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 prove 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 1st 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 28th 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 standard bighas, [29] 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

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

though exceeded height limit and in that scope of accession land had been vested to the raiyat.

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 (6th 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 and in 1967 a President Order was passed [32] and held that this Ordinance has no retrospective effect. The court recognized the right of the plaintiff whether he had recognized as MALIK or not [33].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. Bangladesh41, 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

It was held in the case of Samsuddin Rahman and others v. Bihari Das and others46

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, 1849 (1/6/49)

Appellants appealed a decision by the Principal Sudder Ameen, arguing their ownership of certain lands, located in another mouza, and separated by a khal. The principal court decreed in favor of respondent, who argued that the khal was not the shared border between the properties, but belonged to respondent. Thus appellant had no right the lands situated on the other side of the khal. The appeal was dismissed.

Although not mentioned, this is clearly a case of alluvion.

No. 11, 1849 (15/6/49)

Plaintiff declared himself occupant of certain bheet land, and being entitled to fish in the nodir. Moreover, he declared that respondents sued him as defaulter on rent for a fishery in another location, extorted money, etc, for which he sued to recover the sum paid, plus an equal amount for penalty. Respondent argued that the bheet land was under the collector’s khas management, as part of another revenue unit. The appellant (the Collector of Sylhet) stated that the defendant had argued that the bheet land belonged to him, but that an investigation by the Collector found that defendant was wrong. The Moonsiff held plaintiff’s 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.

Alluvion. Plaintiff argues that he is entitled to fish in the nodir on account of the bheet land he claims occupancy to.

No. 117, 1850 (30/9/50)

Respondents sued for rent lost, because appellants stopped and old watercourse and opened a new one, thus prevented them from 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

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