Petition — Ritter v. Kleppe

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Supreme Court, U. S

Trend

FILED

auG/ 28 1975

MICHAEL booaK, JR., CLERK

In THE |____——

Pupreme Court of the Huited States

Octoser Term, 1975

No. $5314 {

Wuuis W .Rirres,

Petitioner,

Rocrrs C. B. Morton, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONALD B. HOLBROOK

W. ROBERT WRIGHT

I. DANIEL STEWART of

Jones, Waldo, Holbrook & McDonough

800 Walker Bank Building

Salt Lake City, Utah 84111

Attorneys for Petitioner

TABLE OF CONTENTS

Page

CITATION TO OPINIONS BELOW ............... 2

BE re re ene eee 2

QUESTIONS PRESENTED ........0.0.0..........--00000 2

ey Bg: | ee +

STATEMENT OF FACTS. ..WW00.0..........scscsccsessessoees 5

REASONS FOR GRANTING THE WRIT .... 14

POINT I

THE CIRCUIT COURT ERRED IN

FAILING TO APPLY THE DOCTRINE

IN RAILROAD CO. v. SCHURMEIR

THAT IN THE ABSENCE OF FRAUD

OR MISTAKE THE WATER COURSE

OF A RIVER IS THE BOUNDARY OF

A FRACTIONAL SECTION WHEN IT

IS SHOWN ON THE OFFICIAL PLAT

THAT IT BORDERS ON THE RIVER .. 16, 17

A. THE OFFICIAL PLAT INCLUDES

THE DISPUTED LANDS IN THE

BOUNDARY OF LOTS 5 AND 8

UNDER THE RULE OF

IIE: snitesenininiighcerepemepmaronatecomanenendagses 17

B. SCHURMEIR IS CONTROLLING ON

THE FACTS AND THE LAW .................. 19

Page

POINT II

THE COURT OF APPEALS ERRED IN

HOLDING AN AD HOC EVALUATION

OF “SPECIAL CIRCUMSTANCES”

SHOULD BE EMPLOYED TO DETER-

MINE A BOUNDARY ...... ss ieinineneteiiianiatic 24

POINT III

THE COURT OF APPEALS ERRED IN

AFFIRMING THE DECISION OF THE

SECRETARY OF THE INTERIOR

UNDER THE COLOR OF TITLE ACT

AND THE MATTER SHOULD BE

REMANDED TO THE TRIAL COURT

FOR FURTHER PROCEEDINGS .............. 34

CE A ctnieainbibbibi ic a, 36

APPENDICES

APPENDIX A—Opinion Below -...0000000.0000........... la

APPENDIX B—Findings Of Fact, Conclusions

Of Law and Judgment of the United States

OGRA RG ek A 1b

APPENDIX C—Decision of Department of

Interior, November 14, 1960 _...... Ic

TS ne ees ioe,

APPENDIX D—Decision of The Department

I RK 1d

APPENDIX E—Decision of The Department

ee le

APPENDIX F—Survey of Public Lands,

ERR AE aR aU 1f

APPENDIX G—Lands Held Under Color

“&® 8 | | |S Reinier 1g

APPENDIX H—Department of Interior

Memorandum, dated May 7, 1975 ..........------------ lh

CITATIONS

CASES

Cameron v. United States, 148 U.S. 301, 308 .......... 36

Gauthier v. Morrison, 282 U.S. 452, 459 (1914) ...... 25

Grand Rapids and Indiana R.R. Co. v. Butler,

159 U.S. 87, 91-92 (1894) ....eseccccseesceccsseeee 82

Hardin v. Jordan, 140 U.S. 371,

SE EO ne 18, 24, 30

Horne v. Smith, 159 U.S. 40 (1895) -................--+-- 25

Internal Improvement Fund v. Novak,

401 F.2d 708 (C.A. 5) (1968) .....cccceececcneeeccnseeee 80

Jefferis v. East Omaha Land Co.,

I BE I sirecteciecestevmsncinsiinret clases 24

Page

Jeemes Bayou v. United States,

260 U.S. 561 (1928) .............. 24, 25, 27, 28

Mitchell v. Smale, 140 U.S. 406,

avy i) | pe ree er 16, 18, 24, 25

Niles v. Cedar Point Club,

175 U.S. 500 (1928) ccs ssccoseeeene- . 27, 28

Producers Oil Co. v. Hazen, |

238 U.S. 325 (|) Ps ee 25, 26

Railroad v. Schurmeir,

74 U.S. 272 (1868) .... 3, 14, 16, 17, 18, 19, 28, 24, 25,

27, 28, 29, 30, 33, 34

Scott v. Lattig, 227 U.S. 229 (1918) ............. 29

Shively v. Bowlby, 152 U.S. .o...cescesceceececcecoeeoees 17, 18

Smith v. Long, 281 P.2d 483,

491 Ida. 1955) ......... sie : a . 19

United States v. Ashton,

170 Fed. 509 (C.A. 9) (1909) . 18

United States v. Chandler-Dunbar Co.,

209 U.S. 447 (1908) .... 28

United States v. Lane,

260 U.S. 662, 664 fe 25, 27, 28, 29, 30

United States v. 295.90 Acres Of Land,

868 F.Supp. 1301 (M.D. Fla. 1974) 25

United States v. Zager, 338 F.Supp. 984

(E.D. Wis. 1972) occcccccccccceoeccese. 25

Page

Whitaker v. McBride, 197 U.S. 510 (1904) ............ 30

Younie v. Sheek, 260 Pac. 419 (Ida. 1927) ............ 19

CONSTITUTION OF THE

a 2

STATUTES

United States Code Annotated,

I Oe, IS FOOD cocccccccccrevcctenecesscevscsscscoccscoces 2

United States Code Annotated,

Title 28, Sections 2201, 2202 ...................-..--0+00+00++ 2

United States Code Annotated,

ee 2

United States Code Annotated,

TS 2

United States Code Annotated,

en 2,9

United States Code Annotated,

Title 43, Section 2, 752 ................ aay 4, 17

IN THE

Octosper TERM, 1975

No. 73-1770

Wu W .Rirrer,

Petitioner,

Vv.

Rocers C. B. Morton, et al., |

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner prays that a writ of certiorari issue to

review the judgment of the United States Court of

Appeals for the Ninth Circuit entered in the above en-

titled case on April 4, 1975.

CITATION TO OPINIONS BELOW

The Opinion of the Court of Appeals for the Ninth

Circuit printed in Appendix “A” hereto, infra, pp. la-

20a, is reported in 518 F.2d 942. The Findings of

Fact, Conclusions of Law and Judgment of the United

States District Court for Idaho printed in Appendix

“B” hereto, infra, pp. 1b-7b, is unreported. The De-

cisions of the Department of the Interior dated No-

vember 14, 1960, August 7, 1961 and April 2, 1968

are printed in Appendices “C”, “D” and “E” hereto,

infra, pp. 1c-5c, pp. 1d-5d and pp. le-7e, respectively.

JURISDICTION

The Judgment of the Circuit Court of Appeals

was entered on April 4, 1975. Petition for Rehearing

was filed on April 18, 1975. The Order denying the

Petition for Rehearing was entered on June 6, 1975.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1). The jurisdiction of the District Court

was based upon the Constitution of the United States,

particularly the Fifth Amendment, and the Adminis-

trative Procedure Act, Section 701 through 706 of Title

5, U.S.C. Jurisdiction is also founded upon Sections

2201 and 2202 of Title 28, U.S.C. Section 1331 of Title

28, U.S.C., and Section 1361 of Title 28 U.S.C. This

action also arises under the Color of Title Act, 43

U.S.C. Section 1068.

QUESTIONS PRESENTED

(1) Should the Court of Appeals for the Ninth

Circuit be reversed for applying a new “special circum-

stances” rule to hold that the traverse lines of a navig-

able river is a strict boundary of a subdivision con-

veyed by patent from the United States and for re-

fusing to follow the accepted rule of law that the

boundary of a fractional section is the water course of

a navigable river and not the surveyor’s meander line

of the sinuosities of the bank of the river, with the

result that the new rule will promote uncertainty, con-

troversy, vexatious litigation and wholesale disruption

of land titles.

(2) Should the Court of Appeal’s decision be

reversed for refusing to follow statutory law and Rail-

road v. Schurmeir, 74 U.S. 272 (1868), which pro-

vide that the boundary lines of a lot made fractional by

a navigable river must run to the “water course” of the

river as the external boundary of such fractional sub-

division in the absence of a gross error or fraud against

the United States by the surveyor.

(a) In view of the fact that the plat in the

instant case which was incorporated by reference

into the patent and showed to a demonstration

that the meander line represented the border of

the river and the record courses and distances were

in substantial agreement with the existing bank of

the river, should the Ninth Circuit decision be re-

versed on the ground that the Court refused to

follow the rule of Railroad Co. v. Schurmeir, 74

U.S. 272, 287:

. In preparing the official plat from the =

notes, the mea line is represented as the

border line of the stream, and shows to a dem-

onstration that the water course, and not the

meander line as run on the land, is the

boundary. (emphasis added )

(3) Should the Ninth Circuit's one-line ruling

stating simply that “The decision of the Secretary of

Interior under the Color of Title Act is affirmed” be

reversed and set aside because the district court re-

served ruling on that Count of the Complaint, made

no findings or conclusions or judgment on this issue,

and the issue was not briefed or argued before the

Court of Appeals, thereby denying petitioner the judi-

cial review to which he is entitled under the Adminis-

trative Procedure Act.

STATUTES INVOLVED

Section 2 of the Act of 1805, 2 Stat. 313, 48 U.S.C.

752 provides in pertinent part: (Appendix “F” hereto)

The boundaries and contents of the several

sections, half-sections, and quarter sections of

the public lands shall be ascertained in conform-

ity with the following principles:

e * *

Second. The boundary lines, actually run and

marked in the surveys returned by the

of the Interior or such agency as he may desig-

nate, shall be established as the proper ‘vem

ary lines of the sections, or subdivisions, for

which they were intended . . . And the bound-

ary lines which have not been actually run and

marked shall be ascertained, by running straight

lines from the established corners to the opposite

Foy ae corners; but in those portions of

the fractional townships where no such opposite

corresponding corners have been or can be fixed,

the boundary lines shall be ascertained by run-

ning from the established corners due north and

south or east and west lines, as the case may be,

to the watercourse, Indian boundary line, or

other external boundary of such fractional town-

ship (emphasis added).

. * o

The Color of Title Act is contained in Appendix

“G’, hereto.

STATEMENT OF FACTS

The dispute in this case concerns the validity of a

claim by the United States pursuant to a resurvey of

the Snake River area in Idaho in 1955 to title to land

designated Lots 9, 10 and 11, containing 8.99, 1.29 and

.84 acres respectively (hereafter “disputed lands”). The

owners of the riparian uplands of the disputed lands

have continuously claimed title to these lands since

1896 when a patent conveying the adjacent upland

Lots 5 and 8 was issued. The riparian owners of dis-

puted Lot 9 (the largest) have used it for agricultural

purposes since about 1910 when some of the heavy

willows covering the land had been partially grubbed

out and upriver dams along the Snake commenced

controlling spring runoff that partially flooded these

lands. The circumference of Lot 9 is still covered by

dense willows and the use of Lot 9 has been exclusive

to the owners of upland Lots 5 and 8 since that time

(Fdg. 5. App. B., p. 5b). Lots 10 and 11 have no

commercial value and are covered by thickets of willows.

Pursuant to the 1955 resurvey, the United States

now claims not only petitioner's Lots 9, 10 and 11 but

approximately 16,000 additional acres along the Snake

River, much of which has been conveyed previously by

the government.

Petitioner, in this case, Judge Willis W. Ritter,

owns “Thousand Springs Farm” which extends 3 miles

along the Snake, a navigable river. The farm includes

the upland fractional Lots 5 and 8. Petitioner's title

to the disputed lands, Lots 9, 10 and 11, is derived from

a record chain of title originating with a patent granted

in 1896 which expressly conveys Lots 5 and 8 contain-

ing 16.8 and 33.6 acres respectively. An additional 120

acres was included in the remainder of the patent de-

scription.

These upland lots are made fractional by the Snake

River. They are separated from the disputed lands by

a small channel of water fed primarily from a stream,

Sand Springs Creek, originating on the upland lots

which flows into the Snake. Disputed Lots 9, 10 and 11

once formed a peninsula that has been partially dis-

sected from the mainland by the action of Sand Springs

Creek (Fdgs. 6 and 7, App. B., pp. 5b and 6b). The

neck of land between the mainland and disputed Lots

9 and 11 has been cut in several places by shallow,

willow-clogged channels containing water sometimes no

more than ankle depth (Tr. 407), and at times almost

dry (Tr. 406).

In 1893, the United States surveyed Township 8

South, Range 14 East of the Boise Meridian, and the

plat of survey was approved May 18, 1895. Lots 5 and

8 of Section 17 are described therein, and the patent

granting Lots 5 and 8 states that the conveyance is

“according to the Official Plat of the Survey of Said

Lands. . .” (emphasis added). The official plat shows

to a demonstration that Lots 5 and 8 border on the

Snake River. The surveyor’s field notes mention that

in coming to the point where the partially dissected

peninsula exited the upland, that he was into a dense

undergrowth of willows (Tr. 184). The notes recite:

“... at 2.00 chains Sand Creek 1.00 chain wide. And

center dense undergrowth of willows. At 11.00 chains

Falls of Sand Creek bears S 53° 15 E about 8 chains

distant. . . . at 3.50 cross another branch of Sand Creek

1.00 chain wide course west... .” At the time of survey

these lots were mud flats, thickly covered with willows

so dense as to make it impractical to survey them (Tr.

188). The disputed lands were subject to periodic

flooding and indeed were created by sediments de-

posited when the Snake River overflowed its banks

during flood stages (Fdg. 6, App. B, p. 5b). They were

not fit for commercial or agricultural use at the time

of the survey. The disputed lands have not been flooded

since approximately 1912 when a series of upriver dams

began to control the flood waters of the Snake River

(Tr. 196, 197).

