Petition for Writ of Certiorari — Gossett v. United States

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LIBRARY | offices Court, US.

SUPREME COURT, U. S. > FILED

IN THE DEC 18 1969

Supreme Court of the United | Stwtéses

October No DON”

UNITED STATES OF AMERICA,

Plaintiff and Appellee,

VS.

Epwarp M, CLArinGcE and Kay T. CLaripcE, his wife,

et al., and STATE ’OF ARIZONA, ex rel., Opep M.

LASSEN, Defendants and Appellants.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

’

Rospert A. STAFFORD,

ZETTERBERG & GEORGE,

By Srepnen I. ZETTERBERG,

414 Yale Avenue,

y Claremont, Calif. 91711

Attorneys for Petitioners

Parker & Son, Inc; Law Printers, Los Angeles. Phone 685-9790

SUBJECT INDEX

Page

Opinions Reported Fe a eae ale 1

I a caeusien 1

I rN ca eecrerstnesomntocsecn ‘a

a aL ale abablaise 2

Reasons for Granting the Writ .............20.2..----.0000+- 4

1. The Decision Below Conflicts With Decisions

of the Supreme Court of the United States

Defining the Bed of a Navigable River as

That Definition Applies to the Colorado River

i 4 eae See ee 4

2. The Circuit Court Ignored the Stated Purposes

for Construction of Hoover Dam in Ruling

That It Is of No Significance Whether Hoover

Dam Affected the Course of the River ........ 6

3. The Circuit Court Ignored the Facts Presented

in the Record When It Held That Changes in

the River Resulting From Hoover Dam Were ©

ATE LIRR, ORRIN ore

ae es eT Bs

4. The Decision Below Is of Critical Importance

to the Lives of Residents of the Colorado

River Valley From Hoover Dam to the Mex-

ican Border and to the State of Arizona ........ 8

SUID bipitantcctinnnceccunine enenaphinndcccisiesialinneciatteienepntininninbees 9

Appendix. Opinion of the United States Court of |

Appeals for the Ninth Circuit .................... App. p. 1

Findings of Fact, Conclusions of Law and Judg-

Rae Sete REIL Aaa toe AIA SENN Ce St Mid OEE ae

TABLE OF AUTHORITIES CITED

- Cases Page

Alabama v. Georgia, 64 U.S, 505 20....eeseeseeeee 4, 5-

Beaver v. United States, 350 F. 2d 4, cert. den.,

SER Siig te SHOE \ copadicitleis cap icntinctcaunentdapbtak Agee 7

Howard v. Ingersoll, 54 U.S. 380 .00...c...ceceeeeeeee 2s. 6

Oklahoma v. Texas, 260 U.S. 606 .0.......cecccccseseseseeeee 4, 6

Philadelphia Co, v. Stimsen, 223 U.S. 605 ..:............. & .

Statutes _

United States Code, Title 28, Sec. 1254(1) .......... 2 :

United States Code, Title 28, Sec. 1345 00.00. 2

United States Code, Title 43, Sec. 617 -0.00000..0....... eae

Textbooks

56 American Jurisprudence, Sec. 476 -............:.:.000+-- 8

65 Corpus Juris Secundum, Sec. 81 -.....0.0......ccceeeeeee 8

’ 45 Statutes at Large, Chap. 42, Sec. 1, p. 1057 ........ 7

67 United. States: Statutes, 29 occ cccccclncecsidecsvevenveccose Res

IN THE

Supreme Court of the United States

October Term, 1969

|: Pee enor:

UNITED STATES OF AMERICA,

Plaintiff and Appellee,

VS. é

Epwarp M. Crarince and Kay T. CLARIDGE, his wife,

et al., and STATE OF ARIZONA, ex rel., OBED' M.

LASSEN, Defendants and A Appellants

: oe ; ip be

Petition for a Writ of Certiorari to. the ‘Ubited States

Court of Appeals for the Ninth Circuit.

Petitioners, Edward M. Claridge and Kay T. Clar-

idge respectfully pray that a writ of certiorari issue —

to review the judgment and opinion of the United

States Court of Appeals for the Ninth Circuit entered

in this proceeding on September 19, 1969.

Opinions Reported.

