Cadastral River & Creek
Boundary
LAW & LORE
Neville L. Brayley LS
April 2015
What we will look at
• The effects of some LAW and LORE relating to natural non-tidal water
boundaries, and how they relate to each other.
• What impact Section 5 of the Water Act 1905 had on freehold land
already alienated to the centreline of rivers and creeks.
• What did the early surveyors from the 1850’s to about 1900 measure
to when using a water course as a crown boundary?
• Does the 1881 Order in Council have any effect on land granted “ad
medium filum aquae”, and how does that impact us today?
• A case study of LAW and LORE and their effects on boundaries
Setting out involves
preparation
This included re-reading over old
notes and looking up new
resources.
Some information is quite specific in
relation to the case study.
Some information is a means to the
end.
Other information was just so
interesting that I simply had to
include it.
I trust that the LAW and LORE
presented can be used as a practical
guide when determining water
boundary issues.
What’s Included & Excluded?
INCLUDED:
• Freehold land directly abutting a non-tidal river or creek
• Crown Boundaries along non-tidal water courses
EXCLUDED:
• Tidal Ocean Boundaries
• Tidal Rivers
• Tidal Lakes, Lagoons & Channels
• Islands (disappearing and appearing in rivers & creeks).
• Islands (disappearing and appearing along the sea shore).
• The Murray River State boundary.
• Water boundaries created in a Plan of Subdivision that are NOT Crown
Boundaries.
• The Closer Settlement Act
Background
In recent years it has become apparent to me that I have been in a
privileged position since embarking on my career as a Land Surveyor.
In particular with regard to water boundaries, the reasons for this
include:
• The numerous water boundary surveys I have undertaken.
• The many water boundaries on titles (and Old Law deeds) that I have
considered in the preparation of a plan, even though a field survey of
these may not have been undertaken. This may be because my
project was a partial survey, or non-survey type of plan.
• The access I have had to highly experienced people such as Peter
Knights, Kevin Bourne, Geoff Westcott, and several “more recent”
surveyors such as Barrie Bremnar, Peter Williams and Rob Lungren, to
be able to discuss natural boundaries with. To all of these people I
am indebted to their contribution to my knowledge base.
• To have spent 30 working years in South West Victoria where most of
the land that was alienated “near” water (creeks, rivers, lakes and the
ocean) was actually to the centreline, bank, mean high water mark or
whatever is applicable. Often the land was still held in the General
Law system.
• To have been able to study the impacts of and apply the laws such as
the 1881 Order in Council, the 1905 Water Act and the (incredibly
interesting) Closer Settlement Act. This CS Act is a topic all of it’s own
• To have experienced surveys and situations where creeks went from
simply passing through the land and not being a boundary, becoming
a Crown Boundary in the next Crown Allotment, from a single line
creek to a two line creek, to then becoming a Parish Boundary. These
range from full survey to partial survey, and occasionally all occurred
within the same project. This has allowed me to observe and
physically survey various banks, both lower and upper. And then
understand and apply the knowledge and experience I have gained.
• To have carried out surveys with Southern Ocean frontage and
needing to determine the Mean High Water Mark, and what that
entails.
• To have worked alongside, and been able to rigorously discuss water
boundaries, with my colleagues of over 20 years, Mark Dore & Dale
Minney, both of Hamilton.
• To have had, and still maintain, a passion for rural cadastral surveying.
This extends to the love of actually surveying the water boundary,
rather than avoiding it.
• To now also work in another jurisdiction (Northern Territory) and
learning mountains of new stuff about water boundaries, tidal issues
where a vast range of tidal movement exists (up to 7 metres),
different types of land tenure and Aboriginal Land Rights issues.
Interesting banks to survey
• Becoming an Examiner for the Surveyors Registration Board of
Victoria provided me with an insight into this privilege. Every rural
project I examined that contained a water boundary has had
deficiencies. This is in part due to the candidates and the Supervising
Surveyors have very limited resources to turn to. What is known by
some of us old rural surveyors, is simply not written anywhere. That
experience is what I call LORE.
• The following is how this LORE is intertwined with the LAW, enabling
us to correctly determine cadastral boundaries along natural water
courses.
