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  #1  
Old 09-28-2010, 11:47 AM
appleoneusmonk appleoneusmonk is offline
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Mean High Tide Line

This is my first post. I'm a planner (not a surveyor), and I was unable to find a discussion of my issue, so I'm making this post.

The mean high tide line can be important in determining the boundary between a coastal private property and the public beach access way. The CA Coastal Act defines it broadly as follows: "The mean high tide line (ordinary high water mark) is an ambulatory line which may vary over time as a result of climatic and other influences. The line is the normal or average inland extent of tidal influence."

Do CA land surveyors have established guidelines for establishing the MHTL? What timeframe is used to establish the mean? How might this change with sea level rise?

I appreciate any responses this post may yield. Thanks.
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  #2  
Old 09-28-2010, 12:00 PM
E_Page E_Page is offline
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Except in locations where the "MHTL" has been fixed by adjudication or agreement with the State, it is always moving. Depending upon where you are on the coast, it can vary quite a bit throughout the year.

If you are planning a building project of some kind, IMO, it would be best to find out what time of year your beach typically has the most landward extent of MHTL, and have a knowledgeable surveyor determine where that line is.

It's a far more complicated question than it seems. Yes, there are some standard things that the State will be looking for to ensure that your surveyor properly identified the MHTL, but to my knowledge, there is no manual or written set of instructions that your surveyor will be meeting.

If you are planning beachfront development, you already know it won't be cheap. Start with a good survey. It will likely save you much more down the road than what you pay for it now.


Edit: Obviously, when the "MHTL" is fixed by adjudication or agreement, it no longer really is the MHTL. It is simply an agreed or ordered set of courses, often based upon some official survey of the MHTL at some point in time. Sometimes a Boundary Line Agreement is entered into which does not follow the MHTL, but instead follows some other agreed boundary.
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  #3  
Old 09-28-2010, 12:04 PM
Ben Lund Ben Lund is offline
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It takes 18.6 years to go through a full cycle of tidal position due to the relationship of the sun, moon, and earth during that time. This does not mean this is the only way to establish the mean high tide (mean high tide is also known as the ordinary high water mark). I believe there are ways to take readings now and correct for those readings to get a more accurate ordinary high water elevation.

Roy Minnick wrote a great book that explains everything you would ever want to know about water boundaries in his “Waterboundaries for California Surveyors”
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  #4  
Old 09-28-2010, 12:26 PM
appleoneusmonk appleoneusmonk is offline
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MHTL

Thanks. I figured there was no easy answer. Right now the subject has come up due to trespassers, but eventually it will also involve development and public access rights along a miles-long stretch of coastline.
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  #5  
Old 09-28-2010, 02:13 PM
dmi dmi is offline
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EVAN

It seems to me that an issue is the manner in which the title was created for the littoral parcel- For example, (mexican or Spanish land grant-rancho), PLSS. How was ownership held at statehood? If memory serves, Ca supreme court ruling uses neap tide as a basis for calculating the mean, yet I have been told that the SLC uses the federal standard. Also isn't there a public easement below mean high tide?
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  #6  
Old 09-28-2010, 02:40 PM
appleoneusmonk appleoneusmonk is offline
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The parcels were created from original Spanish land grants. There is only one lateral public easement at present, extending "seaward from the base of the bluffs to the mean high tide line above the referenced parcels". It's not this easement that raised the question in my mind, but all the surrounding property that does not have any easement or adjudicated boundaries.

Regarding nepe tides, here is something I found before starting the post:

"California's so-called 'neap tide' rule originated in the state Supreme Court's 1861 Teschemacher decision. The court echoed Lord Hale's 17th-century treatise equating 'nepe' or 'nepe tides' with 'ordinary tides' for boundary purposes. Despite an 1872 statute providing that the 'ordinary high-water mark' is the seaward limit of upland, California courts continued to refer to 'nepe tides', although generally in a non-technical manner, in defining the boundary. Finally, in 1966, in the Kent Estate decision, the appellate court held that the boundary is to be determined by using the 19-year mean of the high 'nepe tides.' The court apparently attempted to define 'nepe tides' in a technical manner, but overlooked the fact that there usually is a lag of a day or two between quadrature of the moon and the minimum or nepe range of the tide. Although the decision has not been overruled, other modern California decisions, as well as recent statutes, refer to the 'line of mean high tide' in defining tidelands, so there is some uncertainty as to the state's boundary rule (Graber, 1981b)."
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  #7  
Old 09-28-2010, 02:53 PM
E_Page E_Page is offline
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It's true, Dane, that there are many variables. For every rule, there are many potential exceptions, and each site has the potential to be very unique from others. To get specific advice, the landowner, or in this case, the planner, should have knowledge of the base title. My generic advice is to get a PTR and a survey.

