domain upon being identified as S&O by grant according to the AR Swamp Lands Act, with its status recognized as S&O in state ownership upon being listed. So for the brief instant when the plat and survey were officially approved by the GLO Surveyor General for the state (as opposed to the state's Surveyor General), the S&O lands were part of the Public Domain. Since the AR Swamp Lands Act had already effectively granted these lands to the state, they were not available to the federal government to dispose of via private patent. Their recognized status just kind of hung in limbo until the lands appeared on a list as being lands of the state. If the state did not sell a portion of S&O land, it was state land and therefore not in the federal public domain. I am unaware of any S&O land in California having been patented from the public domain to a private party by the feds. Some may have if identified in surveys performed prior to 9/9/1850, but I don't believe any GLO surveys occurred in California prior to 1850.

The state still owns a few unconveyed portions of S&O here and there. Most likely because those portions were overlooked/missed by interested parties in the 1800s and early 1900s. It was not at all uncommon for the state to issue patents on S&O lands before it was listed to them. The state jumped the gun often like that in its early quest to raise money. Thus the need for corrective acts, the conveyances of tidelands under the S&O acts, and the premature sales of S&O lands not yet received by the state from the feds at the time of the state patent. Such a mess!