• The origin of preparing this paper came from one particular
Examination. The candidate had chosen a parcel of General Law land
with a water course along the western boundary. Nothing too
unusual about that. Naturally I thought “he had better be thorough
in detailing his knowledge of the water boundary”. However my
interest was additionally piqued immediately upon inspection of the
litho, or Current Record Plan. This showed that water course as a two
lined creek.
• The circumstances of this particular Rural Cadastral Project are used
here as the Case Study.
Crown Allotment 22 has a “two line Creek” as an abuttal
I suspect many of you will be thinking “so what?” It’s just a water boundary, just pick
up the bank, compute the area, draw the plan and move on. However, what are you
going to put in your Surveyors Report? How detailed are you going to be about
investigating the history of the parcel? What if you are doing a partial or non survey?
What do the dimensions on the Crown Grant mean? What does the Crown Grant
area represent? Does any of this really matter? Proper determination of water
boundaries is never simple. Every case should be thoroughly investigated and you
should know the full history of the land contained in the Crown Grant. Unfortunately
there is limited written information for surveyors to research this sort of knowledge.
So how would you even know that certain traps await? And what lore applies? Or
who to even discuss any of this with?
There is no shame in not knowing in detail an area of cadastral
surveying. There is a serious problem however if you pretend to!
• In the examination I was about to embark on I wondered would the
candidate show an understanding and appreciate the two line creek,
and explain the ramifications? And demonstrate all the knowledge he
knew about issues relating to watercourse boundaries. If he doesn’t,
surely I can guide him through the process with a carefully worded
requisition to find out the correct answer.
• In preparing the requisitions for the candidate I tried to carefully word
the request without bluntly stating the situation. I advised that one
of his major premises was incorrect, and asked him to research this.
• He did. He even spoke to a “very senior Licensed Surveyor”, and
responded back that I was wrong. But he would be grateful to learn
more if indeed the Examiner was correct!
I am in no way intending to be disrespectful of the candidate, his
supervising survey, or the “very senior licensed surveyor” referred to.
The situation however highlights the lack of available documented
information that all surveyors have at their disposal.
Even when we wish to turn to someone with the required knowledge,
who and where are they? Think back to what has been excluded in this
presentation; tidal boundaries, lakes and islands appearing and/or
disappearing! What about land granted to the centre line of a river
under the Closer Settlement Act 1938?
Where would you turn to find out about any of these?
• The field measurements provided by the candidate demonstrate and
fully support the lore I refer to in this paper. Unfortunately I am
unable to provide photos of the particular water course.
• Additionally, subsequent to this I was assisting the Board in discussing
with another candidate his rural project at an SRBV Workshop day.
His circumstance was also a two line water course, but forming a
Parish Boundary. Unsurprisingly to me, there was further “on the
ground measured” proof of the lore again. It is great when this stuff
continually re-enforces itself, once you know what to look for.
A river as Parish Boundary. Note also the 1881 OIC Notation. Consider which bank this refers to
This paper is primarily prepared for Cadastral Land Surveyors in
Victoria. However, many of the principles are derived from Common
Law, whose origins are very old and have been applied in England in
countless court cases. Australia inherited these important parts of
common law and although the conditions of settlement differ (to the
English and between Australian jurisdictions), analogies to English court
decisions are often brought forward in our own legal cases determined
by the courts.
Our Resposibility
• As Licensed Surveyors we have a very high responsibility to the
cadastre, both now and in the future.
• Our decisions as to the location of boundaries rest with us for life.
• No one else can be blamed if we make a blue.
• The impact does not diminish with time alone.
• Ignorance of either the LAW, or LORE, is not an excuse.
• The statute of limitations does not eventually protect us.
• We are responsible.
• Paraphrasing the second point, “Our decisions as to the location of
boundaries” impact those boundaries for ever!
The number of learned people “examining” our work at Land Registry
has diminished over the years. No longer are small (or large) errors in
the determination of natural water boundaries likely to be found and
hence ”stopped” to await discussion and correction. It is, and will
continue to be, up to us to get it right. It is our responsibility to know
and enforce the common law principles relating to water boundaries
that both the English and Australian courts have made determinations
on.