The opinion of the Court of Appeals, not yet re-

ported, appears in the Appendix hereto. The opinion

of the District Court for the District of Arizona, re-

ported in 279 F. Supp. at 91, also appears in the Ap-_

pendix hereto.

Jurisdiction.

The judgment of the Court of Appeals for, the Ninth

Circuit was entered on September 19, 1969. No pe-

big

<« | ices

tition for rehearing was filed and this petition was filed

within ninety (90) days of that date. This Court’s juris-

diction is invoked under 28 U.S.C. § 1254(1).

Questions Presented.

1. Does the bed of a navigable stream include the

area over which the waters of the river flow during

_ the normal annual high flow period of the river, al-

- though that high flow lasts only six (6) to ten (10)

weeks each year?

2. Was the change in the flow pattern of the Colo-

rado River sufficiently within the specific purposes of

the Boulder Canyon Project Act so as to prevent the

United States from claiming subject lands from Ari-

zona under the doctrine of accretion?

3. Did the construction of Hoover Dam result in

avulsive changes on the Colorado River below the dam?

Statement of the Case.

This is an action instituted by the United States for

restraining orders, to quiet title, for ejectment from the

subject lands and for damages for past use and oc-

cupancy of subject lands by petitioners. The jurisdic- —

tion of the District Court was invoked under 28 U.S.C.

§ 1345.

The lands involved are located two miles south of

Ehrenberg, Arizona, on the Arizona side of the Colo-

rado River. Petitioners have occupied their land for

many years prior to the filing of this action and have

improved the land by clearing and leveling it, estab-

lishing an irrigation system and building fences and

other improvements. They paid for the land and re-

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ceived a quitclaim deed from the prior occupier whose

title traces through prior occupiers, but not to an original

grant from the State of Arizona or the United States.

After the commencement of the action, the State of

Arizona signed a lease with petitioners covering subject

lands and, upon proper application, was permitted to in-

tervene in the action.

The case was tried before the ; District Coa which

entered its Findings of Fact, Conclusions of Law and

Judgment holding that title to the subject lands is in

the United States, free and clear of any right, title,

interest, claim or demand of the defendants or inter-

venors. This judgment was “affirmed by the Circuit

Court.

All of the parties agree that Arizona took the east-

ern half of the bed of the Colorado River in this reach,

from the thread to the eastern ordinary high water

mark; when it éntered the Union in 1912.

The subject lands lie entirely within the area cov-

ered by the usual annual high flow of the Colorado

River, a nontidal, navigable stream as it flowed prior

to the closing of the flood gates of Hoover Dam in

1933. Since the closing of Hoover Dam, the United

_ States admits that the Colorado River has been liftle

more than a canal, controlled by the United States and

moved by the United States as it chooses. Subject

land borders the present flow channel of the Colorado

River in part and in part, it lies several hundred yards

- to the east of the present channel.

The subject land now lies outside the flow ascel

of the Colorado River as a result of the regulation of

the River by Hoover Dam and other river control ac-

tivities of the United States.

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REASONS FOR GRANTING THE WRIT. |

1. The Decision Below Conflicts With Decisions

of the Supreme Court of the United States De-

fining the Bed of a Navigable River as That

Definition Applies to the Colorado River in This

Case.

Oklahoma v. Texas, 260 U.S. 606, 635 (1923);

Alabama v. Georgia, 64 U.S. (23 How.) 505, 515

(1859); Howard v. Ingersoll, 54 U.S. .(13 How.)

380, 415 (1851).

~The Circuit»Court (page 2 of the Appendix hereto)

summarily characterized petitioners’ definition of or-

dinary high water mark as based on the theory that the

annual spring floods of the river covered the valley

from bluff to bluff and therefore, that the valley,

from bluff to bluff, was the river bed. In fact, such

bluff to bluff floods occurréd but rarely, and the Cir-

cuit Court. properly rejected any such definition. But

the Court did not go on to apply the rule of the cited

cases to the fact situation in this case.

Petitioners contend that the bed of the Colorado

River between ordinary high water on each bank was

the area which supported the normal annual high flow

of the river for a period lasting from six (6) to ten

(10) weeks every year. It did not spread out over the

whole valley but, in the area of subject lands, was a

clearly definable area about a mile wide each year. The

cases cited by the Circuit Court, while they rightly

reject the bluff to bluff flood concept, do support pe-

titioners’ position that the bed of the river includes

the usual annual high flow of the river.

elon

In Howard v. Ingersoll, supra, the Supreme Court

said: .