Since a coastline development project or jurisdictional review has the potential to land on my desk, it is inappropriate to offer too much advice. An internet forum is also really not adequate to explain, except in the most basic terms, and then there may be one of those exceptions.

For those who really want to study the subject, I suggest as a primary book "Water Boundaries" by Bruce Flushman (ISBN 0-471-40391-1), published by Wiley, and available through Paul Cuomo Press.

Cole has a book on the same subject under the same title, but Flushman's book has info which is more specific to CA.

The author is a CA attorney who has (I think) an easy to follow writing style. One of the things I like best is that he put a Table of Authorities at the front end of the book, listing every case, constitution, statute, and other text that he cites to within the book. Very helpful.

There are plenty of other source materials, but Flushman is a good place to start.
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  #8  
Old 09-28-2010, 03:05 PM
E_Page E_Page is offline
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Apple-monk person,

There are lot's of aspects to littoral boundaries. If your property is on the open coast, don't get hung up on a case regarding the limit of tidelands vs swamp and overflowed lands. It may have little or no relevance.

A lot may depend upon the survey and patent of the rancho, the physical nature of the shore, and potentially, what has happened since the rancho was confirmed.

I see that you are the type to educate yourself. If you are of a mind to do so (and it's worth $130 or so to you), get flushman's book and read the chapter(s) applicable to the regime associated with your land. That and hire a surveyor with good familiarity with this aspect of boundary law (hint: most have little or no familiarity with this confusing aspect. Find someone who does coastal surveying as a significant portion of their practice).
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Old 03-05-2011, 11:51 AM
liftmys10 liftmys10 is offline
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While studying for the LS exam, I came across this problem and I dont agree with the answer that was given in the answer sheet. My answer is C.. Correct me if i'm wrong. Thanks!

"For most states, what would be the waterward boundary of the riparian lots?

(A) ordinary low water mark
(B) mean low water line
(C) ordinary high water mark
(D) mean high water line"
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  #10  
Old 03-10-2011, 01:13 PM
E_Page E_Page is offline
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Quote:
Originally Posted by liftmys10 View Post
While studying for the LS exam, I came across this problem and I dont agree with the answer that was given in the answer sheet. My answer is C.. Correct me if i'm wrong. Thanks!

"For most states, what would be the waterward boundary of the riparian lots?

(A) ordinary low water mark
(B) mean low water line
(C) ordinary high water mark
(D) mean high water line"


Under the Equal Footing Doctrine, which is how the States were granted title to the beds of navigable waters at the time of statehood, the federal government defined the bed as going to the ordinary high water mark. Most states have retained that as the demarcation of riparian ownership.

California decided to essentially give away their claim down to the low water mark (the law says "low water mar"k, not "ordinary low water mark" - we don't really know if there is a difference because the point has not been litigated). So in CA, unlike most states, the riparian boundary for NON TIDAL, navigable waterways is the low water mark. The boundary along TIDALLY INFLUENCED waterways remains the ordinary high water mark.
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  #11  
Old 03-13-2011, 07:15 PM
robert reese
 
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SIX MONTHS LATER...

I see this post started quite some time ago. I have no idea if the originator needs this addressed six months later.
I also see the originator of this post got a considerable amount of discussion that did not explicitly answer the questions. Since this subject holds a particular interest for me, I add the following.

