*1 Roy Hogue, HOGUE, Raymond Edward Tavis, Paul Small, Naaden, R. Thore A. Wachter, Wachter, Eugene Plaintiffs- Appellants, Dakota, State North Intervenor- Appellant, Ward, Birlea BOURGOIS,
Ervin Milan G. Imogene Ward, Ward; Ward O. Robert G. Engelhardt, and Christensen, Claire Ward Ward, Ward, deceas- Steve Heirs of R. D. Callaway, ed; Campbell, Stephen Calile Callaway Callaway Virginia James Calloway, Williamson, C. J. Heirs Mrs. Shute, deceased; Albert A.Mrs. Lincoln B. Bourgois, Schmidt, Christine Martha Bourgois, Bechill, Bourgois, Ruth Paul Bourgois, Per as Guardian Ervin Bourgois, Incom son and Estate Ruth Bourgois, Sidney Bourgois, petent, Gilbert Hoge, Bourgois, Hoge, Josephine Ira Helen Hoge; Fristad, Hoge, William Clara Paul Hoge Marlys Hoge, Hoge, Norman Robert Riker, Hoge, Mor Jerome Catherine E. ris, Estate as Guardian of Person and Henry Sims, Hoge; May Alice of Jerome Entzel, Entzel, Wetz Mathilda Delilah stein, Borden, James T. McGil Katherine lic, McGillic, Blossom L. Claude A. Hender son, Zachmeier, Charles Soder Investment corporation, Co., Rail a Northern Pacific Company, way corporation, a Continental Company, corporation, Pure a Oil Company, corporation, Carter Oil a Phillips Company, corporation, Pe a Oil Company, corporation, Oil a Shell troleum corporation, Company, Farm Federal a corporation, Mortgage Corporation, Mor County, public per corporation, all ton through, claiming by, unknown sons viz., following persons, under deceased Hoge, Aldyth Ward, Bourgois, Gus Martin Bourgois, persons L. Helene claiming estate some interest or unknown prop lien or encumbrance complaint, erty Defend described in the ants-Respondents.
No. 7469.
Supreme Court North Dakota.
May 11, 1955.
Rehearing July 1, Denied *3 Strut?, & Fleck, Bismarck, Jansonius nn appellants.
for n CharlesD. Cooley, Mandan, plain- for tiffs-appellants. Benson, Atty. Gen., Paul and C. É. Brace, Atty. Gen., Asst. for ap- intervenor and pellant the State of North Dakota. Chapman, Rausch & Bismarck, for de- fendant Bourgois, Ervin individually and on behalf of all the heirs of Martin Bour- gois, deceased.
C. L. Young, Bismarck, for defendants Ward, Milan G. Birlea 0. Ward, Robert G. and the Ward heirs R. Ward, D. heirs of Mrs. C. Calloway, Mrs. A. J. Shute, Lincoln and the heirs Aldyth Ward.
Register Thompson, & Bismarck, for defendant Soder Investment Company. Cox, Cox, Engebretson, Pearce & Bis- marck, for defendants Continental Oil Company, The Pure Company, Oil Carter Company Phillips Oil Petroleum Company. BURDICK, A. Judge. District EUGENE quiet This is an action to title and to adverse claims to determine a tract of land surveyed platted “Bourgois Island” County. The plaintiffs allege Burleigh conveyance appropriate, by its Board State of June, Lands in University School Bourgois contend Island island in the Missouri present size grew its accre- deposits. The defendants alluvial tion deny allegations of by answer owner- ownership pro- allege bar. erosion of mainland plaintiff ship by the n twenty various ceeded eastward at a rate of virtue of about Island Bourgois n grants pat- per year forty rods until about title from the chain of which government. The time the east channel reached its federal entees of Thom, patented process farthermost limits. In George to the Hon. was tried action totally jury. lands claimed defendants were without Judge, Jr., District destroyed. fact, findings of As the east channel moved its con- made district eastward judgment the east side of the bar and order for lawof clusions formed the west bank of channel thereon in favor the east entered judgment was *4 grew against plaintiffs. progressively by imperceptively the and and the defendants -of deposit appeal process the of perfected by an of alluvion the plaintiffs have By bar, by accretion. and have demanded a the reason of judgment the from aggradation which occurs in the court. Missouri in this anew (cid:127)trial periods during water, high had of testimony shows that uncontroverted up been in point built elevation the where vicinity River in the of the Missouri the comprising it had become dry fast controversy southerly in a flows lands in capable several hundred acres and was of n direction. locality west bank of In this the being grazing agri- used for and other County and the east Morton is the river purposes cultural and had achieved the County. the Burleigh At time of bank stability and dignity This of island. survey, government in 1876 original the is evidenced the spring that in the fact the bank riparian lands on east were the year Depart- of the 1928 the State Land 1, 2, 1, 2, and of Section Lots Lots ment assumed control over island and Lot of Section Section .and 3 of leased it to W. F. and F. L. Schafer for Township Range 140 North of .33 in agricultural purposes for the season of Principal Fifth the West of Meridian and 1928. 