10.1 Non-Tidal Rivers & Streams: Bed Ownership, Public Waterways & Meander Lines

Tidal versus non-tidal: the line that decides title

The threshold question in Mississippi water-boundary work is whether the water is tidal.

The rule for non-tidal waters differs from states where the sovereign owns navigable riverbeds. The Mississippi Supreme Court's opinions in Ryals v. Pigott, 580 So. 2d 1140 (Miss. 1990) review a line of cases going back to Steamboat Magnolia v. Marshall, 39 Miss. 109 (1860). Under those cases, riparian owners hold title to the beds of Mississippi's fresh-water rivers, even navigable ones, subject to the public's right of navigation. On non-navigable streams, the riparian owners also control the stream itself. So on a navigable non-tidal river the public has a right to use the water, but the bed is private land.

Public waterways (§ 51-1-4)

The statute defines the public's use rights:

• Definition: "Those portions of all natural flowing streams in this state having a mean annual flow of not less than one hundred (100) cubic feet per second, as determined and designated on appropriate maps by the Mississippi Department of Environmental Quality, shall be public waterways."
• Rights: citizens of Mississippi and other states have the right of free transport in the stream and the right to fish and engage in water sports, at their own risk. Landowners and their permittees are generally not liable to them.
• Limits: the statute does not authorize users to disturb the banks or beds, to discharge anything into the water or onto adjacent lands, or to hunt, fish, or go on or across adjacent lands under floodwaters beyond the natural banks. "Floodwater which has overflowed the banks of a public waterway is not a part of the public waterway."
• Title untouched: the section does not "affect in any manner the title to the banks and beds of any such stream or the title to any minerals thereunder."
• It applies only to natural flowing streams.

Navigable in fact. Ryals held that the Bogue Chitto River in Pike County was a public waterway because it was navigable in fact, usable by loggers, fishermen, and pleasure boaters, and the Court upheld the 100-cfs standard. Courts may therefore recognize public waters that MDEQ has not designated.

For surveyors, the takeaways are:

1. On a non-tidal stream, a deed calling for the stream generally carries the grantee's title to the thread unless the deed clearly shows a contrary intent.
2. The public's use rights on a public waterway run within the natural banks. Locating the bank, or ordinary high water line, identifies where those public rights stop and private upland begins. It does not mark where private title stops.
3. Minerals and gravel in the bed of a non-tidal stream belong to the bed owner, subject to regulation.

Thread, thalweg, and dividing the bed

• Thread (filum aquae): the centerline of the stream at its ordinary stage, midway between the banks. Deeds and courts use it to divide a non-tidal bed between opposite owners.
• Thalweg: the line of the deepest channel. It governs interstate river boundaries such as the Mississippi River boundary with Louisiana and Arkansas, and it can differ from the thread where the channel hugs one bank.
• Side lines into the bed: where upland lines meet a stream, divide the bed with lines from the upland corners to the thread, generally perpendicular to the thread's general course. Do not simply extend deed lines at their record bearings. On curves, extended lines converge or cross.
• Islands in a non-tidal stream generally belong to the owner of the bed where they form, divided by the thread if they straddle it.

Finding the bank or ordinary high water line in the field

Even where it does not mark title, the ordinary high water line (the "natural bank") matters for public-use limits, federal permitting, and deeds that call for "the bank." Evidence of regular, recurring high water includes:

• the change from terrestrial vegetation (oaks, hickories, pines, upland grasses) to flood-tolerant vegetation and bare or scoured soil;
• a clear natural line on the bank: an erosion scarp, a change in soil character, or a litter or debris line from ordinary seasons;
• water staining or sediment lines on trees, bluffs, and structures, and the lower limit of terrestrial lichens and mosses.

Avoid three mistakes. The line is not the crest of an extraordinary flood or a FEMA base flood elevation, not the low-water or drought pool, and not the top of a high bluff where the water works only the toe.

GLO meander lines are not boundaries

Deputy surveyors meandered navigable rivers and larger streams (by the later manuals, streams three chains wide and wider) and large lakes. The meander traverse followed the bank so the plat could show the water and the government lots could be given computed areas.

• The rule: meander lines are not boundary lines. A patent to a lot bounded by a meandered stream conveys to the water. That was settled in Railroad Co. v. Schurmeir, 74 U.S. (7 Wall.) 272 (1868) and is repeated throughout public-land law.
• Consequence: dry land between the meander line and the water at the time of the survey passed with the lot. The acreage returned on the plat does not limit the grant.
• Exception: where the meander survey was fraudulent or so grossly erroneous that it did not represent the water body at all, the meander line may be treated as a boundary, and the omitted land may remain public. In Jeems Bayou Fishing & Hunting Club v. United States, 260 U.S. 561 (1923), a Louisiana case, the Supreme Court held that land omitted by a grossly erroneous meander stayed with the United States.

Retracement tip: use meander corners and the record meander to understand the original fractional lots. Then locate the actual water boundary under the rule for that water (thread, bank, or mean high water), and apply accretion or avulsion rules to any later change (Section 10.2).

Summary