First, a couple of clarifications.
1. "Ordinary" is a poor substitute for "Mean". It should be discouraged as a technical term, but has persisted in legal circles. Mean High Water Line is the preferred technical term for relevant legal or jurisdictional line.
2. The California Coastal Act does not define the mean high tide line at all as originally posted (interesting, as much of the jurisdictional limits in the Act are controlled by the MHTL). The definition provided in the original posting comes from a Santa Barbara Coastal Land Use Plan. I would expect the author of the original post is working in or around Santa Barbara area.
3. There is a difference between high water line and high water mark, which discussion is beyond the space (or need) here. The definition by the Santa Barbara Coastal Land Use Plan parenthetically equates the high tide line with the high water mark. This confuses, rather than clarifies, its intended meaning.
4. A tidal "datum" is a horizontal plane at a specific height. The "line" of a tidal datum is the intersection of that plane with the land.
5. Tidal datums have fixed elevations during a particular time frame. Tidal datum lines vary with configuration of the land adjacent to the water.

Q: DO CA LAND SURVEYORS HAVE ESTABLISHED GUIDELINES FOR ESTABLISHING THE MHTL?
A: No.
Any competent land surveyor should be able to determine the location of a line of equal elevation on land adjacent to water.
However, the implied question concerns datum determination. There are guidelines (not state specific) for establishing the elevation of a particular tidal datum that will be used to define that line.

Q: WHAT TIMEFRAME IS USED TO ESTABLISH THE MEAN?
A: It varies.
As posted by Mr. Lund, tidal datums at primary tide stations use 19 years worth of water level observations to compute tidal datums. Secondary tide stations can use smaller time frames (from 1 to 19 years). Tertiary or short-term tide stations can use even smaller time frames (1 month or even less). The method for computing tidal datums at a subordinate station (location) in California is known as a "standard method", applied to locales with semi-diurnal mixed tides.

Q: HOW MIGHT THIS CHANGE WITH SEA LEVEL RISE?
A: It won't.
...not until the next national tidal datum epoch (NTDE) is computed and published. Tidal datums are planes of elevation computed for a backward-looking period, or epoch, of water level observations. The current NTDE uses water level observations from 1983 to 2001, inclusive. Any variations in water levels - rise or fall for whatever reason - will be reflected in the computations for the next NTDE at a specific location.

COMMENT - There are many considerations in defining a tidal datum (Mean High Water, etc) at a particular locale, with widely varying costs, both time and money. The methodology used to make such a determination would depend on, among other things, how accurately a datum must be known, the intended use and potential effects of reliance on such a determination.
As Mr. Ince notes, the title from which the parcels are derived is acutely important. The original author states these are, in fact, derived from "original Spanish land grants". Most likely they are Mexican Grants, particularly if this is applied to Santa Barbara County. It could very well be that the seaward boundary of such a parcel is the highest reach of the waves or extraordinary high tide. Against a sheer cliff, not much difference will be observed. In areas with beaches, ownership of the area between the higher high water line and ordinary high water line may be questionable. This is well beyond the scope of this post.
As Mr. Page suggested, the best approach is to find a qualified, experienced professional for consultation, if a specific tidal datum determination were actually needed at a locale which does not have one already computed.
Also, a discussion here of the VDATUM tool has been purposely neglected.
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Old 03-14-2011, 09:40 AM
E_Page E_Page is offline
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Excellent discussion, Robert. I have a couple of clarifications to your clarifications.

1. "Ordinary" is the term used in State law. From a scientific standpoint, it is a poor substitute for "Mean", but being in the law, it's what we have to work with and what we must attempt to interpret as we attempt to place that line of the ground. Several local jurisdictions use different terminology, but they cannot pre-empt State law, so each of those local codes must be read to refer to the "ordinary high water mark" where they attempt to define the waterward boundary of upland parcels, regardless of the particular terminology they use.

2. What the term "ordinary high water mark" means specifically is not addressed in CA law. For that matter, practically every other legislative body in the US has decided to leave that definition vague, requiring the courts to wrestle with it as it pertains to the unique circumstances of each case. As a result, it has come to mean different things under differing conditions and in differing jurisdictions.

In tidal areas, "ordinary" is generally not considered to be as high as the Mean Higher High Water Line, although the only visible mark may be closer to that elevation than any other.