“When banks ot rivers were spoken of those ™

boundaries were meant to contain their waters at

the highest flow, and in that condition they make

what is ‘called the bed of “the river. kEmperaaie

added.)

The call is for the bank, ther fast land thick

confines the water of the river in its.channel of

bed in its whole width . . . the bank or slope from

the bluff or perpendicular of the bank may. not

be reached by the water for two-thirds of the

year, still the water line impressed on the slope

is the line required by-the commissioner; and the

shore of the river, though left dry for any time

and but occasionally covered by water in any stage

of it to the bank was retained by Georgia as the

river up to that line.”

A few years later, the Supreme Court in Alabama

v. Georgia, 64 US. (23 inht 505 at 515, 16 L. Ed.

556, stated,

“The bed of the river is that portion of soil which

is alternately covered and left bare as there may

be an increase or diminution in the supply of water,

and which is adequate to contain it at its average

and mean stage during the entire year without

reference to the extraordinary freshets of the win-

ter or spring or the extreme drought of the summer

or autumn.”

The Court.also said,

“Banks of a river contain the river in its natural

channel where there is the greatest flow of water.”

one:

Uncontested evidence at the trial sho that the ©

annual high flow period of the Colorado was a regular,

normal part of the flow pattern of the river and was

not a freshet or spring flodd.

‘In Oklahoma v. Texas, supra, the Court specifically

declares that, “. . . the banks of a river are neither the

hargis or bluffs which mark the extreme limits of

the valley nor the low shifting elevators within the

sand bed . . .” and then quotes and follows Howard v.

Ingersoll, supra. | ; |

Subject land was within the area which regularly

supported the flow of the Colorado onde each year prior _

to Hoover Dam and was a part of the river’bed under

the rule of Howard v. Ingersoll.

2. The Circuit Court Ignored, the Stated Purposes

for Construction of Hoover Dam in Ruling That

It Is of No Significance. Whether Hoover Dam

Affected the Course of the River.

The Boulder Canyon Project Act, 67 U.S. Stat. 29,

43 U.S.C. § 617," was enacted by Congress in part for

1SUBCHAPTER I.—BOULDER. CANYON PROJECT

ACT. y: :

‘8617. Colorado River Basin; protection and development; dam,

reservoir, and incidental works; water,. water power, and elec-

trical energy ; eminent domain. ?

For the purpose of. controlling the floods, improving naviga-

tion and regulating the flow of the Colorado River, providing for

storage and for delivery of the stored waters thereof for reclama-

tion of public lands and other beneficial uses exclusively within

the United States, and for the generation of electrical energy as a

means of making the project herein authorized a self-supporting

and financially solvent undertaking, the Secretary of the In-

terior, subject to the terms of the Colorado River compact herein-

after mentioned in this chapter, is hereby. authorized to construct,

operate, and maintain a dam and incidental works in the main

stream of the Colorado River at Black Canyon or Boulder Can-

yon adequate to create a storage reservoir of a capacity of not

Q a, an

the purpose of “controlling floods, improving nayigation

and regulating the flow of the Colorado River .. .”

Pursuant to this Act, Hoover Dam was constructed for

the purpose of retaining waters of the river. and releas-

ing them in a controlled manner so as to prevent the

annual high waters.from flowing over the lands at the

edges of the bed of the Colorado River, including subject

lands. To deny this as a primary purpose of the Act

is to deny the.meaning of the very words of the Act.

' If legal consequences in terms of changing title to land

follow a change in the ordinary high water mark which

defines ownership of the land, then it is sheer folly

to say that he who intends to change the water line

does not intend to change the ownership.

