COUNTIES: BOUNDARIES FORMED BY RIVERS -- RIVERS: CHANGING COURSE OF, AS AFFECTING COUNTY BOUNDARY

COUNTIES:BOUNDARIES FORMED BY RIVERS -- RIVERS: CHANGING COURSE OF, AS AFFECTING COUNTY BOUNDARY

A sudden change in the course of a river which forms the boundary between counties does not change the boundary to conform to the new course of the river.

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                                                                    May 6, 1957

Honorable George W. Sibbald
Prosecuting Attorney of Cowlitz County
Cowlitz County Court House
Kelso, Washington                                                                                                                Cite as:  AGO 57-58 No. 57

Attention:  Mr. Richard L. Norman, Deputy

Dear Sir:

            By letter of April 15, 1957, previously acknowledged, you have requested the opinion of this office concerning the location of the boundary between Clark and Cowlitz counties.  We quote from your letter:

            "Several years ago when primary state highway No. 1 (U.S. 99) was constructed, the Lewis River was diverted and a horseshoe bend was left high and dry.  This diversion involves approximately 65 acres of land and a few home sites.  Said property, before the diversion, was considered part of Clark County and is on Clark County assessment rolls.  Our county commissioners feel that since the course of the Lewis River was moved that said property is now properly within the boundaries of Cowlitz County and should be on Cowlitz County's assessment rolls."

            Your question may be paraphrased as follows:

             [[Orig. Op. Page 2]]

            Is there any legal basis for the institution of an action by Cowlitz county to establish the boundary between Cowlitz and Clark counties along the present course of the Lewis River?

            We answer in the negative.

                                                                     ANALYSIS

            The common law rule with regard to changes in the course of a river that forms a boundary of a piece of land is stated as follows in Hirt v. Entus, 37 Wn. (2d) 418, quoting fromHarper v. Holston, 119 Wash. 436:

            "'. . . when grants of land border on running water, and the course of the stream is changed by that process known as accretion‑-that is to say, the gradual washing away on the one side and the gradual building up on the other‑-the owner's boundary changes with the changing course of the stream. . . .

            "'On the other hand, it is equally the rule that, when a stream which is a boundary, from any cause, suddenly abandons its old channel and creates a new one, or suddenly washes from one of its banks a considerable body of land and deposits it on the opposite bank, the boundary does not change with changed course of the stream, but remains as it was before.  This sudden and rapid change is termed in law an avulsion, and differs from an accretion in that the one is violent and visible, while the other is gradual, and perceptible only after a lapse of time.' . . ."

            Although our Washington cases dealing with this question have been concerned only with privately-owned property, rather than county boundaries as created by statute, this common law rule has been consistently applied by other courts in cases involving shifting river courses forming boundaries between counties.  See, for example,Blair v. U. S. (Okla.), 32 F. (2d) 130;Witt v. Willis, (Ky.), 85 S.W. 223; Fitzsimmons v. Cassity (La.), 172 So. 824; Randolph v. Moberly Hunting & Fishing Club (Mo.), 15 S.W. (2d) 834;Nothstine v. Feldmann (Mo.), 8 S.W. (2d)  [[Orig. Op. Page 3]] 912;Jacobs v. Stoner (Mo.), 7 S.W. (2d) 698; andState v. Huffman (Mo.), 2 S.W. (2d) 582.

            It is our opinion that the facts as you have related them present a clear case of avulsion, and that therefore the boundary between Clark and Cowlitz counties continues to exist, so far as the disputed 65 acres are concerned, along the course that the Lewis River followed prior to the construction of primary state highway No. 1.

            We trust this opinion will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DAVID S. BLACK
Assistant Attorney General