In doing research with respect to pending litigation, I often stumble upon decisions that cause a momentary “flashback” to the first year of law school.  I recently experienced such a recollection from my 1966 “1L” real property course at the New York University School of Law.  Towards the end of the term, our professor spent a few minutes glossing over the doctrines “accretion” and “avulsion”.[1]

Much to my surprise, almost fifty years later, my research crossed paths with Strough v. Incorporated Village Of West Hampton Dunes, 2016 NY Slip Op 30176(U) (decided January 25, 2016) [Sup. Ct. Suff. Co.; Mayer, J.]

But first a brief tutorial:

• “Avulsion” is the pushing back of the shoreline by sudden, violent action of the elements, perceptible while in progress.
• “Accretion” is the process of growth or enlargement by a gradual buildup.
• “Alluvial” means an increase in land from the flow of water against a shore or bank.
• “Littoral” means a part of a river, lake or sea that is close to the land.
• “Reliction” is the gradual recession of water leaving land permanently uncovered.

Supreme Court summarized the pleadings and prior proceedings in Strough:

The plaintiffs commenced this action pursuant to RPAPL Article 15 on October 25, 2006 seeking to quiet title to certain real property (the disputed lands) located above the mean high water mark of the southerly shore of Moriches Bay in the Incorporated Village of West Hampton Dunes, New York (the Village)…The complaint sets forth three causes of action against multiple defendants…each of whom owns a parcel of property that abuts the southerly shoreline of Moriches Bay in the Village. The plaintiffs’ first cause of action seeks a declaration that the named individual plaintiffs as Trustees of the Freeholders and Commonalty of the Town of Southampton (the Trustees) “exclusively own and hold the disputed lands to the exclusion of the individual defendants.” The plaintiffs’ second cause of action seeks a permanent injunction enjoining the defendants from subdividing, constructing or “conducting unauthorized activities” upon the disputed lands. The plaintiffs’ third cause of action seeks to quiet title to the disputed lands pursuant to RPAPL Article 15.

The historical template:

It is undisputed that in December 1686, Thomas Dongan, Captain, General Governor in Chief and Vice-Admiral in and for the Provinces of New York, by the authority of King James II of England, issued a charter or patent (Dongan Patent) conveying to the Trustees the right, title and interest in all of the lands lying beneath the waters of Moriches Bay, and surrounding lands up to the high water mark. It is further undisputed that the Trustees “are the successors to the original Trustees of the Freeholders and Commonalty of the Town of Southampton whose proprietary rights to certain lands and waters of the Town of Southampton and their right to legislate and control the same as a body politic is derived from antique, royal land grants and patents which have been repeatedly confirmed and upheld throughout the history of this State for over 300 years by both the framers of the State Constitution and the Legislature despite various specific attacks upon such authority”[.]

The geographical template:

[T]he Village lies on a barrier island running east and west between the Atlantic Ocean and the south shore of Long Island. A single road, Dune Road, runs along the spine of the barrier island with residential homes lying north and south of the roadway, the latter generally abutting Moriches Bay and the former generally abutting the Atlantic Ocean.

The meteorological background:

In the complaint, the plaintiffs allege that “between December, 1992 and March, 1993 and for several years prior thereto, a hurricane and series of unusually strong winter storms … caused one or more dramatic breaches in the barrier beach that separates Moriches Bay from the Atlantic Ocean. Millions of tons of sand and earth were deposited into Moriches Bay upon the Trustee lands, immediately north of the properties which at that time were owned by the individual Defendants or their predecessors. As a result of the storms and breaches, dry land between Dune Road and Moriches Bay extended rapidly from what had previously been approximately 200-300 feet, to approximately 700-800 feet, and the high-water mark of Moriches Bay shifted accordingly northward…The Defendants claim to own the disputed lands and intend to develop the disputed lands without regard to the ownership thereof by the Trustees.”

The prior appeal:

In a prior appeal filed in this action, the Appellate Division framed the parties’ competing claims of title to the lands in dispute in this action as follows: “Although the Trustees and the Town claim that the disputed land belongs to them because it was suddenly created by the natural act of avulsion, the [defendants] claim that the disputed land belongs to them because it was slowly created over a long period of time by the natural process of accretion”…Where both the plaintiff and the defendant assert conflicting claims of title to the same land, the burden rests upon each of them to establish such claims other than by relying on defects in the title of the other[.]

The deposition testimony of the trustees:

At his deposition, Trustee Eric L. Schultz (Schultz) testified that he walked the area of the disputed lands which is west of a “spit” of land that was created by the subject storms at or near Pike’s Beach, and that he caused the Trustees to apply to the New York State Department of Environmental Conservation (DEC) for a permit to dredge a channel between the “spit” and the “immediately southerly adjoining land” in 1999. He stated that, to his knowledge, the Trustees did not take any action to assert possession of the disputed lands prior to 2001 and prior to the commencement of this action in 2006.

At his deposition, Trustee Scott Strough (Strough) testified he did not recall whether the Trustees ever installed fencing along the “northern beach boundary,” or any boundary, or within, any of the properties owned by the defendants, and that he was “unsure” whether any “no trespassing signs” were installed anywhere in said parcels of property. He indicated that he had made multiple inspections of the area where the disputed lands are located, and that he never observed any “no trespassing” signs in that area.

The Court granted defendants’ motion to dismiss plaintiffs’ claims as time-barred; and denied plaintiffs’ motion to dismiss defendants’ counterclaims because, in addition to the conflicting testimony:

The record reveals that there are issues of fact whether the defendants have title to, or have adversely possessed, the disputed lands.  The expert opinions submitted on behalf of defendants regarding the issues of title and whether the disputed lands accumulated by virtue of accretion or avulsion conflict with the expert opinions submitted by plaintiffs on those issues.

The accretion/avulsion debate was the subject of a decision by the United States Supreme Court:

State of Louisiana v. State of Mississippi, 51 S. Ct. 197 (decided February 2, 1931)

Supreme Court summarized the issue:

The bill seeks a decree locating and establishing a portion of the boundary line of Louisiana and Mississippi, between Willow Point and adjacent premises in the former, and lands in township 9 north, range 8 west, in the latter state, where the Mississippi River forms what is known as Albemarle Bend.

The facts:

In 1823 the thread of the navigable channel of the river was the true boundary line, and is correctly located by surveys made by the Mississippi River Commission in 1823 and 1824. At that time the territory now in dispute was within Mississippi, and consisted of an island (then known as Tullos Island, which lay to the east of the thread of the river, and was separated from the Mississippi mainland by a chute) and certain portions of the mainland east thereof. Prior to 1882 the island was renamed ‘Island No. 98.’

