Daily Development for Monday, October 11, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

WATERS AND WATER RIGHTS; NAVIGABLE WATERS; BOUNDARIES: Ordinary high water mark of navigable river, for purposes of determining the State's ownership interest in shore zone, is ambulatory and is determined based on the current condition of the river, even if that condition has been affected by artificial changes; and landowner's claim that boundary line should be fixed based on high water mark as it existed prior to installation of dam system on the Missouri River is without support.

State ex rel. Sprynczynatyk v. Mills, 592 N.W.2d 591 (N.D. 1999).

The State and the riparian owners have shared rights in the property between the ordinary high water mark and ordinary low water mark. Appellants here claimed that the ordinary high water mark was artificially elevated because of the activities of the United State Corps of Engineers in controlling the flow of the river from an upstream dam.

The court noted North Dakota authority for the principle that river boundaries are necessarily ambulatory. In response to the contention of appellant that courts ought to take into account artificial interence with the level of the river, the court cited to cases in California, Florida and Iowa.

Comment 1: In all three of the precedent cases, the water level had been raised due to dams for many years, and in the California and Iowa cases the courts commented that any disputes had long since been resolved by prescription. Indeed, in this case the dam in question had been in place since the early 50's, although it is not clear that the river level had been as high since that time.

Thus, all three cases beg the question of whether the test is indeed based upon the notion that parties controlling dam levels have the ability to establish property rights downstream of the dam at will, or whether the must acquire such rights by prescription. Most of the cases emphasize the prescriptive rights aspect of the situation, as if they are reluctant to reach a definite conclusion on the harder issue. Comment 2: Another complicating issuet cited by the courts is the problem that to conclude that "artificial" alterations in the level of the water should not be taken into account leads the court into an impossible task of evaluating the many different contributions to the water level of a signficant body of water. This complex hydrological exercise will, of course, lead to greater uncertainty of title in this area and is unlikely to contribute markedly to fairness or accuracy in boundary determination.

Comment 3: The editor concludes that the approach taken by the courts is the best because it is the simplest and most manageable. But we still have the issue of whether a party who artificially raises the level water downstream from its dam and thus deprives someone of land that they might otherwise own is guilty of a tort or a taking. There are cases holding that where artifical upstream improvements cause erosion to a downstream landowner, the downstream owner has a cause of action. See, e.g: . Johnson v. Board of County Commissioners of Pratt County, 913 P.2d 119 (Kan. 1996) (nuisance); Phillips v. King County, 968 P. 2d 871 (Wash. 1998) (inverse condemnation) (The DD for 9/1/99).

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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