The following is extracted from the Victorian Survey Practice
Handbook, and is worth quoting again.
“As was pointed out in the United States by Mr. Justice Cooley as long
ago as the 1880’s, the role of the professional man carrying out any
cadastral survey is at least partly a judicial one. This may not be
apparent at first site, but reflection will show that what a surveyor has
to do, in such an operation, is very similar to the task of a judge. He has
to gather and assemble pieces of evidence, not all of which are
mutually consistent with each other, and has to come to a final decision
as to what the facts are.”
We are charged with the responsibility of gathering ALL pieces of the
evidence, then determining and presenting the FACTS.
I wrote the following several years ago as being one of the principles I
adhere to in applying my professional judgement.
The position of a peg I place is my best attempt to put it exactly where
my opinion of its true position should be.
This opinion should be well thought out as a court of law may require
me, as a Licensed Surveyor, to defend both my opinion of its true
position AND the position I have actually placed it.
Some water boundary history
Peter Knights in his paper dated October 1996 provides us with
excellent references and information relating to both the 1881 Order in
Council and the 1905 Water Act. Specifically he discusses the Public
Purposes Reserve set aside in the 1881 OIC and the clarifications of the
term “bed and bank” of a water course. Peter’s research and
knowledge of the practices of early and older surveyors is invaluable,
and is relied upon to provide the lore referred to in this presentation.
Rob Lungren in his paper dated June 1992 gives us an excellent summary of
many relevant factors relating to the adoption of a water course as a
boundary. He also gives us a snapshot of Titles Office examination
assessments and processes from that time. For the purposes of this paper I
quote part of his second paragraph. “The early grants with a natural
boundary could either show dimensions to the water’s edge or to the
centreline of the body of water.”
Subtle it is, and often not appreciated, but this little known difference is
what caused the production of this paper.
I would like to add to Rob’s description and have it read as follows: “The
early grants with a natural boundary could either show dimensions to the
water’s edge (or bottom bank), the top bank or to the centreline of the body
of water.”
This is another piece of lore.
What Matters – Or Not
• It matters that the land grant had the watercourse as a direct abuttal (or went to the
centreline).
• It is not relevant whether the land was alienated as General Law land (prior to 2nd
October 1862), alienated as Torrens Title, or remains as General Law land today.
• It is also not relevant if a Crown Allotment has previously been subdivided, although the
Licensed Surveyor will need to investigate thoroughly the date of subdivision(s) and what
was applied to the dimensions and area at the time of subdivision.
• It doesn’t matter when, or to what boundary, the land on the other side of the water
course was alienated. The opposite side may be alienated after the 1881 OIC, but the
side under survey still has the principles referred to here, apply.
• It is important that the natural water boundaries referred to in this paper are Crown
Boundaries only. Any natural water boundary created in a Plan of Subdivision has
differing characteristics that do not form part of this paper. See Rob Lungren’s paper for
further detail.
• If the water boundary is to a lake then generally regard is taken to the position of the
bank “at the time of the Crown survey for the purpose of alienation”. This paper does
not attempt to describe the issues relating to a water boundary defined by a non-tidal
lake. A subject for another time!
Ad medium filum aquae. This is the Latin term literally meaning the centre thread of water. For land
alienated prior to the 1881 OIC, this rule generally applies. For land alienated under the General Law
system (prior to 2nd October 1862), this rule will apply.
LAWS & THEIR EFFECTS
1881 Order in Council
This had the effect of reserving corridors of public land along about 280
watercourses and tributaries in Victoria. Where land had been
previously alienated, this Order had no effect on those grants. The
crown reservation is offset (eg. 150 links) from the high bank, NOT the
bank referred to in the Water Act 1905 (and subsequently the Land Act
1958). A note on the parish plan about crown reservations along the
banks of watercourses may not apply to the land you are dealing with.
Do research. See Peter Knights paper.
