Cunningham v. Prevow

I find myself unable to agree entirely with the conclusion reached in the prevailing opinion, though I do concur in the conclusion reached in respect to the principal matter of law involved: that is, as to whether the accretions to the Prevow 101-acre tract extended beyond his original west boundary line. I agree that the original property lines were obliterated entirely by the gradual encroachment of the river to the east with the result that the Prevow land which was originally nonriparian became riparian land; and that the accretions which were subsequently formed thereto embraced a part of the Cunningham tract as completely as if there had never been any line of division between the two tracts. But, I am of opinion that the accretions to Mrs. Cunningham's 7-acre tract and to the Prevow tract are embraced within lines running at right angles from the old bank of the river, as shown on the following plat: *Page 677

[EDITORS' NOTE: PLAT IS ELECTRONICALLY NON-TRANSFERRABLE.]

In Welles v. Bailey, 55 Conn. 292, 10 A. 565, 567, 3 Am. St. Rep. 48, which is a leading case on the subject we have under consideration in this case, and which is relied upon and quoted from in the prevailing opinion, the court said:

"Whenever a portion of a riparian lot is washed away by the river, the riparian owner becomes entitled to the land under the water so far as the center of the stream, without any reference to the original limit of his land or to his upland lines. He takes whatever front upon the river its changes of bed gives him, and by lines that run from the termini of his upland lines at right angles to the center line of the stream. All the authorities agree in this. Thus in Gould, Waters, section 162, is said that *Page 678 `Every proprietor is entitled to frontage of the same width on the new shore as on the old shore, and at low-water mark as at highwater mark, without regard to the side lines of the upland. In general, the lines of division are to be made to the channel in the most direct course, from the lateral boundaries of the several tracts of upland to which the flats are appended . . . So, also, in the case of unnavigable streams, which are the property of the riparian proprietors usque ad filum aquae, the side lines are extended to the center of the stream, from the termini on the bank, at right angles with the general course of the river.' Numerous authorities are cited in support of these positions."

I can see no reason to support the conclusion of the majority that the accretions to the Prevow and Cunningham lands extended due west between parallel lines to the present bank of the river. It would be just as logical to say that they extended due north between parallel lines. The authorities agree that the original property lines are obliterated entirely when the land is washed away by gradual erosion, and that the riparian owners are entitled to the accretions, not by virtue of their ownership of the original title, but because the accretions were formed to their lands. Welles v. Bailey, supra; Yearsley v. Gipple,104 Neb. 88, 175 N.W. 641, 8 A.L.R. 636, and note at page 641; Doebbeling v. Hall, 310 Mo. 204, 274 S.W. 1049, 41 A.L.R. 382, and note at page 395. And the logical conclusion would seem to be that the riparian owners should own the accretions which form directly opposite their lands, that is, as nearly as may be, at right angles to the bank to which the accretions are formed.

To this extent I dissent from the conclusion reached by the majority. *Page 679