# Petition for Writ of Certiorari — Gossett v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1970
- **Citation:** 397 U.S. 961

## Text

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-

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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

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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

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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 |

id

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

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—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

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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.
l

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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

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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.

as

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.

a

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1294%3A2. Public record. Not legal advice.