The 18938 surveyor’s field records returned to the

State Field Office purported to encompass all of the

lands in the subdivision. On August 29th, 30th, 31st

and September Ist and 2nd, 1893, assigned U.S. Dep-

uty Surveyors and a support team of chainmen and axe-

men surveyed the west half of Township 8 South, Range

| '

14 East. They surveyed all section lines in the township

that crossed the Snake River and placed meander

corners at each side of the river. The group then

started at set meander corners on the south line of the

township and moved north along the river bank with a

series of chords. The recorded notes included refer-

ences to unusual specific objects encountered such as:

“Across sand bar”

“Opposite of island [upstream from the disputed

lands} in river

Several references to abandoned placer works

“Sand Creek Falls bears . . .”

“At end of bluff”

“To a rocky point”

These recordings indicate the detailed records kept in

accordance with their oath: “That we will report the

true distance to all notable objects.”

Undisputed expert testimony at trial described the

course of the surveyor in meandering the sinuousities

of the banks of the Snake, (Gov't. Br., Ct. of Appeals,

p. 15):

My opinion was that the surveyor was a good

surveyor and he was doing a good job, a com-

mendable job, and what he saw to the left of the

meander line (i.e. where the disputed lands were

located) that he was establishing was a bunch

of willows, a mud flat. . . . (emphasis added).

(Tr. 188).

Because of the nature of this terrain, the surveyor, ac-

cording to good practice, ran his traverse lines to the

east or upland side of the disputed lands.

The testimony of Government witnesses was that

the disputed narrow channel cutting the neck of the

peninsula and thereby partially separating Lots 9, 10

and 11 from Lots 5 and 8 was 4 to 8 feet wide (Strick-

land Tr. 381) but that the channel widened to the north

along the main confluence of Sand Springs Creek and

the Snake, being up to 25 feet wide (LaMoyne Tr.

880). The depth of the water in the slough or channel

between the disputed lands and the upland lots at the

neck of the “peninsula” was “ankle deep” (Tr. 407), and

in some years the channel was “almost dry” (Kelly Tr.

406), and the water “hardly moving” (Halverson Tr.

423). On the downstream side, which carried the bulk

of Sand Springs Creek water, the depth went to as

much as 6 feet deep (id.), where Sand Springs Creek

cut a channel between Lot 9 and the upland lots and

flowed downstream into the Snake. The main channel

of the Snake which is to the west of the disputed lands

runs between 10 and 35 feet deep (Eardley Tr. 179).

The water course and the high and low water marks

of the Snake are on the riverside (west side) of the

subject lands (Fdg. 8, App. B, p. 6b and Concl. of

Law 3, App B, p. 7b)

The Department of the Interior gave petitioner a

notice of eviction in July, 1970. On June 24, 1959

plaintiff filed his Color of Title Application pursuant

to the provisions of 43 U.S.C. 1068; it was rejected by

the Bureau of Land Management; and the rejection

affirmed by the Secretary of Interior in 1963.

The district court reviewed the nature of petitioner's

action as follows:

“In Count I of his complaint, plaintiff seeks by

review of agency action to have the Court deter-

mine that the plaintiff was the owner of the

property involved under the provisions of the

Color of Title Act. The second and third Counts

seek to restrain the Se retary and his agents

from interfering with t.e plaintiff's title and pos-

session of the lands which title is being claimed

by way of patent from the United States of

America, and mesne conveyances of the plain-

tiff.” (App. B, p. 3b-4b)'

The district court ruled that the petitioner held

title to the disputed lands “by way of the patent from

the United States” (Concl. Law 3, App. B., p. 7b). The

court in its Findings of Fact and Conclusions of Law

held: (1) The channel of the Snake River in 1893, its

“water course” and its high and low water marks were

to the west of the disputed lands and not between them

and the upland lots (Fdg. 8, p. 6b and Concl. of Law

3, p. 7b App. B); (2) The meander line of the Snake

River in 1893, at the time of the survey of Lots 5 and

8 was on the west of the disputed lands thereby in-

cluding them on the upland side (Fdg. 8, App. B., p.

6b); (3) There was no gross error or fraud in connec-

tion with the 1893 survey (Fdg. 9, App. B, p. 6b) ; (4)

Petitioner and his predecessor owners of Lots 5 and 8

have had exclusive use of the disputed lands since 1896

1 Jurisdiction of the Color of Title claim was founded upon the

Administrative Procedure Act.

(Fdg. 5, App. B, p. 5b); and (5) The disputed lands

constitute part of the “flood plain” of the Snake which

had been partially cut away from the mainland, by the

waters flowing from the “copious springs” thereby par-

tially dissecting them from the mainland (Fdg. 6, App.

B, p. 5b). The district court stated (id.) :

The subject lands . . . constitute a flood plain

of the Snake River which plain was built during

flood stages by the deposit of layer upon layer of

silt and very fine sand which are the common

sediments that the Snake River has carried . . .

Ni ond channels cutting across Lots 5 and 8 re-

sulted from the copious springs flowing from the

adjacent basalt cliffs which have converged into

waterways across the flood plain and the flood

plain has been cut in such a manner that certain

remnants such as the subject property have been

awry dissected from the mainland. (emphasis

a as

Consistent with these findings, the official plat rend-

ered in 1895 shows the western boundaries of Lots 5

and 8 to the Snake. The plat shows no traverse lines

on the west of Lots 5 and 8 inside the shore line of the

Snake.

Because the district court held petitioner to have

actual title, it did not rule on petitioner's appeal from

the Department of the Interior's denial of his claim

under the Color of Title Act.

The Court of Appeals for the Ninth Circuit re-

versed. That Court did not find any fraud or mistake

in the survey, nor did it find the surveyor had not prop-

erly run his traverse lines along the sinuosities of the

bank of the Snake according to good practice. Nor did

the Court dispute the district court's findings that the

water course and high water mark of the Snake were

on the west of the disputed lands. Nevertheless, the

Court adopted a new “special circumstances” rule of

law to hold that the traverse lines describing the bank

of the Snake constituted a strict boundary of upland

Lots 5 and 8, and excluded the disputed lands.

The Court then held that the district court had

committed “clear error” by placing the meander lines

of the Snake on the west (riverside) of the disputed

islands rather than the east (upland side). But it was

conceded by both parties at trial that the surveyor’s

traverse lines were to the east of the islands. Clearly

the distrio€ court’s reference to the meander of the Snake

was to the actual meander or water course of the river

and not the traverse lines. (Fdg. 8, App. B, p. 6b).

The district court made no finding as to the traverse

lines, as that was not in issue. The Court of Appeal’s

finding of “clear error” was, therefore, gratuitous. In

sum, the district court’s conclusion that the actual

meander (not the traverse lines) or water course of

the river was to the west of the disputed lands (thereby

including them) was not challenged by the Court of

Appeals.

The “special circumstances” which the Court

thought determinative included the fact that the patent

—

conveyed the exact number of acres in the upland lots,’

that the plat did not include the islands since it showed

the border of Lots 5 and 8 to be the “water's edge”

(not the water course) (App. A, p. 14a); that the

-ralue of the land, its remoteness and difficulties in sur-

veying should be considered; and the size and value of

the terrain omitted should also be evaluated. (App. A,

p. lla). The Court then stated:

It should be emphasized at this point that

these are all merely factors to be considered in

evaluating the weight to be given to the position

of a meander line vis-a-vis the boundary. Factual

circumstances differ from case to case, and all

the facts must be considered individually and

then considered in their totality. (App. A. p.

12a).

The court gave “great weight” to the fractional

lots’ boundary as shown in the survey and plat, and to

the surveyor’s omission of the disputed lands, which

the Court conceded to be of “relative smallness.” (App.

A, p. 18a). Finally the Court noted that there were

some settlers in the area but erroneously stated that the

islands were “continuously used for agricultural pur-

poses” since the time of survey.’

The Court of Appeals did not discuss applicability

2 The irrelevancy of this fact has been repeatedly established.

See page 30 infra.

3 The evidence was that the lands were partially cleared of dense

willows in about 1910, and that some agricultural uses have

been made of it since then (Tr. 47, 49, 53; Fdg. 5, App. B. p, 5b).

of the long-established general rule that in the absence

of fraud or mistake, the water course of a river is the

boundary of a fractional section, not the traverse lines.

Railroad Co. v. Schurmeir, 74 U.S. (7 Wall.) 272

(1868).

Petitioner's claim under the Color of Title Act, was

not briefed or argued by either party before the Court

of Appeals, since the district court did not rule on it.

The Court of Appeals summarily disposed of the issue in

one sentence by simply stating that “[the]} decision of the

Secretary of the Interior is affirmed” (App. A, p. 20a).

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals represents a

most serious departure from the 1805 statute, which es-

tablishes the boundaries of subdivisions made fractional

by navigable rivers, and from past decisions of this

Court construing that statute. This body of law has

imparted a high degree of certainty, predictability and

stability to titles to land lying along navigable rivers.

Unless reversed, the Ninth Circuit’s decision will, as a

practical matter and as a matter of fundamental fair-

ness have extraordinarily wide, adverse ramifications.

Within the jurisdiction of the Ninth Circuit, lie a

number of the country’s navigable rivers. Along the

Snake alone, there are some 500 property owners who

are affected by Government resurveys of their river-

front property. Hearings on S. 216 Subcommittee on

Public Lands, Senate Committee on Interior and In-

sular Affairs, 92nd Cong. 1st Sess. p. 49 (1971).

Under the Omitted Land Act of 1962, the De-

partment of Interior has claimed title to some 16,000

acres along approximately 150 miles of the Snake River

pursuant to resurveys. The Department of the Interior

in a Memorandum dated May 7, 1975, making specific

reference to the decision of the Court of Appeals in

this case, states that “when the resurveys were com-

pleted and omitted land areas identified, approximately

400 parties were notified by the Bureau that omitted

lands fronted their lands along the Snake River.” The

Memorandum further states that the “lands typically

lie between the actual water course of a body of water,

and the original surveyed meander lines.“ The De-

nt of the Interior has made clear its intention

to dispossess the above-mentioned 400 persons of 16,000

acres on the basis of the circuit court's decision.

In addition, the decision of the Court of Appeals

in an important area of public land law has abandoned

heretofore settled principles in favor of ad hoc judicial

determinations. The Court of Appeals made clear that

no particular factor in its “special circumstances” test

controls whether the meander (traverse) lines or the

statutory “water course” should be held to be a bound-

ary. Stability and predictability of the validity of land

titles are utterly impossible when, as the circuit court

held, “the facts must be considered individually and

then considered in their totality” (App. A. p. 12a). In

short, the effect of the Ninth Circuit's rule is to promote

litigation and to cause the government to challenge

4 The above mentioned Memorandum is reproduced in App. H.

hundreds of land titles that have been settled and relied

upon for decades in accordance with heretofore settled

rules of law.

The decision of the Court of Appeals accomplishes

precisely what this Court held to be intolerable with

respect to the stability of grants by the United States.

In Mitchell v. Smale, 140 U.S. 406, 412-413 (1891),

the Court stated :

We think it a great hardship, and one not to be

endured, for the government officers to make

new surveys and grants of the beds of such lakes

after selling and granting the lands bordering

thereon, or represented so to be. It is nothing

more nor less than taking from the first grantee

a most valuable, and often the most valuable

part of his grant. a of speculators will al-

ways be found, as such property increases in

value, to enter it and deprive the proper owner

of its enjoyment; and to place such persons in

possession under a new survely and grant, and put

the original grantee of the adjoining property to

his action of ejectment and duaner proof of his

own title, is a cause of vexatious litigation which

ought not be created or sanctioned.

POINT I

THE CIRCUIT COURT ERRED IN FAIL-

ING TO APPLY THE DOCTRINE IN RAIL-

ROAD CO. v. SCHURMEIR THAT IN THE

ABSENCE OF FRAUD OR MISTAKE THE

WATER COURSE OF A RIVER IS THE

BOUNDARY OF A FRACTIONAL SECTION

WHEN IT IS SHOWN ON THE OFFICIAL

PLAT THAT IT BORDERS ON THE RIVER

Section 2 of the Act of February 11, 1805, 2 Stat.

3138, 43 U.S.C. 752 is the basic statute designating the

manner in which fractional lots must be surveyed and

how the boundaries of such lots must be established.

That statute specifically states the boundaries of sections

bordering on navigable streams must be the “water

course” of the river.

Railroad Co. v. Schurmeir, 74 U.S. 272 (1868)

applied that statute on facts closely parallel to the facts

of the instant case. That case squarely supports the de-

cision of the district court; it is flatly at odds with the

decision of the circuit court below, which was rendered

on a theory not even argued by the government and

which initiated a new approach to fractional subdivision

boundary questions. For practical purposes, the Court

of Appeals ignored the Schurmeir doctrine which has

been the leading authority in cases such as this since

1868.

A. The Official Plat Includes The Disputed Lands

In The Boundary of Lots 5 and 8 Under the Rule

of Schurmeir.

The official plat describing fractional Lots 5 and 8

shows them bordered by the Snake River. The law is

clear that the water course of the Snake is, therefore,

the boundary of Lots 5 and 8 since the water course

is defined by the high water mark of the river, Shively

v. Bowlby, 152 U.S. 1; United States v. Ashton, 170

Fed. 509 (C.A. 9 1909) (appeal dismissed), and since

the high water mark was on the west of the disputed

lands, the boundary of Lots 5 and 8 includes as a matter

of law the disputed Lots 9, 10 and 11.

As stated in Mitchell v. Smale, 140 U.S. 406, 413

(1891) in language precisely on point here: “The official

plat made from such survey does not show the me-

ander line” but shows the body of water making the

lots which border thereon fractional. The patents re-

ferring to such plat for identification of the lots con-

veyed “have the legal effect of a declaration that they

extend to and are bounded by the lake or stream. Such

lake or stream itself, as a natural object or monument,

is virtually and truly one of the calls of the description

or boundary of the premises conveyed . . .” (emphasis

added )

The same principle was stated in Schurmeir, 74

U.S. at 287:

In preparing the official plat from the field-

notes, the meander line is represented as the

border-line of the stream, and shows, to a demon-

stration, that the water-course, and not the mean-

der-line, as actually run on the land, is the

boundary.