The allegations of Louisiana’s complaint:

That between 1823 and 1913 erosions occurred which ate away all of Tullos Island and large portions of the Mississippi shore.

That accretions attached to the Louisiana shore.

That the river, and consequently the interstate boundary line, gradually and imperceptibly moved eastwardly and northwardly a distance of five or six miles.

That the accretions to the Louisiana shore became the territory of complainant.

That in 1912-1913 the river suddenly changed its course, cut across the bar formed by the said accretions on the Louisiana side, and by avulsion formed a new channel to the west, severing from the Louisiana shore a large portion of the accretion theretofore formed.

That, as the last change was by avulsion, the boundary line remained and now is at the thread of the extreme easterly and northeasterly channel of the river as it was in 1912-1913.

The Mississippi River Commission surveyed the river in 1882, and admittedly its chart made from that survey correctly shows the shore lines and bar lines and other relevant data as of that year. A further survey was made by the Commission, and a plotting taken therefrom in 1894, and a similar survey and plotting shows the river as it was in 1912-1913. These demonstrate that the river had moved to the eastward from its position in 1823, each survey placing it considerably east of its location at the time of the next earlier one.

Mississippi’s counter-allegations:

That [Louisiana] has failed to show how the change in the channel came about between the surveys of 1823-1824 and that of 1882.

That as [Louisiana] has the burden of showing that the change took place by accretion rather than by avulsion, and has failed to carry that burden, it can make no claim for the land added to the Louisiana shore prior to 1882.

That subsequent to 1882 the river above the point in controversy cut into the Louisiana bank above and along the northern border of Willow Point, was deflected in a northeasterly direction, so that instead of striking Tullos Island it curved around the head of what then remained of the island (as it is shown on the survey of 1882) and enlarged the chute between that island and the Mississippi shore, forming a new channel there.

That subsequently the old channel, which had run to the west of the island, filled up, and thereby the island became attached to the Louisiana shore.

That the new channel running to the north and east of what was left of Tullos Island added by accretion to the easterly side of the island and cut farther into the Mississippi shore until 1912-13, when the river suddenly abandoned the new channel and returned to the old 1882 channel.

That thereby what theretofore had been Tullos Island again became an island separated from the Louisiana shore, although greatly enlarged over its dimensions in 1882 by the accretions added to its easterly side.

As an additional and alternative defense Mississippi asserts that its title to the disputed territory cannot now be assailed because of long-continued possession and exercise of sovereignty and dominion, with the acquiescence of Louisiana.

The proceedings before the special master:

On the issues thus made testimony was taken before a commissioner, and was referred to Thomas G. Haight, a member of the bar of this court, as special master, with direction and authority to report his findings of fact, conclusions of law, and recommendations for a decree. He has filed his report, recommending a decree in accordance with the contentions of [Louisiana.  Mississippi] has filed exceptions.

The parties are in agreement as to the applicable legal principles. The exceptions raise no questions of law, but go solely to the correctness of the master’s fact findings and conclusions. We have therefore examined the proofs, consisting of documentary evidence and oral testimony, to determine whether the master’s findings are in accord therewith. In brief he finds:

• That the changes between 1823 and 1912-13 were by gradual erosion of the Mississippi shore and gradual accretions to the Louisiana shore, and not be avulsions.
• That the change in 1912-13 was due to an avulsion.
• That the accretions up to the avulsion of 1912-13 and thereafter, so long as the current flowed in the easterly channel as it was prior to the avulsion, became Louisiana territory.
• That the avulsion of 1912-13 did not change the boundary line.
• That Mississippi did not by possession or exercise of sovereignty or dominion acquire right or title to the disputed territory; and, as a consequence of the foregoing,
• That the present true boundary line is the middle of the navigable channel prior to the avulsion of 1912-13, as that channel was when the current ceased to flow therein by reason of the formation of the new channel by the avulsion of 1912-13, and the filling of the former channel.

There is no challenge of findings 2 and 4. The whole controversy revolves about the correctness of findings 1 and 3 as to the physical changes which actually took place and finding 5 as to the exercise of dominion by the respondent.

The competing proofs as to conditions prior to 1912:

With respect to the physical changes which have taken place in the location of the Mississippi River, the proofs may conveniently be divided into two parts-those which apply to the period prior to 1882 and those which have to do with that between 1882 and 1912.

It was impossible to procure much or very persuasive oral evidence as to conditions prior to 1882. The master had before him, however, the charts of the Mississippi River Commission of 1823-24 and of 1882, and plats from surveys made in 1866 and 1870. By comparing these and noting facts deducible from them, he concluded that the river moved eastward from its 1823 channel to its 1882 channel gradually and not by avulsion. He found that the Louisiana shore was eroded above Albemarle Bend and extended to the eastward by accretions at Willow Point. He further found that, while this was occurring, the eastward sweep of the river gradually cut away the greater portion of Tullos Island. During all of this time the river remained of approximately the same width, thus negativing Mississippi’s contention as to the possibility of the change in the channel being sudden and by avulsions of nature. His conclusions were also supported by the relative locations of sand bars and river banks at the dates of the successive surveys. In 1882 a towhead, so-called, had been formed on the sandbar created by the accretions to the Louisiana shore, which was named ‘Newman’s Towhead’ because the owner of the Louisiana mainland at the point from which the bar had made out was a man named Newman. On this towhead there had sprung up a growth of willow and cottonwood timber.

From an examination of the proofs and a checking of the processes of reasoning and deduction adopted by the master, we are satisfied that his findings on this branch of the case are justified; and that the contention of Mississippi that he has relied upon mere inferences, which do not rise to the dignity of affirmative proofs, is not well founded.

A more serious controversy, complicated by conflicting oral testimony, is disclosed as to what occurred between 1882 and 1912.  [Louisiana] adduced proofs tending to show that the eastward and northeastward movement of the channel continued after 1882. These further tend to show that by 1894 all that was left of Tullos Island in 1882 had been washed away, and that the main channel of the river was in part where that island had formerly been and in part east of its location; that the eastward movement of the river and the direction of the current to the east eroded a substantial portion of the former Mississippi mainland; that from 1894 to 1912 this movement eastward continued until whole sections of township 9 north, range 8 west, in Mississippi, had caved away; that in periods of high water in 1912 and 1913 the river overflowed the bar extending out from the Louisiana shore to Newman’s Towhead and took a southwesterly course, cutting across the accretions theretofore formed and leaving the eastern portions of the bar, including the towhead, an island; that a portion of this new island occupied the location of what was formerly Tullos Island. Thus [Louisiana] claimed that, prior to 1912, the old island had been washed away by the eastward progress of the river channel, and had been replaced by accretions along the westerly side of the river adjacent to Louisiana.

