*1 Respondent, PERRY, Plaintiff and M. Isabel Margaret Erling, ERLING, H. P.
James Erling Erling, Phillip Margaret H. James Vogel, Philip B. as Executors of the Deceased, Erling, of Herman C. Estate Gladys Fox, Erling, Fox, Rose Marie Jack Appellants, Defendants City Bismarck,
Park District of the corporation, Defend Appellant, ant and al.,
Warren et Defendants. Whitson
No. 8161.
Supreme Court of North Dakota.
Jan.
Rehearing Denied Feb.
tiff, Perry. Isabel M. A de trial novo is demanded. City
The defendant Park District of the Bismarck, public corporation, appeals, that contending Perry action should have dismissed for the reason that the contested land is owned the United States Government. Defendants Erling et appeal, al. contending that title to the land quieted should be in the executors of the last will of Erling, Herman deceased, C. strength of their counterclaim. Perry, plaintiff, claims that Mrs. she of all formed as alluvion is the owner Quarter Section to the Northeast Township Range situated 138 North of Dakota, County, Burleigh con- North extending of that west from sisting the western Northeast of said Quarter to the east the Missouri bank of claims that low water mark. River at She alluvion, built tract of land said Quar- Northeast process of accretion land be- that said and ter of Section grantee a deed her as the longs to Quarter. She of the Northeast the owner Northwest acknowledges that the fractional correctly de- Quarter of more Section as the East Half of the Northwest scribed Quarter and Lots and Section Bismarck, Bucklin, for Zuger & Zuger, Quarter of fractional Northeast and the District appellant Park defendant as Lot correctly more described Section Bismarck. City of as were in existence 1 of Section sur- originally when the land was domain Bismarck, defend- Mills, for R. William veyed that Lots 1 and Section Erling, Mar- P. appellants ants James riparian; Lot 1 of 8 and Section 7 Erling, Margaret H. Erling, and H. garet these lots and the East Half of the Vogel, Philip B. Erling, Phillip James Quarter in- 8 were Northwest of Section Erl- C. Herman of Estate Executors tervening tracts Northeast between the Fox, Fox, Gladys Deceased, and ing, Jack Quarter of Section 8 on the east and Erling. Marie Rose west; Missouri River on the and that Bismarck, plain- Higgins, Milton K. Quarter therefore the Northeast of Section respondent. tiff 8 was not land at the time of the original survey.
ERICKSTAD, Judge. between sometime contends She separate appeals River present have Missouri In this case we two time the and the December, 1963, inter- eastward, judgment all of from a entered moved County, Burleigh the Northeast the District Court of land and vening some plain- erosion, whereby the Quarter quieting title certain land in the was lost Quarter beyond portion intervening the Northeast tracts and some distance remaining as the river those tracts receded to west. riparian, and that 8 became of Section by imperceptible thereafter land was rebuilt reproduction is a following *3 Quarter, ex- Northeast degrees pertinent portion to the said plat original of a survey government former tending the locations of the of 1872.
The defendant Park District contends land in re- that thereafter contest was plaintiff prove by imperceptible that the failed to that all of degrees built accretion the intervening Quarter land was lost erosion the Northeast of Section 892 proved, 507; Am.St.Rep. L.R.A. 96 even if this Wood maintains McAlpine, 85 Kan. nonriparian owner at the v. Pac. plaintiff, a 1060; Wood, survey, Fowler v. could claim Kan. time only (N.S.) the bound- Pac. L.R.A. accretions within title 534; Am.St.Rep. Naylor Quarter Cox, 114 ary lines of Northeast Sec- Mo. S.W. Peuker v. tion and that all other accretions extend- Canter, Kan.
ing across the Pac. 617.” western said Payne Hall, Quarter 192 Iowa Northeast Missouri River on 912, at 915. west became the of the owner of the former intervening land. In an Iowa decision rendered in *4 said: court reads as fol- accretions statute on
Our
:
“
lows
*
**
Right or wrong, it is well
established that
lands
riparian
of a
Riparian accretions.—
“47-06-05.
owner
subject
are as
to being
by
forms
land
lost
c'auses
natural
Where
gradual process
of erosion by the
upon the bank
degrees
imperceptible
by
they
river as
are of being
by
or not
added to
stream, navigable
or
a river
process
of accretion.