4 in Township 1 of Section Lot 139 North n of Range 81 Principal West the Fifth time, In the course of spent the river surveyed These lots were Meridian. the lengthened its channel, force east government federal meandered on the west channel resumed the entire burden flowage to the plat to conform gradual- of the stream. The east channel The lots River. Missouri claimed ly up by filled sedimentation from the more eventually patented defendants were sluggish By 1942, current. the east chan- conveyed varying interests to the stopped flowing nel had altogether during defendants. periods water, of low but continued to flow year a sand bar during periods In about formed high water. Continued immediately Missouri River exposure high water increased ag- 2,1, and 3 Lots of said west of Section 34. gradation of the bed of the east channel deposit bar formed alluvial and added accretions to the mainland as bed .accretions the stream over- well as to the island so that the island and lying earth stratum of virtually joined had never the mainland became ex- patented previously been granted cept periods during high water. The Bourgois became the nucleus of and the Island. mainland maintained their recognized first comprised When the bar individual during character the time the twenty fifteen and between east acres. The channel of the river changed the stream navigable current of bifurcated destructive current to a a channel on either strip side of the bar. harmless of lowlands connecting the navigable channel has always A existed the mainland. At island to no time did n onthe west side of the bar. At about in the east channel of current the river appeared appreciably time the .same east chan- reverse its action erode the materially river nel commenced to restore to the erode mainland deposits by accretion, although on the east. River boats alluvial navi- mainland channels on both gated the sides evidence as the stream of the there is does flow, de- defendants do not nor alluvial contend ceased east channel to. defendants, establish evidence mainland posits restored .were they per- through whom claim or those have the island it and contact any pos- theory fected title adverse See illus- of the east channel. bed prescriptive use. session by the court. trative sketch *5 only and, contend sovereignty that while incident of The defendants conformable to predecessors in interest Section their' 47-0608 NDRC lands of that the title river, away by erosion of the to an island were which was formed washed alluvial accretions, navigable lands, been accretions to the a by alluvial have bed of stream dry identical the but location of which was fast restored at the time North the boundaries of which can former lands Dakota was admitted to the Union they and hence that be re-established have vested State North Dakota. contrary a of that title to the claimed The title of the any State plaintiffs upon theory of accretion's. lands below low water mark of conveniently ignores argument navigable stream is coextensive with rights, fundamental basis may bed of the stream itas exist from time by examining the we shall'- demonstrate necessary time. corollary This is a applicable light statutes of the facts rule that the owner of lands in this case. The defendants do not con- navigable to a stream owns title to the low does tend and the evidence not show water mark. Gardner v. Green and comprising State v. the alluvial accretions Bour- Loy, supra. otherwise, Were the rule gois gradually added im- Island were navigation dominion and control perceptively mainlands. to their (subject only state limitations of the preliminary statement, As it is Commerce Clause Federal Consti undisputed testimony tution), depend clear vagaries from the would on the prior holdings river, case and from of this the state permitting control where *6 Missouri, the navigable that is a the river adhered its course at to the time Green, stream in this state. Gardner v. of admission of State the the to Union and 268, 775, denying v. 67 N.D. 271 N.W. and State State river, control where the Loy, 182, process erosion, 74 20 in the subsequently N.D. N.W.2d 668. migrated patented submerged and lands. in 1953, Prior to amendment 47-0608 § This would lead absurd and to whimsical provided as NDRC 1943 follows: results. and
“Islands accumulations of land the beds of in formed streams riparian acquires which As the owner belong navigable state, to are if his title to additions to lands prescription title or is no reliction, there to the accretion he likewise loses contrary.” portions title to as are such eroded and away by navigable washed stream. Ober is, contrary course, provided by A rule 495, ly Carpenter, 67 N.D. 274 v. N.W. in case of a statute stream which 509; Waters, Am.Jur., Thus, 56 Sec. 477. navigable. Section 47-0609 NDRC 1943. bar, in the at as the case Missouri River also See Sections 47-0114 and 47-0115 submerged eroded and the mainlands on the NDRC 1943. river, including pat east .bank of the ented lands claimed defendants phrase “if there is no or