See also Hardin v. Jordan, 140 U.S. 371, 381 (1891).

The plat in Schurmeir showed the section lines

running to the Mississippi just as they run to the Snake

in this case. The island lying offshore in Schurmeir

was not platted, but the Court sustained the finding

that “. . . the plat, as recorded, describes the land as

extending to the main channel of the river” (74 U.S.

at 283) (emphasis added). See also Smith v. Long,

281 P.2d 483, 491 (Idaho 1955) ; Younie v. Sheek, 260

Pac. 419 (Idaho 1927) to the effect that the “water

course” of the Snake means a main channel and not an

insignificant channel. Thus Schurmeir held that an in-

significant side channel did not constitute the “water

course” or the statutory boundary, and, the small chan-

nel between the disputed lands in this case and the up-

land lots does not constitute the boundary of Lots 5

and 8. Rather, that boundary includes the disputed

lands whose western boundary constitutes the water

course and the high water mark of the Snake (Fdg. 8

and Concl. of Law 3, App. B, pp. 6b and 7b). The con-

clusion that the circuit court below erred is buttressed

by the fact that the side channel was cut by Sand

Springs Creek, and not the Snake and only partially

dissected the disputed lands from the mainland (Fdg.

7, App. B, p. 6b).

B. Schurmeir is Controlling on the Facts and the

Law.

There are additional similarities between Schur-

meir and the case at bar as shown in the following

comparison with this Court's opinion in that case.

(1) The Disputed Lands Were Located in Sec-

tions Made Fractional by Navigable Rivers.

The Plats of the Lands Covered by the Pat-

ents Represented the Navigable Rivers as

Boundaries on One Side.

(a) Schurmeir: “This fractional section . . . was

represented by the plat thereof, as bounded on the north

by the east and west sectional line, on the west by the

north and south sectional line, and on the only other

remaining side by the Mississippi River. It was this

river that interposed and made this section a fractional

one” (p. 275).

(b) Ritter: This fractional section was designated

by the survey as Lots 5 and 8, Section 17 and was rep-

resented by the Plat thereof, as bounded on the South

by a section line running East and West between Sec-

tions 17 and 20; on the West by the Snake Rovier; on

the North by half section line running East and West

through the center of Section 17; on the East by the

main rock wall. It was the Snake River that interposed

and made this section a fractional one.

(2) In the Government Surveys no Mention was

Made of the Disputed Lands in the Field

Notes or in the Plats.

(a) Schurmeir: In the government survey, no

mention was made of this bar or island [the disputed

land}, in the field notes, plat or map. The fractional

parcel . . . was represented as lying immediately upon,

and bounded by, the Mississippi River (p. 276).

(b) Ritter: In the government survey, no mention

was made of the so-called “islands,” in the field notes,

plat or map. The fractional parcel was represented as

lying immediately upon, and bounded by, the Snake

River.

(8) The Surveyors, in Meandering the Course of

the Rivers along the Fractions, Ran the

“Meander Lines” Along the Mainland of the

Shore, and Did Not Include the Space Oc-

cupied by the Disputed Lands in the Estimate

of the Quantity of Land Contained in the

Fraction.

(a) Schurmeir: “The surveyor . . . in meandering

the course of the river along the fraction, ran the ‘mean-

der-lines’ along the mainland of the shore, and not along

the . . . bar or island, and thus did not include the space

occupied by this depression, and bar or island, in his

estimate of the quantity of land contained in the frac-

tion” (p. 276).

(b) Ritter: The surveyor in meandering the course

of the river along the fraction, ran the “meander lines”

along the mainland of the shore, and not along the

westerly line of these “islands” and thus did not include

the space occupied by the slough or “islands,” in his

estimate of the quantity of land contained in the frac-

tion.

(4) The Patent from the United States Described

the Fractional Sections as Containing so Many

Acres “According to the Official Plat of the

Survey,” and “Presented the River as the

Boundary.”

(a) Schurmeir: “[T}he patent (described) the lot

- +. as containing so many acres, ‘according to the offi-

cial plat of the survey,’ a plat which . . . did not represent

the bar or island, in any way, nor the channel or slough

between, but presented the river as the boundary . . .”

(p. 277).

(b) Ritter: The 1896 patent described Lots 5 and

8, and other adjoining lands in Section 17, as containing

one hundred and seventy acres and forty-hundredths of

an acre, “according to the Official Plat of Survey of the

said land, returned to the General Land Office by the

Surveyor General,” a plat which did not present the

“islands,” in any way, nor the channel or slough be-

tween, but presented the river as the boundary.

(5) No Gross Error or Fraud was Claimed in

Either Case.

(6) The United States Did Not Expressly Re-

serve the Disputed Lands in Either Case.

Other compelling similiarities in the underlying

facts of the Schurmeir and Ritter cases are that in

both cases the disputed lands were low-lying, subject to

flooding, and not encompassed by the water course of

the navigable rivers. The size of the disputed lands were

relatively small (Ritter-8.99, 1.29 and .84 acres; Schur-

meir-2.78 acres), as was the percentage of the dis-

puted lands to the undisputed lands covered by the

patent (Hitter-6%; Schurmeir-30%). The width of

the channel which separated the disputed lands from

the upland was narrow (Ritter-approximately 4 to 8 feet

at the narrowest; Schurmeir-28 feet), and the said

small channel was shallow (Ritter-ankle-deep; Schur-

meir-shallow). The disputed lands were nearly con-

nected to the upland (Ritter-almost dry—once a penin-

sula — imperceptible rate of flow in small channel;

Schurmeir-connected in low water.) The surveys in

both cases occurred at a period in history when popula-

tion densities and economic values were low. In Ritter,

the population of the entire township was 16 persons,

with “one settler in Section 17” (Plf. Ex. 6, Tr. 35).

On these facts and the 1805 statute, the Supreme

Court in Schurmeir held that the island in the river

had been conveyed, and affirmed the Supreme Court

of Minnesota. This Court relied upon a well-established

rule that should govern this case and which is irrecon-

cilable with the decision of the circuit court. This Court

held (74 U.S. at 287) :

In preparing the official plat from the field-

notes, the meander-line is represented as the

border-line of the stream, and shows, to a dem-

onstration, that the water course, and not the

meander-line, as actually run on the lands, is the

boundary” (Schurmeir at p. 287, (emphasis

added).

We submit that the circuit court's decision erron-

eously forsook an analysis based upon the general prin-

ciples stated in Schurmeir for a proposition which

makes land titles turn upon the subjective judgments of

courts in evaluating a myriad of factors whose pertin-

ence cannot be fully known without a court adjudica-

tion.

POINT II

THE COURT OF APPEALS ERRED IN

HOLDING AN AD HOC EVALUATION OF

“SPECIAL CIRCUMSTANCES” SHOULD BE

EMPLOYED TO DETERMINE A BOUND-

ARY.

This Court has adhered strictly to the principle that

the “water course” of a river is the boundary of a sec-

tion fractionalized by a navigable river, even though the

surveyors traverse lines do not correspond exactly to

the actual water course of the river as long as the mean-

der lines describe the sinuosities of the bank of the river.

Hardin v. Jordan, 140 U.S. 371 (1891); Mitchell v.

Smale, 140 U.S. 406 (1891); Jefferis v. East Omaha

Land Co., 184 U.S. 178 (1890) ; St. Paul & Pac. R.R.

Co. v. Schurmeir, 74 U.S. 272 (1868).

This general rule is subject to two specific, nar-

rowly defined exceptions: (1) there must have been no

fraud, and (2) no gross mistake.

Stability of land titles requires that the United

States prove an exception to the general rule by com-

pelling evidence. Thus, there must be some extraordin-

ary proof of mistake by the surveyor, Hardin v. Jor-

dan, 140 U.S. 87 (1891); or evidence that “conclu-

sively show{s]” that no water existed at or near the

place indicated on that plat, Jeemes Bayou v. United

States, 260 U.S. 561 (1923). Moreover, these excep-

tions are to be applied with great caution and narrowly

limited to situations where the error in the survey is

substantial, wholly unexplainable, and evidences fraud.

United States v. Zager, 338 F. Supp. 984 (E.D. Wis.

1972) ; United States v. 295.90 Acres of Land, 368 F.

Supp. 1301 (M.D. Fla. 1974).

Of course if the surveyor’s suppositious “meander

lines” do not in fact describe the sinuosities of the banks

of the water course of a rive or other body of water,

and are run by courses and distances, then the traverse

lines constitute the boundary to the adjoining lot and

not some body of water in the neighborhood. Jeemes

Bayou Fishing & Hunting Club v. United States, 260

U.S. 561 (1928); Producers Oil Co. v. Hanzen, 238

U.S. 825 (1915) ; Horne v. Smith, 159 U.S. 40 (1895).

Since meander lines can only approximate the

actual water ourse of a river, all surveys necessarily

contain omissions of small areas between the meander

lines and the actual water course, Schurmeir, supra at

p. 286-87.

Such areas, although not included in the specific

conveyance described in the patent, are conveyed as

a matter of law. Mitchell v. Smale, supra; Gauthier v.

Morrison, 282 U.S. 452, 459 (1914); United States

v. Lane, 260 U.S. 662, 664 (1923); Railroad Co. v.

Schurmeir, supra.

In the instant case the circuit court invoked none

of the accepted exceptions to avoid the general rule. In-

deed, the Court of Appeals affirmed the district court's

findings that there had been no fraud or such gross error

to constitute fraud on the government. Nor did the

Court of Appeals contend that the surveyor had not

actually surveyed the sinuosities of the bank.

Instead, the circuit court held that “special circum-

stances’ made inapplicable the general rule that mean-

der lines are not actual boundary lines (App. A, p. 20a).

The court of appeals held that no single factor and no

aggregation of factors would necessarily be determina-

tive “in evaluating the weight to be given to the posi-

tion of a meander line vis a vis the boundary . . . [and

that} all the facts must be considered individually,

and then considered in their totality” (App. A, p. 12a)

In short, each case involving the boundaries of land

bordering on a navigable river will be decided on an

ad hoc basis according to an unpredictable permutation

of circumstances unique to the particular case.

The circuit court relied upon the following language

in Producers Oil Co. v. Hanzen that “facts and circum-

stances” may “affirmatively disclose an intention to limit

the grant to actual traverse lines” so that they are treat-

ed as actual boundaries (238 U.S. at 339). But this

relates only to cases, as in Producers Oil, where the tra-

verse lines do not purport to meander a river and where

the river is not treated as a natural monument. This

Court made that point explicit in Producers Oil, (238

U.S. at 387):

The meander line established by Bristol on the

east and northeast of Lot No. 1 does not meet

any of the requirements set forth by the Supreme

Court of the United States in defining a meander

line in Railroad Co. v. Schurmeir, 7 Wall, 272,

286... {T }he Bristol meander lines does not pur-

port to define the sinuosities of a stream; it is

not represented as the border line of a stream;

. . . and it shows, to a demonstration, that the

meander line, as actually run on the land on the

east and northeast of lot No. 1, is the boundary,

and that a water course is not the boundary . . .

{emphasis added }

The Court of Appeals also relied on United States

v. Lane, 260 U.S. 662 (1923) ; Jeemes Bayou Club v.

United States, 260 U.S. 561 (1923) ; and Niles v. Cedar

Point Club, 175 U.S. 300 (1899). None of these cases

support the circuit court. Although Jeemes Bayou and -

Niles held that the so-called meander line was a strict

boundary, there was compelling evidence in each case

of gross error, fraud, or that the surveyor was not mean-

dering the sinuosities of a body of water. The Lane

case squarely supports the petitioner's position.

Jeemes Bayou involved a claim of title to 500 acres

of heavily timbered up!and which lay between a body

of water and a 48-acre lot that had been surveyed and

conveyed. The owner of the latter lot claimed the 500

acres on the basis of Schurmeir. The surveyor's field

notes showed no intention to meander any body of

water and described the boundaries of the 48 acres by

courses and distances.

This Court held that the “omission [of the contested

lands} was of deliberate purpose, or the result of such

gross and palpable error as to constitute in effect a

fraud upon the government” (260 U.S. at 564). Noth-

ing in the Court's decision indicates that when a mean-

der line follows the sinuosities of the bank of a navigable

river with substantial accuracy, and the call on the of-

ficial plat is to a navigable river, that a court may depart

from the statutory prescription that the water course is

the actual boundary. Niles v. Cedar Point Club, 175

U.S. 300 (1899) is likewise not in point since the mean-

der line did not purport to define the sinuosities of the

bank of a body of water.

Nor does United States v. Lane, supra, stand for

the proposition that “special circumstances” may be re-

lied upon as an additional exception to the general rule.

Indeed the Supreme Court applied the general rule of

Schurmeir and refused to apply the gross error or fraud

exception of Jeemes Bayou. The Court in Lane found

that the surveyor had in fact meandered the sinuosities

of the bank of the river and held the water course to

be the boundary. The disputed lands lying outside the

meander line consisted of 5.67 acres (with 26.8 acres

in the fractional subdivision); 12.72 acres (with 23

acres in the fractional subdivision); and 27.87 acres

(with 155 acres in the fractional subdivision). Con-

sistent with United States v. Chandler-Dunbar Co.,

209 U.S. 447 (1908), the Court held these omitted

fragments conveyed by a patent describing the frac-

tional, upland subdivisions, despite the fact that the

exact acreage in those fractional lots was specified as the

amount of land conveyed. This Court in Lane men-

tioned the value of the lands surveyed, their locality,

wildness, remoteness and attendant difficulties in sur-

veying simply as an explanation of why, as a practical

matter, a surveyor would run the meander lines of a

body of water at some distance from the water's edge,

but the Court did not indicate that such circumstances

by themselves constituted the basis of a legal “special

circumstances” rule, that could be used to overcome the

principle that the water course is the boundary and not

the meander lines. Obviously such “special circum-

stances” are relevant to issues of gross error or fraud,

but there is no hint of such issues in the instant case.