We
said
accumulation
by
navigable,
Payne
Hall,
v.
780,
Iowa
783,
recession
material
912,
914: ‘Where the
the owner
lands of a
stream,
belongs
land
riparian owner are
existing
removed
bank, subject
gradual process of
erosion
river,
North
way
the bank.”
right of
over
the land being no longer capable of
Century
Dakota
Code.
identification, but having been carried
been asked
has not
this court
Heretofore
away entirely, and the river occupies,
situations
to factual
apply this statute
space
identical
formerly occupied
of other
decisions
The
case.
similar
by the lands of the riparian owner, the
comparable
considered
which have
courts
title to the land
occupied
by the bed
contended
The rule
in conflict.
are
facts
passes
river
from the owner of
early
”
by an
stated
plaintiff is
the land to the state/ Wilcox v. Pin
of cases
cites a number
decision
Iowa
ney, 250
1378,
Iowa
720,
N.W.2d
support thereof.
at 723.
Supreme
Nebraska
expressed
Court
that,
law
be the
appears
“It also
its version of the rule in Wemmer v.
owner
riparian
aof
lands
where
Young:
eroded
gradually
slowly and
have
the river
stream, and
by gradual
“If
erosion a river be-
location
up
usurped
taken
land,
has
comes the
the owner
land,
riparian owner
riparian
said
is a
thereof
owner
en-
and is
bank
river
newly formed
at the
land
titled to all accretion thereof.
If
the accretions
entitled to
process
becomes
accretion and reliction
against said
may thereafter be formed
recedes,
the water of a
gradually
stream
extend
bank,
they
though
should
changes
even
the channel of the
territory
dry
previously
same
the land
leaves
that was
riparian
been lo-
submerged by water,
former
owner had
the land becomes
place.
riparian
cated before the erosion took
owner.
* * *
Yearsley
Gipple, 104 Neb.
v.
en-
of a river which cuts
erosion
88,
641,
8 A.L.R.
Welles
tirely
across
land and into the
Bailey,
565, 3
operates
v.
55 Conn.
10 Atl.
adjoining
land of an
Am.St.Rep.
destroy
the title of him whose land
Widdecomb[e]
Chiles,
173 Mo.
originally
was
and he
S.W.
reassert his title if the river reverses
fully
her,
her land had been
restored to
wanderings
its
and new
traverse
she had all that she was entitled to or
formed within
what
his
in good conscience could demand.
* * *
Crowell,
boundaries.
Worm
What seems to us to be the rational
applicable
Neb.
87 N.W.2d
rule
they
[165
384].”
facts
Young,
appear
Wemmer v.
167 Neb.
in this case is that announced
City]
N.W.2d
at 848.
Shriver,
Association v.
[Ocean
N.J.Law,
46 Atl.
51 L.R.A.
leading
decision propounding
supported by
425. This case is
a for-
view,
defendant Park District’s
the Su-
array
midable
of authorities which are
preme Court of
Dakota said:
South
opinion
collected
reviewed in the
Canter,
“In Peuker v.
62 Kan.
ap-
the court and cited in
note
Pac.
Missouri river
washed
pended thereto in 51 L.R.A. These
away
of the tract
fully
appellant’s
cases
sustain
conten-
to the river and for some distance into
tion.
appellant’s
believe
We
after
the more remote tract. The river then
had been restored
the action of
accretion,
and, by
receded
restored all
river,
capable
being
of identifica-
*5
precisely
both
tracts
as was done in
tion,
belonged
appellant
it
and should
Supreme
this case. The
Court of Kan-
though
treated as
it had never been
sas followed the rule announced in
submerged
Curran,
at all.” Allard v.
Bailey,
Welles v.
Conn.
A.
[55
S.D.
N.W.
at 761-762.
* *
565, Am.St.Rep.