Yet, the Circuit Court arrives at precisely this con-

clusion. The decision below cites Beaver v. United

States, 350 F. 2d 4, 11 (Ninth Cir. 1965) cert. denied

383 U.S. 937 (1966) for the proposition that:

“The erecting of artificial structures does not alter

the application of the accretion doctrine

‘unless, perhaps, structures are erected for the spe-

"cific purpose of causing the accretion,”

and then states (page 3 of the_ Appendix hereto) :

“Whether Hoover Dam affected the course of the

river is of no significance, for it .. . was not con-

structed for the purpose of ieee river bed

holdings.” A

less than. twenty million acre-feet of water and a main canal

and appurtenant structures located entirely, within the United

States connecting the Laguna Dam, or other suitable diversion

dam, which the Secretary of the Interior is hereby authorized

to construct if deemed necessary or advisable by him upon ‘en-

gineering or economic considerations, * * * etc. Dec. 21, 1928,

c. 42, §1, 45 Stat. 1057.

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The result of allowing’ the ‘decision of the Circuit

Court to stand would be to endorse the rule that wher-

ever the United States owns land riparian to a navi-

gable stream, it may go upstream, build a flood con-

trol project, and acquire title to the downstream land

it dries up.

3. The Circuit Court Ignored the Facts Presented

in the Record When It Held That Changes in

the River Resulting From Hoover Dam Were

Not Avulsive. ff

The Circuit Court held that “whether Hoover Dam

affected the course of the river is of no significance, .

for it did not result in avulsive-changes. ” (See page 3

of Appendix hereto). Without belaboring the point as

to details, the transcript of the trial court proceedings

is replete with evidence that the changes in the Colo-

rado River resulting from the closing of Hoover Dam’

were sudden and dramatic, not gradual and impercep-

tible. Overnight the river became little more than a con-

veyance canal compressed into a definite channel of

reduced width. These were clearly avulsive, not accretive

changes. 65 C.J.S.; Navigable Waters, § 81; 56 Am.

Jur.,/Waters, § 476, shapers Co. v. Stimsen, 223

U.S. 605 at 624.

4. The Decision Below Is of Critical Importance

to the Lives of Residents of the Colorado River

Valley From Hoover Dam to the Mexican Bor-

der and to the State of Arizona.

Between 200,000 and 300,000 acres. of land lie in

the area that was within the bed of the Colorado River

prior to the establishment of man’ made controls. Ari-

zona claims that part of the land on the eastern side of

waitin

the present flow channel and her stake in this decision is

enormous. Thousands of persons face loss of their

homes, their farms, their businesses, their very liveli-

hoods, if the United States can go upstream, close

off the flow of water in the river, and then, after thirty

(30) years come to the settler and the State of Ari-:

zona and summarily throw them out.

Conclusion.

For these reasons, a writ of certiotari should issue

to review the judgment and opinion of the Ninth Cir-

cuit. ee

December 16, 1969.

Respectfully submitted,

Ropert A. STAFFORD,

ZETTERBERG & GEORGE,

By STEPHEN I. ZETTERBERG,

Attorneys for Petitioners Edward

_M. Claridge and KayT. Claridge. .

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APPENDIX.

Opinion of the United States Court of Appeals |

for the Ninth Circuit.

In the United States Court of Appeals, for the

Ninth Circuit.

United States of America, Plaintiff-Appellee, vs.

Edward M. Claridge and Kay T. Claridge, his wife,

et al. and State of Atizona, Ex Rel., Obed M. Lassen,

Defendants-Appellants. No. 22,312.

Filed, Sept. 19, 1969.

On Appeal from the United States District Court

for the District of Arizona.

Before: MERRILL and ELY, Circuit Judges, and

KILKENNY, District Judge.*

Per Curiam:

This action was instituted by the United States to

quiet title to lands located on the Arizona side of the

Colorado River in the Palo Verde Valley. Judgment of |

the District Court was rendered in favor of the United —

States. 279 F.Supp. 87 (D.Ariz. 1967). From the judg-

ment the defendants and the State of Arizona, as inter-

venor, have appealed, They assert that the lands in

question are not in the public domain but that title

thereto passed to the State of Arizona upon its bécom-

ing a state in 1912. They contend that at that time

the lands were in the bed of the Colorado River’ and

*Honorable John F. Kilkenny, United States District Judge

for the District of Oregon, sitting by designation.