Finally, Scott v. Lattig, 227 U.S. 229 (1913),

heavily relied upon by the court of appeals, deals with

an entirely different concept. The issue was whether

owners of lots bordering on the Snake held title to a

hard, fast island located in the Snake across a broad

main channel of the Snake 300 feet from one shore

and 1,000 feet from the other on the theory of riparian

rights. The island was beyond question far outside the

meander lines of the upland lots and also outside and

far beyond the banks of the channels of the Snake. The

island was unsurveyed at the time of statehood, and the

Court held that title had not passed from the United

States. No serious question of the applicability of the

doctrine of Railroad Co. v. Schurmeir was ever raised,

as it obviously had no applicability.

The survey in the instant case followed the water

course of the Snake far more closely than in Lane and

was clearly intended to include all land to the water

course of the main channel of the Snake. The official

plat, which the patent expressly incorporated, in fact

shows lots 5 and 8 bordering on the Snake. The dis-

puted lands in this case were not surveyed for the same

reason the disputed lands ir Lane were not surveyed.

The uncontradicted testimony at trial (relied upon by

the government in its brief below) was (Tr. 188) :

My opinion was that the surveyor was a good

surveyor and he was doing a good job, a com-

mendable job, and what he saw to the left of the

meander line that he was establishing was a

bunch of willows, a mud flat [i.e., the islands in

dispute }.

The Court of Appeals in applying its “special cir-

cumstances” rule looked to facts which neither separ-

ately nor in their totality evidence fraud or gross error.

First, the Court of Appeals looked to the bulbous

nature of the river as shown on the plat at the point

where the disputed lands were located; but this was

to be expected, since the low-lying, willow covered

peninsula (Lots 9, 10 and 11) was there as were the

waters of Sand Springs Creek. That Court also relied

upon the fact that the patent contained an exact num-

ber of acres and therefore should be limited to that

acreage. But this Court and others have held that fact

irrelevant in applying the rule that the water course,

not the meander lines, is the boundary. United States

v. Lane, 260 U.S. 662 (1927); Whitaker v. McBride,

197 U.S. 510 (1904) ; Hardin v. Jordan, 140 U.S. 371

(1891); Internal Improvement Fund v. Novak, 401

F.2d 708 (C.A. 5, 1968).

Moreover the patent in Schurmeir also referred to

an exact number of acres.

In both Schurmeir and Ritter the disputed lands

were not included in the estimate of the quantity of

land contained in the fraction. (See pages-21-22 of

this petition )

The circuit court also said the surveyor mentioned

in the survey notes an island upstream from the dis-

puted lands. From this the court speculated that the

‘surveyor must have intended to return and survey the

disputed lands. This speculative proposition points up

the danger of the “special circumstances” rule. The

evidence doesn’t show the nature of the upstream island,

how high it was above the water of the river, or any

of its other characteristics. Mention of the upstream

island demonstrates that the surveyor was following his

instructions in reporting “all notable objects” and sug-

gests that the willow clogged disputed lands were not

“notable”.

Surveyors were instructed regarding surveying is-

lands that every island above the mean high-water ele-

vation of any meanderable body of water will be

definitely located by triangulation or direction measure-

ment or “other suitable process” and will be meandered

and shown upon the official plat. Of these three op-

tions the surveyor adopted the third and least accurate

and estimated the size and distance of the island located

in Section 20, while he was at the site. If the surveyor

had determined the disputed land to be islands, he

probably would have utilized the techniques previously

adopted in Section 20 with respect to islands located

» and estimated size and distance while he was at

site.

The inference relied upon by the Court of Appeals

that the surveyor intended to return to survey the dis-

puted lands was expressly rejected in Grand Rapids

and Indiana R. R. Co. v. Butler, 159 U.S. 87, 91-92

(1894).

Finally, the Court of Appeals references to the

1959 plat (Diagram “B” appended to its decision) and

the so-called “Plat Current to 1971” (Diagram “C”

appended to its decision) are totally misleading. Dia-

gram “C” was represented by the ci:cuit court as “the

most recent plat of the lands in question”. Diagram

“C” is not a plat. The record shows that it was not

received as a plat, but for a limited purpose only. It

was not received to show the relation of the disputed

lands to the river, for the reason that the relationships

are highly distorted. This document was received only

to show the relative acreage of the disputed lands to

Lots 5 and 8 (Tr. pp. 301, 309, 312).

Diagram “B” is also highly misleading since the

concepts portrayed create erroneous impressions as to

the width of channels and the size and nature of lands

in relation thereto in 1955 as compared to 1898. This

platting procedure in its very nature is not designed to

show true conditions, nature of channels, nature of

banks of the stream, extent to which there is an over-

growth of willows, the depth of the channels, etc. — and

the conditions are not static. Reliance upon these dia-

grams in the fashion of the circuit court is to ignore all

of the reliable evidence in support of the district court's

findings. (For eg. see Plf. Exs. 49 and 50, Tr. 171;

and Plf. Ex. 51, Tr. 191).

In addition, the construction of a number of dams

and irrigation projects on the Snake subsequent to the

1898 survey contributes to the gross distortion of Dia-

grams “B” and “C” by making the channels between

the upland lots and the disputed lands appear larger.

In short the diagrams are inconsistent with the specific

findings of the district court.

In sum, the objectives test of Schurmeir is aban-

doned for a subjective analysis of all surrounding cir-

cumstances in an attempt to determine what the sur-

veyor intended. Only the imagination of government

counsel would limit the totality of facts which the gov-

ernment could present to the trier of the fact to deter-

mine what the surveyor intended 80 years ago.

The Ninth Circuit decision makes new law. It sets

aside an Act of Congress that has been on the books

for 170 years. That court blue pencils it right out of the

statutes at large. More than that, it overrules a decision

of the Supreme Court of the United States which for

over 100 years has provided clear and definite instruc-

tions to surveyors of land bordered by navigable rivers.

Congress and the Supreme Court long ago set at

rest the uncertainties concerning the survey of lots made

fractional by a navigable river by providing that the

boundaries run to the “water course” of the river on

which they border. This is a part of the nation’s rec-

tangular survey system affecting lands that border nav-

igable rivers, bayous, lakes all over the United States.

The vice of the Ninth Circuit decision if followed

is that ownership of lands bordering on every navigable

body of water in the United States will be in a state

of confusion and uncertainty. At once it unsettles prop-

erty rights on the borders of the Snake River from

Jackson Hole, Wyoming, through Idaho, Oregon and

Washington.

The resulting vexatious litigation will burden and

clog the already heavy dockets of federal courts.

POINT III

THE COURT OF APPEALS ERRED IN

AFFIRMING THE DECISION OF THE SEC-

RETARY OF THE INTERIOR UNDER THE

COLOR OF TITLE ACT AND THE MATTER

SHOULD BE REMANDED TO THE TRIAL

COURT FOR FURTHER PROCEEDINGS.

The pro forma affirmance of the decision of the

Secretary of the Interior on Count I of the complaint

involving the Color of Title Act, without any inde-

pendent judicial review clearly violates petitioner's

rights to a judicial review of agency action under the

Administrative Procedure Act.

The Color of Title Act issue was not passed on by

the district court and was neither briefed nor argued

in the court of appeals. The pro forma decision of the

court of appeals affirming the Secretary did not con-

stitute judicial review or an analysis of the applicable

legal principles.

The issues reserved by the lower court involved

substantial considerations relating to the vitality of the

Color of Title Act.

The restrictive and limited interpretation placed

upon the Color of Title Act by the Secretary severely

frustrates the intent of Congress. The initial decision of

the Land Office and the decision of the Acting Chief,

Devision of Appeals in the initial appeal held that color

of title must be founded upon an instrument in writing,

and that no such instrument existed since the patents

described only Lots 5 and 8 and other upland. There

was no “deed or other instrument which purports to

pass title and which appears to be title to the land . . .”

(App. C, p. 4c; App. D, p. 3d).

On appeal the Secretary of the Interior ruled, in

effect that a change in a state court law rejecting the

view that actual title existed under the doctrine of ripar-

ian rights established that subsequent property owners

could not possess the property in good faith to satisfy

elements of the Color of Title Act (App. E, pp. 4e-5e).

As held in Cameron v. United States, 148 U.S.

301, 308 where a deed is fairly open to construction

as to property covered by a survey, color of title exists.

The Secretary of the Interior did not consider the law

of Schurmeir as it affects Color of Title issues, apart

from actual title. Nor did it consider federal law estab-

lishing that boundaries of a fractional subdivision ex-

tend to the water course when the boundary on a plat

establishing such fractional subdivisions shows the river

to be the boundary.

CONCLUSION

We respectfully submit that a Writ of Certiorari

should issue to review the judgment of the Court of

Appeals for the Ninth Circuit in this matter.

Respectfully submitted,

JONES, WALDO, HOLBROOK

& McDONOUGH

Donald B. Holbrook

I. Daniel Stewart

W. Robert Wright

800 Walker Bank Building

Salt Lake City, Utah 84111

APPENDIX

APPENDIX A

Opinion Below

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIS W. RITTER,

Appellee,

Vs.

ROGERS C. B. MORTON, Secretary

of the Department of the Interior, JOE

T. FALLINI, Idaho State Director,

Bureau of Land Management, and

ORVAL G. HADLEY, Manager,

Idaho Land Office, Bureau of Land

Management,

Appellants.

{April 4, 1975]

Appeal from the United States District Court

District of Idaho

Before: DUNIWAY and KILKENNY, Circuit

Judges, and SWEIGERT,® District J udge.

PER CURIAM:

This case involves the ownership of three islands

*The Honorable William T. Sweigert, Senior United States Dis-

trict Judge for the Northern District of California, sitting by

eg,

located in the Snake River in Idaho. The action was

brought by appellee, and jurisdiction was claimed under

5 U.S.C. §§ 701-706 (Administrative Procedure Act),

28 U.S.C. §§ 1361 (suit compelling officer to perform

duty) and 2201, 2202 (declaratory judgment). After a

full presentation of the evidence, the district court found

for appellee. We reverse the judgment of the lower

court and affirm the decision of the Secretary.

FACTS

Appellee is the owner of “Thousand Springs Farm,”

which extends for three miles along the east bank of

the Snake River in Gooding County, Idaho. His own-

ership of the land results from a series of conveyances

dating from the original government patents. The is-

lands in dispute are in Section 17 of Township 8 South,

Range 14 East of the Boise Meridian, and are located

in the river immediately south and west of the principal

area of appellee's farm.

The United States caused a survey of the township

to be made in August and September of 1893. An of-

ficial plat of the the township, based on the surveyor’s

field notes, was drawn and approved by the Surveyor

General for Idaho in May, 1895. The relevant portion

of this plat is shown in Diagram A. In February, 1896,

a patent was issued under the Homestead Act to Polina

Lewis, a predecessor in interest of appellee. The patent

covered “. . . the Southeast Quarter of the Southeast

Quarter and the West Half of the Southeast Quarter,

and Lots Five and Eight in Section Seventeen, . . .

containing 170.40 acres.” According to the official plat,

fractional Lots 5 and 8 contained 16.80 and 33.60 acres

respectively, with 120 acres in the remainder of the

patented area. The lots bordered on the river.

The surveyor'’s field notes make no mention of the

disputed islands which, in fact, were located alongside

Lots 5 and 8. The surveyor’s description of the river's

meander line on the east bank specifically mentions

crossing Sand Creek twice, thus apparently remaining

east of the islands. The plat shows only a significant

bulbous widening of the river where the islands in fact

were located. This contrasts sharply with the survey

and plat of Section 20 to the south, in which an island

is described in the field notes and drawn in the plat.

Another contrast is evident with Section 8 to the north,

wherein the meander line clearly is shown to be on the

west side of an island-like piece of land separated from

the adjacent basalt cliffs by a stream created by the

flow of Thousand Springs.

The Department of the Interior did not conduct a

survey of the disputed islands until 1955. They were

then designated Lots 9, 10 and 11 and measured 8.99,

1.29 and 0.84 acres, respectively. A piat based on the

1955 field notes was filed in 1959, the relevant portion of

which is contained in Diagram B. The most recent plat,

current to September, 1971, shows Lots 5 and 8 still to

be 16.80 and 33.60 acres, respectively, as they were in

the 1895 plat. The relevant portion of the latest plat is

pictured in Diagram C.

In June, 1959, appellee was notified by the De-

partment of the Interior that the previously omitted

islands are, by virtue of the new survey, “. . . public

lands of the United States open to entry and selection

under the public land laws. . . .” Other material facts

follow.

PROCEEDINGS BELOW

When the Department later made known its inten-

tion to transfer title in the islands to the State of Idaho,

appellee commenced an administrative action under the

Color of Title Act, 43 U.S.C. $1068, which action was

ultimately denied by the appellant Secretary of the In-

terior. This action in the district court followed. Ap-

pellee asked that the administrative action he reversed

or that, alternatively, the appellant officers of the

United States be restrained from interfering with his

title, use, and possession of the claimed islands.

The district court made, inter alia, the following

findings of fact:

—“The field notes and survey plat described the

western boundary of Lots 5 and 8, Section 17, as the

meander line of the Snake River.”

—The disputed islands, according to expert testi-

mony, “. . . constitute a flood plain of the Snake River

which plain was built during flood stages by the deposit

of layer upon layer of silt and very fine sand which are

the common sediments that the Snake River has car-

ried.”

—“{T]}he subject lands once formed a peninsula

which was connected with the mainland, now Lots 5

and 8. The subsequent separation of the subject lands

from Lots 5 and 8 was due to the flow of Sand Springs

Creek and not the action of the Snake River.”

—“The channel of the Snake River in 1893 was to

the west of the subject lands and the high and low marks

of the Snake River are to the west of the subject lands.