*. This
48]
It should be noted
Nebraska
appears,
rule
indicated
as is
some
year
court in
following the Allard
above-quoted language,
to have
case,
Assn.,
said
in
City
that Ocean
the case
sprung
that,
from the fact
when the
which
approval,
Allard cites with
there is a
riparian
destroyed
estate is
and carried
misconception as to the rule laid
in
down
away,
line between that
Lord Hale’s De
Maris. The court
adjacent
and the
is
estate
obliterated
Juris
City
holds that
the rule stated in Ocean
lost,
that,
case
in
of restoration
Assn,
portion
is from that
of De
reliction,
or
accretion
there
no
is
Juris
dealing
Maris
with the
retreat
way
estate,
sudden
identifying
original
applicable
sea and is not
to “cases of
and therefóre it is deemed
have
pure
Yearsley
Gipple,
accretion.”
v.
entirely destroyed
But
and lost.
no such
Neb.
895 ian owner of south bank Missouri Oberly Carpenter, court said: v. this River. defendants further insist “The 1955, court, determining in title this land thus added any event, the new accretions of an between island plain- to which plaintiff’s riparian owner, a this and mainland had 5473, can- section tiff title under claims say: be- beyond line the section not extend 23 25 and section tween section 24 and in naviga- “Where an island arises this answer and 26. The first apart ble river owners’ time the sur- that at contention bar, land, as in case at owners north vey not run this section line was cannot title claim thereto reason of river. second and conclu- riparian rights, though their the island govern- the law sive answer land, joined is afterwards to their since for ing riparian rights regard has no part it did not become thereof lines, be- whether artificial boundary gradual accretion to or reliction from subdivisions, their tween sections or * * * Hodges, Holman shore. v. states, counties, or nations. or between 714, 950, Iowa 84 58 L.R.A. N.W. [112 opinion Mr. illuminating See the 673, Am.St.Rep. 367]; 84 Hahn v. Iowa, v. Brewer Nebraska Justice Dawson, 233; 581, 134 Mo. 36 S.W. * * * 396, 359, 12 U.S. S.Ct. [143 Smith, 633, Crandall v. 134 36 Mo. S.W. See, 186], also, 36 L.Ed. Widde 612; 209, Buse 86 Mo. Russell, v. Chiles, Mo. S. combe v. 173 73 upon It principle many Am.St.Rep. L.R.A. 96 W. 61 cases cited counsel defend- 507; Yearsley Gipple, 104 Neb. v. ants position do not sustain their 641, A.L.R. Doeb Typical case at these bar. cases al., beling v. Hall 310 Mo. et Curran, are Allard v. 41 S.D. 1049, 41 382. The con- S.W. A.L.R. 761; Yearsley Gipple, N.W. trolling applies rule instant as it Neb. A.L.R. may be thus: case stated ‘Where Dailey Ryan, S.D. N.W.2d given water line is See also A.L.R. 41 A.L.R. *7 lot, line, shifts, that matter how it are These cases where the Mis- de- boundary, remains the and a deed souri River away washed of a tract the con- scribing lot or name number riparian that was to river and for the veys up shifting the land line to such some distance into a more remote tract exactly line up as it to a fixed does side and the thereafter river receded and conveys and all accretion thereto.’ gradual accretion to or reliction from Company, East Land v. Omaha Jefferis the mainland of restored all both tracts. * * * 518, 178, 10 U.S. S.Ct. [134 This distinguished situation must be Oberly Carpenter, 33 L.Ed. v. 872].” from the case at bar where the accre- 495, 509, 67 N.D. 274 at 513. tions plain- and relictions claimed the tiffs to the accrued island not to Oberly contest a involved a between the Hogue Bourgois, mainland.” v. riparian north side of the owner the N.D., 71 N.W.2d at 54. riparian Missouri River on the and a court, effect, in In Hogue, opposite south held that in side. land accreted two accretions to the bank of the Missouri directions, north to an island in the Missouri riparian River River became the the the to mainland on the east. river, owner of the north side of the even Under the those circumstances court held though extended, the the accretions that the owner of each owned accretions to south, the an course moved As river’s to line of contact of the accretions. formerly occupied by ripar- result, area land island owner became the owner
$96 island, should, possible, which to the and the statute if