Water Act 1905
Section 5 of this Act “resumed” the land covered by the bed and banks
of all watercourses that formed a boundary of an allotment, deeming
that land to be crown land, as if it had never been alienated. This Act
was retrospective. This is now enshrined in Section 385 of the Water
Act 1958. The definition of “bed and banks” here is the wetted
perimeter. This therefor refers to the low bank. This did not apply to
watercourses within allotments, if it was not a boundary. Sections 6 &
7 provided that affected owners shall retain the rights of ordinary use
of the water, and access to the water (amongst other matters). See
Rob Lungren’s paper.
Showing a creek as a boundary and a creek passing through a parcel which is not a boundary
Banks
It is seen therefor that there are two different banks being referred to in two different pieces of statute. It is
imperative for the surveyor to correctly differentiate between the two.
Property Law Act 1958
In particular surveyors need to be familiar with, and know how (and
when) to apply, Sections 267 to 273. Along a watercourse the
centreline may have once been a crown boundary, maybe the top of
the bottom bank now is, or maybe a line offset from the top bank is the
crown boundary. What about the effect of the doctrine of accretion on
each of these boundaries?
As licensed surveyors we have been entrusted with a great privilege in
making determinations of Crown Boundaries. With that privilege rests
a responsibility.
Common Law or Case Law
Both English and Australian precedents and court cases have
application in the determination of natural boundaries. Written
documents on the doctrine of accretion and past papers by respected
people should also be considered in attempting to make a decision as
to a water boundary.
Note that the common law relating to water boundaries applies to both
General Law land & TLA land.
In Barrie Bremner’s paper of 1991 he cites some “Historical Quotations and Court decisions”. Some
of these are worth repeating here.
Note that these are NOT Barrie’s quotes, but from court decisions.
• “The object of all retracement surveys is to follow the footsteps of the original
surveyor and relocate the lines as originally run. The purpose is not to determine
by measurement where the lines ought to have been established, but to
determine where they were in fact originally established.”
NLB comment:
The above was quoted in particular referring to crown boundaries and the location
of either monuments or occupation. However I see it as equally important in the
determination of natural water boundaries. We must be historians and
researchers.
• “Where a boundary is described by metes and bounds (including a plan
presentation), the evidence of the bounds, generally speaking, prevails over that
of the metes where the two are inconsistent.”
NLB comment:
Note that a mete is a stated distance in a stated direction.
A bound is generally a physical object (natural or man made), such as a river, mean
high water mark of the ocean, mountain range, (or more commonly, a survey peg).
• “The Courts have established precedents granting priorities of weight
where any two or more of the following boundary features present
conflicting evidence in the hearing of a dispute.
These are, in order of priority:
• natural boundaries;
• monumented lines;
• old occupations, long undisputed;
• abuttals;
• statements of length, bearing or direction.”
NLB comment:
This reinforces our responsibility to correctly determine a river boundary.
The ground/field survey is the easy bit, the understanding of the history and
the correct application of that field survey are crucial.
A good spot for a creek traverse on a hot day.
Better than blackberries.
Some surveyors may wonder
what to do when a boundary
does not meet the natural
boundary “square” or at
nearly right angles.
This is an extract from The
Australian Law Journal – Vol.
41 of April 1968. It
specifically relates to rivers
and creeks, but elsewhere in
the article it details shoreline
boundaries. They have the
same principles applied as for
creeks.
These extracts from the Australian Law Journal demonstrate how legal
precedents are established by the Courts. They also provide extremely
interesting reading.
I recommend all surveyors obtain a copy and read this article. It is an
invaluable resource.
If you have the opportunity to locate and read the entire article by J. E.
Moore it also highlights the high esteem that Licensed Surveyors were
once held in by the legal profession in 1968. Not sure they see us in
the same light today, and pretty sure that it’s mainly our fault, not
theirs.
CASE STUDY
The Bed and Bank
Photographs of the actual creek abutting the subject land are unavailable.
However I have seen two photographs of the particular creek immediately to
the north and south of the subject land, and looked at aerial imagery. From
these and the following notes I was able to “paint a picture” of the creek in
my mind.
In the candidates Field Cards and Surveyors Report the following important
factors and comments relating to the creek were recorded.