The meander line of the Snake River in 1893, at the

time of the survey of Lots 5 and 8 was on the west

boundary of the subject islands.” {Emphasis supplied. }

—“There was no gross error or fraud in connection

with the survey of 1893.”

Among its conclusions of law, the district court held

that the action was in the nature of one “. . . to restrain

the defendants from interfering with the plaintiff's use

and possession of lands patented and lawfully conveyed

to him.” Accordingly, it concluded that the action was

not barred by the doctrine of sovereign immunity and

that it had jurisdiction. It found appellee to be the

owner of the islands because they “. . . are east of the

water course of the Snake River which constitutes the

actual boundary of the land conveyed by the patent. . . .”

In finding for appellee and enjoining appellants from in-

terference with the appellee's title to the islands, the

court found it unnecessary to determine the administra-

tive appeal under the Color of Title Act.

ISSUES ON APPEAL

The questions raised by the parties and presently

before this court are:

1. Did the district court err in concluding that this

action is not barred by the doctrine of sovereign im-

munity /

2. Is federal or Idaho law controlling on the bound-

ary determination issue?

3. Did the district court apply the proper rules of

law in determining the placement of the boundary and

the ownership of the islands?

4. Was the district court clearly erroneous in its

factual findings that the disputed islands were east of

the Snake River's boundary and meander line?

THE SOVEREIGN IMMUNITY ISSUE

Though under attack in other areas of the law, the

doctrine of sovereign immunity is still very much alive

in suits involving land title disputes. An uncontested

suite against a federal officer which is, in substance, a

suit against the United States has traditionally been

jurisdictionally barred by sovereign immunity. Larson

v. Domestic & Foreign Corp., 337 U.S. 682 (1949). The

rule was restated and clarified in Malone v. Bowdoin,

869 U.S. 643 (1962), involving a common law eject-

ment action against an officer of the Forest Service to

prevent him from occupying land under claim of title.

Citing Larson, the Court in Malone stated:

“[T}he action of a federal officer affecting prop-

erty claimed by a plaintiff can be made the basis

of a suit for ific relief against the officer as

an individual only if the officer’s action is ‘not

within the officer's statutory powers or, if within

those powers, only if the powers, or their exercise

in the particular case, are constitutionally void.’ ”

369 U.S. at 647.

Here, appellee made affirmative allegations of il-

legal and unconstitutional conduct by appellant officers.

However, the bare allegations cannot lift the jurisdic-

tional bar if the action is, in actuality, one to quiet title

against the United States.

We have applied Malone in two recent instances,

Andros v. Rupp, 433 F.2d 70 (CA9 1970), and Arm-

strong v. Udall, 435 F.2d 38 (CA9 1970). Andros was

an action against a U.S. forest supervisor to restrain him

from interfering with plaintiff's use and possession of

the land. The distinguishing feature for our purposes

here, however, is that record title was stipulated as be-

ing vested by patent and mesne conveyances in the plain-

tiff, not the United States. In our case, there is no such

agreement, and in fact, the title ownership is the sole

point of dispute. Appellee’s reliance on this case is mis-

placed.

Further clarification comes in Armstrong v. Udall,

supra, an action to enjoin the Secretary of the Interior

from claiming title to property held by plaintiff and or-

iginally entered by plaintiff's predecessor, and to re-

quire the Secretary to execute patents and titles to the

land. Its similarity to the instant case is readily ap-

parent, and we consider the rule it states to be control-

ling. Unlike Andros, the title in Armstrong was fully

contested and at the center of the dispute. As in our

case, the Secretary in Armstrong claimed that the plain-

tiff was occupying public land owned by the United

States and separate from that covered by the patent

based on the original survey. We held that it was the

task of the district court to determine from the evidence

whether the land occupied by plaintiff was a part of the

land entered by the claimed patentee and described in

the patent originally issued to him. If this were deter-

mined adversely to plaintiff, then the apparent title

would be in the United States and the action would be

one against the United States without its consent and,

consequently, jurisdictionally barred by sovereign im-

munity. Id. at 41. We there concluded that the district

court should make a factual determination of whether

the case was controlled by Malone (title in the United

States, immunity) or Andros (title in plaintiff, no im-

munity) by deciding wherein apparent title rested.

Armstrong recognizes that in title dispute cases the

issue of sovereign immunity and the ultimate merits of

a plaintiff's claim are intimately interconnected. For all

practical purposes, the former cannot be resolved with-

out determining the latter. In the instant case, we hold,

as explained in detail below, that the district court erred

in its factual and legal determination that the disputed

islands were included within the boundaries of the

patent to appellee's predecessor. Accordingly, it also

erred in its dependent conclusion that the suit was not

barred by sovereign immunity.

THE CHOICE OF LAW ISSUE

Although appellee contends to the contrary, the

rule is clear that federal law governs as to the con-

struction of a patent and the quantum of the premises

which it conveys. Hughes v. Washington, 389 U.S. 290

(1967) ; United States v. Oregon, 295 U.S. 1 (1935).

This rule was stated thusly in Borax Consolidated, Ltd.

v. Los Angeles, 296 U.S. 10, 22 (1935) :

“The question as to the extent of this federal

grant, that is, as to the limit of the land con-

veyed ..., is necessarily a federal question. It is

a question which concerns the validity and effect

of an act done by the United States; it involves

the ascertainment of the essential basis of a right

asserted under federal law.”

See also Bonelli Cattle Co. v. Arizona, 414 U.S. 313,

820-21 (1978); United States v. Schwarz, 460 F.2d

1865 (CA7 1972); United States v. Boyd, 458 F.2d

1252 (CA6 1972). The same rule applies to a patent

granted after statehood is achieved. United States v.

Severson, 447 F.2d 631 (CA7 1971). Accordingly,

Federal—not Idaho—substantive law governs us in de-

termining the boundary issue and the extent of the

patent.

THE APPLICABLE RULES OF LAW IN

THE BOUNDARY ISSUE

Of great importance in this case is the legal effect

to be given to the survey's meander line on the river's

east bank. Early decisions held that a meander line is

generally not to be used as the strict boundary of a

tract, but is to be employed in defining the sinuosities

of the banks of the stream and as a means of ascertain-

ing the quantity of land in a fraction for sale and the

10a

amount to be paid. Whitaker v. McBride, 197 U.S. 510

(1905); Railroad Company v. Schurmeir, 74 U.S. (7

Wall.) 272 (1868); Thomas B. Bishop Co. v. Santa

Barbara County, 96 F.2d 198 (CA9 1938), cert. denied

305 U.S. 623. However, the boundary uses of a mean-

der line in special circumstances were expanded and

clarified in Niles v. Cedar Point Club, 175 U.S. 300

" (1899). That case involved lakefront property and a

disputed marsh outside the meander line, but arguably

still within the boundary. The Court, while noting that

a meander line is ordinarily not strictly a line of bound-

ary, found special circumstances which dictated other-

wise. The surveyor had stopped his survey at what he

called a “marsh,” which was excluded from the official

plat. The Court held that while the surveyor may have

erred in not extending the survey, “. . . his error does

not enlarge the title conveyed by the patents to the

surveyed fractional sections.” Id. at 306. It was clear

from the circumstances that the government did not

intend to convey any property beyond the meander line.

The “special circumstances” exception was restated

in Producers Oil Co. v. Hanzen, 238 U.S. 325, 339

(1915):

“{F Jacts and circumstances may be examined

and if they affirmatively disclose an intention to

limit the grant to actual traverse [meander] lines

they must be treated as definite boundaries.”

1 See also United States v. 100 Acres of Land, Etc., Marin County,

Cal., 468 F.2d 1261, 1264 n.1 (CA9 1972), cert. denied 414 US.

822 (1973), stating that “. . . a meander line does not delimit a

grant where the land is bordered by water unless special evid-

ence is presented to show an intent to use the meander line as

a boundary of the patented land... .” [Emphasis in original.}

lla

Other cases considering the “special circumstances”

exception and rejecting it on factual grounds include

United States v. Lane, 260 U.S. 662 (1925), and

Thomas B. Bishop Co. v. Santa Barbara County, supra.

Lane, upon which appellee heavily relies, is readily dis-

tinguishable. There, the plat mentioned in the patent

represented the lake as the boundary. The Court em-

phasized that the survey, taken as a whole, with the

exception of two large tracts, followed fairly accurately

the contour of the lake. It went on to say that the evi-

dent purpose of the survey was to include in it all the

land to the water's edge. The water's edge in Lane in-

cluded the disputed area. Here, the water's edge ex-

cludes the islands. Lane thereby favors appellants,

rather than appellee.

Additionally, Lane mentions certain factors which

indicated an intention to include extra land within the

boundary. Noting an absence of fraud or palpable mis-

take, it added that at the time of the survey the land

had little value, was in a wild and remote area, and pre-

sented difficulties in surveying which would outweigh

the expenditure of time and money for a more precise

rendition. 260 U.S. at 665.

These factors were reiterated in Thomas B. Bishop

Co. v. Santa Barbara County, supra, a case involving

the seaward projection of a sandspit beyond the survey’s

meander lines. The previously mentioned factors of rela-

tive size, value, terrain difficulty, and the lack of fraud

were found to be sufficient to overlook the placement

12a

of the meander line and to include the sandpit within

the original patent.

It should be emphasized at this point that these

are all merely factors to be considered in evaluating the

weight to be given to the position of a meander line

vis-a-vis the boundary. Factual circumstances differ

from case to case, and all the facts must be first consid-

ered individually, and then considered in their totality.

We now turn to the leading case of Scott v. Lattig,

227 U.S. 229 (1918). Aside from the size of the island

and its distance from the bank, Scott is almost directly

in point. It also involved disputed title to an island in

the Snake River. The land had been surveyed in 1868,

and the surveyor’s field notes and the official plat placed

the meander line, as here, on the edge of the fractional

sections. However, the island was mentioned in neither

the field notes nor the plat. Even though it was the duty

of the surveyor in Scott to note and locate the island’s

presence, and even though the evidence showed that it

had existed at that time, he failed to do so. The island

was clearly outside the meander line and between the

fractional jots and the thread of the stream. Neverthe-

less, “. . . the error in omitting it from the survey did

not divest the United States of the title or interpose

any obstacle to surveying it at a later time.” Id. at 241-

42. The Court found the island’s omission and the fact

that it had been fast, dry land at the time of the survey

and sufficiently separated from the shore, to be the type

of circumstances which would warrant the meander line

becoming a strict boundary. We find Scott v. Lattig

I3a

to be directly applicable to our case, both for its legal

statements and for its factual similarity.’

Just as in Scott v. Lattig, the original surveyor in

the instant case was specifically instructed to note the

existence of any islands. Manual of Surveying Instruc-

tions for the Survey of the Public Lands of the United

States and Private Land Claims, p. 34 (1890). Also,

the governing statute demanded accuracy, with depart-

ure therefrom “. . . no further than such particular cir-

cumstances require.” U.S. Rev. Stat. § 2395 (1) (2d

ed.). Here, there is no evidence or claim of fraud. The

record is clear that the islands in dispute did, in fact,

exist at the time of the 1893 survey. There is no evidence

to the contrary.

In determining boundaries in any land patent case,

special weight must be given to the precise description

of the land contained in the surveyor’s field notes and

the official plat, Jeems Bayou Club v. United States,

260 U.S. 561, 564 (1923). One of the purposes for

accuracy in field surveying and platting of uncharted

lands was to assure preciseness in descriptions in land

patents.* It is undisputed that the 1896 patent was

2 The > Grenaieied in Seat v. Lally wes mast sesumiiy

restated in v. Louisiana, 410 U.S. 702, 713 (1973): “Title

3 The of government land sales on the of

edadel tervabe sad Ve nenel Gabon Ces ot

U.S. Rev. State. §2395 (2d ed.), governing the rules of survey, in

effect at the time of the 1893 survey.

14a

based on the results of the 1893 survey and the 1895 plat.

Accordingly, we must give great weight to the fractional

lots’ boundary line as revealed in the survey and as

shown in the plat.‘

For the same reason, particular attention must be

paid to the precise acreage computation in the plat. In

United States v. Boyd, supra, at 1254, the plat stated

that the premises contained 29.50 acres, and the Court

noted that “[i}t did not say more or less.” The plat's

limitation was taken to show that the patent conveyed

only 29.50 acres, which ended at the lake’s edge and thus

could not include any outside land. Also, in Scott v.

Lattig, supra, at 240, the fractional sections were de-

scribed as containing a specified number of acres from

which the disputed island was excepted.

Here, the patent and accompanying plat granted

appellee's predecessor an exact number of acres in Lots

5 and 8. This evidence 1s highly persuasive in deter-

mining whether the islands were intended to be con-

veyed therewith.’

4 See also United States v. Boyd, supra. The Court in First Nat’l.

Bank of Decatur, Neb. v. United States, 59 F.2d 367 ( .

to plat and survey incorporation into the patent, held

' and ,

_ ce ee cholo ee ite tat come

Land Grant Co., 158 U.S. 253 (1895), aed Cragin v. Powell,

128 U.S. 691 (1888)}.

>“Each section or subdivision of section, the contents whereof

have been returned by the surveyor-general, shall be held and

considered the exact quantity expressed in such return... .”

U.S. Rev. Stat. § 2396 (3) (2d ed.).

15a

In summary, there are a number of legal principles

and the admitted facts which we must take into consid-

eration in determining the disputed shoreline boundary

in the present case—the placement of the meander line

and any attendant circumstances showing it to be in-

tended as the strict boundary, the precise description of

the land in the surveyor's field notes and the plat, and

the exact acreage allotment listed. We emphasize again

the need to view the factual circumstances in their total-

ity. Having stated these controlling rules, we evaluate

the district court's factual findings.