(cid:127)of the land accreted in included built over construed accordance although it land a loca- therewith. pursuance object formerly occupied by general giv- tion land of the ing riparian legis- owner. effect to the mainland intention of lature, courts are controlled holding of an in that the owner island meaning language the literal n -a navigable river entitled to lands added is statute, spirit or intention by accretion, Supreme Court thereto prevails of the law over the letter there- said owner’s South Dakota island of, being recognized it generally rights with were commensurate those spirit whatever is within (cid:127)other owners. v. Blac Waldner statute is within although the statute hnik, 837, at 65 S.D. thereof, not within the is letter while letter, although that which is within previous of our decisions review 47-06-05, spirit, not within the not within applied we have Sec. discloses that given N.D.C.C., statute. will accretions, disputes Effect real though contrary intention even riparian according to the between owners letter of the law. original survey to the Government and to dispute of land between owners according “The rule of construction according to the Government sur- spirit especially the law vey in and the owner of an island applicable where adherence the letter stream accreted. The had absurdity injustice, would result in pertinent question presented here is whether * * 82 Statutes 325 § C.J.S. applies statute the instant case (1953). original riparian divest the owner of title prevent vesting him of title Hughes, See also: Holmes v. Cal. the land rebuilt where his former land was 149; App. 290, Collins, 14 P.2d Wallen v. located. 801; 6 W.W.Harr. 36 Del. 173 A. It language contended Klein, that the of the Weybright v. 104 Colo. P.2d unambiguous; 734; statute clear and Examiners, Leo v. Board of Medical applies instance; clearly statute 1046; Cal.App.2d 490, Appeal P.2d only meaning is, that it has one and that Chung, 846; People 44 Hawaii P.2d that accretions to Hale, 660; bank of a stream Cal.App.2d v. 319 P.2d belong to the owner of the bank. Montoya McManus, 68 N.M. Williams, App. P.2d State v. 94 Ohio however, We, believe that the language of 36; Sculley 115 N.E.2d City clear, attempt- statute is not Philadelphia, Pa. A.2d ing apply the statute facts of this Metropolitan *8 City District v. of Utilities case, question immediately a arises. Does Omaha, 171 Neb. N.W.2d the accreted land belong to the bank or according owner original to the Recognizing previous that court this survey or to the bank owner of the at that involving apportionment decisions and divi- moment in process time when the of erosion equities sion of accretions has considered the process terminates and the of situation, accretion of believing the the and that begins. Legislature the would have intended not unjust divesting ri- result of title in the clear, Because this duty is not it is our parian owner a non- giving forever and to attempt to determine the of intent the riparian owner title land to the rebuilt where Legislature in enacting this statute. original riparian the former land of the so doing, we must construe the statute. opinion our located, was that statute, “In construing spirit the Legislature the did not intend statute this of the enactment be must considered to extend to this case. applicant, the providing conclude that where be issued to notice therefore
We application published any the of riparian at the time of the be and ob- land which was jections original by erosion, parties that other survey so of filed after notice is lost riparian, land nonriparian ap- and thereof be determined in land becomes favor the plicant, land providing purchase money is thereafter accretion to built and the nonriparian, paid. originally extending which was The defendant Park District de- formerly posited occupied by over the purchase price location as the full $660 original riparian land, land proper published. the owner of the had the notice Plaintiff nonriparian Perry title originally Erling has and defendants et al. filed objections. only objections to the hearing accreted land within the bound After tract; formerly nonriparian aries of Bureau of Land Management, writ- accreted, extending 8, 1962, and that all ten other land decision dated denied the June occupied Perry formerly over the area claims by the et Erling al. to the original owner, objections their becomes to the issuance patent owner of Perry Park District. did appeal decision, controlling Erling land. As al. et quarter appeal provided line in the line did instant within case is the time Quarter between Department the Northeast the Federal law. The of the In- Quarter terior, through Ap- Northwest fraction of Section Branch of Land peals, difficulty determining Appeals, by there could be Division of no written respective January 24, extent of the decision dated accretions affirmed plaintiff’s previous Erling tracts. For reasons the these decision. 