Frank B. McSHAN, Maggie L. McShan, Clesson W. Kerr and Leona W. Kerr, Appellants,
v.
Charles B. SHERRILL, Mary Y. Sherrill, William L. LaFollette and Susanne H. LaFollette, Appellees.
No. 16538.
United States Court of Appeals Ninth Circuit.
October 26, 1960.
Shute & Elsing, W. T. Elsing, Lewis, Roca, Scoville, Beauchamp & Linton, John P. Frank, Phoenix, Ariz., for appellants.
Cunningham, Carson & Messinger, William H. Rehnquist, Phoenix, Ariz., for appellеes.
Before POPE, MAGRUDER and KOELSCH, Circuit Judges.
MAGRUDER, Circuit Judge.
Appellees own land which at one time bordered on the east bank of the Colorado River. The river has since shifted to the west, and appellees claim the land now lying bеtween their property and the present river bed on the basis of accretion. Appellants dispute that claim; and they have attempted to prove that the change in the river bed was perceptible and sudden, it having been agreed that accretion occurs only upon a gradual and imperceptible shifting of a river. See State of Oklahoma v. State of Texas, 1923,
"I.
"Plaintiffs are the owners of the lands described in their Amended Complaint. * * *
"II.
"The accretion lands described in Finding I were formed as a result of a gradual shifting of the Colorado River in its flood plain to the West over a period of years."
On the basis of these findings, the court entered a judgment declaring that appellees are the owners and entitled to the possession of all such property, and further decreed that the appellants had no right, title, interest оr estate in any of said property and that they be forever barred, estopped and perpetually enjoined from claiming any right or title to any part of said property аdverse to the appellees. A timely motion to vacate the judgment and for a new trial was thereafter made by appellants and denied by the court. Subsequently, on a motion аsking that the court reconsider its order denying their prior motion or, in the alternative, that the court grant relief from judgment under Rule 60, Federal Rules of Civil Procedure, 28 U.S.C.A., appellants assertеd for the first time that there was an absence of indispensable parties; that owners of land located between that of appellants and appellees, which land was dеclared by the court to have become appellees' property by accretion, had not been joined. In support of their assertion, they produced an affidavit by a deputy county tax assessor for the county in which the land was located stating that certain property covered by the court's decree was recorded in the name of Monaghan & Murphy Company and that all taxes on said property had been paid by said company; and that other property covered by the decree was recordеd in the name of The McNee Company and that this company has paid taxes on that property. Appellants brought to the court's attention the fact that one of the maрs which had been introduced in evidence upon a stipulation conceding its competency showed such property to be owned by these absent landowners. The district court denied the motion. Appellants on this appeal reassert their claim that indispensable parties had not been joined and also make certain assignments of error going to the merits of the case.
The complaint filed by appellees asked for a declaration that they owned certain land, including land which may be owned by persons not before thе court. The district court granted the relief requested, and thereby placed a cloud upon the title of the absent landowners. A decree so affecting the interests of persоns not joined as parties is improper. As was said in Stewart v. United States, 5 Cir., 1957,
Appellees complain of appellants' delay in raising the objection and of the nature of the evidence supрorting it. The absence of indispensable parties can be raised at any time, however, even by the appellate court on its own motion. Haby v. Stanolind Oil & Gas Co., 5 Cir., 1955,
This court has a duty to protect absent persons who will be affected by the lower court's decree, аnd our inquiry to determine if such persons may exist should not be hampered by the evidentiary rules appellees would impose. They complain that the affidavit and map appellаnts rely upon are not competent evidence from which we can conclude that non-joined indispensable parties exist. A motion after trial to dismiss for want of jurisdiction may be supported by affidavit, Page v. Wright, 7 Cir., 1940,
Having concluded that there may be indispensable parties who have not been joined, we do not reach appellants' assignments of error going to the merits of the case.
The cause is remanded to the district court with instructions that appellees be given an opportunity to join any persons owning or claiming title tо property which their complaint alleges accreted to their land, and, upon such joinder, that appellants' motion for a new trial be granted. If such persons exist and arе not accessible to service, or if their joinder would oust the district court of jurisdiction, the case must of course be dismissed. If the trial court upon remand of this case should after evidеnce taken find that there are no owners of the land involved in this suit who have not been made parties herein, the court would, it is assumed, again enter the same or similar judgment based upоn its original findings and such additional findings as it may make after remand. Any aggrieved party would then be at liberty to bring to this court upon appeal any appropriate question for review. If this is done, the parties should be permitted to submit such further appeal upon the present record in this court, supplemented to the extent necessary by certification of the record of such further proceedings.
A judgment will be entered vacating the judgment of the District Court and remanding the cause to that Court for further appropriate proceedings consistent with the views expressed in this opinion.