Re: Rights to Land Under Former Non-Navigable Riverbed, Now Dried Up
Who are you dealing with at the City? If it is counter staff, bypass that person and deal with the dapartment head. If it is the department head, insist that his department run it through the City counsel's office before they proceed to slander your title. if oyu have only dealt with counter staff, realize that those people are usually lower level or mid-level employees and rarely a senior level person. If the person you have been dealing with is a licensed engineer or surveyor, be aware that title to the beds of waterways is often a very complicated matter and most surveyors have little more than a passing understanding of it and engineers usually have even less.
Generally, the beds of non-navigable rivers/streams are part of the adjacent upland parcel as far as the centerline or thalweg of the stream (thalweg = technical term for the path that would be taken if only a trickle of water flowed through down the stream, which differs from the centerline which is a line midway between the banks. Some states have codified the thalweg and others have codified the thalweg as the presumed property line along a non-navigable stream.).
Each state has its own test for or definition of navigability for title purposes. Navigability can be a confusing issue as the definition changes depending upon the application (i.e. - for review of development activities the US Army Corps of Engineers has jurisdiction of all navigable waterways that lead to the oceans and they use a definition that encompasses even intermittent streams that lead to the ocean via joining progressively larger streams). But the application you are interested in is for title ownership of private lands, which I will assume for the sake of discussion, does not lie adjacent to any federal lands (another potential complication).
Assuming that no federal lands are affected and that this non-navigable stream is not one that was ever used for interstate commerce, Congress has no authority, so I presume that you are referring to the IL State Legislature having declared it non-navigable in the early 1900s. If it has been declared non-navigable by statute, then state laws apply to the title disposition of the bed.
You stated that the subdivision was created in 1900 and that Congress (probably the legislature) declared the river to be non-navigable in the early 1900s, implying that the legislative declaration came after the subdivision. That being the case, the subdivider may not have been aware, or at least not certain that he owned to the center of the stream and so did not show it as such on the map. If he otherwise subdivided all he owned, it would be a safe assumption that he would have included the area in the streambed were he certain he had the right to do so. The effect of the legislative declaration after the subdivision would be similar to the government abandoning a road right of way and reversionary rights being then apportioned. Those rights do not go back to a party who held title to the adjacent lands at some point in the past, but go to the owners of the adjacent lands at the time of abandonment (or in this case, the time of the legislative declaration).
As I said before, the presumption is generally that the upland owner owns to the centerline (or thalweg) of the stream bed. Presumably, the owner of the parcel that was split into the lots owned according to a description that supported the center of stream presumption. A specific intent in a conveyance to exclude the bed can defeat that presumption. For Example, Smith owns a large tract with a non-navigable stream running through it from North to South. If Smith sells to Jones all that portion West of the stream, the new dividing line is presumed to be at the center of the stream. If Smith sells to Jones all that portion West of the westerly bank of the stream, then the centerline presumption is defeated by the express intent to exclude it from the conveyance to Jones.
When the larger parcel was divided into lots, it may be that the stream bed was excluded from the lots. This requires a close inspection of the subdivision map and any documents that may have been recorded along with it when it was subdivided. Generally, unless there is something on the map that indicates the express intent to exclude the stream bed, if it was otherwise within or adjoining the area being subdivided, the presumption of ownership to the center still holds. Look for indications such as the area of the stream bed not only being outlined, but also having been given a specific lot or parcel designation; a notation either within the body of the map or as a separate note off to the side or on a cover sheet that addresses the stream as a separate parcel, being designated as common area, being dedicated as a public right of way, or as being retained by the subdivider. If there are none of those things, the presumption that the adjacent lots include a portion of the bed of the stream generally holds. Some states may vary on this and IL may be one of them, so it is best to find an attorney who specializes in this area of law.
With subdivisions, there are other possibilities as well. Some maps may show dashed lines into the bed of water bodies which indicate the intended method of subdividing the bed or apportioning it to the upland lots. In subdivisions of rectangular lots, it is somewhat common (at least in my practice area) for those lots adjacent to the waterway to have solid lines on the upland portion, with the remainder of the rectangular shape (which falls in the bed of the waterway) to be outlined with a lighter dashed line, indicating the intent that should the bed ever be reclaimed as upland, that the lot adjacent to the water become a whole rectangular lot similar to the other upland lots. In some cases, where the subdivider either assumed the waterway was non-navigable or anticipated that portions of the bed would be reclaimed as upland, streets and entire blocks and lots were protracted across the waterbody.