• The creek’s banks were clearly described as being well defined with an
obvious vertical “drop” into the water, together with the amount of water
flowing and its speed and the materials making up the bed.
• Existence of flood damaged fencing.
• A higher second bank 3-4 metres back from the water’s edge. Another
note in the Field cards about this bank said “falls away quickly”.
• An absence of abrupt creek movements.
Some other factors I like to see noted in the field cards/book are information about
adjacent trees, bushes and grasses (type, typical longevity, approximate age), soil
type, erosion and discolouring around roots of trees (this may suggest how long
they have been there, and how imperceptible erosion may be occurring), height of
the bottom bank (how much undercut will it tolerate), presence of rocks, the
presence, if any, of an alternative bed that may exist along a different alignment to
the current bed, and is that “other” bed an original normal flow path or an
overflow path, litter deposited on nearby fences and in trees by flood waters gives
an indication of the potential severity, and hence stability of the bank, stock tracks
(for drinking, wallowing, crossing), manmade crossings (could be up or down
stream and cause an effect), dams (not only of the creek but small tributaries
providing an alteration to the surface flow into the main stream), and any other
circumstances. Whilst at the creek look at the old crown surveys and see what has
been noted regarding these factors. Are there differences or does it seem similar
to what was previously described. In all cases try and have a yarn with the farmer,
and/or his neighbours. Ask pertinent questions to get them going, maybe about
the regularity of floods, what damage did they notice? Photographs provide an
invaluable source of information, especially when back in the office trying to piece
together and explain something that doesn’t quite fit properly!
All of these paint a picture and provide an estimated timeline of
possible bank movement. These factors together with the field pick up
of the bank contribute to your final adoption of the bank, or otherwise,
as the boundary.
The following has been ‘cut and paste; from my report to the Surveyors
Registration Board of Victoria, obviously with alterations, but also with
some additions.
• In my requisition I tried to have the candidate investigate further the
impact(s) (if any) of the 1881 OIC and Section 5 of the Water Act 1905 upon
his land. In requiring this I hoped he might question the meaning of the
two line creek that is shown on the Parish Plan (M259(5)). He had
stumbled on a bit of a tricky one in this Project, and I was searching for his
understanding of this. He has undertaken some research (a search of the
Crown Grant dated 1854, a reading of §5 Water Act 1905 and §385 Land
Act 1958 and talked to “a very senior licensed surveyor” – no name
provided), but been unable to correctly assess the information and apply it
in the situation he encountered.
• As stated above his situation relates to lore as well as law, and the Rural
Cadastral Project process is a forum that knowledge can be offered and
passed on by Examiners and Board members. I don’t believe that the
situation of the candidates parcel is explained in any OSG or SRBV
publications. Peter Knight’s paper “Rivers and Their Impact on Cadastral
Boundaries” does provide us with an insight and an opinion as to where
Crown Surveyors of the time may have measured to.
The following relates to:
• Land alienated prior to the 23rd May 1881 Order in Council.
• A “two line” creek or water course is shown on the Parish Plan. And often
the “Put Away” Plans.
• The relevant part of that two line water course does not form the parish
boundary. (A different meaning is applied when a two line water course
forms a parish boundary. Not applicable to this discussion.)
• Non tidal water courses, lakes and pools
• This is a different situation to a “single line” creek or water course that
fulfils each of the other conditions listed above.
• Also note that the land on the “other side” of that two lined water course
may have been alienated either prior to or after the 1881 OIC. It doesn’t
matter. However in this case it was actually alienated in 1854, hence it too
went to the centre thread of the creek.
In preparing this report I have had another discussion with Peter Williams
(whose water boundary knowledge I very highly regard, together with his
vast experience of lore), and also requested the OSG to look for any old
survey records, particularly the Put Away Plans. This assistance is greatly
appreciated and respected.
At Common Law it is known that land abutting a non tidal watercourse or
pool, granted with a direct abuttal, has the natural boundaries determined
by the common law rule of “ad medium filum aquae” (the centre thread of
the water). The application of this rule applies even without being stated
specifically in the deed or title. For this to not be the case it must be
expressly denied in the Grant of land (very rare, if at all). The subject land
was granted in 1854 and the grant does not expressly deny the rule, so the
rule of ad medium filum aquae applies.
