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]

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.

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.

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.

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.

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 inâ€￾ 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…â€￾ 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.â€￾ (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.â€￾ 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,

[E_Page]

[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!