There is a school of thought that where a subdivider inadvertently left a portion of his property unsold, or where the map is unclear as to the disposition of strips such as those between a bank an the ordinary high water line along a navigable waterway (in most states, upland owners own to the ordinary high water line and the state owns the bed below that mark. A minority of states use the ordinary low water line), the portion owned by the subdivider under right of way easements for public roads (in many states, road rights of way are easements and not owned outright by the government responsible for the road unless there was express language in the right of way deed or on the subdivision map creating the right of way that it is a fee conveyance), or the beds of non-navigable waters, that the original subdivider retains ownership of those portions of "unsubdivided land". The actual disposition of the title will depend upon the particulars of the case such as whether the supposed unsubdivided land is in anyway usable as a stand-alone parcel, whether the original subdivider has exercised any acts of ownership since filing the map, whether the subdivider has paid property taxes on any supposedly retained pieces, and of course, how the courts in the particular jurisdiction have basically interpreted such situations.
In most jurisdictions, the underlying ownership of streets within a subdivision, absent any intent clearly expressed otherwise on the subdivision map, is considered to lie with the adjacent lots. Streets and roads which are on the edge of the subdivider's original parcel with all or a portion of the right of way on the subdivider's parcel are usually similarly considered to convey underlying ownership to the adjacent lots even when the edge of the subdivision appears to be at the right of way of the road. The basic principle or presumption being that if the subdivider were retaining only the ownership under the road rights of way, such a parcel would be useless because public road rights of way generally preclude other uses consistent with private ownership. This all seems pretty arcane until one considers what is to be done with the land under the roads if the roadway is removed and the right of way abandoned by the public entity. Then the reversion rights are important.
It may seem like I'm way off on a tangent, but now I get to my next point: the beds of non-navigable waterways are typically treated, in terms of title, similar to roadways within subdivisions. Unless the subdivider has expressed an intent to retain the waterway for private navigation or to go along with retained water rights, the bed of the waterway is a non-usable parcel and as such, there would be no valid reason for the subdivider to have retained ownership.
So I'm not sure who the City thinks you are supposed to sue to clear title. If the subdivision occurred in 1900 and neither the subdivider nor his heirs have asserted ownership in that 112 years, then that is a pretty clear indicator that the subdivider had intended to fully divest himself of his property at this location. It sounds as if anyone who owns a lot or parcel that this stream crossed has since been using the portion of the bed within their basic lot dimensions as if the bed had properly been within and a part of their lots.
If you've persevered through my dissertation, I've probably raised more questions for you as provided answers. Unfortunately, the nature of your problem is far too complex to lend itself to a simple answer. But without evidence to the contrary, I think the ownership presumptions are in your favor. That the title company is fully comfortable insuring your title is a pretty good indication that contrary evidence does not exist or is not strong enough to raise concern. Most likely, you are dealing with a city worker who knows just enough about title, water boundaries and subdivisions to manufacture problems where none legitimately exist.
If I were looking into it (some surveyors investigate and opine on title ownership - I do precisely that for the State of CA, primarily working with water boundaries), I would want to have copies of the following documentation:
1. Your deed and those of the other lots affected by this stream within your subdivision.
2. The subdivision map.
3. Other survey maps of nearby properties, particularly those affected by the stream.
4. The legislation by which the stream was declared non-navigable.
5. The deed of the parcel that was divided in 1900 (parent parcel of your subdivision), including the latest such and first such deed if they are not the same document.
6. The deed of the parcel that the parent parcel of the subdivision came from, and so on possibly back to the original grant from the government (patent).
7. The statute or statutes which codify the presumptions of riparian (water) boundaries.
8. State Supreme and Appellate Court rulings regarding boundaries along non-navigable streams and particularly apportionment of the beds of those streams among the upland owners.
In other words, a big stack of stuff.
Start with an attorney competent in this area of law. It shouldn't have to take actual legal action to clear up, but probably a letter from the attorney reciting some law and doctrine basic to the situation along with a demand that the City provide their basis for their obstruction (if they have no basis, they are flirting with slander of title).
Good luck. Unfortunately, this is likely to cost you some to clear up, but hopefully not nearly as much as the city's opinion might imply.
I'm a surveyor, not your surveyor & not an attorney.
Advice is general survey, not legal. Hire a local professional for specific advice.