Appendix — Bonelli Cattle Co. v. Arizona

Supreme Court brief1973

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Boxxxaa Carrix Company, a California corporation ;

County of Mohave, a political subdivision of the

State of Arizona,

Petitioners,

—v.—

Tun Stare or Arizona, Tun Stare Laxp Depart-

MENT, a department of the State of Arizona;

Anprew L. Berrwy, State Land Commissioner of

the State of Arizona,

Respondents.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ARIZONA

Docket Entries

Complaint to Quiet Title

Agreed Statement of Facts and Issues, Order and

Certificate

Judgment and Decree Quieting Title

Notice of Appeal to the Arizona Supreme Court

Order of the Arizona Supreme Court transferring

appeal to Court of Appeals, Division 1

Opinion Court of Appeals State of Arizona, Division 1

Motion for Rehearing by State of Arizona

Order of Court of Appeals denying Motion for Re-

hearing

Petition for Review by Arizona Supreme Court by

State of Arizona

Order of Arizona Supreme Court denying Petition

for Review

Mandate of Court of Appeals to the Superior Court

of Mohave County

Motion for Reconsideration of Motion for Rehearing

(Petition for Review) by State of Arizona

Response to Motion for Reconsideration

Order of Arizona Supreme Court granting Motion for

Reconsideration

IxDRx

Page

Order of Court of Appeals recalling Mandate

Order of Arizona Supreme Court submitting Petition

for Review

Reference to Opinion of Arizona Supreme Court filed

October 4, 1971 (reported at 107 Ariz. 465, 489 P. 2d

699)

Motion for Rehearing by Bonelli

Order of Arizona Supreme Court granting all petitions

filed by Amici Curiae to file Briefs relative to Motion

for Rehearing

Objection to Motion for Rehearing by State of Arizona

Order of Arizona Supreme Court denying Motion for

Rehearing

Reference to Supplemental Opinion of Arizona Su-

preme Court filed April 13, 1972 (reported at 108

Ariz. 258, 495 P. 2d 1312)

Mandate of Arizona Supreme Court to Superior Court

of Mohave County, Arizona

Order of the Supreme Court of the United States

granting Writ of Certiorari

15.

APPENDIX

RELEVANT DOCKET ENTRIES

Complaint to Quiet Title filed April 16, 1962.

Agreed Statement of Facts and Issues, Order and Cer-

tificate (omitting map exhibits), filed January 23, 1964.

Judgment and Decree Quieting Title, filed July 17,

1967.

Notice of Appeal to the Arizona Supreme Court filed

September 15, 1967, by State of Arizona, et al.

Order of the Arizona Supreme Court denying petition

for direct appeal to it and transferring appeal to Court

of Appeals, Division 1, filed October 24, 1967.

Opinion Court of Appeals State of Arizona, Division

1, filed February 16, 1970.

Motion for Rehearing filed March 3, 1970, by the State

of Arizona et al. :

Order of Court of Appeals denying request for oral

argument and motion for rehearing filed April 20,

1970.

Petition for Review by the Supreme Court of Arizona

filed April 23, 1970, by the State of Arizona et al.

Order of the Arizona Supreme Court denying Petition

for Review, filed May 12, 1970.

Mandate of the Court of Appeals to the Superior Court

of Mohave County, Arizona, filed May 15, 1970.

Motion for Reconsideration of Motion for Rehearing

(Petition for Review) filed May 26, 1970, by State of

Arizona et al.

Response to Motion for Reconsideration filed May 28,

1970.

Order of Arizona Supreme Court filed June 2, 1970,

granting Motion for Reconsideration, denying request

for oral argument and n. Court of Appeals to

recall Mandate.

Order of Court of Appeals filed June 8, 1970, —

Mandate,

16.

17.

18.

19.

21.

2 1

Order of Arizona Supreme Court filed June 16, 1970,

that Petition for Review is submitted.

Reference to Opinion of Arizona Supreme Court filed

October 4, 1971, appearing as Appendix A, pages la

through 36a, in Appendix to Petition for a Writ of

Certiorari to the Supreme Court of the State of Ari-

zona.