[Mississippi] offered evidence tending to show that, while the river reached the extreme easterly position averred by [Louisiana], it did so not by washing away Tullos Island and moving eastwardly over the former location of that island, but by swinging around to the north and east of that island, enlarging and scouring out the former chute or narrow channel between the island and the Mississippi mainland; that thereafter the river added by accretions to the eastern side of what was left of the island, and that the old channel to the west of it gradually filled up.

If the weight of the evidence is with [Louisiana], the territory in controversy belongs to Louisiana; if the contrary be found, the disputed territory, originally within the boundaries of Mississippi, so remains.

There is much conflicting testimony as to the location of the main channel between 1890 and 1912; as to whether Tullos Island was scoured away; as to the character of the soil and timber on the island; as to whether the alleged clay soil of the island disappeared and was afterwards replaced by a sandbar formed by accretion; as to whether the original virgin timber which was on it fell into the river and disappeared with it, or in part still stands as mute evidence that the island was never entirely washed away.

Mindful of the fact that the special master did not see and hear the witnesses, we have felt it incumbent upon us to study the proofs, documentary and oral, to examine the deductions made therefrom, and thereby to test the stated conclusions. The preponderance of the evidence supports the master’s finding that from 1882 to 1894 the river moved eastwardly, caving away Tullos Island along its western shore, until it had wiped out that island; that the continued eastward movement caved the Mississippi shore, at the same time adding to the accretions which had already formed on the Louisiana shore opposite Willow Point; and that the bar was continuous from the old high bank on the Louisiana side to the end of Newman’s Towhead. Thus by 1912 an area five or six miles in length and several miles in width had been added to the Louisiana shore.

As matters stood in 1912 and 1913, the boundary line between the states was the thread of the navigable channel far to the eastward of the present channel. As above stated, there is no controversy as to what occurred in 1912-13. The river by a sudden avulsion made a short-cut to the west of Albemarle Bend, as it then was; and subsequently the channel in the old bend to the eastward of the new channel silted and filled until it entirely closed at the upper end. This sudden avulsion did not change the boundary line between the states.

The events of 1912/13:

It remains to discuss the proofs bearing upon the master’s fifth finding. The survey of 1882 discloses that accretions attached to the Louisiana shore had at that time extended to the eastward so far as to cover a portion of the territory formerly belonging to Mississippi. The 1894 survey shows these accretions covering a much larger portion, and that of 1912-13 shows a still greater extension over former Mississippi territory. The Newmans, who lived on Willow Point, La., had a house about one hundred yards east of the 1824 mainland, between the levee and the stream, and just above Albemarle Bend proper. It must, therefore, have been built on accretions formed subsequent to 1824. It caved into the river in 1905. The master found that the possession of the Newmans extended at least to those accretions which had attached to the shore up to the time that their house was destroyed. The disputed territory is low alluvial land subject to overflow at times of high water, and is not protected by levees or dikes. Upon portions of it cottonwood and willow timber has grown. The land is not fitted for cultivation or settlement except in a haphazard way. It took its name from the Newman family, and was known as the ‘Newman Towhead.’ After the avulsion of 1912-13 severed a large portion of it from the Louisiana shore, the successors in title of the Newmans leased the cut-off portion of it, lying to the eastward of the new channel, to one Towns. The lease described it as part of the Bell and Willow Point plantations, located in East Carroll parish, La. It was occupied under the lease for six or eight years for the pasturing of hogs.

The first knowledge that [Louisiana] witnesses had of any claim on behalf of Mississippi or its citizens was shortly before this action was brought. It appears that in or about 1923 Mississippi sold some of the land in question for delinquent taxes. On the assessment rolls of Issaquena County, Miss., the purchasers at these tax sales first appeared as owners in 1925-1926. [Mississippi] put in evidence assessment rolls for certain years between 1848 and 1926. They show that after 1883 certain of the lands within the original boundary of Tullos Island are marked ‘in river,’ or ‘in Mississippi River,’ and from time to time these lands so designated were assessed for taxation, sometimes for nominal amounts and sometimes for substantial sums. At times ‘Island No. 98′ appears as a separate item on the rolls, although the surveys show that at those times the island had disappeared. It is described as of greatly varying sizes in different years. The evidence to be drawn from this source is quite contradictory, and fails to show any dominion by Mississippi over the disputed territory.

Finding that:

The record sustains the master’s finding that there is no proof that Louisiana of its citizens knew of or acquiesced in any purported dominion of Mississippi over the disputed territory. [Louisiana] has failed to meet the test laid down in Michigan v. Wisconsin, 270 U.S. 295, 46 S. Ct. 290, with respect to exercise of sovereignty and dominion over the disputed territory, and acquiescence by [Mississippi] in such alleged possession. The master’s fifth finding is sustained.

And concluding that:

A decree should be entered as recommended by the master, appointing a commission to locate the thread of the main channel of the Mississippi River as the same was immediately prior to the avulsion of 1912-13; and the line when so located is decreed to be the boundary between the states, between latitude 32 39 on the north and the division line between Issaquena and Warren counties, Miss. (as extended westward), on the south[.]

Accretion/avulsion disputes reached our Court of Appeals on at least three occasions:

Halsey v. McCormick, 18 N.Y. 14 (1858)

The Court described the action:

This was an action against Jacob McCormick, to recover a small piece of land in the village of Ithaca, lying between what was formerly the north bank of Six Mile creek and the present centre of that creek. The lot of the plaintiff, which, as he claims, covers the land in dispute, is described in a conveyance to one Bennett, under whom he holds, as running “south from the turnpike to the bank of Six Mile creek.” Bennett was also the grantor of Jacob McCormick, to whom, subsequently to the deed under which the plaintiff derives title, he conveyed a parcel of land lying in the bed of Six Mile creek, adjoining the land of the plaintiff. The water of the creek having been caused to recede, a strip of dry ground was formed at the foot of the bank, which was the land in dispute in this action.