THE STANDARD OF REVIEW

As in reviewing any district court's factual findings,

we recognize our obligation to view the record in the

light most favorable to appellee. W.S. Shamban & Co.

v. Commerce & Industry Ins. Co., 475 F.2d 34 (CA9

1973). We are, of course, guided by the “clearly erron-

eous’ standard of Rule 52 (a), FRCivP, as construed

in United States v. United States Gypsum Co., 333

U.S. 364, 395 (1948), where it is said:

“A finding is ‘clearly erroneous’ when although

there is evidence to support it, the reviewin

court on the entire evidence is left with the def-

inite and firm conviction that a mistake has been

committed.” [Emphasis supplied. }

See also County of Ventura v. Blackburn, 362 F.2d

515 (CA9 1966).

We may regard a finding as clearly erroneous not

only if it is without adequate evidentiary support, but

16a

also if it was induced by an erroneous view of the law.

United States v. Singer Mfg. Co., 874 U.S. 174, 194

95 n. 9 (1963); Rowe v. General Motors Corp., 457

F.2d 348 (CA5 1972). Therefore, if we conclude that

the district court derived its factual findings and ulti-

mate conclusions of law from the application of im-

proper legal standards to the facts, we must reverse.

Specifically, this must occur here if it is apparent that

the district court ignored or gave insufficient weight to

the important rules and factors detailed above for sett-

ling fractional boundary disputes. Also, we naturally

must reverse if the admitted facts are overlooked or

misinterpreted.

ANALYSIS OF THE DISTRICT COURTS

FINDINGS OF FACT

We must take immediate issue with the district

court's finding (Number 8) that “[t]he meander line

of the Snake River in 1893, at the time of the survey of

Lots 5 and 8 was on the west boundary of the subject

lands.” The surveyor’s field notes give sufficient detail

of the meander line of Lots 5 and 8 to place it clearly to

the east of any islands in the river at that point. The

notes, proceeding south to north, speak of crossing the

falls of Sand Creek, then bearing east, reaching a rocky

point, and finally crossing another branch of Sand

Creek. Aerial photographs and plats in evidence clearly

indicate that the south branch of Sand Creek exits from

Section 17 at a point directly across from the middle

of the largest of the three islands, Lot 9. The plat, based

on the 1893 field notes, clearly shows that south branch

of Sand Creek entering the Snake at the approximate

17a

center of Lot 5. This confluence would be directly east

of the approximate center of the large island now known

as Lot 9. The north fork of Sand Creek flows into the

the river at a point to the north of Lot 9 at a narrow-

ing of the river. When these facts are considered, along

with the undisputed fact that the islands were in exist-

ence in 1893, it can only be concluded that the original

survey placed the meander line along the bank to the

east of the islands. These facts alone demonstrate that

the trial judge was clearly erroneous in his finding that

the channel of the Snake River in 1893 was to the west

of the subject islands and that the meander line of the

Snake River at that time was on the west boundary of

the islands. To find otherwise would have Sand Creek's

south fork intersecting Lot 9 and flowing into the river

on the west side of the island. Such a finding would

nullify the undisputed facts before us.

Having established the proper placement of the

meander line, the task remains of assessing its factual

significance in relation to the omitted islands. We com-

mence by noting again that there is no evidence of

fraud in the surveyor’s failure to note the islands’ exist-

ence. He did describe a much smaller island west of

the meander line in Section 20, but why did he fail to

do so in Section 17? He placed a large island-like piece

of land in Section 8 squarely east of the right bank's

meander line, but why did he not do likewise in Section

17? In all probability, he intended to return and survey

the islands at a later date. Here, we must consider the

“special circumstances” discussed above in Niles v. Cedar

Point Club, Scott v. Lattig, and United States v. Lane.

18a

On first impression, one might excuse the islands’

omission due to their relative smallness. However, the

small island south in Section 20—less than five acres

in size—was included in the survey, while the three

disputed islands—with the largest being almost nine

acres—were excluded. The inconsistency is apparent.

The surveyor could hardly have considered them too

small. Accordingly, we find the islands’ relative overall

size to be that which might call for their exclusion from

the boundary of Section 17 and their reservation for a

later survey. Scott v. Lattig, supra, at 241-42. While

not determinative in itself, this is a major factor which

must be considered.

Lane, supra, at 664, also speaks of the omitted

land’s locality, remoteness, and value as additional fac-

tors, along with the existence of any difficulties out of

proportion to any possible gains in surveying, as factors

which might excuse the island’s survey while including

them within the fractional lots. These factors do not ap-

pear to be applicable here. At the time of the survey,

as mentioned in the field notes, the areas along the river

were already being settled including Section 17 by

Polina Lewis and others. By appellee’s own admission,

the islands were continuously used for agricultural pur-

poses, principally as grazing land, even at the time of

the 1893 survey, so they could hardly have been of such

slight value as to be taken for granted. There is no

evidence to indicate that the islands were so wild, re-

mote, and dangerous that the surveyor intended im-

plicitly to include them within Lots 5 and 8 without

even mentioning them, much less surveying them.

19a

We must also recognize the precise description of

Section 17 contained in the plat, realizing the import-

ance of the plat and its field notes in limiting the amount

of the patent. Jeems Bayou Club v. United States,

supra; United States v. Boyd, supra. Physically, the

plat is persuasive in showing a noticeable widening of

the river at the exact spot where the island should be,

and a clearly defined meander line to what would be

their east. Again, the contrast with the small island in-

cluded in Section 20 is apparent. Mathematically, the

plat is persuasive in precisely limiting Lots 5 and 8 to

16.80 and 33.60 acres respectively, computations which

coincide with the latest approximation of their sizes. The

three islands, now estimated to be 11.12 acres in toto,

were clearly present in 1893, but obviously could not

have been part of the previously delimited 16.80 and

38.60 acres in Lots 5 and 8. The patent conveyed a

set number of acres—no more and no less.

The district court placed great reliance upon expert

testimony concerning the manner in which the islands

were formed. The court concluded that the islands

were once morphologically attached to the bank as a

which gradually became dissected from the

bank through the action of the “copious springs flowing

from the adjacent basalt cliffs.” This may be true, but

it is irrelevant in the face of the uncontroverted evidence

that the islands did, in fact, exist at the time of the 1893

survey. How they came into existence and how long

before 1893 does not overcome the fact that in that year

they were fully separated from the river bank and west

of the meander line on the east side of the Snake.

20a

CONCLUSION

Considering all the above circumstances in their

totality and viewing the record as a whole, we are led

to the conclusion that the district court was clearly erron-

eous in its finding of fact that the islands were intended

to be included in the patents conveying Lots 5 and 8.

The district court also erred in its conclusion of law that

the patent, through mesne conveyances, conveyed the

islands to appellee. Title to the islands was and remains

in the United States.

It follows that the district court also erred in con-

cluding that this is an action to restrain appellants from

interfering with appellee’s use and possession of lands

patented and lawfully conveyed to him, over which it

would have jursidiction.

The decision of the Secretary of the Interior under

the Color of Title Act is affirmed. The judgment of the

district court is reversed and appellee's action for an in-

junction is dismissed.

IT IS SO ORDERED.

Diagram A

[Plat of 1895]

[Circle denotes area of disputed islands. ]

20a -2

ot > 20a -3

: |

. =» g —

S Ss ; ro

~ yt ~ oO

. =& “” @ -

cn > es aS

ze $2 -Y} oo

i x , ; g~

2 Peers R354 @ w

J wc

Seawre sy A

&. Sx 4 bh

~ as

~ Uf/; .

oy Si FE .o9 OF * | wo

mF fe &

BP) 32

. ee

7 LINA LEW!

~ * ieadly * "oo 5

a’

Diagram A-1

‘enlargement of Section 17 showing con-

fluence of Sand (Springs) Creek and

Snake River, 1895 Plat]

Diagram B

[Plat of 1959]

APPENDIX B

FINDINGS OF FACT, CONCLUSIONS OF

LAW AND JUDGMENT OF THE

UNITED STATES DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

WILLIS W. RITTER,

Plaintiff,

ROGERS C. B. MORTON, Secretary | Gi.) No.

of the Department of the Interior, 1-70-74

WILLIAM L. MATHEWS, Idaho

Siate Director, Bureau of Land Manage-

ment, and RICHARD H. PETRIE,

successor to ORVAL G. HADLEY,

Manager, Idaho Land Office, Bureau

of Land Management,

JUDGMENT

and

DECREE

Defendants.

This case was heard by the Court, sitting without

a jury. Oral and documentary evidence was admitted

and briefs filed. The Court having considered the evid-

ence, the briefs and the argument of counsel, and having

entered its Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED, ADJUDGED

AND DECREED that defendants, Rogers C. B. Mor-

ton, Secretary of the Interior, William L. Mathews,

Idaho State Director of the Bureau of Land Manage-

ment, and Richard H. Petrie, successor to Orval G.

Hadley, Manager, Idaho Land Office, Bureau of Land

Management, their agents, servants and employees, and

all persons in active concert and participation with them,

are acting unlawfully and unconstitutionally in an at-

tempt to deprive plaintiff of the use and possession of

his lands, more particularly described as Lots 9, 10 and

11, Township 8 South, Range 14 East, Boise Meridian,

and that such defendants, their agents, servants and

employees, and all persons in active concert and partici-

pation with them should be and hereby are permanently

enjoined from any attempt to intermeddle with said

lands to seize them, to sell or convey them, or in any

manner whatsoever to interfere with the peaceable pos-

session and enjoyment of said lands by the plaintiff,

Willis W. Ritter, his heirs, assigns and successors in

interest.

/s/ Ray MecNichols

Chief Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

WILLIS W. RITTER,

Plaintiff,

Vv.

ROGERS C. B. MORTON, Secretary

of the Department of the Interior, 3

WILLIAM L. MATHEWS, Idaho \ Civil No.

State Director, Bureau of Land Manage- 1-70-74

ment, and RICHARD H. PETRIE,

successor toORVAL G. HADLEY,

Manager, Idaho Land Office, Bureau

of Land Management,

Defendants.

This case was heard by the Court, sitting without

a jury. Oral and documentary evidence was admitted

and pretrial and post-trial briefs submitted. The matter

stands ready for final determination on the merits. The

Court, after a consideration of all of the evidence and a

fuller view of the applicable law, makes the following

Findings of Fact and Conclusions of Law.

PRELIMINARY STATEMENT

This is an action seeking to settle disputed rights

regarding certain real property located in the State of

Idaho. In Count I of his complaint, plaintiff seeks by

review of agency action to have the Court determine

that the plaintiff was the owner of the property involved

under the provisions of the Color of Title Act. The

second and third Counts seek to restrain the Secretary

and his agents from interfering with the plaintiff's title

and possession of the lands which title is being claimed

by way of patent from the United States of America,

and mesne conveyances to the plaintiff.

FINDINGS OF FACT

1. In August, 1893, Township 8 South, Range

14 East of the Boise Meridian, was surveyed, and the

plat of survey was approved by the Surveyor General

for Idaho on May 18, 1895. Lots 5 and 8 of Section 17

therein were described, containing 16.80 and 33.60 acres,

respectively. The field notes and survey plat described

the western boundary of Lots 5 and 8, Section 17, as

the meander line of the Snake River.

2. On February 26, 1896, the United States issued

a patent to Lots 5 and 8. Through mesne conveyances,

plaintiff is the present owner of Lots 5 and 8.

8. The lands in dispute in this litigation (referred

to herein as the “subject lands”), are sometimes de-

scribed as three small islands lying adjacent on the west

to Lots 5 and 8. These lands were first included in a

survey made by the United States in 1955 and are in

that survey described as Lots 9, 10 and 11 of said Sec-

tion 17, and contain 8.99 acres, 1.29 acres, and 0.84

acres, respectively.

4. No reference was made in the 1898 survey to

the subject lands, they not being mentioned in the sur-

veyor's field notes nor in the plat of the survey.

5. Plaintiffs predecessors in interest have used

the subject lands for various purposes, including the

raising of crops and grazing of livestock. At various

times fences have been errected and irrigation facilities

installed. Such use has been exclusive to the respective

owners of Lots 5 and 8.

6. The witness, Dr. Eardley, a well qualified ex-

pert, testified at length regarding the formation of the

lands in the Snake River Valley in the area of the sub-

ject properties. The evidence of Dr. Eardley is undis-

puted in the record and was very persuasive to the

Court. The subject lands, according to Dr. Eardley,

constitute a flood plain of the Snake River which plain

was built during flood stages by the deposit of layer

upon layer of silt and very fine sand which are the com-

mon sediments that the Snake River has carried. Dur-

ing flood stages the river overflowed the banks of its

channels and floods over the valley bottom. The bottom

of the flow slowly decreased and the silt and sand part-

icles settled down in a layer of flood plain silt and sand

was deposited. Dr. Eardley was of the opinion that

channels cutting across Lots 5 and 8 resulted from the

copious springs flowing from the adjacent basalt cliffs

which have converged into waterways across the flood

plain and the flood plain has been cut in such a manner

that certain remnants such as the subject properties have

been partially dissected from the mainland.

7. I find that the subject lands once formed a

peninsula which was connected with the mainland, now

Lots 5 and 8. The subsequent separation of the subject

lands from Lots 5 and 8 was due to the flow of Sand

Springs Creek and not the action of the Snake River.

8. The channel of the Snake River in 1893 was to

the west of the subject lands and the high and low

marks of the Snake River are to the west of the subject

lands. The meander line of the Snake River in 1893,

at the time of the survey of Lots 5 and 8 was on the west

boundary of the subject lands.

9. There was no gross error or fraud in connection

with the survey of 1893.

10. The plaintiff has claimed ownership and pos-

session of the subject lands and has raised crops thereon

since he acquired a deed to Lots 5 and 8, on July 0,

1954.

11. In February of 1970, the Land Office Man-

ager, Bureau of Land Management, Department of

the Interior, purported to approve a transfer of the sub-

ject lands to the State of Idaho, Department of Fish

and Game. In July of 1970, the officers of the Bureau

of Land Management took steps to require the plain-

tiff to cease and desist the use of subject lands and di-

rected that he remove any crops or improvements there-

on by September of 1970. Plaintiff began this suit.