Motion for Rehearing of Arizona Supreme Court’s

Opinion filed January 17, 1972, by Bonelli.

Order of Arizona Supreme Court filed January 25,

1972, granting all petitions filed asking for leave to

file Amici Curiae Briefs relative to Motion for Rehear-

Objection to Motion for Rehearing filed January K

1972, by State of Arizona et al.

Order denying Motion for Rehearing filed April 13,

1972.

Reference to Supplemental Opinion of Arizona Su-

preme Court filed April 13, 1972, appearing as Ap-

pendix B, pages 1b through 10b, in Appendix to Peti-

tion for a Writ of Certiorari to the Supreme Court of

the State of Arizona.

Mandate filed April 13, 1972 by the Arizona Supreme

Court.

Order of the Supreme Court of the United States

granting writ of certiorari, dated January 22, 1973.

Inthe Superior Court of the State of Arizona

in and for the County of Mohave

Civil Action No, 5631

BONELLI CATTLE COMPANY,

a California corporation, plaintiff,

THE STATE OF ARIZONA; THE STATE LAND DE.

PARTMENT, a Department of the State of Arizona ;

OBED M. LASSEN, State Land Commissioner of the

State of Arizona, defendants.

COMPLAINT TO QUIET TITLE

(Filed April 16, 1962)

Plaintiff for its cause of action against the defendants

alleges :

(1) That plaintiff is a corporation duly organized and

existing under and by virtue of the laws of the State of

California and is authorized to transact its corporate busi-

ness within the State of Arizona.

(2) That defendant The State of Arizona is a body

politic.

(3) That defendant The State Land Department is a

Department of the State of Arizona and is empowered

under law to administer all laws relating to lands owned

by, belonging to and under the control of the State of

Arizona. [1]

(4) That defendant Obed M. Lassen is the duly ap-

pointed, qualified and acting State Land Commissioner of

the State of Arizona and as such is the executive officer

of the State Land Department and empowered under law

to exercise and perform all powers and duties vested in

or imposed upon the State Land Department.

4 ‘

II '

That the real property the subject of this action is

situate in Mohave County, State of Arizona, and is de-

scribed as follows: 5

Lot One (1); the South Half of the Northeast Quar-

ter (S ½% NEA) and the Southeast Quarter (SEA) of

Section Three (3), Township Nineteen (19) North,

Range Twenty-two (22) West of the Gila and Salt

River Base and Meridan.

III

That plaintiff is the owner in fee simple of the above-

described lands as the ultimate successor in interest to the

patentee of said real property by virtue of patent No.

160022 granted by the United States of America November

5, 1910, to Santa Fe Pacific Railroad Company, successor

in interest to the Atlantic and Pacific Railroad Company.

That said real property is particularly delineated on the

Official Plat of Survey of Fractional Township 19 North,

Range 22 West of the Gila and Salt River Meridian, Ari-

zona, approved and filed in the Surveyor General’s Office,

Phoenix, Arizona, June 29, 1906, a copy of which is at-

tached hereto, marked Exhibit A and by reference made a

part hereof.[2]

That during the past two years the United States Depart-

ment of the Intérior, through its Bureau of Reclamation,

has, without the permission of plaintiff or its predecessors

in interest, caused to be constructed through the above-

described lands a rechannel of the Colorado River, a

navigable stream.

That plaintiff is informed and believes and therefore

alleges that the United States Department of the Interior

ang its Bureau of Reclamation obtained permission from

the State of Arizona by and though its State Land De-

partment and the State Land Commissioner of Arizona to

go upon said land and construct the new channel for the

Colorado River, over across and upon said land. That

plaintiff is therefore credibly informed and believes that

notwithstanding the fact that it is the record owner of the

whole fee title to said land that the defendants, and each

of them, make some claim adverse to the aforesaid right,

estate, title and interest of the plaintiff to said real prop-

erty, which claim threatens to interfere with plaintiff's

enjoyment of its fee simple estate in said real property

unless an order and decree of this Court is obtained quieting

title in plaintiff and barring defendants, and each of them,

from forever having, asserting or claiming any right, title,

estate or interest in or to said real property adverse to

Wherefore, plaintiff prays for an order and decree of this

Court establishing and quieting title in and to the real

property in plaintiff, free and clear of any claim of any

right, estate, title or interest of the defendants, and each

of them, [3] therein adverse to the plaintiff, and forever

barring and estopping said defendants, and each of them,

from having, asserting or claiming any right, title, estate

or interest in or to said real property adverse to the claim,

right and title of plaintiff; that plaintiff have and recover

judgment for its costs herein expended and incurred; and

for such other and further relief as to the Court may seem

just and proper in the premises.