And the initial trial, prior appeal and subsequent trial:

On the first trial, in 1853, the court held that the plaintiff was bounded on the south by the high water mark of the north bank of the creek. Upon appeal to this court, the judgment was reversed, the court holding that the plaintiff’s land extended to low water mark…After this decision, the original defendant died, and the action was continued against his executors. Upon the second trial, it appeared that formerly the north bank of the creek, at low water, formed the south line of the land in dispute, but that the original defendant, Jacob McCormick, by deepening the bed of the stream on the south side, and placing stones upon a ridge in the centre, had turned the water so as to leave a portion on the north side of what was the bed of the stream dry, and that upon this portion he had constructed a race to his mill, the north bank of which was the original north bank of the stream.

The cause was tried without a jury, and the judge found as facts “that the south line of the plaintiff’s land was north of the premises in question; that the waters of the creek, where they pass the plaintiff’s lot, do now, and have for many years, run further to the south than when the dike was erected, and that the change in the channel was caused by artificial means used by Jacob McCormick,” the original defendant, as above indicated. He therefore ordered judgment for the defendants, which was affirmed at general term in the sixth district, and the plaintiff appealed to this court.

With the Court of Appeals affirming because:

It was settled by this court, when this cause was before it upon a former occasion, that the plaintiff’s south line did not originally extend to the centre of the creek, but only to the line of low water on the north bank. Assuming this to be settled, the plaintiff does not claim that, as the creek originally ran, the land in dispute was embraced within the boundaries of his lot. But if I understand it, he claims that the land in dispute is alluvion, and he is entitled to it as a riparian owner.  But to acquire title to land as alluvion, it is necessary that its increase should be imperceptible–that the amount added in each moment of time should not be perceived. When the change is so gradual as not to be perceived in any one moment of time, the proprietor, whose land on the bank of a river is thus increased, is entitled to the addition[.]

It is enough that no such fact is found in this case, as that this piece of ground is alluvion – that it was formed by imperceptible accretion. The evidence shows that it was not thus formed. McCormick deepened the bed of the stream on the south side, and placed stones along the centre so as to confine the water in the channel thus deepened, and by this means the land in question was left bare. He may have been guilty, by these acts, of a violation of the riparian rights of the plaintiff or his grantors, but I know of no rule of law which would constitute an illegal act of the kind a transfer of the title.  As the case stands, it is not necessary to pass upon the question whether there is a distinction between the case of alluvion formed by natural or artificial means. I find no such distinction in the books. If, by some artificial structure or impediment in the stream, the current should be made to impinge more strongly against one bank, causing it imperceptibly to wear away, and causing a corresponding accretion on the opposite bank, I am not prepared to say that the riparian owner would not be entitled to the alluvion thus formed, especially as against the party who caused it.

If the accretion was formed under all the other circumstances necessary to constitute it alluvion, I can scarcely suppose that a person could successfully resist the otherwise valid claim of the riparian owner, by alleging his own wrong, by showing that the accretion would not have thus formed if he had not himself wrongfully placed impediments in the stream. But that question is not before us. It is enough that this case does not show that the land in question was alluvion.

Mulry v. Norton, N.Y. 100 N.Y. 424 (1885)

The Court described the action:

The complaint in this action alleged in substance that plaintiff is the owner in fee of certain premises at Far Rockaway, Queens County, upon which there is a hotel; that a portion of the premises are beach lands which plaintiff has let, with covenants of peaceable possession, to tenants who maintain thereon bathing-houses and other buildings necessary for surf-bathing, and plaintiff receives large rents therefrom, and the said beach-lands are of great value as a necessary appurtenance to his hotel. That the town of Hempstead, without any legal right or authority, has executed to defendant Norton a lease of said beach-lands, a one-third interest, in which lease said defendant has assigned to defendant Levy. That under the lease said defendants threaten and propose, and have made repeated efforts to take possession of the leased lands and to oust plaintiff and deprive him of the possession and use thereof, thereby inflicting great and irreparable damage upon him and his tenants. That defendants are pecuniarily irresponsible[.]

The relief sought:

The judgment demanded is that the lease be declared void, and that defendants and all persons claiming under them be restrained from taking or attempting to take possession of said beach lands. The original conveyance under which plaintiff claims bounded the lands conveyed on the south by the Atlantic ocean.

The early facts:

This action involves the title to certain beach lands on the ocean shore at Far Rockaway. No dispute arises over the boundaries of the plot, or the location of the beach, as being included within the description of the deeds under which plaintiff’s grantors formerly occupied the premises, but it is claimed that the earth or sand composing the beach has been so affected by the storms and tides of the ocean that its ownership was lost by the plaintiff’s grantors, and subsequent deposits, made within the same boundaries, were acquired by the owners of Long Beach, an island belonging to the town of Hempstead. This result is attempted to be supported under the rule governing the acquisition of real property by alluvion or accretion. The evidence tends to establish the following facts: That the beach in question is within the same boundaries, and, with the exception of a narrow lagoon running crosswise through it, is of the same form and shape now as it existed from the year 1685, when it was conveyed to the plaintiff’s remote grantors by its Indian owners, to about the year 1835. Between 1835 and 1869 the changes in the surface of the ground took place which it is claimed worked the transfer of the ownership. At the commencement of the process of change, Long Beach consisted of a small island lying southward of Hempstead bay, separated on the west from the beach in dispute by a navigable inlet called indifferently Hog Island, or East Rockaway Inlet, or Brockle Face Gut, and a succession of beaches, islands, shoals and channels, extending some four miles. This inlet was about half a mile broad and communicated directly with the westerly end of Hempstead bay. To the west of the inlet a bar or beach known as Coot’s bar extended from the mainland south to a point opposite to Long Beach, forming the westerly shore of Hempstead bay, and from thence west a distance of about three miles until it reached the westerly line of the town of Hempstead. The beach to the westward of the inlet, during the period from 1835 to 1869, underwent a succession of changes which it is quite unimportant if not impossible, to follow in detail, but usually consisted of a line or group of bars, shoals, islands and channels extending from the inlet to the shore of the mainland beyond the premises in dispute, but which were constantly undergoing physical changes by the influence of the laws to which they were naturally subject. These bars, shoals and islands were from the operation of the tides and wind in filling the channels, separating them, occasionally joined together, and at one time by the removal of the inlet in question to the westward formed a continuous bar from Long Beach to a point west of the premises in dispute, and remained in that position for about three years. The removal of the inlet to the west was not uniformly effected by gradual progression, but frequently advanced in ‘jumps‘ of a quarter to a half a mile in distance, and frequently added or took away from the lands to which they were joined sections of beach covering half a mile or less in extent as the result of a single storm. During the period of time in question various inlets at different points upon this bar, were broken through from time to time, and were used by vessels trading in Hempstead bay until they were closed up by the action of the tide and wind, when other channels, by the operation of natural causes, would be opened in new places, and these openings would in turn become the channels through which vessels bound to and from Hempstead bay would pass.

