Doctrine of Discovery – Page 2

Blake Watson on the Doctrine of Discovery

January 23, 2011Matthew L.M. Fletcher

Here is the article, published in the Seattle University Law Review.

Ohio Appellate Court Holds that Ohio Holds Title in Trust to Submerged Lands in Lake Erie

August 27, 2009Matthew L.M. Fletcher1 Comment

The Doctrine of Discovery strikes again! Here is the opinion of the Ohio Court of Appeals (11th Dist.) in State ex rel. Merrill v. State. Here is one of the key questions presented:

The state of Ohio, through the Ohio Department of Natural Resources (“ODNR”), has asserted trust ownership rights to the area of land along the southern shore of Lake Erie up to the ordinary high water mark, set at 573.4 feet above sea level by the U.S. Army Corps of Engineers in 1985. The Ohio Lakefront Group, ¹ (“OLG”), along with several of its members, many of whom own property adjoining Lake Erie, dispute the authority of ODNR to assert these trust ownership rights without first acquiring the property in question through ordinary land appropriation proceedings. The validity of the ordinary high water mark, set at 573.4 feet International Great Lakes Datum (IGLD)(1985) is also disputed, the argument being that the ordinary high water mark is a boundary that must be determined on a case-by-case basis with respect to each parcel bordering the lake. Further, the ODNR’s authority to require landowners to lease land from the state of Ohio when that land is already contained within the legal description in their respective deeds is disputed.

The court holds that Ohio has trust title to the submerged lands, but that the water mark identified by the Army Corps of Engineers must be re-established at trial.

The history of Ohio lands from the moment of “discovery” in 1497 begins in paragraph 26. It may be worth discussing for anyone teaching Johnson v. M’Intosh this week (like me!).

Strange Colonial Property Case in New York

August 14, 2009August 14, 2009Matthew L.M. Fletcher

Here is the opinion in O’Brien v. Town of Huntington, decided by the N.Y. Appellate Division. It involves a 125-acre parcel that the Town never knew it owned (allegedly) from colonial times to the 1970s. Now everyone’s suing for it, and the loser is the claimant who traces title back to a 17th century purchase from Indians. Hah!

An excerpt:

In any event, no evidence was adduced that Powell had consent from the defendants to acquire title to any of their land covered by royal patents. As indicated, by obtaining possessory rights from Native Americans in the seventeenth century, one did not acquire legally cognizable title (see Town of Oyster Bay v Stehli, 169 App Div 257, affd 221 NY 515). Moreover, the 1696 resolution only provided Powell with license to obtain further possessory rights from the Native Americans and, as such, did not confer fee title to the subject land. Even the plaintiffs’ experts conceded that this was not a deed, but rather a “license to purchase.” To the extent that such “license” creates ambiguity in title, it should be resolved in favor of the defendants’ retention of title (see People v New York & Staten Is. Ferry Co., 68 NY 71). Thus, it cannot be concluded that Powell acquired title to the subject tract of land which allegedly bulged over from Oyster Bay into the Town land and which had been granted to the defendants by the English Crown. Such a significant gap in the plaintiffs’ chain of title defeats their claim in the face of the defendants’ proof that the disputed property is part of the colonial land grants given to the Board of Trustees in the seventeenth century.