'et al. have complaint appealed Secretary action fails and the must further Interior, provided by dismissed. as Federal law. decision appeal on this last has not been now turn claim We our attention to the rendered. title Erling of the defendants et al. that quieted should be in the executors of agree Under these circumstances we deceased, will Erling, last of Herman C. jurisdiction court does this not have They their counterclaim. claim adjudicate title as the defend between acquired Erling Herman C. title to ants in case. Quarter Northwest deed through fraction Farris, acquired, who Katherine B. provided “Congress has there property through title to the deed a tax Department shall be in the of the In- proceeding. terior a Commissioner the General perform, Land who Office shall under District, defendant Park Secretary the direction of the hand, contends, among things, other other Interior, apper- all executive duties jurisdiction that this court has a mat- taining to the surveying and sale ter which the land office under Sec- public States, in the United retary jurisdiction. of the Interior has wise respecting such patent lands, also, private the instant case no has relate to Quarter land, issuing pat- issued to the Northwest fraction claims and the August grants authority Section On de- ents under the *9 applied authority Park government. fendant District to United of the This America, government, under consisting States the Recreation of the Gen- 1926, 14, Purposes Secretary .and Public Act of eral Land Office with June patent. By head, commonly decision dated December the Interior at its 21, 1961, Management Department. of Land the Bureau to as referred the Land Department (cid:127)of the approved department special Interior is a tribunal application patent and ordered that a and is substan- vested statute with
898 possession jurisdiction to deter- and hold the
tially exclusive
land as a home
instance,
questions
stead,
mine,
notwithstanding
McCurdy’s
in the first
Mrs.
disposition,
entry.
respecting
Manifestly
possession
fact
her
can
public
acquisition,
alleged
and control of
not be disturbed
her
unless
lands,
long
legal
right
title thereto
as the
is held to be
That
unfounded.
States;
question
which,
in the
is one
under the
remains
United
cir
pending
case,
in the
matters are
cumstances of
while such
the courts have
Department,
jurisdiction
are without
the courts
to decide. That
is a
thereof,
question
in
absence of
jurisdiction
which is within the exclusive
”**
jurisdiction
specifically conferring
Department
statute
it.
of the Land
to
(1942).
long
disposition
42
Lands Sec. 57
decide so
Public
as the
Am.Jur.
land is under the control
fed
quoted Supreme
Court of Iowa
Department.
eral Land
Le
Grandin v.
Nichols,
approval
in
above with
State
Bar,
446,
3 N.D.
57
[La
S.[N.]W.
Bar]
49,
952,
241
at 55.
Iowa
44 N.W.2d
*
* *
241; Martinson v. Marzolf
301,]
N.D.
103
Court,
Cosmos
Supreme
[14
The United States
Exploration
[Gray Eagle]
Co. v.
Oil
require
petition
the Sec-
for mandamus
Co.,
301,
692,
Sup.Ct.
U.S.
retary
the Commis-
the Interior and
Sup.Ct. 860,
L.Ed. 1064.” Zimmer
approve
Land
sioner of
General
Office
McCurdy,
79,
man v.
15 N.D.
claims,
pass
patent
said:
certain coal
125, at 126.
River
“In
ex
States
rel.]
[United
Erling
Defendants
et al. contend
Hitchcock,
side
Co. v.
190 U.S.
Oil
although
patent
to this land is
re-
not
316,
698,
1074, it
Sup.Ct.
47 L.Ed.
corded,
issued,
it nevertheless was
as in-
Congress
was said that
has constituted
warranty
dicated
deed issued
Department
the Land
the administrator
General,
Williams,
Surveyor
A.
Erastus
and for the dis
in
significant
1882. It is
to note here
duty
charge of this
invested it with
the deed referred
to was executed Wil-
judicial
are
sub
functions which
liams,
Surveyor General,
not as
in his
ject
injunction
or manda
review
capacity,
individual
conjunction
in
his
with
repeated
applied
mus. This was
wife. The abstract of title shows no con-
in
ex
Ness v.
States
[United
rel.]
nection between
Williams
his duties
Fisher,
Sup.Ct.