The later facts:

About the year 1869 the inlets to the westward became closed up, and the original inlet adjoining Long Beach was reopened and has since become the sole channel of navigation for vessels entering the bay from the east. The process described finally resulted in attaching the beach in litigation to the mainland on the west, and forming a continuous beach about one thousand feet broad from such mainland to the inlet at Long Beach, being a distance of about four miles. This process also left a shallow and narrow lagoon or cove running inside of the beach in question from Hempstead bay to a point a little to the westward of the premises in dispute and separating the ocean beach proper from the mainland lying directly behind it.

In 1725 the formation of Coot’s bar was of so permanent a character that it became the subject of a grant from its owner, the town of Hempstead, to one Hicks, and from that time to the present they said Hicks and his heirs and grantees have occupied and enjoyed the beach lying between the original Hog Island inlet and the west line of the town of Hempstead and reaching within about eighteen hundred feet of the premises in dispute. Portions of this beach have at times been submerged or washed away, and it has at times been cut into by the formation of new inlets to Hempstead bay, but at all times there has been some beach lying above the ocean tides, but outside the line of high-water mark capable of occupation and enjoyment by its owners.

The findings below:

Under these circumstances the trial court refused to find that the extension of Long Beach to the westward was made by the process of accretion, and held as a question of law that the defendant’s lessors, the town of Hempstead, did not acquire title to the land in dispute by that process, and we concur in the conclusion reached by it.

The legal authorities:

There seems to be but little conflict in the authorities or even between counsel in this case as to what constitutes alluvion or accretion. It was held in Rex v. Lord Yarborough (3 B. & C. 91) ‘that accretion is an increase by imperceptible degrees.’…‘The test of what is gradual as distinguished from what is sudden seems to be that, though witnesses are able to perceive from time to time that the land has encroached on the sea line, it is enough if it was done so that they could not perceive the progress at the time it was made.’…It was said in Emans v. Turnbull (2 Johns. 314) ‘that, if the marine increase be by small and almost imperceptible degrees, it goes to the owner of the land; but if it be sudden and considerable it belongs to the sovereign.’…‘To acquire title to land by alluvion, it is necessary that its increase should be imperceptible.’[.]

Finding that:

It would seem from these definitions that two insuperable objections exist to the claim of the appellant; one being that a large part of the formations, of which the beach in question now consists, was created anterior to the junction thereof with Long Beach and constituted property subject to acquisition and ownership by others prior to plaintiff’s claim; and secondly, that the mode of progress of Long Beach to the westward was frequently by sudden removals of the inlet, and the consequent junction of large and perceptible sections of beach to the easterly lands – as the result of a sudden and violent operation of the tides. We, therefore, think the court below correctly held that the defendant did not acquire a legal right to the possession of the lands in question by his lease from the town of Hempstead.

Addressing the additional claim:

It is also claimed by the appellant that even if he has failed to establish title in himself to the premises, that the plaintiff still is not entitled to maintain this action because of defects in his own title. It is argued that the beach in question having been once cut off from the mainland and surrounded by navigable water, thereby became an island, which, like other formations of land in tide water, was the property of the State.

The facts established by the evidence:

The evidence establishes a continuous chain of title to the premises in dispute from its native Indian owners down to the plaintiff, covering a period of two hundred years, and each conveyance bounding its grantee upon the Atlantic ocean.  Under the law of this State such a description makes the line of high-water mark the boundary of the granted premises, but it also carries with it the liability of such a line to fluctuate by the action of the water. These lines of description for a period of one hundred and fifty years included the locus in dispute, and the same, with the uplands, was occupied and enjoyed by the plaintiff’s grantors and now remain the property of the plaintiff, unless the title thereto has been lost to his grantors through the causes referred to.

An explication of the law:

It is undoubtedly true that the proprietorship of lands may be lost by erosion or submergence. The one consisting of a gradual eating away of the soil by the operation of currents or tides, and the other of its disappearance under the water and the formation of a navigable body over it. The plaintiff’s grantors have at all times since 1684 remained the owners and occupants of the mainland adjacent to the beach in dispute, and as such owners have been entitled to the rights which attend the title of littoral or riparian owners. ‘They would be entitled to whatever should be gained from the sea by alluvion or dereliction, and their title was liable to be lost by the advance of high-water mark, bringing their lands within the ebb and flow of the tide.’…It is not, however, every disappearance of land by erosion or submergence that destroys the title of the true owner, or enables another to acquire it, for the erosion must be accompanied by a transportation of the land beyond the owner’s boundary to effect that result, or the submergence followed by such a lapse of time as will preclude the identity of the property from being established upon its reliction. Land lost by submergence may be regained by reliction, and its disappearance by erosion may be returned by accretion, upon which the ownership temporarily lost will be regained.

When portions of the mainland have been gradually encroached upon by the ocean so that navigable channels have been extended thereover, the people, by virtue of their sovereignty over public highways, undoubtedly succeed to the control of such channels and the ownership of the land under them in case of its permanent acquisition by the sea.  It is equally true, however, that when the water disappears from the land, either by its gradual retirement therefrom or the elevation of the land by avulsion or accretion, or even the exclusion of the water by artificial means, its proprietorship returns to the original riparian owners…Neither does the lapse of time during which the submergence continues bar the right of such owner to enter upon the land reclaimed, and assert his proprietorship[.]

And the application of the law to the facts:

It would seem also to follow as the necessary consequence of these rules that the existence of the lagoon between the plaintiff’s hotel property and the beach constitutes no obstruction to his proprietorship of the beach formation, however created, if located within the original boundaries of his possession[.]

The evidence in the case and the findings of the trial court concur in establishing the fact that during the period of change hereinbefore mentioned portions of the beach in front of plaintiff’s premises became submerged, but at all times there existed upon or near such premises, shoals bars or islands, which afterward became the nucleus around which gathered the deposits now composing the land subject to litigation. It seems to us clear that the owners of this property did not lose their title thereto by reason of the changes described, and that the State has not acquired any property therein. The sovereign succeeds to the ownership of such islands and formations only as are originally created and located in tide-ways outside of the boundaries of property subject to individual ownership.

