Alluvion

Introduction:
Alluvion describes the increase in the area of land due to sediment, which is deposited by
a river. It signifies the gradual accretion of land or formation of an island by
imperceptible degrees. Alluvion differs from avulsion in this: that the latter is sudden and
perceptible. In Bangladesh, rivers shifting the sands which lie in the bed of those
rivers ,chars or small islands are often thrown up by alluvion in the midst of the stream
or near one of the banks and large portion of land are carried away by an encroachment
of the river on one side which accessions of lands are at the same time or in subsequent
years gained by dereliction of the water on the opposite side. Similar instances alluvion,
encroachment and dereliction also sometimes occur on the sea coast which borders
southern and eastern limits of Bengal. The rules relating to alluvion is given below:

Defining Alluvion:
In Wikipedia, alluvion is defined as-
Alluvion, a legal term which describes the increase in the area of land due to sediment
(alluvium) which is deposited by a river. This changes the size of a piece of land (a process
called accession) and thus its value over time1.

From that definition we find three words e.g. alluvion, alluvium and accession. The
explanation of these three words is given below:

Alluvion:

1
http://en.wikipedia.org/wiki/Alluvion
 Definition from Encyclopedia Britannica
ALLUVION (Lat. alluvio, washing against), a word taken from Roman law, in
which it was one of the examples of accessio, that is, acquisition of property
without any act being done by the acquirer. It signifies the gradual accretion of
land or formation of an island by imperceptible degrees. If the accretion or
formation be by a torrent or flood, the property in the severed portion or new
island continues with the original owner until the trees, if any, swept away with it
take root in the ground. Alluvion never attached at all in the case of agri limilati,
that is, lands belonging to the state and leased or sold in plots. Dig. xli. 1, 7, is the
main authority. English law is in general agreement (except as to agri limitati)
with Roman, as appears from the judgment in Foster v. Wright, 1878, 4 C.P.D.
438. The Scottish law, as laid down by the House of Lords in Earl of Zetland v.
Glover Incorporation, 1872, L.R. 2 H.L., Sc., 70, is in accordance with the English.

 Explanation from BANGLAPEDIA:

Alluvion Barring some hilly areas in the southeast and the northeast, Bangladesh is
the world's largest delta formed by three great river systems GANGES/PADMA,
BRAHMAPUTRA/JAMUNA and MEGHNA. These mighty rivers originating in the
HIMALAYAS carry millions of tons of mud and sand every year on their journey to
the BAY OF BENGAL. The bulk of the sand and mud get deposited in their
meandering courses raising the river beds and forming chars or accretions along
the course of the rivers and at their confluence. Since the torrential MONSOON flow
is unable to discharge itself through the inflated river bed, it inundates vast tracts
of land on both sides and swallows up the land mass on one side of the bank, and
gradually and imperceptibly forms accretions on the other side. Erosion of the
bank on one side and formation of char on the other are the recurring acts of the
river systems. Such loss of landmass (diluvion) and formation of chars (alluvion)
since time immemorial must have led to the growth of a body of usage and custom
regulating the rights of ownership of such lands.

 Definition from Lectric Law Library's Lexicon

The insensible increase of the earth on a shore or bank of a river by the force
of the, water, as by a current or by waves. It is a part of the definition that the
addition, should be so gradual that no one can judge how much is added at
each moment of time. The proprietor of the bank increased by alluvion is
 entitled to the addition. Alluvion differs from avulsion in this: that the latter is
sudden and perceptible.

Alluvium:

 Definition from Wikipedia

Alluvium (from the Latin, alluvius, from alluere, "to wash against") is loose,
unconsolidated (not cemented together into a solid rock), soil or sediments,
eroded, deposited, and reshaped by water in some form in a non-marine
setting. Alluvium is typically made up of a variety of materials, including fine
particles of silt and clay and larger particles of sand and gravel. When this
loose alluvial material is deposited or cemented into a lithological unit, or
lithified, it would be called an alluvial deposit.
The term "alluvium" is not typically used in situations where the formation of
the sediment can clearly be attributed to another geologic process that is well
described. This includes (but is not limited to): lake sediments (lacustrine),
river sediments (fluvial), or glacially-derived sediments (glacial till). Sediments
that are formed and/or deposited in a perennial stream or river are typically
not referred to as alluvial.
Most, if not all, alluvium is very young (Quaternary in age), and is often
referred to as "cover" because these sediments obscure the underlying bedrock.
Most sedimentary material that fills a basin ("basin fills") that is not lithified is
typically lumped together in the term alluvial.
Alluvium can contain valuable ores such as gold and platinum and a wide
variety of gemstones. Such concentrations of valuable ores is termed a placer
deposit.2

2
http://en.wikipedia.org/wiki/Alluvium
Accession:

Accession has different definitions depending upon its application. In Property law, it is a
mode of acquiring property that involves the addition of value to property through labor
or the addition of new materials. In English Common law, the added value belonged to
the original property's owner. In Modern Common law, if the property owner allows the
accession through bad faith, the adder of value is entitled to damages or title to the
property. If the individual who adds value to the owner's chattel (personal property) is a
trespasser or does so in bad faith, the owner retains title and the trespasser cannot recover
labor or materials. The owner of the chattel may seek conversion damages for the value of
the original materials plus any consequential damages. Alternatively, the owner may seek
replevin (return of the chattel). However, the owner may be limited to damages if the
property has changed its nature by accession. For example, if a finder discovers a
gemstone and in good faith believes it to be abandoned and then cuts it and integrates it
into a work of art, the true owner may be limited to recovery of damages for the value of
the gemstone, but not of the final art piece by way of replevin. The remedies and
application of the law vary by legal jurisdiction.

In law governing business and political relationships, Accession refers to an act by which
one entity with power becomes party to engagements already in force between other
entities.

The following has been retained, but may need further clarification.

Accession might also be (from Lat. accedere, to go to, approach), in law, a method of
acquiring property adopted from Roman law (see: accessio), by which, in things that have
a close connection with or dependence on one another, the property of the principal
draws after it the property of the accessory, according to the principle, accessio cedet
principali. Accession may take place either in a natural way, such as the growth of fruit or
the pregnancy of animals, or in an artificial way. The various methods may be classified as
(i) land to land by accretion or alluvion; (2) moveables to land (fixtures); (3) moveables to
moveables; (4) moveables added to by the art or industry of man; this may be by
specification, as when a new "species" or thing is made out of a pre-existing thing (e.g.
when wine is made out of grapes), or by confusion (when two things are inseparably
mixed together and one cannot tell which is the principal and which is the accessory), or
commixture, which is the mixing together of substances but where the mixture is
separable. In the case of industrial accession ownership is determined according as the
natural or manufactured substance is of the more importance, and, in general,
compensation is payable to the person who has been dispossessed of his property. 3

Historical Background of Alluvion Laws:

Bengal alluvion and delluvion Regulation xi of 1825

1. Object and policy of the Regulation

In consequence of the frequent changes which take place in the channels

of the principal rivers which interest Bengal and the shifting the sands
which lie in the bed of those rivers ,chars or small islands are often thrown
up by alluvion in the midst of the stream or near one of the banks and
large portion of land are carried away by an encroachment of the river on
one side which accessions of lands are at the same time or in subsequent
years gained by dereliction of the water on the opposite side. Similar
instances alluvion, encroachment and dereliction also sometimes occur on
the sea coast which borders southern and eastern limits of Bengal. The
lands gained from the rivers or sea by the means above mentioned are a
frequent source of contention affray and although the law and the custom
the country have established rules applicable to such cases, these rules not
being generally known, the courts of justice have sometimes found it
difficult to determine the rights of the litigant parties claiming chars or
other lands gained in the manner above described. With a view to remove
this difficulty following rules have been enacted for the general
information of the public to lands gained by alluvion or by dereliction of
river or the sea. (sec.1).

3
http://en.wikipedia.org/wiki/Accession
2. Rules for determination of claims and disputes relating
to alluvial lands
The following are the rules for the determination of claims and disputes
relating to lands gained by alluvion-

(1)The claims and disputes as to alluvial lands are to be decided by

usage when clearly recognized and established. one instances of
the usages referred to is that the main channel of a river dividing into two
or more continuous estates shall be the constant boundary between
them,whatever changes may take place in the course of the river by
encroachment on one side and accession on the other .it would not matter
whether the change of the course of the river is gradual or sudden.if the
custom or usage is established,no question of encroachment being gradual
and imperceptible arises in a case to be governed by This section.as a
result of established custom,the case is taken out of the ordinary law of
alluvion and dilluvion and has to be decided by a rule of custom
immemorially established.(sec.2).

The usage must be a local usage:the burden to pr ove it lies upon the person
setting up and relying upon such usage. The usage must be clear, definite
and immemorially established.