1Confirming prior case law, the Submerged Lands .Act of

1953, 67 Stat. 29, 43 U.S.C. §1301(a)(1), in effect quitclaims

(This footnote is continued on the next page)

pe Web:

remained there until the construction of Hoover Dam

in 1935 reduced the width of the river. /

The facts are fully stated in the opinion of the Dis-

trict Court. For the purposes of this appeal it is suf-

ficient to state that appellants’ theory is founded on

the mistaken assumption that the annual spring floods

of the river (suffered prior to the advent of Hoover

Dam), which covered the valley from bluff to bluff,

constituted its “ordinary high water” and that the val-

ley, from bluff to bluff, thus constituted the bed of

the river.. By eliminating these floods, appellants con-

tend, the Hoover Dam caused an avulsive change in the

flow of the river so that the United States as riparian

owner did not take title to the flood plain.

Appellants’ definition of “ordinary high water mark”

is unsound. The District Court concluded, and we agree:

“The ordinary high water mark of a river is

a natural physical characteristic placed upon the

lands by the action of the river. It is placed there,

as the name implies, from the ordinary flow of the

river and does not extend to the peak flow or

flood stage so as to include overflow on the flood

plain, nor is it confined to the lowest stages of

the river flow.” 279 F.Supp. at 91.

This is in accord with holdings of the Supreme

Court. Oklahoma v. Texas, 260 U.S. 606, 635 (1923) ;

Alabama v. Georgia, 64 U.S. (23 How.) 505, 515

(1859) ; Howard v. Ingersoll, 54 U.S. (13 How.) 380,

415 (1851). \

to the states “* * * all lands * * * covered by nontidal waters.

that were navigable under the laws of the United States at

the time such State became a member of the Union, * * * up

to the ordinary, high water mark as heretofore or hereafter modi-

fied-by accretion, erosion, and reliction * * *,”

The District Court was therefore riot in error in rul-

ing that a precise location of the high water mark at

the time of Arizona’s statehood was unnecessary. While

the river unquestionably has meandered through the

valley. since that time, any change in its course has

resulted from gradual erosion and not from avulsion,

and the resulting accretion passes to the United States

as riparian owner. Whether the Hoover Dam affected

the course of the river is of no significance, for it

did not result in avulsive changes and it was not con-

structed for the purpose of reducing riverbed hold-

ings. 43 U.S.C. §617. As this court stated in Beaver

v. United States, 350 F.2d 4, 11 (9th Cir. 1965), cert.

denied, 383 U.S. 937 (1966) :

“The erecting of artificial structures does not

alter, the application of the accretion doctrine * * *

unless, perhaps, structures are erected for the spe-

cific purpose of causing the accretion.”

For the reasons set forth in the opinion of the Dis-

trict Court, judgment is affirmed. -

Findings of Fact, Conclusions of Law and Judgment.

In the United States District Court, For the Dis-

trict of Arizona. :

United States of America, Plaintiff, vs. Edward M.

Claridge, et al., Defendants. State of Arizona, ex rel.

Obed M. Lassen, Intervenor. No. Civ-5080-Phx.

The within action was instituted by the United States

for the purpose of quieting title to certain land herein-

after described, to evict the defendant occupants of the

land, and for damages claimed to have resulted from —

the use and occupancy of the land by the defendant

—4—

occupants. The land in controversy is descgibed as fol-

lows: |

The South Half of the Southwest Quarter (S%-

SW%) of Section 22; all of Section 27; The

South Half of the Southeast Quarter of the North-

east Quarter (SYUSEYNE%) of Section 28; and

that part of Lot Three (3) lying West of the

South Half of the Southeast Quarter of the North- .

east Quarter (SUYSEYNEY%) of Section 28,

Township Three North, Range Twenty-two West,

G&SRB&M, Yuma County, Arizona.

The defendant occupants of the land deny the title

of the United States and assert title to be in the State

of Arizona, and that they, the defendant occupants, are

properly in possession by virtue of certain leases exe-

cuted by the State of Arizona. The defendant occupants

also by way of set off and counterclaim assert that

they have sufféred damages in the loss of a barley

crop and the destruction of certain improvements caused

by the plaintiff in interferring with their occupancy.