The issue here is not whether the land was granted to the centre line (that is
a fact as can be seen by inspection of the Crown Grant deed), but rather
what do the dimensions in that Grant (and the Parish Plan) apply to, and
mean.
The existence of the “two lined” creek on Parish
Plan M259(5) in this case acts as a trigger or clue.
These circumstances exist as the dimensions
(distances along boundaries intersecting or “hitting”
the water course) do not go to the centre line, but
rather the near bank. Many years ago Peter Knights
advised me that after much investigation of old field
books he found that the old field surveys for early
Land Sales surveyed to the near bank only. They did
not survey to the centre line. This was also
supported in later years in discussions with Kevin
Bourne and Geoff Westcott, both from the Titles
Office. In this way, similarly the land on the “other
side” of the water course was also surveyed to its
near bank, so that the survey draftsmen or
cartographers were able to directly plot each bank
of the water course. We already accept the very
high standard of draftsman-ship on Parish Plans, so
it is not surprising to accept this too. We can note
that in these circumstances we do actually see lines
that are not parallel (maybe indicating pools) and
also islands which are indicative of actual surveyed
lines.
This knowledge is LORE.
But. Let’s not be satisfied with only looking
at the latest Parish Plan. Let’s also look at
the Put Away Plans. M258(3) shows the
creek as a single line creek abutting the
subject land. Very interesting! It is shown as
a two line creek northwards across the
Government Road and CA 21 and a two line
creek as it abuts CA 23. Similarly this is how
M258(1) also depicts the creek. Is the creek
simply narrower in this region? We will
possibly never really get to the bottom of
why the plots changed, so we need to assess
the field data against our experience (lore).
Somewhere and somehow the single line
creek became drafted as a two line creek. At
this stage we are unable to precisely
determine what this means, but the trigger
has been cued, and our interest certainly
raised. So do the dimensions go to the
centre line or the bank? To determine this
some more lore is required, together with
the facts supplied in the field survey (more
of that later). But we need to remember
that possibly the bank was surveyed to.
Now the question remains; which
bank? Peter Knights gives us an
opinion in the paragraph (of his
1996 paper) after his first “cross
section” showing banks A and B. He
states “From a study of many
surveys over many years, it is
my belief that the top of the
high bank (point labelled “B”
on the sketch) was the origin
from which ….. Crown
Surveyors…”
Whilst this statement relates to reserve boundaries, it provides us with an
appropriate insight into the methods of Crown Surveyors during the 1800’s.
These methods would be based upon direction of respective SurveyorsGeneral. And also expediency to facilitate the early Land Sales. Peter’s
experience and research should not be taken lightly, nor discarded without
strong contradicting evidence. Applying Peter’s many years of research, and
many years of my own experience, I believe that often the dimensions
shown in Crown Grants and on Parish Plans were measured to the top or
high bank. Exceptions do occur (and the 1850’s preceded the 1881 OIC by a
considerable amount of time), and due to the ambulatory nature of a water
course, we are required to rely on this historical and anecdotal evidence.
That’s cadastral surveying. And it’s fun!
This knowledge is lore.
Section 5 of the Water Act 1905 effectively “resumed” the bed and
banks to be the property of the Crown as if they had never been
alienated. Sections 6 & 7 of that Act provide that affected owners shall
retain the rights for ordinary use of the water, and access to the water
(amongst other matters set out in those sections).
This is law.
If a titles’ dimensions therefore went to the centre line of the water course (a
single line creek), then §5 would have had the effect of reducing the length
of any intersecting boundaries (by half the width of the water course) and
reducing the area (by half the average width x the length of abuttal to the
water course). It is important to note that §5 is clear in stating that the bed
and banks are deemed “not to have passed with the land so alienated”. In
practical terms this means the land is still considered as a whole Crown
Allotment (not a part crown allotment) and as such the bank is deemed to be
the Crown Boundary. That is why the Surveyor General can make rulings on
the position of these ambulatory boundaries. That is also why our plan
heading describes the land as a full Crown Allotment, not Part.