Where there is no local usage of the nature referred to above, all claims and
disputes relating to lands gained by alluvion or by dereliction either of a
river or the sea shall be decided by the following rules:(sec.3)

(1) Land gained by gradual accession from the recess of river or sea,
to be considered an increment to the tenure of the person to
whose estate it may be annexed:- When land may be gained by
gradual accession from the recess of a river or the sea, it shall be
considered an increment to the tenure of the person to whose land or
estate, it is annexed, whether such land or estate be held immediately from
Government by a zamindar or other superior landholder or as a
subordinate tenure by any description of undertenant whatever:
Extent of interest in increment of person in possession.
Provided that the increment of land thus obtained shall not entitle the
person in possession of the estate or tenure to which the land may be
annexed to a right of property or permanent interest beyond that possessed
 by him in the estate or tenure to which the land may be annexed, and shall
not in any case be understood to exempt the holder of it from the payment
to Government of any assessment for the public revenue, to which it may
be liable under the provision of any Regulation in force.
Not, if annexed to a subordinate tenure held under a superior
landholder, shall the under-tenant, whether a khudkast raiyat holding a
maurasi tenure at a fixed rate of rent per bigha or any other description of
under-tenant liable by his engagement or by established usage to an
increase of rent for the land annexed to his tenure by alluvion, be
considered exempt from the payment of any increase of rent to which he
may be justly liable (Sec.4.C1.1).
(2) Land suddenly cut off by a river, without any gradual
encroachment and joined to another estate without its identity
being destroyed to remain property of its original owner: - But
when a river by a sudden change of its course breaks and
intersects an estate without any gradual encroachment, or by the
violence of its stream separates a considerable piece of land from
one estate and joins it to another estate without destroying the
identity and preventing the recognition of the land so removed. In
such cases the land on being clearly recognized shall remain the
property of original owner (Sec.44.C1.2).
(3) Char or island thrown up in a large and navigable river the
channel between the island and the shore not being fordable to
be at the disposal of Government; but if fordable to whom they
shall belong:- When a char or island is thrown up in a large navigable
river (the bed of which is not the property of an individual), or in the sea,
and the channel of the river or sea between such island and the shore may
not be fordable, it shall according to established usage be at the disposal of
Government.
But of the channel between such island and the shore be fordable at
any season of the year, it shall be considered an accession to the land, or
tenures of the person or persons whose estate or estates may be most
contiguous to it, subject to the provisions of rule (1) above with respect to
increment of land by gradual accession (Sec.4.C1.3).
(4) Chars, etc. thrown up in small shallow rivers:-
In small and shallow rivers the beds of which, with jalkar (right of fishery)
may have been herefore recognized as the property of individuals, any
sand-bank or char that may be thrown up shall, as hitherto, belong to the
 proprietor of the bed of the river, subject to the provesion in the 1 st clause
of the present section (Sec.4C1.4).
(5) Disputes relating to lands gained by alluvion or by dereliction
not provided for by Regulation:- In all other cases , namely, in all
claims and disputes respecting land gained by alluvion or by dereliction of
a river or the sea,which are not specifically provided for by the above
rules, the Courts of Justice shall be guided (a) by the established local
usage, if there be any, applicable to the case, or if not,(b) by general
principles of equity and justice (Sec.4.C1.5).
(6) Reformation in Situ:- The rules are subject to a very important proviso
introduced by Courts of Justice in consonance with the general principles
of equity and justice which the legislation requires them to follow. The
Proviso may be summed up as follows:-
Where an estate is gradually swallowed up by river or sea and afterwards
re-appears on the old site and is capable of identification, it is the property
of the original owner and not an accretion to the estate to which it is
annexed, unless there has been an abandonment by the original owner.
The leading case on the point is Lopez V. Madan Mohan Thakur.
(7) Encroachments on beds of navigable rivers and other
obstruction. Law relating to Towing paths on the bank of rivers:-
Nothing in this Regulation shall be construed to justify any encroachments
by individuals on the beds or channels on navigable rivers, or to prevent
the zila magistrates or any other officers of Government who may be duly
empowered for that purpose, from removing obstacles which appear to
interfere with the safe and customary navigation of such rivers, or which
shall in any respect obstruct the passage of boats by tracking on the banks
of such rivers or otherwise (Sec. 5).
(8) Shikast Paiwast:- Shikast (literally, broken) applies to land lost by
diluvion. Paiwast(joined,united) applies to land gained by alluvion.
(9) Alluvion:- Literally means land gained from a river or the sea by the
washing up of sand and earth. Alluvion comes from Alluvion meaning an
imperceptible and gradual deposit of sand and earth from ariver or the sea.
“Alluvion may be defined as an addition to riparian land gradually and
imperceptibly made by the waters to which the land is contigenous.”
“Alluvion is an imperceptible increase ;and that is added by alluvion which
is added so gradually that no one perceives how much is added at any one
moment of time. The deposit of earth gradually formed by alluvion upon
the bank of river is inseparable from the native soil of the bank and the
owner of the latter acquires the former by right of accession.

Act IX of 1847
This law provides for assessment of lands gained from the sea or from
rivers, by alluvion or dereliction. It includes:
a. Power to direct new surveys of riparian lands, at the interval of 10
years, on the banks of rivers and on the sea shores,
b. Deduction from Sadar jama of estates from which lands have been
washed away in the proportion of mafassal jama of the land lost to the
mafassal jama of the whole estate, If mafassal jama cannot be
ascertained, the question will be decided on area basis, and
c. Assessment of increments to revenue paying estates for addition of
land.

Act XXXI of 1858

It contains further provisions for settlement of land gained by alluvion,
as follows.
a. Addition of revenue assessed upon alluvial land to jama of original
estate.
If the proprietor objects to such an arrangement, the alluvial land
shall be assessed and settled as a separate estate with a separate
jama.
b. The separate settlement may be permanent if the settlement of the
original estate is permanent.

Alluvial (Amendment) Act (IV of 1868)

This Act amends the provisions of Act IX of 1847, Ammended
provisions are:
a. Accession to island declared at the disposal of Government shall
be considered an increment to such island and shall be equally
at the disposal of Government.
b. Newly thrown-up islands in large and navigable rivers will be
taken possession of by Government and shall be assessed and
settled.
 c. Subsequent junction of any such island to mainland will not
affect Government right.

Act v of 1920
This law is intended to prevent disputes covering the possession of certain
lands gained by alluvion or by dereliction of a river or of the sea. It also
contains provisions as follows.

a. Power of collector to attach alluvial land if he is informed

that a dispute likely to cause a breach of the peace exists or
is likely to arise. Collector may demarcate it with boundary
pillars. He may himself manage such land or appoint a
receiver thereof.
b. When collector has attached such land, he shall cause a
survey to be made and prepare a comparative map.
c. When the survey and map have been completed, the
Collector shall make a reference to Civil Court.
d. When the Court makes an order, it shall certify to the
Collector its decision and the Collector shall put the person
stated in such order to be entitled to the land, in possession
thereof.

Bengal Tenancy Act (VIII of 1885)

Section 86 A of the Act provides for abatement of rent on

account of diluvion proportionate to the area lost.
Right, title and interest of the tenant or hes successors-in-
interest shall subsist in such lands during the period of loss
by diluvion not exceeding 20 years and he shall have right
to immediate possession on the re-appearance of such lands
in 20 years. The landlord shall have right to the arrears of
rent without interest in respect of the land which has re-
appearance of such lands in 20 years. The landlord shall
have right to the arrears of rent without interest in respect
 of the land which has re-appeared for the period during
which it was lost or for 4 years, whichever is less.

East Bengal State Acquisition &

Tenancies Act, 1951
i. Section 86 of the Act provides for abatement of rent
on account of diluvion and re-entry into lands which
re-appear.
ii. Section 87 of the Act relates to rights in land gained
by gradual accession from recess of river or sea and
for payment of extra rent for the gained land.

The Present Situation

Since the enactment of the State Acquisition and Tenancy

(Third Amendment) Order,1972 (PO No. 96 of 1972), the
provisions enumerated above stand abolished. The current
law now provides that the right, title and interest of the
tenant in the land diluviated by the erosion of rivers and
fluvial action along the sea coast would be extinguished.
Besides, the ownership of the land formed by accretion by
recess of the river or sea, whether reformation in situ or an
absolutely new formation, would vest in Government free
from all encumbrances. However, after the emergence of
the democratic Government in the country in 1991, steps to
restore the legal provisions of the previous Regulations and
Acts are being actively considered, and a new law seems to
be in the offing.

Rules regarding accretion and avulsion

When Rivers Move, Boundaries May or May Not
•Accretion: process of gradual and imperceptible addition of solid material, called
alluvion, thus extending the shoreline out by deposits made by contiguous water.

•Reliction (sometimes called dereliction): the gradual withdrawal of the water from the
land by the lowering of its surface level from any cause. 4

•Erosion: loss of soil due to gradual encroachment of water.

•Avulsion: a sudden and perceptible loss or addition to land by the action of water, or a
sudden change in the bed or course of a stream.5

•Accretion and erosion generally occur in tandem: where one property owner loses by
erosion, other gains it through accretion.

Basic Rules
•Accretion/reliction: .Where the thread of the main channel of a river is the boundary
line between two estates and it changes by the slow and natural processes of accretion
and reliction, the boundary follows the channel.6

•Avulsion: When a stream which forms the boundary between two parties suddenly
abandonsits old bed and seeks a new one, such change of channel works no change of
boundary; the boundary remains as it was in the center of the old channel, although no
water may be flowing therein... Id.