title predecessors interest, utterly in their contrary” prescription in Section 47- depth destroyed such lands to the of the contemplates exceptions 0608 as arise mark, water channel below low the title island was when title to an vested in the submerged passed by operation to the lands upon government federal admission of the law North to the State of Dakota. Union or when the to the has state state Consequently, grew by the nuclear bar person, conveyed ato title was in done gradual imperceptible process case, or when a title the instant is estab accretion opposite from the shore possession ap lished adverse for the land erosion rebuilt where the sub period. prescriptive propriate merged been, lands had newly supra, Loy, it was In State v. held island that or accumulation land was built navigable under entirely upon lands title waters lands owned the State of in State North Dakota as North Dakota. vested
53 court, case, speaking time. In that for the defendants Thus, it is clear . Judge 495, 274 exceptions of Nuessle stated N.D. N. any of the [67 invoke cannot at the case W. 1943 to NDRC 513]: 47-0608 Section nucleus of that the reason for the that, “The defendants further insist land accumulation thus, any event, land added new as alluvial had formed thereto additions plaintiff’s, to the and to which land navigable bed of stream accretions to plaintiff 5473, claims title under section vested bed was the title to which beyond cannot line extend the section Loy, v. Dakota. State State of North 24 between section and 25 and section bar, from supra. as the nuclear Inasmuch 23 and 26. answer this first t.o developed, .had not Island Bourgois contention is that of the at the time at the time dry become fast survey this run section was not Union title admitted was north, of the river. second" The- Dakota. of North it the State vested conclusive answer is that the law supra. Loy, State v. governing rights regard has no boundary, lines, for artificial whether state is well-settled law It subdivisions, between sections or their determine in an action plaintiff counties, states, or nations. recover, quiet must title claims and adverse the illuminating opinion See of Mr. srength of his own if all, Brewer Nebraska [State of] Justice title of upon the weakness and not 359, 396, v. Iowa U.S. 12 S.Ct. [143 County, adversary. v. his Sailer Mercer 186], supra. also, See, L.Ed. Widde 206, 698, 22 A.L.R.2d 45 N.W.2d 77 N.D. Chiles, 195, combe v. 173 Mo. 73 S.W. 444, 309, 507; Am.St.Rep. 61 L.R.A. determined, be there- remains to There Yearsley Gipple, v. 104 Neb. fore, usual rules accretion whether 641, 8 636; Doebbeling N.W. A.L.R. may applied be to such an and reliction Hall, Mo. S.W. so as accumulation of land controlling A.L.R. 382. rule *7 upon owner of the confer the applies in may it the as instant be case all additions land title to accumulation of stated thus: is Where a water line from natural causes. formed thereto boundary given lot, line, the of a that shifts, no matter how it remains the provides NDRC as Section 47-0605 1943 (cid:127) boundary, and a the describing deed follows: by conveys number or lot name the land land from natural causes up “Where such shifting exactly to line as it upon imperceptible degrees by up conveys forms does to a fixed line and side stream, navigable or a river the bank of all accretion v. East thereto.’ Jefferis by navigable, either accumula- or not 178, Omaha Land Co. U.S. 10 S. [134 by of tion material or the recession 518, supra.” of 33 L.Ed. Ct. 872], stream, belongs the the such to rule, applied island, as an This to is subject bank, any to ex- owner of the correctly by Tiffany, stated Prop- 4 Real bank.” isting right-of-way over the ed.), erty (3rd Sec. 1228as follows: essentially foregoing statute is island, the case of an “In the same the common restatement of well-established applies as in the case of land riparian rights. rule governing law This rule by only, water applied bounded on one side aptly by rule this court was is, presumed the boundaries áre Oberly Carpenter, supra, where, v. inas vary any gradual change bar, with the to at the case tract of land out or, the land and the water controversy which line the arose was formed expressed, gradually by imperceptible the owner degrees it is otherwise as by avulsion, is, not entitled to land an island added its formation could particular not be the any by seen at accretion to same extent thereto moment only could of land on the bank or lapse be noted after the owner the of some 54 Accordingly, the mainland. mainland restored of both tracts.
shore
acquired by prescrip-
distinguished
situation must be
may be
since title
would
case at
where the
otherwise
accretions
an
tion to
island
and.
owner,
plaintiffs
relictions claimed
accrued
riparian
accretions
belong to a
pre-
island
belong to the
to the
to
mainland.
an island
to
and not to the
scriptive owner
expressed
succinctly
rule is
island
In case accretions
owner.