The State of Arizona, intervenor, -asserts title to the

land upon the theory that the land in question is in

fact located between the thread of ‘the Colorado River

and the easterly ordinary high water mark of the river,

and since the admission to statehood in 1912, the

State of Arizona has owned the land in question, and

its title thereto has been confirmed by virtue of the

Submerged Lands Act, 67 Stat. 29; 43 USC 1301,

et seq. |

The defendant occupants prior to entering into the

leases with the State of Arizona (which leases were

executed subsequent to the commencement of this ac-

tion), asserted their title to possession by. virtue of a

ie GE LAS TERED ABR ES ee SSP LAEY is ae

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quit-claim deed from certain predecessors in interest,

for which they had paid a substantial sum, and a land

use permit acquired in 1963 from the United States

Lower Colorado River®Land Use Office, for which

they had paid the sum of $2622. 00. ;

The land in question is located in the Palo Verde

Valley within the State of Arizona on the easterly side -

of the present channel of the Colorado River, approx-

imately one and one-half miles south of Ehrenburg,

Arizona. A portion of the land in question constitut-

ing a “corridor” through Section 28 abuts upon the

easterly bank of the present river channel. Except for

this area, the westerly border of the land in question is

situated approximately one-fourth of a mile east of

the present easterly bank of the river channel.

The Palo Verde Valley through which the Colorado

River flows is a part of the overall natural basin of

the Colorado River. The Valley is approximately fif-

teen miles in length from North to South, and at the

point in question is approximately eight miles in width

from East to West. The river flows generally in a

northerly to southerly direction. The city of Blythe, Cal-

ifornia, is located in the Valley to the West of the

River and the town of Ehrenburg, Arizona, is located :

in the Valley to the East of the River. The floor of the f

Valley is an alluvial plain which has obviously resulted

age ay Ee of alluvion by the Colorado. River as

it meandered across the Valley from one side to the

other, and from the erosion of the bluff on the Cali-

fornia side and the erosjon of the bluff on the Arizona

side. The westerly limit of the Valley is bounded by

the California. bluff; the easterly limit is sien hy

the Arizona bluff.

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The territory of which the land in question is a

part was acquired by the United. States under the

Treaty of Guadalupe Hidalgo. 9 U:S. Stat. 922.7

The Colorado River at the point in question is a

navigable stream (Arizona v. Calif. 283 U.S. 423;

U. S. v. Appalachian Elec. Power Co. 311 U.S. 377;

Boulder Canyon Project Act, 67 U.S. Stat. 29), and

the State of Arizona holds title to land underlying the

River from the thread of the stream to the easterly or-

dinary high water mark. (43 U.S.C. 1301, et seq.,

67 Stat. 29; Arizona v. Calif., 283 U.S. 423). |

Historically and prehistorically, the Colorado River

has been, at its peak flow, a turbulent and violent river,

carrying enormous quantities of water, and with the

the ages the deposit of the silt and alluvion by the

water, great quantities of silt and alluvion. Over

river has resulted in the construction of the alluvial plain

which constitutes the floor of the Valley. Since 1874,

when attempts to measure the seasonal flow of the

river and surveys were undertaken to establish its loca-

tion, the meanderings of the river have been generally

confined to the easterly side of the Valley, along the

Arizona side or bluff.

By orders issued. January 31, 1903 and February 19,

b 1929, pursuant to Act of Congress dated June 17,

“S -1902 (32 Stat. 388), all public lands lying within six

niles of the Colorado River east of the ordinary high

water, mark were withdrawn from settlement, entry

1Concluded February 2, 1848; Ratification exchanged at

Queretaro, Mexico, May 30, 1848; Proclaimed July 4, 1848.

2See also the “Equal Footing Doctrine”, Pollard’s Lessee v.

Hogan, 3 How. 212; Shively v. Bowlby, 152 U.S. 1;. Kansas v. .

3 asad 206 U.S. 46; and 37 U.S. Stat. 39; 37 U.S. Stat.

Ss a gikek ag SSS SERRE INE Fs BS AOR

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or other disposition. Included in the withdrawal orders

was that portion of the South Half (S%) of. Township

Three (3) North, Range Twenty-two (22) West, G.&S.

R.B.&M., Yuma County, Arizona, lying east of the or-

dinary high water mark of the River. The land in

question is included. in the latter description, unless it

lies within the bed of the river between the easterly

_ ordinary high water mark and the thread of the river

to the west. The easterly border of the land in ques-

tion is adjacent to federally owned land to the east.