–Avulsion is a change in a stream that is violent visible and arises from a known cause,
such as a freshet or a cut through which a new channel has formed. 7

–Avulsion is the suddenandrapidchange in the course and channel of a boundary river. 8

4
Babel v. Schmidt, 17 Neb. App. 400 (2009)
5
Anderson v. Cumpston, 258 Neb. 891 (2000).
6
Anderson v. Cumpston, 258 Neb. 891 (2000).
7
Babel v. Schmidt, 17 Neb. App. 400 (2009) (quoting Conkeyv. Knudsen, 141 Neb. 517 (141 Neb. 517
(1942)), vacated on other grounds143 Neb. 5 (1943).
8
Conkeyv. Knudsen, 143 Neb. 5 (1943).
–Was Court establishing type of proof required, or just trying to distinguish avulsion from
accretion? Have been treated by courts in Nebraska as elements of proof

•.Suddenly • Violently • Known cause

•Visibly • Rapidly

Basis for Accretion Rule

•Gifford v. Yarborough, 130 Eng. Rep. 1023 (H.L. 1828):

–A certain piece of land, consisting of 450 acres, by the slow, gradual, and imperceptible
projection, alluvion subsidence, and accretion of ooze, soil, sand, and matter of slowly,
gradually and imperceptibly, . . . Deposited . . . In, upon and against the outside and
extremity of the said demesne lands hath been formed, and hath settled, grown, and
accrued upon, and against, and unto the said demesne lands. Does such piece of land so
formed, settled, grown, and accrued as aforesaid, belong to the Crown or to the owner of
the said demesne lands? . . . We think there is a custom by which lands from which the
sea is gradually and imperceptibly removed by the alluvion of soil, becomes the property
of the person to whose land it is attached. . . . Such a custom is reasonable as regards the
rights of the King, and the subjects claiming under it; beneficial to the public; and its
existence is established by satisfactory legal evidence. There is a great difference between
land formed by alluvion and derelict land. Land formed by alluvion must become useful
soil by degrees too slow to be perceived; little of what is deposited by one tide will be so
permanent as not to be removed by the next. An embankment of sufficient consistency
and height to keep out the sea must be formed imperceptibly. But the sea frequently
retires suddenly and leaves a larger space of land uncovered. When the authorities
relative to these subjects are considered, this difference will be found to make a material
distinction in the law that applies to derelict lands and so such as a are formed by
alluvion. Unless trodden by cattle, many years must pass away before lands formed by
alluvion will be hard enough or sufficiently wide to be used...beneficially by anyone but
the owner of the lands adjoining. As soon as alluvion lands rise above the water, the cattle
from the adjoining lands will give them consistency by treading on them, and prepare
them for grass or agriculture by the manure which they will drop on them. When they
are but a yard wide the owner of the adjoining lands may render them productive. Thus
lands which are of no use to the King will be useful to the owner of the adjoining lands,
and he will acquire a title to them on the same principle that all titles to lands have been
acquired by individuals, viz. by occupation and improvement. Locke in a passage in his
Treatise on Government, in which he describes the grounds of the exclusive right of
property, says: God and man‘s reason commanded him to subdue the earth; that is,
improve it for the benefit of life, and therein lay out something upon it that was his own,
his labour. He that in obedience to that command subdued, tilled, and sowed any part of
it, thereby annexed to it something that was his property which another had not title to,
nor could without injury take from him.‘ This custom is beneficial to the public. Much
land which would remain for years, perhaps forever, barren, is in consequence of this
custom rendered productive as soon as it is formed. . . . The original deposit constitutes
not a tenth part of its value; the other nine-tenths are created by the labor of the person
who has occupied it, and, in the words of Locke, the fruits of his labor cannot, without
injury, be taken from him. The existence of this custom is established by legal evidence.

•Independent Stock Farm v. Stevens, 128 Neb. 619 (1935): Nebraska Supreme Court
characterized the opinion in Giffordas, the leading case upon this subject of accretion...

Possible Bases for Accretion Law

•Accession to land

–Owner of land also owns additions to it.

•River or stream is a natural boundary and best way to mark boundary, so boundary
follows the river.9

•De minimisnon curatlex (.The law concerns not itself about trifles).

–Slow, imperceptible additions generallyresult in little accumulation year-to-year.

•Productivity theory

–Land should be put to productive use, so give it to landowner who is in best position to
do so—the adjacent landowner.10

•Custom

–Alluded to in Gifford.

•Compensation

9
Allard v. Curran, 41 S.D. 73 (1918)
10
Gifford v. Yarborough, 130 Eng. Rep. 1023 (H.L. 1828)
–The owner takes the chances of injury and of benefit arising from the situation of the
property. If there can be a gradual loss, he must bear it; if a gradual gain, it is his... 11

•Preserve right of access to water

Source: Robert E. Beck, The Wandering Missouri River: A Study in Accretion Law, 43
North Dakota law Review 429, 432-39 (1967)

When River Moves, Which Law Applies?

Accretion vs. Avulsion

•If accretion applies: Landowner who gains land wins

•If avulsion applies: No change in boundary

Presumption of Accretion
•Other states have stated there is a presumption of accretion because accretion/erosion
process more common than avulsive events.12

–Kansas, Arkansas: Murray v. State, 226 Kan. 26, 38, 596 P.2d 805, 815 (Kan. 1979):
"(W)hen land lines are altered by the movement of a stream, the weight of authority,
both state and federal, appears to recognize a strong presumption, founded on long
experience and observation, that the movement occurs by gradual erosion and accretion
rather than avulsion…13

–Mississippi: United States Gypsum Co. v. Reynolds, 196 Miss. 644, 18 So.2d 448 (1944).

• Common sense presumption; accretion/erosion a constant process, whereas, as

defined, avulsion is much less common (violent, sudden, rapid. change in channel)

11
County of St. Clair v. Lovingston, 90 U.S. (23 Wall.) 46, 68-69 (1874).
12
Dartmouth College v. Rose, 257 Iowa 533, 133 N.W.2d 687 (1965); Bone v. May, 208 Iowa 1094,
225 N.W. 367 (1929); Kitteridgev. Ritter, 172 Iowa 55, 151 N.W. 1097 (1915).
13
Pannell v. Earls, 252 Ark. 385, 483 S.W.2d 440 (1972)
Burden of Proof
•Same burden of proof for both accretion and avulsion:

–.A party who seeks to have title in real estate quieted in him on the ground that it is
accretion to land to which he has title has the burden of proving the accretion by a
preponderance of the evidence. The burden to show that the channel of the river
changed by avulsion obviously would be the same…14

•Court in Babel squarely rejected notion that there is a presumption of accretion if

avulsion is not shown.

•By the same token, succeeding to disprove accretion, coupled with failure of opponent to
prove accretion, does not prove a change in channel was thus caused by avulsion. 15

•This seems an apt point to recall that when asserting a real estate ownership or boundary
claim, a party must prevail, if at all, on the strength of his own title, and not on the
perceived weakness in the title of others..

•Evidence used to show accretion or avulsion

–Type of vegetation

–Soil composition

–Elevation of land

–Maps/charts

–Lay testimony

–Expert testimony

• Surveyors
• Hydrologists

14
Babel v. Schmidt, 17 Neb.App. 400, 765 N.W.2d 227 (2009).
15
Babel v. Schmidt, 17 Neb. App. 400 (2009)
Evidence of Accretion vs. Avulsion
•Evidence should be consistent with process of gradual and imperceptible deposits of
alluvion

–Elevation: Land is lower than surrounding land/banks

–Age of Vegetation: Relatively recent (.pioneer.) vegetation and trees

•Willow trees

–Soil Composition: Soil borings show alluvium deposits at a greater depth than
surrounding land

–Location: Land sits downstream from older land and upstream from main flow or river

•Water flow is slower near downstream side of land, and thus more alluviondeposited on
downstream side

•Evidence should be consistent with .sudden, violent, rapid change in channel

–Elevation: Land is higher than land known formed by accretion

–Age of Vegetation: Trees, stumps, and markers older than that found on land known
formed by accretion

–Soil Composition: Soil borings show bedrock or similar long-term base

–Location: Maps indicate a chute existed behind the land, or islands with trees
periodically charted in channel.16

Accretion— Meaning of imperceptible

•Gradual and imperceptible

–Kangerv. Dyer, No. A-08-876, 2009 WL 781550 (Neb. App., Mar. 24, 2009):

•Appellants argued district court erred in finding change in Elkhorn River channel was
imperceptible,and therefore by accretion, where witnesses had testified to:

16
Laurie Smith Camp, Land Accretion and Avulsion, 56 Nebraska Law Review 814, 819-21 (1977).
–observing changes in the river

–observing and hearing bank fall into the river

•Court cited Omaha Indian Tribe v. Wilson, 614 F.2d 1153 (8th Cir. 1980):

–Gradual and imperceptible does not mean change cannot be perceived, but only that the
entire process, that is the accretion as well as the often rapid erosion, is not clearly
perceptible as it is going on.

–No matter how rapid and great‘is the abrasion and washing away, ‘or the dimunition, ‘ of
soil, the accretion (or reliction) of soil is always gradual and by the imperceptible deposit
of floating particles of earth…

•Court looked to expert testimony

–On-site visit

–Soil borings

–Examined aerial photographs over 60 years‘time

–Vegetation patterns

–Found no evidence of abrupt change in channel

Meaning of gradual
•The significance of the passage of time, obviously an important factor in determining
whether avulsion occurred because of the requirement of

=suddenness, ‘is more equivocal with respect to accretion. For example, in the instance of
the Missouri River, accretion has been described as being either rapid or gradual, but
avulsion was said to be characteristically sudden and rapid... 17

•Jefferisv. East Omaha Land Co., 134 U.S. 178 (1890)

–Had applied accretion law to Mississippi River

–Recognized unique movement of Missouri River, but held .although the changes on the
Missouri river are greater and more rapid than on the Mississippi, the difference does not

17
Babel v. Schmidt, 17 Neb. App. 400 (2009) (citing United States v. Wilson, 433 F.Supp. 57 (N.D.
Iowa 1977)); Jeffrey v. Grosvenor, 261 Iowa 1052 (1968)).
constitute such a difference in principle as to render inapplicable to the Missouri River
the general rule of [accretion] law..

•Substantial changes in channel of Missouri River over course of one yearruled an

accretion.18

Avulsion
•Babel v. Schmidt, 17 Neb. App. 400 (2009)

–Hallmarks of avulsion

•Party admission that change in thread of river brought about suddenlyby artificial
structures and diversion

•Based on photos and eyewitness reports, construction of diversion dam and dike shut off
main channel.19

•Flash floods suddenly, violently, and visibly moved channel of river far north. 20

•Evidence showed ice gorge created by spring floods changed course of river (Conkeyv.
Knudsen, 141 Neb. 517 (1942)

•Sudden, violent, perceptible, known event

Acquisition of private lands or abandoned rivers by

right of accretion or accession:
1. Ownership of abandoned river beds by right of accession
River beds which are abandoned through the natural change in the course of waters ipso
facto belong to the owners whose lands are occupied by the new course in proportion to
the area lost.