3. Storm surges along the coast often make the apparent high water mark difficult to identify, and sometimes creating a line of a landward edge of beach that is well above the MHTL. Quite often, we will delineate the MHTL as the best approximation of the actual and equitable "ordinary high water mark", which will fall somewhere on the beach, below the line where terrestrial vegetation begins growing.


Guidelines:
There are a couple of reasonable ways to do this that are similar to each other. The surveyor can determine the closest tide station with a similar tidal regime as the site being surveyed (open coast, inner harbor, bay, etc.) and take the MHW elevation from that to define the MHW elevation at the site.

The NGS suggests interpolating an elevation based on MHW elevations from the nearest tide stationfrom each direction from, and of of similar shore characteristics as the site. I have used both methods. Which one you use will depend upon the differences in MHW elevation between the tide stations. In many cases, it will not make a significant difference at your site, and it some it may. Using tide stations of different shore characteristics is usually not a very good idea (tide station located within an estuary for a site on the open coast, or vice versa) as it will, in most cases, not accurately reflect the MHTL at the site.

Each of these applies a scientific definition (Mean High Tide Line) to equate to a legal definition (Ordinary High Water Mark) of the boundary between the State's interest and the upland owner's interest. Since boundaries are legal constructs, it is the legal definition that will control if the legal and scientific are determined to not the same in a particular set of circumstances.

The scientific MHTL is not always the definition a court would hold for the OHWM, but along the open coast, it is often the best we have. But as Robert pointed out, under the specific terms of the Mexican Land Grant, a completely different line may apply. That line may either be beneficial or detrimental to the upland owner, depending upon those original grant terms.
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  #13  
Old 11-17-2011, 05:19 PM
E_Page E_Page is offline
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A question was recently posed to me that is related to this thread.

To follow the legal thinking which once gravitated to the "neap tide" definition: "... the line to which the flow of the water reaches at ordinary or neap tide, unaffected by wind or wave..." (Eichelberger v. Mills Land Co., 9 Cal.App. 628, 1908) to the modern rule of utilizing the Mean High Water datum (MHW) as defined by the NOS (formerly the USC&GS), read Chapter 4 of Flushman's book (see post #7 above).

The use of neap tides began in CA with Teschmacher v. Thompson (18 Cal. 11, 1861) and was further defined in Eichelberger. The main problem with the neap tide definition was that it was very difficult to determine the landward extent of the neap tides unaffected by wind or wave.

The use of the MHW datum as defining the ordinary high water mark began in CA with Forgeus v. County of Santa Cruz (24 Cal.App. 193) in 1914. The MHW takes into account all high tides, not just the neap tides.

The US Supreme Court, in Borax v. Los Angeles (296 US 10, 1935) reaffirmed the use of the MHW, stating that there was no reason for limiting the high tides used in the average to only the neap tides. It ruled that the use of the MHW would apply to all federally patented uplands as the boundary between those grants and the state-owned tidelands. The use of this definition has been widely used since.


The case of People v. Kent Estate (242 Cal.App.2d 156, 1966) puported to define a "California Rule" of using the average of the neap tides, but subsequent courts have ignored or dispelled that particular part of the ruling while finding relevance and value in other portions (such as the part that maintains that the littoral boundary is ambulatory). Flushman refers to this portion of the Kent ruling as an "aberration". The rule being ignored or specifically rejected by later courts, there is no "California Rule" requiring the use of only neap tides.


This is just my interpretation and hitting the highlights of Flushman's book. Read it for a more thorough discussion.
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  #14  
Old 11-17-2011, 07:17 PM
robert reese
 
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ALMOST 14 MONTHS LATER

Evan -
As always, I am amazed by the thoroughness and accuracy of any information you post on this forum. Don't know where you get the time.
Yours is a very good chronology of the water boundary court cases regarding the obfuscating neap high tide ruling by Justice Field in 1861, and the evolution to water mark or line determination by scientific and observational methods.
I believe that the opinion attempted to clarify "ordinary" by not making it "extraordinary". If one excludes the spring tides ("extraordinary"), one is left with the neap tides and so, without a scientific understanding of the tidal regimes, the court made the assumption that the neap tides were "ordinary".
Additionally, I, too, would recommend Mr. Flushman's book for those interested in tidal and navigable water boundaries. It is well worth the money ($140 or so).
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