Exmer C. Coker

Elmer C. Coker

Suite 840 Security Building

Phoenix, Ari

Attorney for Plaintiff] 4]

(Verification omitted)

In the Superior Court of the State of Arizona

in and for the County of Mohave |

(title omitted in printing)

AGREED STATEMENT OF FACTS AND ISSUES,

ORDER AND CERTIFICATE

: Filed January 23, 1964)

) Pursuant to Rule 52 (e) Rules of Civil Procedure, It is

hereby stipulated by the respective attorneys for the plain-

tiff and defendants that the following are the Agreed

Statement of Facts and the Issues to be determined by the

Court:

Plaintiff claims to be the record owner in fee simple of:

Lot 1; the SY%NE and the SE of Section 3, Town-

ship 19 North, Range 22 West of the Gila and Salt

River Base and Meridan.,

situate in Mohave County, State of Arizona, as evidenced

by that certain warranty deed dated the 12th day of

August, 1955, wherein Harry E. Miller and Orpha S. Miller,

his wife, are grantors, and [1] plaintiff is the grantee, which

warranty deed was placed of record in the office of the

Mohave County Recorder on August 19, 1955, in Book

82 of Deeds, Pages 246-247, a true copy of which deed is

attached hereto, made a part hereof and marked Exhibit A.

That during the years’ 1905 to 1906 the Surveyor

General’s Office of the United States Department of the

Interior, under and by virtue of directions from the

General Land Office and the Secretary of the Interior,

caused to be made a survey of Fractional Township

19 North, Range 22 West of the Gila and Salt River

Mefidian, Arizona, among which lands so surveyed in said

Township were Sections 2, 3, 4, 9 and 10, or portions

7 x

thereof, and established the meander line of the left bank

of the Colorado River in the course of making said survey

through said Sections 3, 4, 9 and 10, That the official map

of said survey was approved and filed in the Surveyor

General’s Office, Phoenix, Arizona, June 29, 1906. That a

true copy of said map showing the above-described lands

in Section 3 is attached to plaintiff’s complaint as Exhibit

A and is likewise attached hereto as Exhibit B. That at

the time of the filing said official map of said survey the

lands above-described in Seetion 3 as shown on Exhibit

B were located some distance from the meander line of

the left bank of the Colorado River.

III

That pursuant to various Acts of Congress relating to

granting land to aid in the construction of railroads the

United States of America by Patent No. 160022 dated

November 5, 1910, recorded July 3, 1911, in Book 21 of

Deeds, pages 484-488, [2] records of Mohave County, gave

and granted unto the Santa Fe Pacific Railroad Company,

successor in interest to the Atlantic and Pacific Railroad

Company, and to its successors and assigns forever, among

other lands :

Lots 1, 2, 3, 4, 5 and 6; the S % NEN; the S NW.;

the NE4SW&, and the SE of Section 3, Township

19 North of Range 22 West, containing 589.40 acres;

the lands so described being all of Section 3, a true copy

of which patent is attached hereto as Exhibit C. That the

lands involved herein, described on Page of said patent,

for easy identification, are underscored in red pencil.

That pursuant to several reclamation withdrawal orders

made by the President of the United States and the Seere-

? Se

tary of the Interior in the year 1903 and years subsequent

thereto all of Section 2, as well as other lands, in said

Township and Range were withdrawn from entry and

disposition under the Public Land Laws, including the

various grants to the then Territory of Arizona made

by Acts of Congress. That said Section 2 still remains

withdrawn from entry and the State of Arizona has never

received title to the same under the provisions of its Ena-

bling Act or any other Act of Congress, nor has the State

of Arizona ever offered said Section 2, or any portion

thereof, as lieu land for selection of other public lands

pursuant to the Enbling Act, or any other Act of Congress.