18
Conkeyv. Knudsen, 143 Neb. 5 (1943)
19
Ziembav. Zeller, 165 Neb. 419 (1957)
20
Ingrahamv. Hunt, 159 Neb. 725 (1955)
However, the owners of the lands adjoining the old bed shall have the right to acquire the
same by paying the value thereof—which value shall not exceed the value of the area
occupied by the new bed.

Requisites for the application of Article 61

o The change must be sudden in order that the old river may be identified
o The changing of the course must be more or less permanent, and not temporary
overflowing of another’s land

The change of the river must be natural

o There must be definite abandonment by the government
o The river must continue to exist, that is, it must not completely dry up or disappear

2. Ownership by right of accretion

Article 457 of CC provides that to the owners of lands adjoining the banks of rivers
belong the accretion which they gradually receive from the effects of the current of the
waters.

Adopted from the Law of the Waters which provided that the accretion resulting from
the gradual deposit by or sedimentation from the waters belongs to the owners of the
land bordering on streams, torrents, lakes, or rivers?

Three requisites—
o That the deposit be gradual and imperceptible
o That it be made through the effects of the current of the water
o That the land where accretion takes place is adjacent to the banks of rivers

In the absence of evidence that the change in the course of the river was sudden or that it
occurred through avulsion, the presumption is that the change was gradual and caused by
accretion and erosion

i. Alluvion must be the executive work of nature

Requirement that the deposit should be due to the effects of the current of the river is
indispensable.

A riparian owner then doesn’t acquire the additions to his land caused by special works
expressly intended or designed to bring about accretion.

ii. Reason for the law of accretion

Right to any land or alluvion deposited by the river is to compensate the riparian owner
of the danger of loss that he suffers because of the location of his land.
3. Accretion doesn’t automatically become registered land
The accretion doesn’t become automatically registered land just because the lot which
receives it is covered by the Torrens title thereby making the alluvial property
imprescriptible.

Akin to the principle that an unregistered land purchased by the registered owner of the
adjoining land does not, by extension, become ipso facto registered land.

The accretion doesn’t automatically become registered land just because the land which
receives such accretion is covered by a Torrens title. As such, it must be placed under the
operation of the Torrens system.

4. Alluvial formation along the seashore forms part of the

public domain
Alluvial formation along the seashore form part of the public domain and therefore, not
open to the acquisition by adverse possession by private persons.

Outside the commerce of man, unless otherwise provided by either the executive or
legislative branch of the government.

The adjoining registered owner of the foreshore land cannot claim ownership by right of
accretion.

The state shall only grant these lands to the adjoining owners only when they are no
longer needed for the purposes mentioned therein.

Ignacio v. Director of Lands: a bay is part of the sea, being a mere indention of the same.

Rules regarding alluvion in SAT Act, 1950:

 Abatement of rent on account of diluvion and

determination of right in land re-appeared on account of
alluvion
86. (1) If the lands of a holding or a portion of such lands are lost by diluvion,
the rent or the land development tax of holding shall, on application or
intimation made by the tenant in the prescribed form to the Revenue-officer,
 be abated by such amount as may be considered by the Revenue-officer to be
fair and equitable in accordance with the rules made in this behalf by the
Government and the act of such loss by diluvion shall be recorded in
accordance with such rules, which shall be treated as proof of title to the lands
when the same re-appear in situ.

(2) Notwithstanding anything contained in any other law for the time being in
force, the right, title and interest of the original tenant or his successor-in-
interest shall subsist in the lands of a holding or portion thereof during the
period of loss by diluvion if such lands re-appear in situ within thirty years of
their loss.

(3) Notwithstanding the right, title and interest under sub-section (2), the right
to immediate possession of the lands re-appeared shall first be exercised by the
Collector, either on his own motion or on an intimation made in writing by
the tenant or his successors-in-interest whose land was so lost or by any other
person.

(4) Notwithstanding anything contained elsewhere in this Act, the Collector or

the Revenue-officer shall, on taking possession of such lands give public notice
of the fact of his taking possession in accordance with the rules made in this
behalf by the Government and cause a survey to be made of the lands so re-
appeared and prepare maps thereof.

(5) The Collector shall, within 45 days of the completion of survey and
preparation of map under sub-section (4), allot to the tenant whose land was so
lost by diluvion or, as the case may be, to his successors-in-interest such
quantity of land which, together with the land already held by him or his
successors-in-interest, shall not exceed sixty standard bighas and the excess
land of the tenant or his successors-in-interest, if any, after the allotment shall
vest in and be at the disposal of the Government.

(6) The lands allotted under sub-section (5) shall be free of salami but shall be
subject to the condition that the tenant or his successors-in-interest shall be
liable to pay such fair and equitable rent and land development tax as may be
determined by the Revenue-officer.

(7) The provision of this section shall not apply to cases of re-appearance of
land caused or accelerated by any artificial or mechanical process as a result of
development works undertaken by the Government or any authority
empowered or authorised by or under any law to undertake such development
works.

Bar on suits, etc, for certain period

86A. No suit, prosecution or other legal proceeding shall lie in any court in respect of any
land covered under section 86 during a period of twelve months commencing on the date
of first giving public notice under sub-section (4) of section 86 in order to enable the
Collector to complete the processes under that section.

 Rights in land gained by accession from recess of river or

sea
Section 87: (1)] Notwithstanding anything contained in any other law for the
time being in force, when any land has been gained by accession, whether
from the recess of a river or of the sea, it shall not be considered as an
increment to the holding or tenancy to which it may be thus annexed, but
shall vest absolutely in the Government of the People's Republic of Bangladesh
and shall be at their disposal.

(2) The provision of sub-section (1) shall apply to all lands so gained whether
before or after the 28th June, 1972, but shall not apply to any land so gained
before the said date if the right of a Malik to hold such land as an increment to
his holding was finally recognised or declared by a competent authority or
court before the date of commencement of the State Acquisition and Tenancy
(Sixth Amendment) Order, 1972 (P.O. No. 137 of 1972) under the law then in
force.

(3) All suits, applications, appeals or other proceedings for the assertion of any
claim to hold, as an increment to any holding, any land gained or alleged to
have been gained from the recess of a river or of the sea, pending before any
court or authority on the date of commencement of the said Order shall not be
further proceeded with and shall abate and no court shall entertain any suit,
application or other legal proceedings in respect of any such claim.

Section 87(1) has abolished jurisdictions of any civil court relating to assertion of any
claim to hold, as an increment to any holding, any land gained or alleged to have been
gained or alleged to have been gained from the recess of a river or of the sea. Now
question is- any tenants who hold land under section 3(4) (e) and (f) can claim in any
civil court subject to the section87 (3)? Answer was given positively that; suit under
section 3(4) (e) and (f) is excluded from the ambition of section 87 (3) [21].that means a suit
on the basis of the statutory right conferred by clause (e) and (f) of section 3(4) or in term
(2) of section 44 of the State Acquisition of and Tenancy Act and therefore outside the
purview of the section 87(3). [22]

21
Abdul Mannan vs. Kulada Ranjan Mowali, 31 DLR (AD) 196.
22
Ibid;
Whether section 87 has any retrospective effect? The answer is may be no. It has no any
retrospective effect subject to having legal consequences following from sectin3. For
example - In section 86(2) [23] said that whether before or after the commencement of the
State Acquisition and Tenancy (Fourth Amendment) Order 1972 , any title interest of the
tenant or his interest in successor, on any diluvia land shall be extinguished.

So with the light of prior section 86(2) [24] and present section 86(2) it could be said that
there have no any retrospective effect to those land which also gained before the
commencement of President Order 137 of 1972 and recognized such holder of increment
land as a MALIK by competent authority of the government. This view also supported in
Abdul Mannan vs. Kulada Ranjan Mowali [25].

Limitation of section 87 in application:

It has application upon those lands which had been acquired before or after in 28 th June
of 197226. It has no application upon those increment land of any holdings whose tenant
was recognized as MALIK by proper authority before commencement of SAT
(Amendment) Act of 1972.[27] As regards accretion which took place after notification
under section3 and 43 and before coming into force of Part-V of the Act. [28]

Critical analysis of section 87:

 87(1): This sub-section abolished the right of the annexed land holder to retain
incremental land of alluvion. Prior to the President Order No.72 of 1972, the
annexed land holder could hold such alluvial land and while annexed land holder
being a raiyat whose posses land exceeds the limits under section 90. i.e. 375
[29]
standard bighas, such exceeded land, even though accessioned land is annexed
to his holding, be vested to the government. The lands which are allowed by the
proper authority,[30] for the purpose of large scale firming by mechanical appliance
or for cultivation of sugarcane etc. would not be vested to the Government even
though exceeded height limit and in that scope of accession land had been vested
to the raiyat.
23
This section was repealed y SAT (Amendment) Act, 1994. No such provision is covered by section
86(2) by saying “title and interest shall subsist… Subject to reappearing within30 years”
24
Prior section of Amendment in 1994
25
31 DLR (AD) 196.
26
Section 87(2)
27
It was 6th amendment of this Act. P.O. NO.137 0f 1972
28
Abdul Mannan vs. Kulada Ranjan Mowali, 31 DLR (AD) 196
29
Now agricultural land holding limits are 60 bigha under section 4 of the Land Reform Ordinance,
1984
30
i.e. agricultural Department of government. Revenue Board
  87(2): All lands which were being gained by annexed land holder or any other
person before the commencement of the State Acquisition and Tenancy (6 th
AMENDMENT) Order, 1972, subject to such raiyat was not being declared by any
court or authority as a MALIK of such accessioned land[31].There may be cited a
view of a case decision as following___
A suit was filed in 1963 because of a problem with the land of accession
[32]
and in 1967 a President Order was passed and held that this Ordinance
has no retrospective effect. The court recognized the right of the plaintiff
[33]
whether he had recognized as MALIK or not .For better understand the
facts of this case as below:

FACT: The plaintiff’s case was that he purchased the adjoining land of the
original riparian raiyat during the year in 1960-63. The disputed land was
reformed after the loop cutting in 1953. The suit was filed in the district of
Camilla on 26th October of 1965, part-V of the SAT Act became in
operation on 10th May, 1963.
Judgment: The HCD correctly observed that the land as gained by
accession to their adjoining land and the plaintiffs are entitled to a benefit
of section 87 of the SAT Act prior to amendment [34].
 87(3): Through this sub-section all proceedings and claims relating to alleged land
i.e. alluvial land, which had still pending and prevailing, have postponed & take
away the jurisdiction of Civil Court regarding such land.

