Citations
- 222 F. Supp. 55
Full opinion text
GREEN, District Judge.
These proceedings were held for the purpose of resolving title to a tract of land, known as Pintail Marsh, appropriated by the United States. The entire tract comprises approximately 461 acres and borders on Lake Erie.
When the original complaint and declaration of taking were filed Horizon Enterprises, Inc. was alleged to be the owner of the tract being taken.
It was thereafter developed, during the course of pre-trial proceedings, that approximately 210 acres of the tract in question have been, for the most part, under water since 1929. The United States thereupon questioned whether the submerged lands might belong to the State of Ohio, and moved to add the State as a new party defendant. The motion was granted, and a hearing set on the question of title.
Certain basic essentials, stated at this point, will aid in an understanding of the question before the Court.
Defendant Horizon Enterprises, Inc. had, at the time of the taking of the property by the Government, record title to the entire 461-acre tract known as Pintail Marsh, including that portion under water. Until 1929 the entire tract had been dry or marsh land. However, in 1929 the 210 acres became submerged, and have remained so to this time. The evidence disclosed that on occasion the area might become free of water as a result of varying lake level and wind action. Based on all the evidence, the Court concludes that normally the 210 acres are submerged, with the exception of a small offshore island.
The State of Ohio claims title to the 210 acres by virtue of § 123r03 Ohio Revised Code, which provides that title to the waters of Lake Erie and the soil thereunder, extending from the southerly shore of Lake Erie to the international boundary, shall be vested in the State of Ohio.
It is settled law that a riparian owner may lose land by the slow process of erosion, and his title thereto will be extinguished. Under the law of Ohio, however, if land is lost “by a storm or storms resulting in a sudden avulsion”, there is no loss of title. Baumhart v. McClure, 21 Ohio App. 491, 493, 153 N.E. 211 (1926).
The term “erosion” is generally understood to mean a gradual washing away of land bordering on water by the action of the water, 56 Am.Jur. Waters, § 476. In contrast, the term “avulsion” connotes a sudden and perceptible loss of land by the action of water, 56 Am. Jur. Waters, § 476.
The controversy thus resolves itself to a determination of whether the 210 acres were submerged as a result of erosion or avulsion. If the former, title was in the State of Ohio; if the latter, title was in Horizon Enterprises, Inc., as of the day of taking by the Government.
The Pintail Marsh, the subject tract, was at one time in the early 1900’s a part of a large tract known as the Metzger Farms. The entire area is located along the shores of Lake Erie about 20 miles east of Toledo, Ohio. There is a township known as Bono approximately 4 miles to the west of the marsh area and 2yz miles inland from the Lake Erie shores.
At the time when the history of the Metzger Farms first becomes pertinent to this action, it had a beach frontage of approximately 1% miles. Behind this frontage the area was commonly denominated as the “north farm” and the “middle farm”.
The “north farm” is now known as Metzger Marsh, and was the western portion of the Metzger land along the lake front. This farm was bounded on the west by the “Howard Farms”, and separated therefrom by a canal known as “Ward Canal”. The beach area in front of the Howard Farms is known as Reno Beach.
The “middle farm” is now known as Pintail Marsh, the tract here under consideration. The “middle farm” had lake frontage of approximately %ths of a mile and was bounded on the west by the “north farm” and on the east by other private property identified as “Willow Point”. The “middle farm” extended inland approximately one mile on its west boundary and one-half mile on its east boundary to Veler Road, which separated the “middle farm” from its neighbor to the south, the Metzger "south farm”.
The “south farm” constituted the remainder of the Metzger property and was located entirely inland, with its north boundary being Veler Road.
The trial evidence concerning the history of the Metzger Farms and Pintail Marsh was obtained, in the main, from long time residents of the area. By piecing together their recollections a rather complete history has been achieved.
From all of the evidence the Court finds that about 1910 there was a sand beach along the shore line at the most northerly boundary of the 461 acres of the “middle farm” now known as the Pintail Marsh. The sand beach was from 50 to 100 feet wide. The land south of the beach was lower than the level