223 U.S.
Surveyor General,
as the
nor
it in-
does
KNUDSON, J., participate. did not are providing still in force for methods of disposition of the beds of streams. TEIGEN, Judge specially). (concurring provide These statutes navi- *11 boundary the of such lots was because new abandon- course forms gable stream bed, as the line of the stream. the the land fixed shore owners of ancient ing its indemnity by way of occupied take newly words, bordering other fractional lots abandoned, propor- each in the bed ancient navigable extend low on a stream to the de- he has of which land tion the des- where it is not watermark otherwise 47-06-07, ; N.D.C.C.) that prived (Section ignated and a vari- the stream constitutes formed islands and accumulations vagaries- boundary dependent upon able the navigable which are the of streams beds of the stream. title or State, is no if there belong the (Section contrary 47-06- provided prescription the laws of the United States natural following ascertaining where from N.D.C.C.); that rules degrees imperceptible public lands had been boundaries of that causes land forms stream, either surveyed by surveyor general. These a river or upon the bank re- by the survey in. of material or rules existed time of at the accumulation belongs stream, such land case. cession of the bank, subject exist- the owner “The boundaries and of the contents (Section way the bank ing right sections, half-sections, and' several except N.D.C.C.) ; when 47-06-05, lands, public quarter-sections of held grant which the land under conformity with shall be ascertained intent, the owner indicates a different principles: following navigable on a upland, it borders when edge takes to the lake or corners marked in “First. All the watermark, provided, or at low surveys, surveyor- lake stream returned shall however, navigable rivers that all general, established as the- shall be highways sections, deemed proper remain and be subdivi- corners of or recog- 47-01-15, N.D.C.C.). (Section sections, they in- sions of were reservation, our stat- nition Federal designate; tended to the corners- ownership of land provide sections, utes quarter half and mark- of land ordinary high surveys, below watermark placed ed on the shall as be or navigable lake of a nearly possible equidistant below the water two as from laws regulated stream corners which stand on the same line. States, as under such laws United or boundary-lines, actu- “Second. The assembly authority legislative thereof the ally surveys run and marked may 47-01-14). (Section enact surveyor-general, returned shall held in cases that This has several court boundary- proper be established as is not line the meander line subdivisions, sections, lines of the or upon a abutting but tracts of intended, for which they Heald v. stream the shore line. run to lines, returned, length of shall such Gard Yumisko, N.D. 75 N.W. the true be held and considered as Green, ner v. 271 N.W. 67 N.D. boundary- length And the thereof. Oberly Carpenter, 67 N.D. actually run lines which have not been ascertained, by be marked shall straight below the estab- the State lines running title of opposite corre- low stream lished corners to watermark of corners; portions sponding stream as those the bed of the coextensive with townships North Dakota was admitted fractional when existed opposite corresponding corners and such as a State in Union fixed, the bound- occurred have been can changes therein as since have ary-lines run- at the shall ascertained thereon bordering within the lots ning corners due from the established original survey. time *12 lines, Dakota, Wyoming or and west north and south east pass shall not he, water-course, impairing rights the law as the case may private the of ** boundary-line, property, or other external Indian township.” boundary of such fractional incongruous It would be to reason that 313, Chap. at L. Rev.Stat. Stat. legislature the territorial enacted the law 43 U.S.C.A. § § on accretion premise on the govern- that statutory rule con- mental by It a well-settled subdivisions govern- bounded survey be mental sides, struction that a statute must construed lines on all four concerning by whether with reference other statutes owned the United States or patented subject part owned, same matter or a of the the privately could be lost territory system legislation, same the the general by the encroachment there- may by judicial navigable notice the on a courts take river. they
history
en-
times when
were
It is
significant
statute,
also
that no
either
Village
Fargo
City
acted.
of North
State,
territorial or
providing
was enacted
Fargo, 49 N.D.
