Subject: the thalweg principle & questions of navigability<br/>
Date: Dec 17, 2003 @ 18:30<br/>
Author: orc@orcoast.com (orc@...)<br/>
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<div id="ygrps-yiv-2142801584">tho i cant cite sources<br/>
i am sure i have seen at least several writers on boundary law <br/>
comment that in the absence of explicit agreement to the contrary <br/>
there is a strong tradition & presumption of thalweg boundaries on <br/>
navigable rivers<br/>
<br/>
& i believe i may also have seen several of these same writers also <br/>
comment that in the absence of explicit agreement to the contrary<br/>
there is a perhaps equally strong tradition & presumption of median <br/>
boundaries on nonnavigable rivers<br/>
<br/>
i dont think i am imagining this <br/>
& i think many of you probably know what i mean too<br/>
<br/>
yet nowhere have i seen the principle of median line on nonnavigable <br/>
rivers actually applied & validated by a legal opinion or judgment<br/>
<br/>
& tho i can imagine a boundary ambulating with the living midline as <br/>
easily as one ambulating with the living thalweg<br/>
& can also imagine the boundary havoc that might occur especially on <br/>
a living midline in the wet season<br/>
nevertheless there is the saving grace that the 2 regimes ultimately <br/>
converge to a practical identity in the dry season<br/>
<br/>
that is<br/>
unless someone comes along to claim the boundary has left the actual <br/>
stream of the river or its trace as it exists at any point in time<br/>
<br/>
but of course this shouldnt happen unless there is an avulsion<br/>
or a particularly stubborn interpretation requiring that the middle <br/>
of a mostly dry bed or mostly dry channel be observed in favor of the <br/>
middle of the extant stream itself<br/>
<br/>
so there appears to be an intrinsic stability & similarity in most if <br/>
not all cases<br/>
no matter which regime is employed<br/>
<br/>
& thus the distinction of navigability may in practice be moot<br/>
& never need be formally conferred or bestowed on any particular part <br/>
of any particular river<br/>
<br/>
but in any case my questions are not idle<br/>
but are of course multipoint oriented <br/>
& involve many real cases in point<br/>
so please overlook any apparent meandering in my getting to them<br/>
<br/>
& they boil down to<br/>
where is it actually written <br/>
or what is the actual basis of the tradition that a riverine boundary <br/>
could anywhere be presumed to leave the thalweg <br/>
without express wording to the contrary<br/>
whether above or below any presumed limit of presumed navigability <br/>
<br/>
& how can either a sufficiency or insufficiency of navigability ever <br/>
be established for favoring the presumption of one regime over the <br/>
other at any given point on a river or stream<br/>
when we know full well that navigation is not restricted to seagoing <br/>
navigation only & is often contingent on seasonal & a great many <br/>
other practical factors etc etc</div>