CONCLUSIONS OF LAW

1. This is an action to restrain the defendants from

interfering with the plaintiff's use and possession of lands

patented and lawfully conveyed to him. The Court has

jurisdiction.

2. This action is not barred by the doctrine of

sovereign immunity.

8. The subject lands are east of the water course

of the Snake River which constitutes the actual bound-

ary of the land conveyed by the patent and the lands

are therefore included in the patent. Plaintiff is the

owner of the subject properties by way of patent from

the United States.

4. Plaintiff is entitled to the relief sought under

Counts II and ITI.

5. The Court having found and concluded in con-

nection with Counts II and III that plaintiff has title

to Lots 9, 10 and 11, and having determined that the

defendants should be enjoined from interfering with

that title, it is unnecessary to determine the issues raised

by Count I of of the Complaint.

/s/ Ray McNichols

Chief Judge

APPENDIX C

DECISION OF DEPARTMENT OF INTERIOR

NOVEMBER 14, 1960

UNITED STATES

DEPARTMENT OF THE INTERIOR

BUREAU OF LAND MANAGEMENT

Land Office

P.O. Box 2237

Boise, Idaho

DECISION

Willis W Ritter Color of Title

Application Rejected

A class 1 color-of-title application for the following

lands was submitted by Willis W. Ritter on June 24,

1959:

T. 8 S., 14 E.

Sec. 17: Lots 9, 10, 11

By decision dated March 16, 1960, the applicant

was required to submit photostat copies of deeds or

abstract of title showing the conveyance of title of the

lands to the applicant for 20 consecutive years. On

April 14, 1960, photostat copies of instruments of con-

veyance appearing in the Gooding county records, to-

gether with a photostat copy of a warranty deed and

the original of an affidavit were filed.

The lands applied for are islands in the Snake River

which were erroneously omitted from the original survey.

These and other islands in the area were surveyed in

1955, in response to two applications for the survey.

The photostat copies of instruments of conveyance

show that a patent from the United States was issued

to a Polina Lewis on February 25, 1896, for Lots 5, 8,

SEY4,SE14, W14SE% of Section 17, T. 8 S., R. 14 E.

containing 170.40 acres. Lots 5 and 8 are adjacent to

the lots applied for. Another patent was issued for ad-

joining lands in Sec. 20 and 21; however, since these

adjoining lands do not have direct bearing on the matter

of a claim or color of title of the subject islands there

is no reason to further describe them.

On September 12, 1902, the patented lands in Sec-

tion 17, described above, were conveyed to James S.

and William A. Johnson by the following metes and

bounds description :

“A certain tract of land described as follows to

wit: Bounded on the South by section line run-

ning East and West between Secs. 17 and 20.

On the west by Snake River — On the North b

the half Sec. line running east and west throu

center of Section 17 — On the East by the main

wall rock said tract of land containing about 40

acres and fractions thereof more or less the same

being situated in Lots 5 and 8, Sec. 17, T. 8 S.,

R. 14 E., B.M.”

The remaining instruments of conveyance shows

that the above described tract or parcel of land in Lots

5 and 8 was eventually conveyed to the applicant, to-

gether with other lands, through a series of different

owners. According to the original survey Lot 5 contains

16.80 acres and Lot 8 contains 33.60 acres for a total

of 50.40 acres. The applicant now owns 40 acres more

or less of these lots.

The deeds specify that the west boundary of the 40

acre tract is the Snake River. This description, cited

above, has not varied since the tract was so deeded to

the Johnsons on September 12, 1902. There is no men-

tion, whatsoever, of any islands or other lands which

were not part of the original survey.

A claim of class 1 is one which has been held in

good faith and in peaceful, adverse possession by a

claimant, his ancestors or grantors, under claim or color

of title for more than 20 years, on which valuable im-

provements have been placed, or on which some part

of the land has been reduced to cultivation. The pur-

pose and intent of the color-of-title act is to provide

a legal method whereby a valid title to a tract of public

land may be acquired by a citizen, who, relying in good

faith upon a title or claim of title derived from some

source other than the government, has been in peace-

ful adverse possession of the tract for the prescribed

period. Ralph Findlay, A-23522 (February 23, 1943).

The basic element of the claim to the public land must

be his possession of it under a color-of-title from a source

other than the United States. John Johnson, A-25695

(December 30, 1959). The mere possession of and

claim to public land, and the placing of improvements

on the land or cultivating the land are not enough in the

absence of color-of-title required by the statue. Occupa-

tion of the land must be founded on some reasonable

basis of belief that the land was held in good faith under

a valid claim Marion M. Pontius, A-27478 (November

7, 1957).

The occupancy and use of the islands under a mis-

taken belief that it comprised a part of the lands pur-

chased does not entitle the applicant to purchase the

land under the Color of Title Act. Ephraim R. Nelson,

A-25865, (June 6, 1950); Hazel W. Baley, A-25793

(February 2, 1950) ; John Johnson, A-25695, (Decem-

ber 30, 1959).

The conveyances of title submitted fail to show that

any conveyance of the subject islands has ever been

made to the applicant or his predecessors in interest. The

instruments show that he owns adjacent lands only. A

claim or color of title must be established by a deed or

other instrument which purports to pass title and which

appears to be title to the land, but is not good title. The

applicant shows the title passed to the patented lands

but no mention of the subject islands was made at all.

An affidavit from the previous owner of the lands now

owned by the applicant states that she had the under-

standing that the islands were an incidence to the ac-

quisition and ownership of the purchased lands. How-

ever, as pointed out previously, this is no basis for a

claim or color of title under the Color-of-Title Act. No

deed or instrument has been submitted which would

even so indicate.

The applicant has not submitted any evidence on

which a claim or color-of-title can be based. Therefore,

the subject application is hereby rejected for the reasons

enumerated above.

This decision becomes final 30 days from its re-

ceipt unless an appeal to the Director, Bureau of Land

Management, is filed. If an appeal is taken, there must

be strict compliance with the regulation in 43 CFR,

Part 221. (See enclosed form 4-1364). A filing fee of

$5.00 will be required.

Donald I. Bailey

Manager

APPENDIX D

DECISION OF THE DEPARTMENT OF

INTERIOR

August 7, 1961

UNITED STATES

DEPARTMENT OF THE INTERIOR

Bureau of Land Management

Washington 25, D.C.

August 7, 1961

Certified Mail

Return Receipt Requested

DECISION

Myrtle A. Freer

Andrew J. Freer, Jr. Color of Title

Willis W. Ritter

John E. Gurley

Decisions Affirmed

The above-named appellants have appealed from

separate decisions’ rejecting their respective applications

to purchase tracts under the Color of Title Act, as

amended (43 U.S.C. 1958 ed., 1068 et seq.). The ap-

plications were rejected on the basis that the applicants

were not misled as to the nature of the grantor's claim

to the land by the deeds which were claimed to initiate

1 The decision relating to the Michigan cases is dated December

2, 1960, and the decisions relating to the Idaho and Nevada

cases are dated November 14 and July 28, 1960, respectively.

the color of title, or that the applicants have not sub-

mitted evidence of any written instrument purporting to

convey title to the lands 20 or more years previously.

While Mrs. Freer and her husband were occupying

certain public land, a local court in 1938 determined

that Mr. Freer, Sr., qualified as a resident of Millen

township for the purpose of serving in the office of

township supervisor by reason of the years he had lived

on the land in issue. Mr. and Mrs. Freer, Sr., miscon-

strued this court decree to be a determination that Mr.

Freer, Sr., was the owner of the land in issue, so in

1938 he deeded the portion Mrs. Freer now seeks to

purchase to her and in 1945 he deeded the portion their

son, Andrew J .Freer, Jr., seeks to him. Thus, the

Freers’ claims of color of title are based on the fact that

they misconstrued the law, not that they were misled

by the terms of the mentioned deeds of conveyance or

court decree. Moreover, Mr. Freer, Jr., has not held

the land 20 years since the execution of the deed naming

him grantee.

Judge Ritter, as the owner of nearby mainland, be-

lieved that he was the riparian owner of certain islands

in issue, and he occupied the lands under this belief.

The Department has determined that the islands were in

existence prior to the admission of the State of Idaho

into the Union, so the islands are public land. See Willis

W. Ritter, A-27755 December 22, 1958). Thus, in

effect, the appellant asserts that his belief that he was

the riparian owner of the islands, and his occupancy of

the lands under this belief, is sufficient to give him a

preference right of purchase under the Color of Title

Act, supra, even though he has no instrument which

purports to convey title to the public lands to him or

his predecessors in interest.

Mr. Gurley purchased land adjoining the public

land he seeks under the belief that the land description

in his deed included the public land in issue. Thus, Mr.

Gurley’s mistake was one as to the boundaries of his

land, and his claim is not based upon any written instru-

ment which purports to convey title to the public land

in issue.

The accepted weight of authority in the absence of

statute is that color of title can be founded only upon

an instrument in writing. Peterson v. Weber County,

103 P. 2d 652, 655; 99 Utah 281 (1939). The purpose

of the Color of Title Act, supra, is to provide a legal

method whereby one who, relying in good faith upon a

title or claim of title derived from some source other

than the Government, has been in peaceful, adverse pos-

session of a tract of public land for the period prescribed

by the statute, and who meets the other requirements of

statute and regulation, may acquire a valid title to the

land. See Vol. 2, 1953 U.S. Code Cong. and Adm.

News, page 2014 et seq. The mere occupancy of the

land, or occupancy under a claim of title which the

claimants knew or had good reason to believe was in-

valid, is not sufficient, even when the other requirements

of the act may have been complied with. Jose C. Cres-

pin v. Thelma D. Sloan, A-25520 (November 16, 1949).

The appellants have offered no showing which would

support a finding that they or their predecessors had

# %

reason to believe they had title to such land derived

from a source other than the Government.

Accordingly, the decisions are affirmed.

Mrs. Myrtle A. Freer, Mr. Andrew J. Freer, Jr.,

Judge Willis W. Ritter and Mr. John E. Gurley are

each allowed the right of appeal to the Secretary of the

Interior in accordance with the regulations in 48 CFR

Part 221, as amended. See enclosed Form 4-1865. If

an appeal is taken, the amount of the filing fee will be

computed on the basis of $5.00 for each color of title

application included in the appeal. If each appellant

adversely affected by this decision appeals, the total fil-

ing fee is $20.00. In taking an appeal there must be

strict compliance with the regulations.

/s/ John B. Piccolo

Acting Chief,

Division of Appeals

Enclosure

DISTRIBUTION

Mr. Glenn C. Hague, Attorney for Mrs. Freer and Mr.

Freer, Jr. (Certified Mail)

Mrs. Myrtle A. Freer (Regular Mail)

Mr. Andrew J. Freer, Jr. (Regular Mail)

Senior & Senior, Attorneys for Judge Ritter (Certified

Mail)

Hon. Willis W. Ritter (Regular Mail)

_ Mr. Glenn B. Gurley, Attorney in fact for Mr. John E.

Gurley (Certified Mail)

Mr. John E. Gurley (Regular Mail)

Chief, Div. of Field Services

SD (Idaho)

SD (Nevada)

Land Office, St. Paul, Minnesota

LO (Boise)

LO (Reno)

Chief, Div. of Lands and Recreation

Each Case File

Permanent File

Attorneys’ Reading File

Appeals Reading File

JHOD

APPENDIX E

DECISION OF DEPARTMENT OF INTERIOR

April 2, 1963

UNITED STATES

DEPARTMENT OF THE INTERIOR

OFFICE OF SECRETARY

Washington 25, D.C.

A-29221

Myrtle A. Freer BLM 051854 (Michigan)

Andrew J. Freer, Jr. BLM 051863 ( Michigan)

Willis W .Ritter Idaho 010584

Color of title applications

rejected

Affirmed

APPEALS FROM ‘1ii¢ BUREAU OF

LAND MANAGEMENT

Myrtie A. Freer, Andrew J. Freer, Jr., and Willis

W. Ritter have separately appealed to the Secretary of

the Interior from a decision dated August 7, 1961,

wherelfy the Division of Appeals, Bureau of Land Man-

agement, affirmed land office decisions rejecting their

respective applications to purchase tracts under the

Color of Title Act, as amended (43 U.S.C., 1958 ed.,

sec. 1068 et seq.).

The applications were filed as class 1 claims under

the act. Class 1 claims are allowable only where it is

shown to the satisfaction of the Secretary of the In-

terior

“that a tract of public — has been held in ow

faith and in peaceful, adverse, possession

claimant, his ancestors or grantors, under dian

or color of title for more than twenty years, and

that valuable improvements have been placed on

such land or some part thereof has wth reduced

to cultivation * * *.” 43 U.S.C., 1958 ed., sec.

1068.

The claim of Mrs. Freer originated in a deed

issued on March 20, 1986, by her husband, Andrew J.

Freer, Sr., purporting to convey a two-thirds interest in

a certain island to her. Andrew J. Freer, Jr.'s, claim

originated in a deed issued on October 30, 1945, by his

father, Andrew J. Freer, Sr., purporting to convey a

one-third interest in the same island to him. There is

evidence that Mrs. Freer and her husband did build a

house and reside on the island as early as 1917. There

is, however, no evidence at all of any purported con-

veyance of the island to Andrew J. Freer, Sr. In fact,

there is not even an assertion that prior to the convey-

ances made by him he thought he owned the island, or

any explanation as to why he might have thought he

owned the island. Clearly, therefore, a basic

ment of the color of title act, that the claimant must

have possessed the land under claim or color of title, is

completely lacking so far as Freer, Sr., is concerned.

Marion M. Pontius, A-27473 (November 7, 1957).

Mrs. Freer and Freer, Jr., acquired color of title in

1936 and 1945, respectively, but Mrs. Freer was cog-

nizant in 1954 that she did not have title to the land.

Andrew J. Freer, Jr., was also aware in 1954 that he

did not have title to the land. Their holding of the land

thereafter cannot be said to have been in good faith

under claim or color of title, Marion F. Pontius, supra,

and their holding prior thereto was not for the required

twenty years. The Freer color of title applications were

therefore properly rejected.