That if said lands were restored for entry by the United

States, in the absence of any disposal of the land by lieu

selection rights by the State of Arizona, title to said Section

2 would vest in the State of Arizona pursuant to the

provisions of the Enabling Act and other Acts of Congress.

That the [3] State of Arizona does not intend to offer

said Section 2 as lieu land in exchange or selection for

other lands of the United States under the provisions of

the Enabling Act or any other Act of Congress applicable

thereto. That if any accretion rights by virtue of the move-

ment of the Colorado River have attached to Section 2,

it is the intention of the State of Arizona to claim any

of said accretion rights attaching or appurtenant thereto

when and if the State should obtain title to said Section.

That during the late winter of 1959 and the early part

of 1960 the United States of America, through its Bureau

of Reclamation, without permission or consent from or

by either plaintiff or any of the defendants, changed the

channel of the Colorado River by relocating the same

and rechannelling said River through the lands of plaintiff

in Section 3 above described. That the location of the River

as it was so rechannelled by the Bureau of Reclamation

is shown on the 1960 Mosaic Aerial Survey photo compiled

July and August 1961 attached hereto as Exhibit D, and

a topography map prepared by Region 3, Bureau of

Reclamation, United States Department of the Interior,

Boulder City, Nevada, Edition of 1952, Revised August

1, 1960, which indicates the bank of the active channel

prior to rechannelization by the Bureau of Reclamation,

United States Department of the Interior, indicated thereon

by a red pencil line, a true copy of which topographic

map, together with explanatory letter from the Regional

Director of said Bureau of Reclamation dated January

31, 1964, is attached hereto as Exhibit E-1 and Exhibit

E-2. That said topographical plat, however, has never been

filed with the Bureau of Land Management, United States

Department of the Interior, as an official plat of survey. [4]

That pursuant to Chapter 36, Laws of 1959, ARS, Section

41-523, Twenty-fourth Legislature of the State of Arizona,

and Chapter 118, Forty-ninth Session, Nevada Legislature, -

the Colorado River Boundary Commission of the State

of Arizona and the Colorado River Boundary Commission

of the State of Nevada under date of February 6, 1960,

entered into a Compact defining a portion of the Arizona-

Nevada boundary on the Colorado River from the center

of the Colorado River as relocated and rechannelled by

the Bureau of Reclamation. That a true copy of said

Compact is attached hereto as Exhibit F. That attached

to said Compact is a map made by the Boundary Commis-

sion’s Registered Engineer which shows the location of

the lands involved herein and the relocation of the Colo-

rado River in relation thereto, the lands for easy identi-

fication being colored in red on the map. That said Compact

was approved and ratified by the Legislature of the State

of Nevada and approved by its Governor March 9, 1960

(Chapter 119 Nevada Revised Statutes 1960) and was ap-

proved and ratified by the Legislature of the State of

Arizona by Chapter 69, Laws of 1960, and approved by

the Governor March 24, 1960 (which appears after the

printed text of Section 41-523, ARS, 1963 Cumulative

Pocket Part). That after ratification of the Compact by

the States of Nevada and Arizona, Congress by Publie

Law 87-50, Eighty-seventh Congress, First Session (75

Stat. 93) approved June 16, 1961, ratified and confirmed

said Compact.

That during the month of December, 1961, the Bureau

of Land Management of the United States Department

of the Interior [5] caused to be made a Limited Dependent

Resurvey of Sections 2 and 10 of said Township and Range

for the purpose of retracing and reestablishing the bound-

aries of Sections 2 and 10 and to restore the corners

thereof in their original positions according to the best

available evidence. That the plat of this Limited Dependent

Resurvey was approved October 12, 1962, and thereafter

filed in the Phoenix Land Office, Bureau of Land Manage-

ment, United States Department of the Interior, Phoenix,

Arizona, a true copy of said plat being attached hereto

as Exhibit G. That said survey and plat were made without

the knowledge or consent of or participation by either

plaintiff or defendants.