We are also of the opinion that the principles applicable to the apportionment of lands formed by accretion among the owners of contiguous uplands is quite controlling as to the rights of the respective parties in this case. Such owners are entitled to lands made by accretion or reliction in front of their property and contiguous thereto in certain proportions according to the formation of their respective shore lines…However such accretions may be commenced or continued, the right of one owner of uplands to follow and appropriate them ceases when the formation passes laterally the line of his coterminous neighbor[.]

*     *     *

It would seem to follow from the principles referred to that the owner of Long Beach could not, even if the process of its enlargement and extension was effected by accretion, claim beyond the point where such accessions began to be made adjacent to the property of adjoining owners, and as the line of each successive owner of uplands was reached in the process of extension a new obstacle to the appellant’s claim would seem to arise. This result would occur undoubtedly after passing Hog Island inlet as some of the land westerly thereof was originally solid beach, and occupied by the grantees of Hempstead before the extension of Long Beach[.]

Matter of City of New York (W. 10th St. Realty Corp.), 256 N.Y. 222 (1931)

The Court summarized the nature of the proceedings:

West Tenth Street Realty Corporation is the owner of a parcel of land bounded on the south by the Atlantic ocean. The city of New York instituted proceedings to acquire title for a public beach along the Coney Island ocean front. Claimant’s land has a frontage on the ocean of 150 feet and is situate immediately east of the Feltman land[.]

The claim and prior proceedings:

The deed to claimant of the land involved on this appeal bounds the same on the south by the Atlantic ocean. The question as to whether such description covers land submerged by avulsion prior to the date of claimant’s deed is not passed upon in the opinion of Judge O’Brien. That is the only surviving question. The Special Term decided that the claimant was not the owner of such submerged land. The Appellate Division held that the decision ‘was correct upon the basis that the land for which claim is made was lost and not claimed or regained prior to this proceeding.’

The factual background:

Claimant proved title running back to the town of Gravesend.  The title of the town of Gravesend extended to the high-water mark of the ocean…Claimant’s title originates in two proceedings in eminent domain brought by the New York and Sea Beach Railroad Company in 1877 and 1880 respectively to acquire title ‘to land now of the Town of Gravesend.‘ Part of the land involved was described as extending ‘to the Atlantic Ocean;‘ the other part ‘to Atlantic Ocean, thence westerly along the high-water line of said ocean.’

In a mortgage executed by the railroad company on September 1st, 1885, the land was conveyed by an omnibus description which covered all its real and personal property and all riparian and other rights whatsoever with the appurtenances. That mortgage was foreclosed, and the referee’s deed followed the description in the condemnation orders ‘with the appurtenances.‘ The railroad company conveyed the land in question to the Sea Beach Land Company by a description which read in part ‘west to the Atlantic Ocean, thence easterly along the Atlantic Ocean.  The Sea Beach Land Company conveyed to claimant by the same description, i.e., to the Atlantic ocean, thence easterly along the Atlantic ocean.

In June, 1893, the high-water line of the ocean was about 1,350 feet south of Surf Avenue and about 450 feet south of the taking line. The land between the taking line and the high-water line in 1893 was submerged by avulsion. The premises in question consist of the submerged land between the high-water line as it was in 1893 and at the time of taking, consisting of a parcel about 150 feet wide and 450 feet long.  The high-water line at the date of claimant’s deed was substantially the same as the taking line. If the claimant is the owner of the submerged land in question, it is by implication as the description in its deed only extends to high-water mark, which at the time was located at about the taking line.  The position of the city is that the rights of the plaintiff are limited by the strict and literal language of the deed, and that its title extends only to the high-water line as it existed at the date of its deed.

And the conclusion based upon the operative presumptions:

The presumption is that a grantor does not intend to retain the fee of the soil under water  contiguous to the land conveyed but such presumption may be overcome by the use of words in describing the premises conveyed which clearly indicate an intent not to convey the soil under the water.

It will, however, be presumed in the absence of a clearly expressed intent to the contrary that a grantor does not intend to retain the fee of the soil under the water where he has conveyed all of his interest in the upland adjoining it. It will be presumed that he intended to convey all he owned[.]

*     *     *

The principle stated applies to land bounded by waters where the tide ebbs and flows[.]

The presumption that claimant’s grantor intended to convey all the land which it owned including land under water is strengthened by the fact that its deed to claimant recited ‘being the same premises conveyed to the party of the first part by deed dated September 1st, 1896, and recorded in the office of the Register of the County of Kings on December 1st, 1896, in Liber 3 of Conveyances, page 185, Section 21.’[.]

And the Appellate Division has adjudicated several accretion/avulsion disputes.  Two examples follow:

Ludington v. Marsden, 181 A.D.2d 178 (4th Dept. 1992)

The Appellate Division described the action:

This is an action to settle a boundary dispute over a peninsula of accreted land abutting the Little Salmon River near its outlet to Lake Ontario in the Town of Mexico, New York. The adjoining landowners and competing claimants to the peninsula are plaintiffs Ramsey and Shirley Ludington, owners of a parcel lying generally north of the disputed property, and defendants Russell and Charlene Marsden and Francis and William Koehler, owners of two separate parcels, lots 11 and 12, respectively, lying generally east of it. Critical to an understanding of this case are several surveys: the 1955 “King” survey commissioned by the Marsdens’ and Koehlers’ common grantor, Loren Marsden; the 1965 “Hackett” survey for the Ludingtons; the 1986 “Getman” surveys of the Marsden and Koehler properties; and the 1988 “Venditti” survey ordered by the trial court. Also relevant are the property descriptions contained in the deeds of the parties and their predecessors.

The changes to the shoreline:

The surveys and deeds indicate that the three properties in question lie near a 90 degree bend in the Little Salmon River. The river flows in a generally northerly direction past the Marsden and Koehler properties to the east, then flows generally westerly as it passes the Ludington property to the north before resuming its northerly flow into Lake Ontario. The surveys and deeds also show that the shoreline and centerline of the river have changed drastically over the years in the vicinity of the subject properties. The centerline of the river has shifted to the west in relation to the Marsden and Koehler properties and to the south in relation to the Ludington property. More importantly, several features of the shoreline have changed over the years. Whereas, historically, there was a large area lying between the low water mark and high water line of the river in this vicinity, a large area of permanent highlands, including the disputed property, now lies west (i.e., riverward) of the low water mark described in the 1939 deed of the Ludingtons and depicted in the 1955 King survey. In fact, it appears that a portion of the disputed property consists of highlands that now exist west of the former centerline of the river described and depicted in the various deeds and surveys. The property in dispute lies to the west of the Marsden and Koehler properties and to the south of the Ludington property.  The disputed land lies outside the deed descriptions defining all three properties, a circumstance that, by itself, strongly implies that the shoreline has changed.