with the Constitution laws of bordering upon fractional lot owner United States. But law shall might stream for losses which suffer he passed primary interfering with the stream; action of the and that Section * * disposal soil; N.D.C.C., *.” 47-06-06, provides the fractional opportunity indemnity lot owner an provided: Section 1925 portion the event a his land should upon “In addition to the restrictions occurring lost as a result of avulsion Territories, legislative power land taken stream is identifiable. Where, chapter, however, contained the preceding subdivisions are bounded eighteen fifty-one, hundred and by government section on all four sides subdivision Colorado, lands, statute, legislative assemblies of lines and are remote Syllabus upon of such applicable. the stream No. 3 47-06-05, supra, is not Section which reads : governmental sub- case of such The owner below own the land continues division *13 riparian patented “As lands to by ero- the the water navigable stream are eroded wash- and land, avulsion, upon sub- his comes sion or by away the and ed the action of water Federal reservation ject to the however submerged below water become low purpose of com- use for the control submerged the title to such lands mark Therefore, stream the when merce. passes by operation to of law the State course, the follows the easement its changes of North Dakota.” occupied the streams by geographical area up as the again case, built the lands are applicable, applied but when it is as in that orig- the changes course to stream its back only to one the fractional lots bounded on bed, over easement governmental inal the by the side the stream. The accretion to occupied temporarily geographical the area rights island the thereto were commen- the the easement follows lost because equal surate and with those of the words, In the other course of stream. owner because both were owners navigable by N.D.C.C., stream and, therefore, 47-06-05, when lands are taken Section riparian at the time of the which were not applied. Blachnik, S.D. See Waldner v. original survey but were remote and identi- by lines fiable subdivision governmental navigable the title to lands under thereof, such sides owner of four waters received as an incident State right lands and has a is owner fee disposed sovereignty can be pei'manently surface and to everything State, subject rights however to the it (Section situated beneath or above 47- public paramount in such waters and to the 01-12, N.D.C.C.), and when the power Congress navigation as to control lands, he still stream moves over onto such may regulation far be for the necessary subject owns it to the Federal but becomes elected, by of commerce. Our has State government’s and con- easement to the use enactment of statutes accretion and navi- trol of the waters for commerce above, permit avulsion referred ownership gation. He does not lose title or disposal in the title interests governmental sub- the bed within the justice, subject natural however occupied by the stream but the division rights in the waters and the subject submerged land the easement. power Congress navigation so to control again changes its course When the stream necessary. far as restored, and the lands are burden acquire is relieved and he does not easement beyond governmental restored lands STRUTZ, J., concurs. survey, line subdivision as establish
whether it be restored accretion or BURKE, Judge (dissenting). otherwise. majority Concededly the decision harmony with is in former reasoning weight of contrary to in this case cases land and decided this court. The Corpus case in the United States. law geographical Oberly area involved it is stated: Secundum Juris Carpenter, supra, majority cited originally not opinion, a tract only involved fractional subdivi- "Where upon or other navi- contiguous to stream sions bordered the stream at which body gable of water becomes original survey and the time of away of through the gradual washing into the Union. admission State N.D., bound- Hogue Bourgois, intervening an tract so 71 N.W.2d bordering destroyed, the rule ary line is fractional lots also commonly presented accepted theretofore argued to more appears coun- sel considered peti- is that such tract becomes this court. The accretions, though tion is even is entitled to therefore denied. extend the location of
they boundary line.” former 65 C.J.S. TEIGEN, STRUTZ and JJ., concur. Navigable p. Waters § law weight given to be case Were case, only guide decision I minority might that the rule agree well *14 circumstances, and, in most
better reasoned promotion justice.
more conducive to however, view, rule which my “the commonly accepted” appears has to more Lloyd NELSON, A. Morris F. Nelson and O. adopted by this been statute in State. Anderson, K. Respondents, Plaintiffs and provides: Section 47-06-05 NDCC COMPANY, DAKOTA BANKERS TRUST from natural causes “Where also known Bankers State Bank upon degrees by imperceptible forms Company Fargo, Trust Dakota, North stream, navigable of a river or the bank corporation, Appellant. Defendant and navigable, accumula- or not No. 8153. byor
tion of material the recession belongs such land Supreme Court of North Dakota. bank, subject owner of the Dec. 1964. right way existing bank.” Rehearing Denied Feb. has been the law of Dakota statute North Dakota Territory the State of my opinion,
at since least
language un- of the statute is clear and
ambiguous. unequivocally It states belong
accretions of a stream bank
to the owner the bank. The con- statute limitation,
tains words restriction or
qualification. It is not concerned with how when owner of the bank becomes bank, my opinion and in
applies to an owner who becomes such
having upon the stream encroach land to has he title as well toas those who
acquire ownership bank a stream
in any way. other I upon no basis see which to found
judicial language modification of the clear
of this statute.
On Rehearing. Petition for
ERICKSTAD, Judge. petition
A rehearing has filed in presents nothing case. It