VIII

That since che years 1905 and 1906, and particularly

since June 29, 1906, the date of the approval of the official

map of survey, Exhibit B, until the river’s rechannelliza-

tion by the Bureau of Reclamation as stated in Paragraph

V, the channel of the Colorado River has moved eastward

. 11 .

but the dates and degree of said movements cannot be

ascertained with any degree of accuracy without the taking

of voluminous testimony and documentary evidence, except,

however, two aerial photographs are available which are

attached hereto as Exhibits H and I, Exhibit H being

an aerial dated April 24, 1938, showing the location and

course of the Colorado River at that time, upon which

the boundaries of Section 3 and adjoining sections have

been scaled and Exhibit I being an aerial photo taken in

1942 showing the location and course of the Colorado

River at that time upon which the boundaries of Section

3 together with adjoining sections have been scaled.

That the only approved official plats of survey of record

in the Phoenix Land Office, Bureau of Land Management,

[6] United States Department of the Interior, Phoenix,

Arizona, are those plats attached hereto as Exhibit B and

Exhibit G.

ISSUES TO BE DETERMINED BY THE COURT

(1) Does the State of Arizona have any right, title,

interest or claim to the lands in Section 3, Township 19

North, Range 22 West of the Gila and Salt River Meridian,

Arizona, claimed to be owned by plaintiff in fee simple

by virtue of the patent from the United States of America

to Santa Fe Pacific Railroad Company, successor in interest

to the Atlantic and Pacific Railroad Company, dated No-

vember 5, 1910, recorded July 3, 1911, in Book 21 of Deeds,

pages 484-488, records of Mohave County, by virtue of any

accretion rights which may now or in the future attach

and become appurtenant to Section 2 by reason of the

natural or manmade movement of the Colorado River?

(2) Does the State of Arizona own the lands in Section

3 claimed to be owned by plaintiff by reason of the fact

12 8

that the Colorado River is a navigable river by decision

of the United States Supreme Court decided May 18, 1931,

in Arizona v. California, 283 U. S. 423, 74 L. ed. 1154,

and that as a result thereof under previous decisions of

the Supreme Court of the United States the Territory

and later the State of Arizona became the owner in fee

simple from the high-water mark on the East bank of

the Colorado River to the center thereof?

(3) If the answer to the foregoing question is in the

affirmative, did the State of Arizona obtain title when

the River moved eastward from its original location as

shown on the official. plat of survey approved June 29,

1906, Exhibit B, to its present location as shown on Exhibits

B and G notwithstanding [7] the fact that prior to state-

hood, on November 5, 1910, the United States conveyed

title to the lands in question to the Santa Fe Pacific Rail-

road Company (See Exhibit C)?

It Is Further Stipulated that the foregoing Statement

of Facts and Issues to Be Determined by the Court, upon

approval and certification by the Court, shall in the event

of an appeal by either party to the Supreme Court of

the State of Arizona from any final decision of the above-

entitled Court constitute, together with the judgment, the

record on appeal.

Dated: November 25, 1964.

a /s/ Eimer C. CoxKer

a Elmer C. Coker

Suite 840 Security Building

Phoenix, Arizona 85004

Attorney for Plaintiff

Rosert W. Pickrei.

The Attorney General

State House, Phoenix, Arizona

/s/ Date R. Saumway

Assistant Attorney General

ORDER AND CERTIFICATE

It is hereby Ordered that the foregoing Statement

of Facts are approved and certified to be correct;

It Is Further Ordered that the foregoing Issues are

approved and certified to be the issues to be determined

by this Court; and [8] SES.

It Is Further Ordered that the foregoing Statement

of Facts and Issues shall, in the event an appeal is taken

from any final judgment of this Court to the Supreme Court

of Arizona, be made a part of the record thereof.

EFT

T. J. MAHONEY

Judge of the Superior Court [9]

(Exhibit A, B and applicable parts of Exhibit C follows;

Exhibits D, E-1 and E-2, F omitted.)

Exhibit A.