The deed descriptions and surveys:

The parties derive title to their respective properties from a common grantor, Wilbur Jordan. The Jordan property lay generally between County Route 40 to the north and east and the Little Salmon River to the west and south. In 1939, Jordan conveyed to Homer and Marjorie Ludington a portion of his property bounded on the north by Route 40 and on the south by the river. The deed described the east boundary of the Ludington property as running from the center of the highway (at a right angle with it), a distance of “490 feet more or less to low water mark of Salmon River”. The southern boundary of the property was described as running “along low water line of said river 160 ft.” The record contains no survey made contemporaneously with the 1939 conveyance. The relevant boundaries of the Ludington property are depicted, however, in the 1955 King survey. The King survey depicts the east and south lines of the Ludington property exactly as described in the 1939 deed, i.e., as running south from the road 490 feet to the low water mark of the river, thence running westerly along the low water line.

The Ludington property was conveyed in 1963 to plaintiffs Ramsey and Shirley Ludington. The 1963 deed contains the same property description as the 1939 deed; nevertheless, the Hackett survey, performed two years later, measures the Ludingtons’ east line as running approximately 550 feet from the road to the “observed” water line. In other words, the Hackett survey, upon which plaintiffs base their claim, depicts the river bank in the southeast corner of the property as being about 60 feet farther from the road than as described in the Ludingtons’ deed and that of their predecessor and as depicted in the King survey performed 10 years earlier.

The Marsden property:

The King survey was made in contemplation of Jordan’s proposed sale of the remainder of his property to Loren Marsden. That conveyance, which took place in March 1956, encompassed approximately 11 acres bounded on the north and east by Route 40, on the south by property previously acquired by Loren Marsden, and on the west by the Little Salmon River and the Ludington property. As illustrated by  the King survey, the 1956 deed describes the southern boundary of that large parcel as running 620 feet from the highway to “a point in the center of Little Salmon Creek”. The deed states, and the King survey depicts, that the west line of the 11-acre parcel runs from the aforementioned point on the center line of the creek, “thence N. 5° 43′ W. 270 feet to a point in the low water line of said Little Salmon Creek, said point being in the south east corner of the Homer Ludington property and being S. 5° 43′ E. 490 feet measured at right angles from the center line of the said County Highway Route #40 leading from Texas to Mexico Point East side; thence N. 5° 43′ W. 490 feet along the east line of the Homer Ludington property to its point of intersection with the center line of said County Highway Rt. No. 40.” Thus, most of the west line of the 11-acre 1956 conveyance was coterminous with the east line of the Ludington property. The remainder extended under water, and eventually ran along the centerline of the river, on the same bearing as that common boundary.

After acquiring the 11-acre parcel from Jordan, Loren Marsden combined it with his previously acquired property to the south. He then subdivided that portion of it lining the east side of the river into 12 lots, each measuring 75 feet in width. We are concerned in this case with subdivision lots 11 and 12, the northernmost lots, which now are owned by defendants Marsden and Koehler, respectively. The 1955 King survey shows that, at the time, the south sidelines of each of those lots extended to the west below the high and low water line of the river to the centerline of the river. Further, the survey shows that the west lines of those lots were on the same bearing as the east line of the Ludington property. Finally, the survey shows that the southern boundary of the Ludington property, i.e., the then low water mark of the river, intersected the west boundary of lot 12 at a point approximately 45 feet from the centerline of the river. Thus, at that time, the southwest corner of lot 12 was permanently under water.

The Koehler lots:

The Koehlers acquired lot 12 in 1984. Their deed, like the deeds of their predecessors, describes their property exactly as depicted in the 1955 King survey. The Koehler property is described as being bounded on the south by a line that runs “71 feet to [through] high water mark on East bank Little Salmon Creek; thence [an undefined distance] on same course to center line of said creek” and as having a western boundary that runs from the aforementioned point at the center of the creek a distance of 75 feet on a bearing of north 5 degrees, 43 minutes west, the same bearing as the east boundary of the Ludington property. Additionally, the King survey makes clear that the northernmost 30 feet or so of the Koehlers’ west line constitutes the southernmost segment of the Ludingtons’ east line.

The Marsdens acquired lot 11 from Loren Marsden in 1984. Their deed describes their south and north sidelines as running an undefined distance “to the centerline of Little Salmon River”, and describes their western boundary as running “up said river centerline”.

The 1984 deed descriptions notwithstanding, the 1986 Getman surveys and the 1988 Venditti survey show drastic changes in the shoreline and centerline of the river since the 1955 King survey. The western boundaries of lots 11 and 12 no longer correspond with the centerline of the river. Indeed, lot 11 would now be landlocked by the accreted peninsula (the property now in dispute) but for a narrow lagoon extending onto that property. Lot 12 is now landlocked by the accreted peninsula.

The decision of Supreme Court:

Following a nonjury trial on the issues of deed rights, riparian rights, and adverse possession, Supreme Court granted judgment awarding most of the peninsula to the Ludingtons and a small portion to the Marsdens. The court found that the deeds of those parties were in conflict but that both had valid riparian claims to that portion of the disputed property contiguous to their deeded properties. Contrastingly, the court found that the Koehlers’ deed did not conflict with the others and that they did not possess riparian rights entitling them to a proportionate share of the peninsula. The court also found that the Ludingtons’ proof was insufficient to support their claim of title by adverse possession to the entire peninsula.

The issue upon appeal:

On appeal, the Ludingtons contend that they are entitled to the entire peninsula. They contend that the court erred in construing the granting clause of their deed, in finding that the shoreline had been altered by accretion, and in rejecting their adverse possession claim. On their cross appeal, defendants Marsden and Koehler contend that the court erred in awarding the Ludingtons too large a share of the disputed peninsula and in excluding the Koehlers’ riparian claim to a portion of it.

Holding that:

We agree with the court’s rejection of the Ludingtons’ adverse possession claim. They did not prove, by clear and convincing evidence, that they actually possessed the disputed property for the prescriptive period, and that such possession was hostile and under a claim of right, open and notorious, exclusive, and continuous[.]