A great amount of evidence was introduced for) the

purpose of showing the movements of the river from

1874 to 1964.

From 1874 to 1903, the river moved from a loca:

‘tion considerably west of the lands in question to a\

position where it covered the “corridor” of these lands

and a portion of the northwest area of the lands.

By 1912, at the time Arizona was admitted to state-

hood, the river had moved slightly more to the east

toward the Arizona bluff.

Between 1911 and 1915, a levee was constructed

along the westerly side of the flood plain of the river

to protect agricultural land lying to the west of the

river. During this period the “Rabb .cut-off” was con-

structed, resulting in a partial avulsive movement of

the river, which did not materially affect the lands in

question. By 1915, however, ‘the river: had continued

its easterly movement so that the normal flow of the .

river ran to the west of, but near the center of, the

lands in questio

_ By 1922, a LG: which had been forming to the

north and west of the land in question had moved

Rk i Rae APES RT

south and the river began to move westerly again, so

that it covered the “corridor” and the southwest cor-

ner area of the land in quéstion. By 1924, the loop

had moved further south and the southeasterly extrem-

ity of the loop had moved easterly over the central por-

tion of the lands, and the river continued to cover the

“corridor”; it then flowed directly south through the

center of the lands. As a result of the summer floods

of 1924, the river had cut through the loop and the

‘channel returned to approximately the same position it

held in 1915. By 1930, the loop had reformed to the

west and the river again cut back easterly into the

' lands in question so that it almost covered the south-

west quadrant of the land.

The Boulder Canyon Project Act was passed by

Congress in 1928, and among other things authorized

the construction of a dam upstream from the land in

question at. Black Canyon or Boulder Canyon. There

were several reasons for the construction of the dam,

none of which was for the purpose of establishing

the lands in question. by avulsion.. 43 USC 617.3 As

8SUBCHAPTER I.—BOULDER CANYON . PROJECT

ACT. .

§617. Colorado River Basin; protection and development; dam, °

reservoir, and incidental works; water, water power, and elec-

trical energy ; eminent domain.

For the purpose of controlling the floods, improving naviga-

tion and regulating the flow of the Colorado River, providing

for storage and for delivery of the stored waters thereof for

reclamation of public lands and other beneficial uses exclusively

within the United States, and for the generation of electrical

energy as a means of making the project herein authorized a self-

supporting and financially solvent undertaking, the Secretary of

the Interior, subject to the terms of the Colo River compact

hereinafter mentioned in this chapter, is hefeMy authorized to con-

struct, operate, and maintain a dam and incidental works. in the

main stream of the Colorado River at Black Canyon or Boulder

ee emmee

a result of the Boulder Canyon Project’ Act, Hoover

_Dam_ was constructed. Its gates were closed and the

dam. became operative in 1935. Since that time until

the present, the -river channel. has become relatively

stabilized so that it flows adjacent to the westerly

limits of the “corridor” of the lands in question and

from one-half to one-quarter of a mile west of the

lands other than the “corridor”. |

While it is possible to view the area in question

and to generally determine the historical movements of

the river there are little, if any, physical characteristics

from which one might determine the classical “ordinary <

high water mark” of the river as it existed prior to

1935, nor is it in the opinion of the Court necessary

to make such a determination to resolve the issues of

this case.

The Court has considered the evidence in this case,

the memoranda of the respective parties, and the argu-

ments in support thereof. Being fully advised in the

premises, the Court finds as follows:

FINDINGS OF FACT

kL. It is immaterial to determine the location of the

ordinary high water mark’of the river in 1912 or sub-

sequent dates, other than the date at which defendants

claim title or right to possession.

Canyon adequate to create a storage reservoir of a capacity of

not less than twenty million acre-feet of water and a main canal

and appurtenant structures located entirely within the United

States connecting the Lagufia Dam, or other suitable diversion

dam, which the Secretary of the Interior is hereby authorized

to construct if deemed’ necessary or advisable by him upon engi-

neering or economic considerations, * * * etc. Dec. 21, 1928,

c. 42, §1, 45 Stat. 1057.

2. The present ordinary high water mark of the

river exists by virtue of the controlled flow of the

river through Hoover*Dam and other dams upstream

from the hands in question.