C.J.S.,
Waters,
Navigable
82,
subd.
meet,
§
eventually
cmd to the mainland
f, as follows:
said,
each, it is
owns
owner
contact, or, as
line
accretions to
“The
an island is entitled
owner of
it,
express
prefer
would
we
to land
thereto
added
accretion
islcmd,
as that
boundary
as the
of land
the same extent
owner
edge
shore
mainland,
as its
or
changes
If the
on the shore of
mainland..
is no
changes,
when there
amd
with
shore of
accretion
commences
island, owing
growth
longer
any
the island and
extends to
afterward
accretions,
whom
he to
mainland,
any
distance short
edge
its
to where
belonged owns
island
thereof,
belongs to
all the accretion
(Italics
visible.”
shore line was last
island; but,
the owner of the
if accre-
supplied.)
tions to the island and to the mainland
meet,
eventually
the owner of each
232,
Cox,
Naylor
114 Mo.
v.
Citing
line of
owns
accretions
589;
Hodges, 112 Iowa
v.
Holman
S.W.
contact.”
673, 84
950, 58
Am.
714,
L.R.A.
84 N.W.
367;
Golden,
Cooley
117 Mo.
St.Rep.
v.
Am.Jur., Waters,
also 56
See
Secs. 489
300;
100, L.R.A.
and Fowler
33,
23 S.W.
Waters,
C.J.S., Navigable
and 65
Wood,
763, L.R.A.,
P.
73 Kan.
Navigable
d(2),
C.J.,
subd.
§
N.S., 162, 117Am.St.Rep. 534.
Waters, p. 527, n. 55.
an island arises in a navi
Where
Blachnik,
449, 274
In Waldner v.
65 S.D.
riparian owners’
apart from
gable river
837, 839, the basis of the claim of
N.W.
bar,
land,
case
such owners
controversy
plaintiffs
the land
claim
thereto
reason of their
cannot
right
rested
an asserted
to accretions
rights, though the
is after-
appeared
forming from a
bar which
sand
land,
it
their
did not
joined to
since
wards
extremity
place
over the
where the western
part
gradual
thereof
accretion
become
been
was washed
an island had
before it
*8
reliction from
to or
shore. Holman v. away.
away
As
river moved
from
supra;
Dawson,
Hahn v.
Hodges,
134 Mo.
bank
mainland on the north
accretions were
233;
Smith,
581, 36 S.W.
Crandall v.
the new island and the
causing
612;
633,
Russell,
36 S.W.
Buse v.
Mo.
The
mainland to meet.
defendant claimed
209,
upon
principle
214. It is
Mo.
that
in
title to the accretions
of his land
front
the cases
many of
cited
counsel for de by
ownership
reason of
of the
position
sustain
fendants do not
their
court,
rejecting
mainland.
in
The
the de
Typical
bar.
of
at
these cases
case
are
contention,
fendants’
stated:
Curran, 41
73,
S.D.
v.
Allard
N.W.
761;
Gipple,
88,
Yearsley v.
104 Neb.
“The fact
that accretions to the
636;
641, 8
eventually
A.L.R.
and
Dailey Ryan,
N.W.
v.
to the mainland
58,
concur. deeming JJ., JOHNSON, SATHRE participate, disqualified did not themselves SAD, BROSTE, BURDICK A. Appellant, EUGENE Paul Plaintiff JOHN sitting stead. in their Judges, District FARMERS UNION ELE CO-OPERATIVE Rehearing for Petition On Parshall, VATOR COMPANY Ahlgren, F. W. Defendants BURDICK, Respondents. Judge. District A. EUGENE *9 No. 7450. petition for have filed a respondents that the they suggest rehearing Supreme Court of North Dakota. statute, controlling overlooked has June 1943 which reads NDRC 47-0610 Section follows: stream, navigable or not “If a arm forming itself a new
navigable, land be- and surrounds itself divides of the shore and the owner
longing to island, the island be- forms
thereby owner.”
longs