As to the Ludingtons:

The Ludingtons’ primary contention on appeal is that the court erred in awarding to the Marsdens (and properly denied to the Koehlers) any newly formed land located west of the long-defined western boundaries of lots 11 and 12. The Ludingtons contend that, since their eastern boundary is but the extension of defendants’ western boundaries, they must be awarded all land lying west of that line. Following that logic, however, if the Ludington property extends no farther south than 490 feet from the road, the Marsdens and Koehlers should be entitled to all new land formed south of that former low water line.

Finding that:

Based upon our examination of the record, we conclude that the parties’ respective deeds are not in conflict and that there is no overlap between the properties described therein. The Ludingtons’ east boundary is merely the extension of the Marsdens’ and Koehlers’ west boundary, and indeed a portion of it is coterminous with a segment of the Koehlers’ west line. We also conclude that, by virtue of the obvious changes that have occurred in the centerline and shoreline of the river, the deeds no longer reflect the actual situation. It is clear that a large peninsula of land has formed wholly outside the deed description of the Ludington property and largely outside the deed descriptions of the Marsden and Koehler properties. The part of the peninsula in dispute lies outside the deed description of any party. Thus, the parties may not claim exclusive title to the disputed parcel by virtue of their own deed description or those of the other parties. The fact that the centerline and shoreline of the river have shifted west in relation to the Marsden and Koehler properties and south in relation to the Ludington property cannot have the effect of enlarging anyone’s deed description. The changed shoreline merely results in more or less of a particular party’s deeded property being currently under water. The deed boundaries remain the same and, thus, the deeds provide no basis for granting priority of title to any party, but merely establish reference points for dividing the disputed property pursuant to principles of riparian law.

Summarizing “riparian” law:

Pursuant to riparian principles, the accreted land should be equitably divided on a proportional basis between the adjoining owners, such division preserving water frontage in proportion to that of the lands as initially conveyed…The principle of proportional division stems from the rule that riparian owners “are entitled to lands made by accretion or reliction in front of their property and contiguous thereto” but may not “claim beyond the point where such accessions began to be made adjacent to the property of adjoining owners”…”[T]he right of one owner of uplands to follow and appropriate [such accretions] ceases when the formation passes laterally the line of his coterminous neighbor”[.]

Concluding that:

Initially, we conclude that all parties to this dispute are riparian owners. The Koehlers’ deed and those of their predecessors describe their southern sideline as extending to the centerline of the river. Those deeds additionally describe the western line of lot 12 as running an undefined distance (but apparently about 45 feet) to a point where it intersects the former low water mark. Thus, at one time, the major portion of the western boundary of lot 12 lay under water. As a result of the accretion of a large peninsula to the west of lot 12, however, the Koehlers’ deed boundaries no longer extend to the water.

Notwithstanding the land-locking of lot 12, we conclude that it remains a riparian parcel. The applicable rule is that an abutting owner is entitled to lands formed by accretion or reliction contiguous to his property. Contrary to the trial court’s conclusion, the rule should not be any different merely because the accretion has taken place along the entire former shoreline of lot 12. To exclude the Koehlers from the disputed land would violate the rule of proportional division. A riparian owner properly claims the accreted land formed contiguous to his shoreline, but may not “claim beyond the point where such accessions began to be made adjacent to the property of adjoining owners”…”[T]he right of [the Ludingtons] to follow and appropriate [the accretion] ceases when the formation passes laterally the line of [the Koehlers]”, and vice versa…In awarding the Ludingtons the bulk of the disputed land and awarding none to the Koehlers, the court improperly awarded the Ludingtons land that is not contiguous to their property. That portion that is contiguous to the Koehlers’ property must be awarded to them.

And, as to apportionment:

Having determined that all three adjacent owners are entitled to a share of the accreted land, we must then determine how the property should be apportioned. The precise method of apportionment varies from case to case, depending on the size and configuration of the properties in relation to each other and to the body of water…We find that the subject property is properly apportioned by drawing two lines from (and perpendicular to) the present centerline of the Little Salmon River to two points on the western boundary of lot 12…Line No. 1 should be drawn from the present centerline of the river to the southwest corner of lot 12/northwest corner of lot 11. Line No. 2 should be drawn from the present centerline of the river to the 490-foot point at which the western boundary of lot 12 intersects the southern boundary of the Ludingtons’ property. The Marsdens should be granted that part of the accreted property lying south of line No. 1. The Koehlers should be granted that part of the accreted land lying between line No. 1 and line No. 2. The Ludingtons are entitled to the remainder, i.e., the part lying north of line No. 2. Resolving the dispute in that fashion grants all parties that portion of the accreted land that lies contiguous to their own property, and preserves as nearly as possible the water frontage initially enjoyed by them.

Estelle v. Blaser, 192 A.D.2d 1080 (4th Dept. 1993)

The Appellate Division summarily concluded that:

We find no basis to disturb Supreme Court’s apportionment of the disputed land between the parties. That apportionment comports with the general rule that, where, as here, an individual wrongfully fills in the public water opposite the property of an upland owner, the upland owner’s property still extends to the water line and the filled-in frontage becomes the property of the upland owner[.]

Lessons learned:

• Although the doctrine of title by accretion rests upon an increase by imperceptible degrees through natural causes, that the change is the result wholly or partly of human agency does not change the doctrine, unless it will enable a wrongdoer to gain by his own wrong. Thus, the doctrine of title by accretion will not apply to land reclaimed by a riparian owner through filling in land once under water, and making it dry.  A riparian owner cannot by his own acts fill in land under water or cause accretions which will add to his land at the expense of his neighbors.
• The title to land submerged by avulsion is not lost even temporarily. Title to the land under water remains in the riparian owner, with the boundaries unchanged, and if the submerged land reappears, the riparian owner retains title.  An owner also has the right to protect or reclaim such land by artificial means.
• The burden is on the claimant to establish title to land lost by avulsion. The decisive criterion is whether the loss was due to erosion or avulsion.  However, there is no time limit on the owner’s right to reclaim land lost by avulsion provided that the original boundaries can be located or identified.

[1] A special tribute to Professor Elmer M. Million who taught property law to my section in 1969-70.  Professor Million was a graduate of Southwest Oklahoma State University and held a bachelor of law degree from the University of Oklahoma and a doctoral degree in judicial science from Yale.  He taught at Southern Methodist University and the University of Idaho; worked for the Department of Justice in World War II; was a member of the faculty of New York University from 1947 until 1970; and was a law professor at the University of Oklahoma from 1970 until 1983.