3. The lands in question are located to the east of

the present ordinary high water mark of the Colorado

River. ,.

4. The lands in question were withdrawn from entry

by the withdrawal orders of January 13, 1903 and Feb-

ruary 19, 1929, issued pursuant to Act of Congress

dated 17 June 1902, 32 Stat. 388.-

5. The present ordinary high water mark of the

Colorado River so far as it relates to the lands in ques-

tion is withim the existing banks of the river, the easter-

ly such bank ‘lying to the west of the most westerly

limits of the tand in question.

6. No part of the lands in question lie within the

bed of the Colorado River from the thread of the river

, to its easterly bank, or otherwise.

CONCLUSIONS OF LAW

1. The ordinary high water mark of a river is a

natural physical characteristic placed upon the lands by

the action of the river. It is placed there, as the name

implies, from the ordinary flow of the river and does

not extend to the peak flow or flood stage so as to in-

clude overflow on the flood plain, nor is-it confined

to the lowest stages of the river flow.‘ |

2. The ordinary high water mark of the Colorado

River at the location in question is within the existing

‘US. v. Chicago, B. & O-R. Co., 90 F.2d 161; Ohle v. Texas,

260 U.S. 606, 43 S.Ct. 221; See also Beaver v. -U.S., 350 F.2d

4. rene.

‘

ities

banks of the river to the west of the lands in question,

regardless of the activity by the United States in .con-

structing certaiff works within the river to confine and

improve the channel, which work has been undertaken

within the purview of the Boulder a Project Act.

43 USC §617, et seq.

3. The lands in question were established by accre-

tion or reliction from the action of-the Colorado River,

or by both, and were accreted to or relicted to lands

owned of the United States, withdrawn from entry by

lawful action of the United States in 1903 and 1929;

the title thereto is presently in the United States.®

_ 4. The United States could not lose title to the

Jarids in question by estoppel, mistake, laches, adverse

possession or acquiescense.® 7

5. The defendants and intervenor have no right,

title, interest, claim or demand to the lands in question.

6. If any finding of fact herein involves matters of

both fact and law, to the extent that any such finding

of fact may be construed more properly as a conclusion

of law, the same is hereby adopted and incorporated

herein as a conclusion of law. | |

This Court having -decided the case upon the merits,

plaintiff’s ‘motion for partial summary judgment here-

tofore taken under advisement is denied. -

The Court will retain jurisdiction in the matter for

the purpose of determining damages due plaintiff, if

8U.S. v. Oregon, 295 U.S. 1; U.S. v. Washington, 294 F.2d

830, cert. den. 369 U.S. 817; Beaver v. U.S., 350 F.2d 4.

6Art. IV, Section 3, Constitution; U.S. v. California, 332° U.S.

19; Beaver v.,U.S., 350 F.2d 4; See Wilson & Co. v. U-S.,

245 US. 24; Utah Power & Light Co. v. U.S., 243 — 389 ;

U.S. v. Langendorf, 322 F.2d 25.

any, upon appropriate presentation of evidence on that

‘subject.

WHEREFORE, IT IS ORDERED, ADJUDGED

AND DECREED that title to the lands in question and

described as:

The South Half of the Southwest Quarter

(S%YSW%) of Section 22; all of Section 27; the

South Half of the Southeast Quarter of the North-

that part of Lot Three (3) lying West of the

South Half of the Southeast Quarter of the North-

east Quarter (SYSEYNEY%) of Section 28,

- Township Three North,. Range Twenty-two West,

G&SRB&M, Yuma County, Arizona,

is in the United States of America, free and clear of

any right, title, interest, claim or demand of defendants

or intervenor.

Dated at Phoenix, Arizona, this 4th day of November, .

1966.

/s/ Walter E. Craig

Walter E. Craig

United States District Judge

I, WM. H. LOVELESS, Clerk of the United States

District Court in and for the District of Arizona, do

hereby certify that the annexed and foregoing is a true

and full copy of the original thereof now remaining

in my custody among the records of the said court.

* Attest Oct. 3, 1967, Wm. H. Loveless, Clerk, United

States District Court for the District of Arizona. By

Winona Andre, Deputy Clerk.

east Quarter (SY%SEYNE'%) of Section 28; and

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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.