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Show COLLATERAL QUESTIONS RESPECTING WATERCOURSES 91 an accretion to other lands.359 Regardless of the rapidity of changes in the channel, so long as the change is not of the character known as avulsion, discussed immediately below, the rules with respect to erosions and accretions apply.360 Abrupt change of channel-A sudden and violent change of channel is known as avulsion.361 When a stream suddenly abandons its old channel and creates a new one, or suddenly washes from one of its banks a considerable body of land and deposits it on the other side, the boundary does not change with the changed course of the stream but remains as it was before.362 If a stream suddenly leaves its accustomed channel and takes a new course distinct from the old, the law of avulsion definitely applies. In some cases in which the stream cuts land from one side of its channel and deposits the soil on the opposite side, classification of the change may be less obvious. The distinction appears to be that to constitute avulsion, the change must be on a considerable scale, violent, and so sudden and abrupt as to be completed within a very short time-in some circumstances, but not necessarily, practically overnight; to be classed as accretion and erosion, there is good authority that changes may be rapid, but in the overall view the shifting of channel is gradual and, over a long time, perhaps continuous. An example of avulsive action that affected private interests only was the effect of a change of stream channel on the ownership of a gravel bed in southern Oregon.363 When the lands owned by plaintiffs and defendant were surveyed in 1859, their common boundary was the center of the channel of Rogue River, the gravel bed being north of the river on plaintiffs' land. The instant dispute arose over the ownership of receipts from defendant's sale of gravel taken from the bed, which plaintiffs claimed belonged to them. By accretion, the river shifted gradually until in 1877 it was north of the gravel bed. Between 1891 and 1900, there was a sudden and violent change by which the channel was moved more than one-fourth mile south of the gravel bed. The court held that plaintiffs' south boundary followed the thread of the stream northward to its location in 1877, and remained there unaltered despite the avulsion of the 1890's. Consequently, as a legal question the gravel bed did not 359 Hancock v. Moore, 135 Tex. 619, 623,146 S. W. (2d) 369 (1941). 360 Nebraska v. Iowa, 143 U.S. 359, 369-370 (1892); Hancock v. Moore, 135 Tex. 619, 623, 146 S. W. (2d) 369 (1941). 361 Wiel, supra note 356, § 862. 362Hirt v. Entus, 37 Wash. (2d) 418, 423, 224 Pac. (2d) 620 (1950); Ross v. Green, 135 Tex. 103, 107, 139 S. W. (2d) 565 (1940); Tomasek v. State, 196 Oreg. 120, 138-139, 248 Pac. (2d) 703 (1952). The great weight of authority, as shown by decisions in many cases, is to the effect that when avulsion occurs the line dividing the property of riparians remains according to the former boundary, not according to the boundaries created by the avulsion: Maufrais v. State of Texas, 142 Tex. 559, 568, 180 S. W. (2d) 144 (1944). 363 Wyckoff v.Mayfield, 130 Oreg. 687, 689-692, 280 Pac. 340 (1929). |