 Overriding effect of sections 86, 87&Part-V:

Sections 86, 87&Part-V became operative in different areas and districts while these
sections became in operation Bengal Tenancy Act became repealed. [35]

 Corresponding section to section87:

31
This subsection was absented in original SAT Act, 1950. It was renumbered by P. O. No. 137 of
1972, Article-2
32
P.0.no.VIII of 1963;
33
Makku mia and others vs. Ali Hossain Bhuiyan and others,1984 BLD (AD) 209
34
Ibid;
35
Abdul Mannan vs. Kulada Ranjan Mowali, 31 DLR (AD) 196.
When section 87 read with section79 will have effect only when Part 5 becomes
operative. [36]

 Dependency of section 87 upon Part-V:

This section cannot be given retrospective effect beyond the date of coming into effect of
Part-V of the Act in the area in which diluviated land was situated. Accretion taking
place after Part-V will be attracted by subsection (1) & (2) of section87. In the case of
Makku Main and Others vs. Ali Hossain Bhuiyan and Others [ 37]
the court further
explained that the provision of sub-section (2) is to be understood prospectively. [38]

Prior of 1994 the raiyat was used in section 87(1). The meaning of raiyat also same as
described in clause 2 of 87 of SAT Act, 1950 [39]

Lopez vs. Madan Mohon Thakur [40] is the leading case concerning “reformation in Situ”
referred in section of the State Acquisition and Tenancy Act, 1950. According to the
decision of this leading case the following matter may be lighted:

 Land submerged by water is identical to the land covered by crops.

 The original owner is deemed to be in constructive possession of the land;
 Two conditions must be satisfied for deeming constructive ownership:
A. Proof of non- abandonment by the original owner,
B. Proof of identity of site that has re-appeared.
 Inception within Reformation in Situ:
It is pertinent to mention here that what we understand by Reformation in Situ? Where a
land reappears in its old site which originally belonged to one person, he does not lose his
ownership of it only because of the reappeared land joins the land which belongs to
another man and the latter cannot claim it as an accession to his land.

 Reformation in Situ on the light of SAT Act:

It is lighted in SAT Act under section 86 & 87. The provisions relating to it was changed
with social and political change because of legal necessity at the time being it was

36
Ibid;
37
1984 BCR(AD)60
38
Jafar Ali & others Vs. Sadek Ali & others, 1985 BCR (AD) 29;
39
Province of East Pakistan vs. Imam Sharif.18 DLR 276
40
13 M.I.A(1870)
amended in so many times. For example relating section of Situ was amended lastly in
1994.

 Case References regarding Situ:

 According to Setara Begum and others vs. Bangladesh 41, before the
commencement of President Order No. 135 of 1972 the rights, interests, title of
the land re-appeared would be vested absolutely in the Government.
 In Abi Abdullah (MD.) vs. Govt. of Bangladesh, Represented by the Secretary,
Ministry of Land, stats the object of amending section 86 of the SAT (Amendment)
Act, 1994. The intention of amending section 86 is public interest & benefit of the
tenants who owned and possessed land as of own right before diluvium.
 Reformation in situ derived from the case of Abdul Mannan vs. Kulada Rajan
Mowali [42]
 Hyatannessa and others vs. Govt. of Bangladesh and another four. Said that the
duty of the court to give a determination by judge, jury or administrative agency
on the evidence on record concerning to the application of the amended section
by presidential Order No. 135 and 137 of 1972 in the facts and circumstances of a
case.
 Amendment of tw0 sections by P.O.No. 135 &137 of 1972 cannot be extended to
affect the reformation in Situ or accretiom thereto and thereby divest the title
already vested. According to Meherunnessa and Others vs. Government of
Bangladesh and Others. [43]

 Who can grant settlement of Land? Govt. or Revenue Authority?

The answer can be given by mentioning a judgment of a famous case Saifur Rahman vs.
Ban;gladesh[44]; there has been mentioned that --

a. According to section 146 of the Tenancy Act the general power of

superintendence and control over all revenue officers is vested in the Board of
Land Administration and not the Govt.
b. Order passed by the revenue officer cannot be revised by the Board of Land
Administration.

41
1989 BLD (AD) 116;
42
31 DLR (AD)196;
43
3 BSCR 256;
44
43DLR210;
 c. Although the Board is the final authority to give judicial consideration on
appeal and revision against any order passed under the Act by revenue officer.
d. Government is not empowered to cancel or rescind any order passed by the
Revenue Authority.

Other cases on Alluvion:

1. Case concerning the right to land gained by alluvion or dereliction of a river. The
court observed that the legal principles of law, equity and good conscience are the
law governing the rights of the parties in this regard. The accretion to the land by
alluvion or dereliction of the river must be gradual for such a right to exist for the
owner of the estate next to the river.45

46
It was held in the case of Samsuddin Rahman and others v. Bihari Das and others

2. KER & CO. v. COUDEN47

Mr. Justice Holmes delivered the opinion of the court:

This is an action brought by Ker & Company to recover possession of land held by the
defendant under a claim of title in the United States. The land is the present extremity of
Sangley point, in the province of Cavite and island of Luzon, projecting into Manila bay.
It has been formed gradually by action of the sea; all of it since 1811, about three-quarters
since 1856, and a part since 1871. For a long time the property was used by the Spanish
Navy, and it now is occupied by the present government as a naval station, works costing
more than half a million dollars having been erected upon it. The plaintiffs claim title
under conveyances from the owner of the upland. The Philippine courts held that under
the Partidas, III. Tit. 28, laws 3, 4, 6, 24, and 26, and the Law of Waters of 1866, the title
to the accretions remained in the government, and the vexed question has been brought
to this court.

That the question is a vexed one is shown not only by the different views of Spanish
commentators, but by the contrary provisions of modern codes and by the occasional
intimations of the doctors of the Roman law. Justinian's Institutes, 2, 1, 20 (Gaius, II. 70),
followed by the Partidas, 3, 28, 26, give the alluvial increase of river banks to [223 U.S. 268,
276] the owner of the bank. If this is to be taken as an example illustrating a general

45
Samsuddin Rahman and others v. Bihari Das and others
46
www.ielrc.org/content/e9606.pdf
47
223 U.S. 268 (1912)
principle, there is an end of the matter. But the Roman law is not like a deed or a modern
code prepared uno flatu. History plays too large a part to make it safe to generalize from a
single passage in so easy a fashion. Alongside of the rule as to rivers we find that the right
of alluvion is not recognized for lakes and ponds (D. 41, 1, 12),-a rule often repeated in
the civil law codes; e. g., Philippine Civil Code of 1889, arts. 366, 367; Code Napoleon, art.
550; Italy, Civil Code 1865, art. 454; Mexico, art. 797. If we are to generalize, the analogy
of lakes to the sea is closer than that of rivers. We find further that In agris limitatis jus
alluvionis locum non habet. And the right of alluvion is denied for the agrum manu
captum, which was limitatum in order that it might be known (exactly) what was
granted. D. 41, 1, 16. The gloss of Accursius treats this as the reason for denying the jus
alluvionis. If this reason again were generalized, it might lead to a contrary result from
the passage in the Institutes. Grotius treats the whole matter as arbitrary, to be governed
by local rules, and both the doctrine as to rivers and the distinction as to accurately
bounded lands as rational enough. De J. B. & P. Lib. 2, cap. 8, 11, 12. A respectable
modern writer thinks that it was a mistake to preserve the passage concerning definitely
bounded grants in the Digest, 1 Demangeat, Droit Romain, 2d ed. 441 ( 'antiquirt,'
Puchta, Pandekten, 165), but, so far as we have observed, this is an exceptional view, and
from the older commentators that we have examined down to the late brilliant and
admirable work of Girard, Droit Romain, 4th ed. 324, this passage seems to be accepted as
a part of the law. At all events, it shows that, as we have said, it is unsafe to go much
beyond what we find in the books. And to illustrate a little further the uncertainty as to
the Roman doctrine, we may add that Donellus mentions [223 U.S. 268, 277] the opinion
that alluvion from the sea goes to the private owner, only to remark that the texts cited
do not support it (De Jur. Civ. IV., c. 27, 1 Opera, 1828 ed. 839.n), and treats the rule of
the Institutes as peculiar to rivers, as also Vinnius, in his comment on the passage stating
the rule, seems to do; while Huberus, on the other hand, thinks that rivers furnish the
principle that ought to prevail. Praelectiones, II., tit. 1, 34.

