March April 2018

Professional Land Surveyors of Oregon | www.plso.org 19 The Federal Land Rights Series southeast quarter of the southeast quarter of Section 35, had the river not entered this section, along with the portion of the northeast quarter of the southeast quarter lying south of the river. Lot 9, the crucial final component of this scenario, was the last lot appearing on the 1873 GLO plat in Section 35, and it contained just 0.98 acres, representing the very narrow strip of land lying east of the east bank of the river in that section, directly north of the east end of Lot 8. As one might well imagine, the creation of very small riparian lots by the GLO has frequently proven to be quite troublesome, and in fact the BLM, as the successor agency to the GLO, even- tually came to recognize this, leading to the cessation of this federal practice during the late Twentieth Century (FN 4). None- theless, countless tiny riparian lots which were platted and thus legally brought into existence as distinct land units, such as Lot 9 in Section 35, still exist in a great many locations through- out the west, and their presence has often become a source of concern for property owners. Since such lots are of only neg- ligible size to begin with, they are highly subject to potential destruction through very minor intrusive river movement, and in numerous locations lots of this kind have been extinguished by that means, in some cases before being patented and in other cases after being patented. Just as potentially problem- atic however, tiny riparian lots also have the capacity to grow, potentially reaching enormous size, should the portion of any given river adjoining such a lot happen to migrate away from the lot, rather than eroding into the land comprising the lot, and this specific development serves as the basis for the litigation which we will see unfold herein. As an additional complicating factor, most people, including owners and grantees of riparian properties, do not fully understand the meaning or purpose of riparian lots, and therefore fail to comprehend the boundary principles which apply to such lots. Many riparian lot owners are unaware of the legal consequences of river movement, and some of them have never even looked at the GLO plat which defines the parameters of their title, so they have never consid- ered the ramifications of their status as owners of riparian land. The typical innocent grantee of real estate, either wholly com- prised of riparian GLO lots or including such lots, fails to grasp the legal implications of the seemingly inconsequential term “lot”, which appears in the legal description of the property be- ing acquired, thus they often mistakenly assume that they are acquiring a normal rectangular land unit, leading in some cas- es to great consternation and exasperation, as we will observe here, when they later come to recognize the legal significance of historical river movement. The federal decision to honor substantial streams as bound- aries, during the implementation of the Public Land Survey System (PLSS) undoubtedly seemed perfectly logical when the PLSS scheme was devised, late in the Eighteenth Century, be- ing in complete accord with the time honored concept that major rivers represent ideal natural boundaries. This decision proved to be far more fateful however, than early federal de- cision makers, who resided in the Colonial States, could have realized, since they had no visibility or knowledge regarding the extreme instability of the major rivers that drain the western portion of our continent, such as the Missouri, the Colorado and the Snake, the chronic mobility of which would eventual- ly produce a vast number of intense boundary disputes. As a direct result of the utilization of river boundaries as a funda- mental aspect of the PLSS, river movement became a major issue for countless entrymen during the Nineteenth Century, as the western territories of the US, acquired by treaty and by conquest, were surveyed and populated, leading to the for- mation of our western states. Forces of nature, most notably including erosion, accretion, reliction and avulsion, would very soon begin to wreak havoc upon titles by distorting the platted boundaries of riparian properties, and by the end of that centu- ry the problematic nature of river boundaries was already quite apparent. In addition, general ignorance and mistaken assump- tions regarding the legal consequences of river movement in the context of navigability produced confusion over both the presence and the extent of public and private titles along large sections of our major rivers, as most settlers either misunder- stood riparian law or simply had no knowledge of the law, and such conditions persisted throughout the western settlement period, well into the Twentieth Century. In reality however, by operation of law river movement began to have a serious im- pact upon title to both public and private land throughout the western part of our country as soon as those regions were surveyed and platted, and in many areas platted lots which re- mained in federal ownership, due to going unpatented, were also impacted, planting seeds of boundary and title controversy which were destined to lie dormant for decades, before even- tually emerging to produce litigation. Returning to the specific scenario outlined above, set upon the Nooksack River in Whatcom County, Washington, its noteworthy that many portions of that river have clearly experienced sub- stantial river movement, so the locality in which the controversy examined here occurred is merely one of several such places where that river’s behavior has significantly altered boundaries and titles. No historical details pertaining to the settlement, de- velopment and conveyance of the properties involved here are known, but all of the land in Section 35 was patented, presum- ably during the late Nineteenth Century, with the exception of Lot 9, which was never acquired by anyone. This seemingly insig- nificant fact would not rise to prominence until the twenty-first century, but as we will observe, its importance cannot be over- stated, because the presence of federal land rights always casts a very long shadow, with potentially devastating consequenc- es for those who overlook such a federal presence. As already noted above, because it happened to be platted on the inside of a major bend in a volatile river, this one acre lot, originally comprising nothing more than a sliver of land, hugging a short portion of the east line of Section 35, was ideally positioned to expand greatly in size, as the force of the water pushed the platted river channel westward subsequent to 1873, during the decades of the late nineteenth century and probably continu- ing into the early twentieth century. In addition, at an unknown point in time, presumably during the early or middle portion of the twentieth century, the northerly bend evidently became so acute, as the river was forced to turn ever more sharply to the south, that the portion of the original channel directly south of the north bend was abandoned by the river, and a new chan- nel flowing through the southerly portion of Lot 1 was formed, about one eighth of a mile west of the river’s platted location. The physical area originally identified as Lot 9 was thereby mag- nified in size, at the expense of Lot 1, but because no private party held any legal interest in Lot 9, and because the move- ment of the river was unknown to the federal government, no consideration was given to the legal ramifications of this river Continues on page 20 T