This the effect of the law.
This sketch demonstrates this
circumstances where the
distance is to the centre line
of the water course.
If the dimensions of the intersecting boundaries in the title are to the
top bank (not the centre line), as proposed in the examples of two line
creeks, of the water course then Section 5 of the Water Act 1905 had
no effect on the boundary dimensions or area. The effect therefore of
§5 in these cases is only that no longer can the rule ad medium filum
aquae be applied to the title. The effect on the rights of the land (or
owners) to the water (and access) does not differ whether the
dimensions were originally to the centre line or bank of the water
course.
This the effect of the law.
This sketch demonstrates this
circumstances where the
distance is to the top or high
bank of the water course.
In the subject circumstance the dimensions of the title are possibly to
the top bank (we probably have a two line creek). Section 5 of the
Water Act 1905 resumed the land from the centre line to the bottom
bank. The right of the land owner to the “strip” between the top bank
(determined by dimension in the Grant) and the bottom bank
(determined by statute) is not diminished in any way by these
circumstances. The boundary of the land remains as the bottom bank
determined by the passing of the Water Act 1905.
So we now need to assess the survey data to give us guidance as to
what the original dimensions actually pertain to.
In the absence of any substantial ambulatory movement in the water
course (relatively stable banks reported by the candidate) we could
therefor expect to find an increase (compared to the Grant) in the
length of the boundaries intersecting the water course if the
dimensions were originally to the bank. That is, the difference
between the top and bottom banks, as this land should now be
included into the surveyed dimensions.
What does the candidate’s data on his Plan and Field Records provide
us?
Bingo! Longer it is.
•
Northern boundary: Deed/Title = 346·01m, Survey = 347·56m
•
Southern boundary: Deed/Title = 299·54m, Survey = 302·52m
This is the effect of both LAW and LORE.
In looking at the two photographs the candidate originally supplied
(these were adjacent to the north and south, not of the subject land)
the amount of this difference appears to be in line with the situation on
the ground. Also, the candidate himself recorded a higher bank about
3-4 metres back from the waters edge.
We can therefor conclude with some surety that the original Crown
dimensions were not measured to the centre line, but rather the bank.
In particular the top or higher bank. This adds to the wealth of
experience in accepting lore as a valuable and relevant source of
information.
IMPACTS ON LICENSED SURVEYORS
• It does not matter if the Licensed Surveyor is undertaking a full survey,
partial survey or non-survey plan. He must do the appropriate research of
the title and situation.
• If a creek traverse is not being undertaken, and new boundaries and lots
are nowhere near the creek, the plan must still display the correct area of
all lots including the balance lot, whether surveyed or not. A balance lot
(with the watercourse) must be adjusted in area and dimension based
upon the original crown grant dimensions and area.
• If the dimensions went to the centreline, then the area was derived from
those. Half the width of the stream over the length abutting the land, must
be deducted from the title area.
• If the dimensions went to the top bank, then the area was derived from
those. The average distance between the banks over the length abutting
the land, must be added to the title area.
• If we get this wrong, the cadastre, subsequent land owners and any
mortgagors are compromised. The Licensed Surveyor is responsible for his
or her work. For ever.
AVAILABLE RESOURCES
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Survey Practice Handbook, SRBV
Rivers and Their Impact on Cadastral Boundaries, Peter Knights October 1996
River Boundaries, Robert Lungren & Peter Knights 1992
The Australian Law Journal Vol. 41, J. E. Moore April 1968
Principles of Re-establishment Guidance Note 6, Victorian Government
The Doctrine of Accretion, Victorian Government, 1993
Is the Fence a Crown Boundary, Barrie Bremner 1991
At the Seaside, J. D. Sherwood, August 1976
Hallman’s Legal Aspects of Boundary Surveying as Apply in New South Wales,
circa 1994
Not all of the above are readily available on “surveying” websites. I have some of
these stashed away in good old paper format in an old envelope. A drafter during
an office clean up once, labelled it “Neville’s Old as the Hills Stuff”.
What else is out there stashed away in your old folders that can help us all? I for
one would like a copy.