The seashore flowed by the tides, unlike the banks of rivers, was public property; in
Spain, belonging to the sovereign power. Inst. II. tit. 1, 3, 4, 5. D. 43, 8, 3 Partidas, III., tit.
28, 3, 4. And it is a somewhat different proposition from that laid down as to rivers, if it
should be held that a vested title is withdrawn by accessions to what was owned before.
Perhaps a stronger argument could be based on the rule that the title to the river bed
changes as the river changes its place. Part. III. tit. 28. Law 31. Inst. 2. 2, 23. D. 41. 1. 7, 5.
But we are less concerned with theory than with precedent in a matter like this, whether
we agree with Grotius or not in his general view. The Spanish commentators do not help
us, as they go little beyond a naked statement one way or the other. It seems to us that
the best evidence of the view prevailing in Spain is to be found in the codification which
presumably embodies it. The Law of Waters of 1866, which became effective in the
Philippines in September, 1871, and the validity of which we see no reason to doubt, after
declaring, like the Partidas, that the shores (playas), or spaces alternately covered and
uncovered by the sea, are part of the national domain and for public use (arts. 1, 3), goes
on thus: 'Art. 4. The lands added to the shores by the accessions and accretions caused by
the sea belong to the public domain. When they are not (longer) washed by the waters of
the sea, and are not necessary for objects of public utility, nor for the establishment of
special industries, nor for the [223 U.S. 268, 278] coast guard service, the government shall
[will?] declare them property of the adjacent estates, in increase of the same.'

Notwithstanding the argument that this article is only a futile declaration concerning
accessions to the shore while it remains such in a literal sense, that is, washed by the tide,
we think it plain that it includes and principally means additions that turn the shore to
dry land. These all remain subject to public ownership unless and until the government
shall decide that they are not needed for the purposes mentioned, and shall declare them
to belong to the adjacent estates. The later provision in article 9, that the public easement
for salvage, etc., shall advance and recede as the sea recedes or advances, simply
determines that neither public nor private ownership shall exclude the customary public
use from the new place. The Spanish Law of Ports of 1880, like the Law of Waters, asserts
the title of the state, although it confers private rights when there is no public need.

The presumption that the foregoing provisions of the Law of Waters express the
understanding of the codifiers as to what the earlier law had been, becomes almost
inexpugnable when we find that the other leading civil law countries have adopted the
same doctrine. The Code Napoleon, after laying down the Roman rule for alluvion in
rivers (arts. 556, 557), adds at the end of the latter article: 'Ce droit n'a pas lieu a l'egard
des relais des la mer,' which seems to have been adopted without controversy at the
conference. See further, Marcade, Explication, 5th ed. vol. 2, p. 439. And compare 2 Hall's
Am. Law Journal, 307, 324, 329, 333. The Civil Code of Italy, 1865, art. 454, is to similar
effect. See also Chile, Civil Code, art. 650. The supreme court of Louisiana in like manner
confines the private acquisition of alluvion to rivers and running streams, and denies [223
U.S. 268, 279] the private right in the case of lakes and the sea. Zeller v. Southern Yacht
Club, 34 La. Ann. 837. And the provision of the Louisiana Code, art. 510, is like those of
France, Italy, and Spain. The court of first instance below refers to judgments of the
Supreme Court of Spain that seems to look in the same direction. We have neither heard
nor found anything on the other side that seems to us to approach the foregoing
considerations in weight, not to speak of the respect that we must feel for the concurrent
opinion of both the courts below upon a matter of local law with which they are
accustomed to deal. Of course, we are dealing with the law of the Philippines, not with
that which prevails in this country, whether of mixed antecedents or the common law.

3. Keshava Prasad Singh Bahadur vs Mt. Beni Kunwar And Ors

JUDGMENT:

This is a plaintiff's appeal against a decree of the learned Subordinate Judge of

Ghazipur dismissing the greater portion of the suit of the plaintiff, and decreeing
merely a certain area A B C D E F G H I in the map printed after the plaint. The
 plaint says that the plaintiff, the Maharaja of Dumraon, claimed to be the owner of
a certain temple in Ghazipur city on the banks of the Ganges and a garden
attached to that temple, and the Court below has granted him a declaration of
ownership of this temple and garden. He also claimed in the plaint a considerable
area which has been added by the river Ganges by alluvion to this garden and to
this temple. It is this portion of his claim which has been disallowed by the lower
Court. Now it is admitted that this plot stands in a certain mahal Mianpura in
Mauza Amghat, and that the defendants are the co-sharers in that mauza. The
plaintiff does not claim to have owned more than the particular plot of land
occupied by the temple and the grove, and he does not claim to be a cosharer in
Mauza Amghat. In the plaint in para. it was pleaded:

When land may be gained by gradual accretion, whether from the recess of a river
or of the sea, it shall be considered an increment to the tenure of the person to
whose land or estate it is thus annexed, whether such land or estate be held
immediately from Government by a zamindar or other superior land-holder, or as
a subordinate tenure by any description of under-tenant whatever.

Sylhet Zilla court of appeal: Cases on alluvion

Id. Brief Presentation of the Cases Comments
No. 1, Appellants appealed a decision by the Principal Sudder Ameen, arguing Although not
1849 their ownership of certain lands, located in another mouza, and mentioned, this
(1/6/49) separated by a khal. The principal court decreed in favor of respondent, is clearly a case
who argued that the khal was not the shared border between the of alluvion.
properties, but belonged to respondent. Thus appellant had no right the
lands situated on the other side of the khal. The appeal was dismissed.
No. 11, Plaintiff declared himself occupant of certain bheet land, and being Alluvion.
1849 entitled to fish in the nodir. Moreover, he declared that respondents Plaintiff argues
(15/6/49) sued him as defaulter on rent for a fishery in another location, extorted that he is
money, etc, for which he sued to recover the sum paid, plus an equal entitled to fish
amount for penalty. Respondent argued that the bheet land was under in the nodir on
the collector’s khas management, as part of another revenue unit. The account of the
appellant (the Collector of Sylhet) stated that the defendant had argued bheet land he
that the bheet land belonged to him, but that an investigation by the claims
Collector found that defendant was wrong. The Moonsiff held plaintiff’s occupancy to.
statement established by the evidence of his witnesses. The appeal court
argued that the real question was whether the bheet land was under the
tenancy of plaintiff, and whether respondent had realized rent on it.
Based on this the appeal was dismissed.
No. 117, Respondents sued for rent lost, because appellants stopped and old Alluvion
1850 watercourse and opened a new one, thus prevented them from
(30/9/50) cultivating certain lands. Respondents argued that an old watercourse
had silted up and taken a new course, and appellants had closed the new
course and opened up the old one. The Moonsiff decreed in favor of
respondents. The appeal court did not find it proved that respondents
had sustained loss from any acts of appellants, nor that they had ever
derived rent from the land. The decree of the Moonsiff was reversed.

Alluvion Laws
From the history of alluvion-diluvion Laws EBSATA -1951, Alluvion-Diluvion Land
Laws: 1972 and Alluvion and Diluvion Land Laws: 1994 are most important in this
regard.
The East Bengal State Acquisition and Tenancy Act (EBSATA) of 1950 offered that if land
is lost due to river erosion, it can be given back to the original owner but under the
following conditions:
a. the resurfacing of the land must occur within 20 years.
b. The owner may get the land back by paying rent as settled by the revenue officer; and
c. The original owner must not posses land upward of 375 bighas.
The act was mainly restoring the rights of owner whose land was eroded. It also provided
that such restoration must take place within 20 years.

Alluvion Land Laws:

After the independence of Bangladesh the approach was people-oriented, especially with
regards to landless peasants. The President's Order No. 135, aimed to rehabilitate the
landless was promulgated in 1972. P.O. 135 changed few sections of EBSADA 1951 as:

a. Previous owner will lose his/her ownership on diluvion land and s/he has not to pay
revenue for the land.
b. All new lands in the form of accretion or reformation after alluvion would vest in the
government. Government would lease out such lands among the landless.
c. Preference was to be given to families affected by diluvion but families with land
exceeding 25 bighas were to be excluded.
d. The total quantity of land held by such a person or his family before loss by diluvion,
whichever is less.
It may be noted that the highest ceiling of land ownership was redefined as the 100
bighas on August 15, 1972.
Alluvion and Diluvion Land Laws (P.O. Order No 15/1994-13th July): The Alluvion and
Diluvion Land Laws were again changed in 1994 by the P.O. Order No. 15/1994-13th
July. According to the P.O.:

a. If any land becomes alluvion, owner of that land has not to pay revenue for the
alluvion land or for whole land
b. The land owner has to apply for exemption of revenue and collect receipt
c. If the diluvion land becomes alluvion again within 30 years, owner of that land or
his/her heir can claim the ownership of that land. Receipt of revenue exemption has to be
submitted as a proof.
d. Total land of the owner cannot cross the highest ceiling. It may be noted that, highest
ceiling of land was 60 bighas in 1984
e. If the char is formed artificially and not naturally, government will enjoy absolute
ownership of the land
f. No case can be filed at the court on alluvion land after 12 months of public notice by
collector regarding possession of the land
g. Collector will hand over the land to the owner or his/her heir within 45 days since the
preparation of the map
h. If a char is emerged from river or sea, government will possess the land if there was no
owner of the land ever before.

Problems of existing laws

Government cannot take absolute possession of new chars. Laws seem barrier in this
respect.
a. There is always a chance of tampering of documents during determining ownership of
char.
b. Increasing trend of preparing fake deeds and documents
c. Ceiling of land is not properly justified as all lands are not in one document. As a result,
it has been easier for jotdars to take possession of these lands
d. Jotdars have a scope to establish themselves in char owing to their claims relating
inheritance

Why real owners could not get their alluvion land

a. Local land offices in the respective areas do not survey and submit report after land
alluvion and diluvion
b. Problems regarding identifying and redefining of newly alluvion land
c. Lack of scope to preserve dalils (deed) and receipt of paid revenue after alluvion of land
d. Lack of support from land and general administration
e. Lack of proper implementation of ceiling law
f. Land owners of the erosion-prone areas who are used to stay in the town usually face
problems in getting possession of their land when they come back and want possession of
the land after a long gap
America's Artificial Accretion Rule
The state argues that in California, unlike most jurisdictions, it does matter whether
accretion is natural or artificial, and that as to tidelands and navigable bodies of water,
accretion that is not "from natural causes" but instead is artificial remains in the
possession of the state. It further contends that, because "California acquired title to the
navigable waterways and tidelands by virtue of her sovereignty when admitted to the
Union in 1850" (Marks v. Whitney (1971) 6 Cal.3d 251, 258, fn. 5 [98 Cal.Rptr. 790, 491
P.2d 374]), its own law applies. The private landowners urge the position the CLTA took
in the Court of Appeal and adopted by the majority of that court. Resolving this question
requires a historical review of the California rule.