Appellant Ritter’s application is for three islands in

the Snake River, Idaho, surveyed as lots 9, 10, and 11,

sec. 17, T. 8 S., R. 14 E., B.M., Idaho, in response to

applications for survey filed in April 1955. The appel-

lant’s application is based upon his and his predecessors’

ownership of land on the east bank of the Snake River

lying opposite the islands (lots 5 and 8, sec. 17). Lots

5 and 8 were patented by the United States on Feb-

ruary 25, 1896. On September 12, 1902, the lots were

included in a conveyance which described the lands

conveyed by metes and bounds, the west boundary be-

ing described as the Snake River. This description did

not vary in subsequent conveyances, including the final

one to appellant executed on July 10, 1954. Appellant

concedes that in the chain of title commencing with the

patent from the United States there is no reference to

any islands in the river.

The Bureau rejected Judge Ritter’s application on

the ground that neither he nor his predecessors, had any

color of title to the islands, there being no instrument

in writing purporting to include the islands.

On this appeal Judge Ritter contends vigorously

that he and his predecessors had color of title to the

’%

islands by virtue of the patent from the United States

and the subsequent conveyances. His contention is

based on the argument that until 1915 the Idaho law

was that a riparian owner takes title to the thread of the

stream, including all smal] islands, whether the stream

is navigable or non-navigable and that the Idaho law

is still the same as to nonnavigable streams. He con-

cludes that the patent and conveyances must be read in

light of the Idaho law in existence at the time and that,

so read, they constitute color of title to the islands.

It is unnecessary to determine here whether a gen-

eral interpretation of law as to the effect of a conveyance

satisfies the statutory requirement for a showing of a

color of title. Assuming that it does, it would not help

the appellant here. The patent from the United States

to lots 5 and 8, section 17, was issued on February 25,

1896. The first decision by the Idaho Supreme Court

holding that a patentee of riparian land gained title to

an island lying between his land and the thread of the

stream was Johnson v. Johnson, 95 Pac. 499, decided

March 23, 1908. The case was one of first impression

(see page 503). It is hard to see how the patent issued

in 1896 and the conveyance made in 1902 could be said

to have been made with this ruling in mind.

But this does not matter. Assuming that they were,

the fact is that on February 6, 1915, the Idaho court in

Callahan v. Price, 146 Pac. 782, cited by appellant,

overruled Johnson v. Johnson and held that a riparian

owner did not gain title to an island lying between his

riparian land and the thread of a navigable stream. This

ruling came down shortly before the lapse of 19 years

after issuance of the patent. Thereafter, appellant's pre-

decessor then holding title to lots 5 and 8 had no basis

for believing that his ownership of those lots entitled

him to ownership of the three islands lying opposite

them. In other words, there could be no good faith hold-

ing of the islands under claim or color of title subsequent

to February 6, 1915. And, since any previous good faith

holding in reliance upon the prior interpretation of

Idaho law was far less than 20 years, a basic require-

ment of the color of title law has not been and cannot

be fulfilled.

The appellant has not addressed himself to this

point. He has, however, said that the navigability of

the Snake River has never been determined at this point

where the three islands are located. He has also said

that Callahan v. Price did not change the Idaho law as

to nonnavigable streams. However, in Willis W. Ritter

et al., A-27755 (December 22, 1958), in which the De-

partment affirmed the dismissal of his protest against

the survey of the same three islands, the Department

accepted determinations by the courts and this Depart-

ment that the Snake River is navigable. Among other

decisions, the Department cited Johnson v. Johnson,

supra, in which the Idaho court was concerned with the

ownership of an island in the Snake River perhaps five

miles or so from the three islands in question. Discussing

the question of what constitutes a navigable river, the

court concluded that the Snake River is a navigable

stream . 95 Pac. at 507. As was the case in 1958, we see

no reason to hold that the river is not navigable where

the three islands are located. Therefore, we would be

unable to accept any contention that the river is non-

navigable where the islands are located and that the ap-

pellant and his predecessors continued to have color of

title despite Callahan v. Price.

Callahan v. Price was the result of the decision of

the United States Supreme Court in Scott v. Lattig, 227

U.S. 229 (1913), which reversed a decision of the Idaho

court following the rule in Johnson v. Johnson. The

United States Supreme Court held that an island in the

Snake River which was in existence at the time Idaho

was admitted to the Union but which had not been sur-

veyed did not pass with a patent to land on the bank

of the river and remained public land of the United

States. Appellant argues that the islands involved im

Scott v. Lattig and in Callahan v. Price are much diff-

erent from the three islands involved here from the

standpoint of size and their separation from the shore.

If the distinction is sound, the only legal significance

of it would be that it would be necessary to conclude

that title to the three islands passed from~the United

States with the issuance of the patent to lots 5 and 8 in

1896, and we would be left with no color of title case at

all. So, too, is the effect of appellant's argument that

until Callahan v. Price, his predecessors actually had

legal title to the islands. In amy event, in the Depart-

ment's decision of December 22, 1958, dismissing ap-

pellant’s protest against the survey of the islands, the

t held that title of the islands is in the United

States. The appellant canmot attack that conclusion and

still maintain his application.

It is unnecessary to discuss at length appellant's

contention that the color of title act does not require a

claimant to have color of title in all cases but permits

him to comply if he has merely “claim of title” as distin-

guished from “color of title”. In this case, any claim of

title that the appellant and his predecessors have rests

upon the interpretation of Idaho law prior to Callahan

v. Price. Such claim of title could not have been held

in good faith after that decision was issued.

Therefore, pursuant to the authority delegated to

the Solicitor by the Secretary of the Interior (sec. 210.

2.2A (4) (a), Departmental Manual; 24 F.R. 1348), the

decision appealed from is affirmed.

Emest F. Hom

Assistant Solicitor

Land Appeals

APPENDIX F

SURVEY OF PUBLIC LANDS

43 USCA $8752

§752. Boundaries and contents of public lands; how

ascertained

The boundaries and contents of the several sections,

half-sections, and quarter-sections of the public lands

shall be ascertained in conformity with the following

principles :

First. All the corners marked in the surveys, re-

turned by the Secretary of the Interior or such agency

as he may designate, shall be established as the proper

corners of sections, or subdivisions of sections, which

they were intended to designate; and the corners of half-

and quarter-sections, not marked on the surveys, shall be

placed as nearly as possible equidistant from two corners

which stand on the same line.

Second. The boundary lines, actually run and

marked in the surveys returned by the Secretary of the

Interior or such agency as he may designate, shall be

established as the proper boundary lines of the sections,

or subdivisions, for which they were intended, and the

length of such lines, as returned, shall be held and con-

sidered as the true length thereof. And the boundary

lines which have not been actually run and marked shall

be ascertained, by running straight lines from the estab-

lished corners to the opposite corresponding corners;

but in those portions of the fractional townships where

no such opposite corresponding corners have been or

can be fixed, the boundary lines shall be ascertained by

running from the established corners due north and

south or east and west lines, as the case may be, to the

watercourse, Indian boundary line, or other external

boundary of such fractional township.

Third. Each section or subdivision of section, the

contents whereof have been returned by the Secretary

of the Interior or such agency as he may designate, shall

be held and considered as containing the exact quantity

expressed in such return; and the half sections and

quarter sections, the contents whereof shall not have

been thus returned, shall be held and considered as con-

taining the one-half or the one-fourth part, respectively,

of the returned contents of the section of which they

may make part. R.S. § 2396; Mar. 8, 1925, c. 462, 43

Stat. 1144 ;1946 Reorg. Plan No. 3, § 403, eff. July 16,

1946, 11 F.R. 7876, 60 Stat. 1100.

APPENDIX G

LANDS HELD UNDER COLOR OF TITLE

43 USCA $1068

Sec.

1068. Lands held in adverse possession; issuance of

patent; reservation of minerals; conflicting

, Claims.

1068a. Appraisal.

1068b. Mineral reservation.

$1068. Lands held in adverse possession; issuance of

patent; reservation of minerals; conflicting

claims

The Secretary of the Interior (a) shall, whenever

it shall be shown to his satisfaction that a tract of public

land has been held in good faith and in peaceful, ad-

verse, possession by a claimant, his ancestors or grantors,

under claim or color of title for more than twenty years,

and that valuable improvements have been placed on

such land or some part thereof has been reduced to cul-

tivation, or (b) may, in his discretion, whenever it shall

be shown to his satisfaction that a tract of public land

has been held in good faith and in peaceful, adverse,

possession by a claimant, his ancestors or grantors, under

claim or color of title for the period commencing not

_ later than January 1, 1901, to the date of application dur-

ing which time they have paid taxes levied on the land

by State and local governmental units, issue a patent for

not to exceed one hundred and sixty acres of such land

upon the payment of not less than $1.25 per acre: Pro-

vided, That where the area so held is in excess of one

hundred and sixty acres the Secretary may determine

what particular subdivisions, not exceeding one hundred

and sixty acres, may be patented hereunder: Provided

further, That coal and all other minerals contained there-

in are hereby reserved to the Uni' States; that said

coal and other minerals shall be subject to sale or disposal

by the United States under applicable leasing and min-

eral land laws, and permittees, lessees, or grantees of the

United States shall have the right to enter upon said

lands for the purpose of prospecting for and mining

such deposits: And provided further, That no patent

shall issue under the provisions of this chapter for any

tract to which there is a conflicting claim adverse to

that of the applicant, unless and until such claim shall

have been finally adjudicated in favor of such applicant.

Dec. 22, 1928, c. 47, § 1, 45 Stat. 1069; July 28, 1953,

c. 254, § 1, 67 Stat. 227.

§1068a. Appraisal

Upon the filing of an application to purchase any

lands subject to the operation of this chapter, together

with the required proof, the Secretary of the Interior

shall cause the lands described in said application to be

appraised, said appraisal to be on the basis of the value

of such lands at the date of appraisal, exclusive of any

increased value resulting from the development or im-

provement of the lands by the applicant or his prede-

cessors in interest, and in such appraisal the Secretary

shall consider and give full effect to the equities of any

such applicant. Dec. 22, 1928, c. 47, § 2, 45 Stat. 1070.

§1068b. Mineral reservation

If the claimant requests that the patent to be issued

under this chapter not contain a mineral reservation and

if he can establish to the satisfaction of the Secretary

that the requirements of this chapter have been com-

plied with by such claimant and his predecessors for the

period commencing not later than January 1, 1901, to

the date of application, no mineral reservation shall be

made unless the lands are, at the time of issuance of the

patent, within a mineral withdrawal or subject to an out-

standing mineral lease. Dec. 22, 1928, c. 47, § 3, as

added July 28, 1953, c. 254, § 2, 67 Stat. 228.

APPENDIX H

United States Department of the Interior

Bureau Of Land Management

Washington, D.C. 20240

May 7, 1975

Memorandum

To: Assistant Director, Technical Services (400)

From: Chief, Division of Cadastral Survey

Subject: Resurveys and Omitted Land Surveys Along

the Snake River, Idaho

On May 6, you asked us to supply certain information

pertaining to resurvey and omitted land surveys along

the Snake River in Idaho. It is our understanding that

this information was requested by Judge Willis Ritter,

U.S. District Court for the District of Utah, Salt Lake

City, Utah.

Background.

Judge Ritter owns upland the Snake River in T. 8

S., R. 14 E., Boise Meridian, Idaho, and in 1959

laid claim to an alleged tract of land fronting his

property under the Color of Title Act. This action

was denied by the Secretary of the Interior. Judge

Ritter petitioned that the United States be restrained

from interfering with his title, use, and possession of

the lands in dispute. The U.S. District Court, District

of Idaho, ruled in favor of Judge Ritter, and the de-

cision was appealed by the United States. The U.S.

Court of Appeals, Ninth Circuit, reversed the District

Court’s decision and affirmed the decision of the Sec-

retary of the Interior.

Under the Omitted Land Act of 1962, (Public Law

87-469, 76 Stat. 89), an extensive inventory and sur-

vey of omitted lands along approximately 150 miles

of river bank of the Snake River was initiated. The

resurveys and surveys were concentrated in an area

between Blackfoot and St. Anthony, because this

area had the greatest history of land title problems

caused by the existence of omitted land along the

river banks. Approximately 16,000 acres of omitted

lands were identified in these resurveys. Judge Ritt-

ers claim lies approximately 100 miles downstream

from this area.

Definition of Omitted Lands...

Omitted lands are land areas not shown on the plat

of original survey, which were excluded from the

survey by some gross discrepancy in the location of

the meander line of a body of water. The lands

typically lie between the actual waterline of a body

of water and the original surveyed meander line.

Specifically, we have been asked to provide the follow-

ing information:

1. Number of resurveys and omitted land surveys

executed by the Bureau along the Snake River,

Idaho.

Between 1959 and 1968, approximately 28 con-

tigous townships along the Snake River were re-

surveyed, and omitted lands in these townships

identified. At the present time, five separate pro-

tests have been filed against these surveys by land-

owners along the river bank. Of the cases that

have been heard (3), one has been decided in

favor of the protestant (Burt A. Wackerli, et al.

v. Rogers C. B. Morton, Civil No. 1-66-92, US-

DC, Idaho). The court ruled that there was in-

sufficient land area involved for it to be consid-

ered omitted land. An appeal to the Ninth Circuit

Court has been recommended by the Bureau in

this case.

. Number of individual private land owners in-

volved.

When the resurveys were completed and omitted

land areas identified, approximately 400 parties

were notified by the Bureau that omitted lands

fronted their lands along the Snake River. In-

formation pertaining to: (1) Number of acres of

omitted land classified for retention by the United

States; (2) Number of acres of omitted land

classified for sale under the Act of 1962; (3)

Number of sales to date; and (4) Amount of

money realized from these sales is a function of the

Lands Division and is not available in the Divi-

sion of Cadastral Survey (420).

/s/ BERNARD W. HOSTROP

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.