The opinion
BURKE, Judge
(dissenting).
Concededly the decision of the majority in this case is contrary to the weight of case law in the United States. In Corpus Juris Secundum it is stated:
"Where a tract of land originally not contiguous to a stream or other navigable body of water becomes so through the gradual washing away of an intervening tract so that the boundary line is destroyed, the rule which *903 appears to be more commonly accepted is that such tract becomes riparian and is entitled to accretions, even though they extend over the location of the former boundary line.” 65 C.J.S. Navigable Waters § 87, p. 189.
Were the weight to be given to case law the only guide to decision in this case, I might well agree that the minority rule is better reasoned and, in most circumstances, more conducive to the promotion of justice. In my view, however, “the rule which appears to be more commonly accepted” has been adopted by statute in this State.
Section 47-06-05 NDCC provides:
“Where from natural causes land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material or by the recession of the stream, such land belongs to the owner of the bank, subject to any existing right of way over the bank.”
This statute has been the law of Dakota Territory and the State of North Dakota at least since 1870. In my opinion, the language of the statute is clear and unambiguous. It states unequivocally that accretions to the bank of a stream belong to the owner of the bank. The statute contains no words of limitation, restriction or qualification. It is not concerned with how or when the owner of the bank becomes the owner of the bank, and in my opinion it applies to an owner who becomes such by having the stream encroach upon land to which he has title as well as to those who acquire ownership of the bank of a stream in any other way.
I see no basis upon which to found a judicial modification of the clear language of this statute.