The 1866 case of Dana v. Jackson Street Wharf Co., supra, 31 Cal. 118 (Dana), predated by
six years the adoption of Civil Code section 1014. There, the landowner owned a
waterfront lot in San Francisco. He built a wharf adjacent to the property that caused the
disputed land to be "entirely reclaimed from the water," and to become "a permanent
accretion by artificial and natural causes" to the lot. (Id. at p. 120.) We held that the
common law rule that land gained by accretion belongs to the upland owner did not
apply because the case was one of "purpresture, or encroachment, by the erection of a
wharf in a public harbor, and not a case of marine increase by alluvion ...." (Ibid.)
Moreover, the boundary in question had been fixed by a specific statute, making it
permanent, rather than "ever-shifting." (Id. at p. 121.)

In 1872, as noted, Civil Code section 1014 was adopted. It was applied in Fillmore v.
Jennings (1889) 78 Cal. 634, 636 [21 P. 536], to land that formed along a river "as the
result of natural accretion." Finding that the "case falls exactly within the terms of section
1014 of the Civil Code, which is merely declaratory of the law as it has always been," we
held the accreted property belonged to the upland owner. (Ibid.) There was no mention
of artificial accretion.

Then came an early appellate court decision. (Forgeus v. County of Santa Cruz (1914) 24
Cal.App. 193 [140 P. 1092].) Forgeus has been characterized as "[t]aking the position that
where the proximate cause of a deposit of alluvion is gradual accretion caused by a flow of
water, the question whether that flow was natural or affected by artificial means is
immaterial" (Annot., Riparian Owner's Right to New Land Created by Reliction or by
Accretion Influenced by Artificial Condition Not Produced by Such Owner, supra, 63
A.L.R.3d at p. 298), but this is not entirely clear. The court held that [11 Cal.4th 67]
accretions due to the county's act in raising a roadbed along a right of way owned by the
county over land fronting on Monterey Bay belonged to the upland owner and not the
county. "[I]f any accretion or reliction was formed it was not caused by any act of [the
private upland owners], but it was due to the act of the county in raising the roadbed
along said right of way. It could hardly be contended that the county by such artificial
means could secure the fee to the alluvion as an addition to its right of way." (Forgeus v.
County of Santa Cruz, supra, 24 Cal.App. at p. 199.) The Forgeus court quoted
approvingly the language from County of St. Clair v. Lovingston, supra, 90 U.S. at page 66
[23 L.Ed. at page 63], that it is immaterial whether the flow of water was natural or
artificially affected (24 Cal.App. at p. 199), but also stated: "Clearly, there is a distinction
between this case and that where a structure is erected, by the state or municipality, on
land below the line of ordinary high water. In the latter case the deposit of alluvion
caused by such structure would not inure to the benefit of the riparian owner." (Id. at p.
200, citing Dana, supra, 31 Cal. 118.)

A year after Forgeus, this court spoke again in Patton v. City of Los Angeles (1915) 169
Cal. 521 [147 P. 141], a case involving seven acres of land in San Pedro Bay that accreted
because of a railroad embankment across part of the bay. We held that the accreted
property belonged to the state's successor in interest, the City of Los Angeles, and not the
upland owner. Because the property was once tideland, "it was reserved from sale, and
was not alienable by any state officer ... and, therefore, no artificial embankment, made
by third persons, or made or suffered by state officers or agents, nor any accretion to the
adjacent upland caused thereby, could operate to divest the state of its title to the tide
land so reserved.... We can see no plausible reason for the contention that the making of
such embankments, or accretions caused thereby, would operate in favor of third persons
to divest the state of its title to tide lands covered by the embankment and accretions
extending out over it from the adjacent upland, and transfer the title to the owner of the
upland." (Id. at p. 525.)

Another year later came Strand Improvement Co. v. Long Beach (1916) 173 Cal. 765, 766
[161 P. 975], a dispute over accreted oceanfront property in Long Beach. We confronted
the question "whether or not the doctrine that land added to the upland by accretion, or
alluvion, applies to land bordering upon the ocean." Relying on the "practically ...
universal rule" as stated by Blackstone (and also citing County of St. Clair v. Lovingston,
supra, 90 U.S. 46), we concluded that the accreted property belongs to the upland owner.
(173 Cal. at p. 771.) We rejected the argument that because Civil Code section 1014
expressly covers only rivers and streams, the rule is impliedly [11 Cal.4th 68] different for
property on the ocean, which has no comparable statute. Citing Dana, supra, 31 Cal. 118,
and other authority, we stated: "The doctrine that the right to alluvion exists in the
owner of the seashore, as well as elsewhere, has been recognized in our decisions" (173
Cal. at p. 772), and concluded "that the right of the upland owner to additions to his land
by alluvion or accretions exists where the land abuts upon the ocean, and that section
1014 of the Civil Code has no application to alter the common-law rule in that respect."
(Id. at p. 773.)

Strand Improvement Co. v. Long Beach, supra, 173 Cal. 765, made no mention of natural
or artificial causes, but in Curtis v. Upton (1917) 175 Cal. 322, 334 [165 P. 935], we
described that opinion as deciding "that the common law that gradual accretions from
natural causes to land abutting upon water belong to the owner of the upland applied to
lands fronting upon tidal waters and to the shores of the ocean." (Italics added.)

The next decision involving artificial accretion was City of Los Angeles v. Anderson
(1929) 206 Cal. 662 [275 P. 789]. There, the City of Los Angeles and a private landowner
disputed ownership over a triangular-shaped strip of land of less than an acre that had
accreted from tidewater because of a breakwater constructed by the federal government
in San Pedro Bay. Evidence found credible by the trial court and this court indicated that
the accretion was "due entirely to the presence of the breakwater and 'to furnishing
material by artificial means ..., material that was dumped by some contractor over the
bluff....' " (Id. at p. 665.) We cited the general rule that accreted property belongs to the
upland owner, but then stated: "In giving application to this rule, the authorities have
consistently declared, in conformity with the common-law acceptation thereof, that, for
the owner of the upland to be entitled to the accretions thereto, such accretions must
have resulted from natural causes and been of gradual and imperceptible formation.
[Citing Strand Improvement Co. v. Long Beach, supra, 173 Cal. 765; and Curtis v. Upton,
supra, 175 Cal. 322.] Where, however, the accretions have resulted, not from natural
causes, but from artificial means, such as the erection of a structure below the line of
ordinary high water, there is made out a case of purpresture, or encroachment, and the
deposit of alluvion caused by such structure does not inure to the benefit of the littoral or
upland owner, but the right to recover possession thereof is in the state or its successor in
interest, as the case may be. [Citing Dana, supra, 31 Cal. 118; Forgeus v. County of Santa
Cruz, supra, 24 Cal.App. 193; and Patton v. City of Los Angeles, supra, 169 Cal. 521.]"
(206 Cal. at p. 667.)

Because the land at issue did not form "from natural causes and by imperceptible degrees,"
we concluded in Anderson, "but from the deposit [11 Cal.4th 69] and lodgment of foreign
materials, as distinguished from the ordinary wash of the ocean, against the artificial
obstruction offered by the government breakwater below the mean high-tide line, such
parcel does not attach as alluvion to the ownership of the upland, but retains its character
as public land, being in the nature of reclaimed or filled-in tide-land." (City of Los
Angeles v. Anderson, supra, 206 Cal. at p. 667.)

In Miller v. Stockburger (1938) 12 Cal.2d 440, 444 [85 P.2d 132], we stated that "
'accretions caused by railroad embankments cannot operate to divest the title of the state
to its tidelands, or to transfer them to the adjoining littoral owners. And so if tidelands are
reclaimed, the change in the character of the land does not have the effect of transferring
it to the owners of the abutting upland'. (Patton v. City of Los Angeles, 169 Cal. 521,
525.)"

City of Newport Beach v. Fager (1940) 39 Cal.App.2d 23, 26 [102 P.2d 438], involved
"reclaimed tide land which was filled in as a result of certain dredging operations carried
on by the city between 1918 and 1923." The court held the property did not belong to the
upland owner. "All of the evidence relating to the character of the major portion of the
land in question shows that it is artificially filled tide land.... In order for a littoral owner
to be entitled to accretions which may form upon the upland, such accretions must have
been the result of natural causes and must have been formed gradually and imperceptibly.
(City of Los Angeles v. Anderson, 206 Cal. 662.) Accretions which have been added to the
upland by artificial means do not inure to the benefit of the littoral owner but remain in
the state or its successor in interest. (Dana v. Jackson Street Wharf Co., 31 Cal. 118 [Am.
Dec. 164]; Patton v. City of Los Angeles, supra.)" (Id. at p. 31.)

The land at issue in Carpenter v. City of Santa Monica (1944) 63 Cal.App.2d 772 [147 P.2d
964] was beach front property that had accreted by artificial means. The private upland
owner, "assisted by counsel appearing as amicus curiae on behalf of the California Land
Title Association, argue[d] that accretions formed gradually and imperceptibly, whether
caused naturally or artificially, belong to the upland owner, as against the state or its
grantees." (Id. at p. 783.) After reviewing the cases, the court, in an opinion authored by
then Presiding Justice Peters, disagreed, finding that "there can be no reasonable doubt
but that the rule in this state is that in a controversy between the state, or its grantees,
and the upland owner, artificial accretions belong to the state, or its grantees, as the
owner of the tidelands." (Id. at p. 787.)

The Carpenter court distilled the rule "that accretions formed gradually and
imperceptibly, but caused entirely by artificial means-that is, by the [11 Cal.4th 70] works
of man, such as wharves, groins, piers, etc., and by the dumping of material into the
ocean-belong to the state, or its grantee, and do not belong to the upland owner.... If
accretions along an entire bay caused by the construction of a pier or wharf were held to
belong to the upland owners as against the state, or its grantee, it would mean, in some
cases, that the power of the municipality to improve its harbor would be cut off unless
the accreted areas were condemned. It would mean that every time the state or its
grantee determined to build a wharf or pier, or to grant a permit or franchise for such
construction, it would be granting away a material portion of the tidelands along the
entire bay that might later be covered by artificial accretions. Such a rule would mean
that the state or its grantee could thus grant into private ownership tidelands which it
holds under an irrevocable trust. Such rule would permit the state or its grantees thus
indirectly to convey away these tidelands, held in trust, when it cannot do so directly.
Such a rule would be violative of fundamental concepts of public policy." (Carpenter v.
City of Santa Monica, supra, 63 Cal.App.2d at p. 794; see also the companion case of L.A.
Athletic Club v. Santa Monica (1944) 63 Cal.App.2d 795 [147 P.2d 976].)

The court in People v. Hecker (1960) 179 Cal.App.2d 823, 837 [4 Cal.Rptr. 334] also
reviewed the cases, and found the rule stated in Carpenter v. City of Santa Monica, supra,
63 Cal.App.2d 772, to be "well established." (See also South Shore Land Co. v. Petersen
(1964) 230 Cal.App.2d 628, 630 [41 Cal.Rptr. 277] ["Although it is true that an owner of
upland may see the quantity of his land increased by natural accretion, that is, by the
action of tides washing soil up along the shoreline, it is settled that such owner, having no
rights or title in the tidelands, acquires no interest therein when they are filled by
artificial means." (Italics in original.)]; People ex rel. Dept. Pub. Wks. v. Shasta Pipe etc.
Co. (1968) 264 Cal.App.2d 520, 535 [70 Cal.Rptr. 618].)

This court has not squarely confronted the issue in recent decades, but in dicta in City of
Long Beach v. Mansell (1970) 3 Cal.3d 462, 469, footnote 4 [91 Cal.Rptr. 23, 476 P.2d
423], we stated, "Generally speaking, the augmentation of existing upland by gradual
natural accretion alters the boundary of that upland accordingly. When such
augmentation occurs as a result of sudden avulsion or by accretion caused by the works of
man, however, the boundary is not altered. (See Civ. Code, § 1014; City of Los Angeles v.
Anderson (1929) 206 Cal. 662, 666-667 [275 P. 789]; City of Newport Beach v. Fager
(1940) 39 Cal.App.2d 23, 31 [102 P.2d 438]; Carpenter v. City of Santa Monica (1944) 63
Cal.App.2d 772, 789-794 [147 P.2d 964]; 4 Tiffany, Real Property (3d ed. 1939) §§ 1219-
1229, pp. 613-637.)" (Italics in original.) [11 Cal.4th 71]

The distinction between natural and artificial accretion was recognized in a 1947 opinion
by the Attorney General. (9 Ops.Cal.Atty.Gen. 207 (1947).) The question there was
whether the state, as a littoral landowner in Monterey, owned property created by "
'accretion believed to be from natural causes ....' " (Id. at p. 209, italics in original.) Citing
Civil Code section 1014 and case law, the Attorney General opined that the property, if
accreted naturally, would belong to the state, but cautioned that "[w]e are informed that
there is a possibility that the accretion in this area has occurred as a result of the
construction of a breakwater into Monterey Bay north of the site in question," and that
"[i]f the accretion has resulted from artificial means, a different principle of law must be
applied." (9 Ops.Cal.Atty.Gen., supra, at p. 209.) Reviewing the case law that had
developed as of that date, the opinion concluded that "[if] the construction of the
breakwater caused the currents of the ocean to be interfered with and the accretion in
question occurred as a direct result thereof, then the City of Monterey, and not the State
of California, became the owner of the land in question." (Id. at p. 210.)

[4] Although opinions of the Attorney General are not binding, they are entitled to
considerable weight, especially when, as here, the Attorney General regularly advises
agencies that administer the law (Freedom Newspapers, Inc. v. Orange County Employees
Retirement System (1993) 6 Cal.4th 821, 829 [25 Cal.Rptr.2d 148, 863 P.2d 218]), and
when the opinion is consistent with a long line of authority both before and after its
issuance. [3b] Moreover, the distinctive California rule has been recognized by the United
States Supreme Court (California ex rel. State Lands Comm'n v. U.S. (1982) 457 U.S. 273,
277 [73 L.Ed.2d 1, 6-7, 102 S.Ct. 2432] ["Under California law, a distinction is drawn
between accretive changes to a boundary caused by natural forces and boundary changes
caused by the construction of artificial objects. For natural accretive changes, the upland
boundary moves seaward as the alluvion is deposited, resulting in a benefit to the upland
owner. [Citation.] When accretion is caused by construction of artificial works, however,
the boundary does not move but becomes fixed at the ordinary high-water mark at the
time the artificial influence is introduced. [Citation.]"]), by the United States Court of
Appeals for the Ninth Circuit (United States v. Aranson (9th Cir. 1983) 696 F.2d 654, 660;
Jackson v. United States (9th Cir. 1932) 56 F.2d 340, 342), and by a multitude of
secondary sources. fn. 3

This survey shows that the cases refusing to award artificial accretion to the upland
owner generally involved tidelands. Because the text of Civil [11 Cal.4th 72] Code section
1014 applies only to rivers and streams, and not to tidelands, that provision is not the
only, or even the primary, source of California's rule. As the Attorney General notes, "the
California rule developed as a separate strand of California common law that is
independent of, but consistent with, section 1014." Its chief rationale is the need to
preserve state lands that are owned in trust for the public. (Carpenter v. City of Santa
Monica, supra, 63 Cal.App.2d at p. 794, quoted above.) In concluding that California's
artificial accretion rule does not apply to disputes between private landowners, the Ninth
Circuit stated that the rule is "based, first, on the state's control over obstructions erected
in waterways and, second, on the statutory or constitutional inalienability of particular
state lands, especially tidelands. It was created to protect the sovereign lands of the state."
(United States v. Aranson, supra, 696 F.2d at p. 662.)

In Patton v. City of Los Angeles, supra, 169 Cal. at page 525, we stated that the accreted
land "was once tide land, and ... this being so, it was reserved from sale, and was not
alienable by any state officer under any law, ... and, therefore, no artificial embankment,
made by third persons, or made or suffered by state officers or agents, nor any accretion
to the adjacent upland caused thereby, could operate to divest the state of its title to the
tide land so reserved." The court in United States v. Aranson, supra, 696 F.2d at page 661,
quoted this language and then, considering why this reasoning would not apply to natural
accretion as well as artificial, stated: "Possibly it is because artificial accretion more
resembles the intentional alienation of state lands, which the California Constitution
forbids, than does the process of natural accretion."

Echoing the arguments it made, and which were rejected, in Carpenter v. City of Santa
Monica, supra, 63 Cal.App.2d 772, the CLTA argued in the Court of Appeal that accretion
caused by nonnatural structures belong to the [11 Cal.4th 73] upland owner, as long as
the land was deposited gradually and imperceptibly through the action of the water. The
majority agreed. It conducted a scholarly review of the accretion rule and its historical
foundations, and the sources of and original intent behind Civil Code section 1014, and
concluded that the statute was never intended to modify the majority common law rule.
It argued that Dana, supra, 31 Cal. 118, properly analyzed, was not an artificial accretion
case but a "purpresture (encroachment) case involving a waterfront landowner whose
water boundary remained permanently fixed by statute," and that later cases misapplied
it. For example, the majority stated that in City of Los Angeles v. Anderson, supra, 206
Cal. 662, "[o]nce again ... the central premise of Dana-the erection of an illegal wharf in
San Francisco Bay creating a purpresture or encroachment rather than an accretion-has
been hijacked, without analysis, to apply to artificially accreted land resulting from a legal
structure in the water." In effect, the majority held that the earlier decisions were
incorrect, and that the artificial accretion rule should be abandoned in favor of a different
but "fair, workable and legally supportable rule of accretion ...."

We disagree. California's artificial accretion rule was premised on, and is consistent with,
the public trust doctrine and the inalienability of trust lands. Our cases, and Civil Code
section 1014, have allowed natural accretion to go to private parties. The state has no
control over nature; allowing private parties to gain by natural accretion does no harm to
the public trust doctrine. But to allow accretion caused by artificial means to deprive the
state of trust lands would effectively alienate what may not be alienated. "[A] state, as
administrator of the trust in tidelands on behalf of the public, does not have the power to
abdicate its role as trustee in favor of private parties." (City of Berkeley v. Superior Court,
supra, 26 Cal.3d at p. 521.) This, we believe, was the driving force behind the California
doctrine, and the reason it remains vital today. We thus reaffirm the continuing validity
of California's artificial accretion rule.

Conclusion:
Alluvion signifies the gradual accretion of land or formation of an island by imperceptible
degrees. The lands gained from the rivers or sea by the means above mentioned are a
frequent source of contention affray and although the law and the custom the country
have established rules applicable to such cases, these rules not being generally known, the
courts of justice have sometimes found it difficult to determine the rights of the litigant
parties claiming alluvion lands gained in the manner above described. The owners of the
lands adjoining the old bed shall have the right to acquire the same by paying the value
thereof—which value shall not exceed the value of the area occupied by the new bed.

Photo: Alluvion fan