“WARRANTY DEED

The Grantors, HARRY E. Mun and Orpna S. Muze,

his wife, for and in consideration of Ten and No/100

Dollars ($10.00) and other good and valuable considera-

tions, receipt of which is hereby acknowledged, do hereby

Convey unto Bonelli Cattle Company, a corporation

organized and existing under the laws of the State of Cali-

fornia, the following described real property, to-wit:

8% Section 1; E Section 3, excepting Lot 2 thereof;

8% Section 11; 8½ Section 13; EV Section 15, except-

ing therefrom the E of Lot B and all of Lots 1, 2, 8,

9, 10, 12, 13, 14, 15 and 16 as shown on plat of a Subdivi-

sion of said Section 15 filed in the Office of the County

Recorder of Mohave County, Arizona, on May 18, 1931;

E%, NEY NW, NWA, SW and SWI of Section

23, all in Township 19 North, Range 22 West,

G&SRB&M, Mohave County, Arizona, together with

the appurtenances thereto in anywise belonging or

appertaining.

And we WARRANT the title against all persons whom-

soever, subject to unpatented mining claims or locations

covering all of or any portion of the property described

herein or any loss which might occur due to mining opera-

tions thereon; also to roads and rights of way for roads,

canals, laterals and ditches, reservations and exceptions of

record, if any.

Witness the hands of said Grantors this-12-day of

August, 1955.

/s/ Harry E. Mun

Harry E. Miller

/s/ On rRNA S. Miter

Orpha S. Miller

(Aeknowledgement Omitted)

(Recorded August 19, 1955, Book 82 of Deeds, pages

246-247, Records of Mohave County, Arizona.)

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Exhibit C

Patent No. 36

SANTA FE PACIFIC RAILROAD LANDS

Primary Limits

Phoenia Land District

Arizona.

4-1043

The United States of America,

to all to whom these-presents shall come, greeting:

Whereas by the Act of Congress approved July 27, 1866,

entitled “An Act granting land to aid in the construction of

a railroad and telegraph line from the states of Missouri

and Arkansas to the Pacific Coast,” there was granted to the

Atlantic and Pacific Railroad Company, its successors and

assigns, for the purpose of aiding in the construction of

said railroad and telegraph line to the Pacific Coast, “Every

alternate section of public land, not mineral, designated by

odd numbe:, to the amount of twenty alternate sections per

mile on each side of said railroad line, as said Company

may adopt, through the territories of the United States,

and ten alternate sections of land per mile on each side of

said railroad whenever it passes through any state, and

whenever on the line thereof, the United States has full

title, not reserved, sold, granted, or otherwise appropriated,

and free from pre-emption, or other claims or rights, at the

time the line of said road is designated by a plat thereof,

filed in the Office of the Commissioner of the General Land

Office ;” and [1] ™

Whereas, official statements bearing dates December 17,

1880, April 19, 1881, January 7, and December 16, 1882, and

.. d' an ©

17 oat

November 3, 1883, have been filed in the General Land

dent, under the provisions of the fourth section of said

Act of Congress approved July 27, 1866, have reported

to him that the line of said railroad and telegraph from

a point in Township Eight north of Range Two East, Terri-

tory of New Mexico, and ending at a point on the west

bank of the Colorado River in the State of California, has

been constructed and fully completed and equipped in the

manner prescribed by the said Act of Congress; and

Whereas, certain tracts of land have been listed by the

duly authorized land agent of the said Atlantic and Pacific

Railroad Company as shown by his original list, approved

by the local officers, and now on file in the General Land

Office; and

Whereas, it is shown by evidence filed in the office of

the Secretary of the Interior, that the Santa Fe Pacific

Railroad Company, under a purchase at foreclosure sale

of the property and rights of the Atlantic and Pacific Rail-

road Company, and by compliance with the provisions of

the Act of Congress approved March 3, 1897,—29 Stat.,

622—, became the lawful successor in interest of the said

Atlantic and Pacific Railroad Company; and

Whereas, the said tracts of land lie coterminous with the

constructed line of road, and are particularly described as

follows, to wit:

Gila and Salt River Meridian—Arizona

Township Nineteen North of Range Twenty-Two West

che lots one, two, three, four, five and six, the

south half of the northeast quarter, the south half of the

northwest quarter, the northeast quarter of the southwest

quarter, and the southeast quarter of section three, con-

taining five hundred eighty-nine and forty hundredths

acres; ***

—

8 18 :

Now know ye, that the United States of America, in

consideration of the premises, and pursuant to the said

Acts of Congress, has given and granted and by these

presents does give and grant, unto the said Santa Fe

Pacific Railroad Company succesor [2] in interest to

the Atlantic and Pacific Railroad Company, and to it suc-

cessors and assigns, the tracts of land listed as aforesaid

and deseribed in the foregoing; to have and to hold the

said tracts, with the appurtenances thereof, upgo the said

Santa Fe Pacific Railroad Company, successor as aforesaid,

and to its suecessors and assigns, forever.

In testimony whereof; I, William H. Taft President of

the United States of America, have caused these letters to

be made Patent, and the Seal of the General Land Office to

be hereunto affixed.

GIVEN under my hand, at the City of Washington, the

FIFTH day of NOVEMBER in the year of our Lord one

thousand nine hundred and TEN and of the Independence

of the United States the one hundred and thirty-fifth.

( GENERAL )

* — g By the President: Wm. H. Taft

H. P. Le Roy, See

( SEAL ) 125 3

John O'Connell

Acting Recorder of the General Land Office

RECORDED: Patent Number 160022

Filed and Recorded at request of Howel Jones July 3rd

A.D. 1911 at 9 o’cloeck A.M. in Book 21 of Deeds, Pages 484

Et Seq, Records of Mohave County, Arizona Territory.

J. W. Morgan

County Recorder. [3]

In the Superior Court of the State of Arizona

Is aud for the County of Mohave

(title omitted in printing)

JUDGMENT AND DECREE QUIETING TITLE

(Filed: July 17, 1967) |

This cause having come on regularly for hearing on

agreed statement of facts and issues pursuant to stipulation

of the respective attorneys for plaintiff and defendants

under Rule 52(c), Rules of Civil Procedure, dated January

20, 1964, and the matter having been submitted to the Court

by briefs of the respective counsel and oral argument held

thereon September 16, 1964, Elmer C. Coker, Esq., appear-

ing for the plaintiff and Dale R. Shumway, Esq., Assistant

Attorney General, appearing for the defendants, the Court,

being fully advised in the premises, answers the following

issues submitted to it for determination in the negative by

reason of its findings hereinafter set forth:

(1) Does the State of Arizona have any right, title,

interest or claim to the lands in Section 3, Town-

ship 19 North, Range 22 West of the Gila and Salt

River Meridian, Arizona, claimed to be owned by

plaintiff in fee simple by virtue of the patent from

the United States of America to Santa Fe Pacific

Railroad Company, successor in interest to the

Atlantic and Pacific Railroad Company, dated

November 5, 1910, [1] recorded July 3, 1911, in

Book 21 of Deeds, pages 484-488, records of Mo-

have County by virtue of any accretion rights

which may now or in the future attach and become

appurtenant to Section 2 by reason of the natural

or manmade movement of the Colorado River?

(2) Does the State of Arizona own the lands in Section

3 claimed to be owned by plaintiff by reason of

the fact that the Colorado River is a navigable

river by decision of the United States Supreme

Court decided May 18, 1931, in Arizona v. Cali-

fornia, 283 U. S. 423, 74 L. ed. 1154, and that as a

result thereof under previous decisions of the

Supreme Court of the United States the Territory

and later the State of Arizona became the owner

in fee simple from the high-water mark on the

East bank of the Colorado River to the center

thereof?

and the Court finds:

(1) That it is undisputed the predecessor in interest

of plaintiff Santa Fe Pacific Railroad Company, successor

in interest to The Atlantic and Pacific Railroad Company,

was the owner in fee simple of the real property herein-

after described prior to the State of Arizona being admitted

as a State of the Union by virtue of Patent issued by the

United States of America on November 5, 1910, recorded

July 3, 1911, in Book 21 of Deeds, pages 484 et seq., records

of Mohave County, Arizona Territory, pursuant to the Act

of Congress approved July 27, 1866, entitled: An Act

Granting Lands to Aid in the Construction of a Railroad

and Telegraph Line from the States of Missouri and Ar-

kansas to the Pacific Coast (14 Stat. 292), the lands in

Township 19 North, Range 22 West, described therein

being in accordance with the Official Plat of Survey ap-

proved and filed in the United States Department of the

Interior Surveyor General’s Office, Phoenix, Arizona, on

June 29, 1906, attached as Exhibit B to the Agreed State-

ment of Facts and Issues on file herein. [2]

(2) That through mesne conveyances title vested in plain-

tiff by virtue of warranty deed dated August 12, 1955,

recorded in Book 82 of Deeds, pages 246-247, records of

Mohave County, Arizona, and therefore plaintiff is now

the owner in fee simple of the real property hereinafter

21 ere

described, free and clear of any right, estate, title or

est of the defendants, and each and all of them

(3) That according to the aforesaid Official Plat of

Survey approved and filed June 29, 1906, the Colorado

River did not pass through any portion of the lands herein-

after described nor border thereon but since said time

the Colorado River has moved eastward to various and

different points and parcels of said land until its channel

was stabilized in 1960 by rechannelization construction work

conducted by the Department of the Interior through its

Bureau of Reclamation where its stabilized man-made

hereinafter described and which man-made channel has

been declared by Compact of the States of Nevada and

Arizona approved by Congress June 16, 1961, Public Law

87-50, Eighty-seventh Congress, First Session (75 Stat.

93) to be the boundary between the States of Nevada and

Arizona.

(4) That the Agreed Statement of Facts and Issues do

not establish the dates, degree and manner of movement

of the Colorado River, but such issues are immaterial in

determination of the rights of the parties in this action.

It Is Therefore Ordered, Adjudged and Decreed that

plaintiff Bonelli Cattle Company, a California corporation,

is the owner in fee simple of and is entitled to the posses-

sion, use and enjoyment of the following described real

property situate in Mohave County, State of Arizona: [3]

Lot One (1); the South Half of the Northeast Quarter

(SY%NE\,) and the Southeast Quarter (SEA) of See-

tion Three (3), Township Nineteen (19) North, Range

Twenty-two (22) West of the Gila and Salt River Base

and Meridian. :

It Is Further Ordered, Adjudged and Decreed that the

defendants, the State of Arizona, the State Land Depart-

2 .

ment, a Department of the State of Arizona, and Obed M.

Lassen, State Land Commissioner of the State of Arizona,

and each and all of them, have no right, title, interest,

claim or estate whatsoever in and to the above-described

real property or any part thereof, and that said defendants

and all persons or legal entities claiming under them, or

any of them, are hereby barred from claiming or asserting

any claim, estate, right, title or interest in or to said

real property, or any part thereof, adverse to plaintiff

Bonelli Cattle Company, and said defendants, and each

of them, are hereby perpetually enjoined and restrained

from interfering with plaintiff’s right to the possession,

use and enjoyment thereof.

It Is Further Ordered, Adjudged and Decreed that each

party shall bear their own costs in this action incurred.

Done, Settled and Approved in open Court this 17th day

of July, 1967.

/s/ T. J. Manoney

T. J. Mahoney, Judge

Receipt of a copy of the foregoing Judgment and Decree

is hereby acknowledged and the same is approved as to

form.

Dated: July 14th, 1967.

DannxLI. F. Samira

The Attorney General

Date R. Snunwar

Assistant Attorney General

By /s/ Datz R. Snunwar

Dale R. Shumway [4]

(Recorded July 28, 1967, in Book 110 of Dockets, pages

228-232, Records of Mohave County, Arizona, and August

21, 1967, Instrument No. 656353, Official Record Book No.

817, records of Clark County, Nevada) [5]

23 5

In the Superior Court of the State of Arizona

in and for the County of Mohave

(Title omitted in printing)

NOTICE OF APPEAL

(Filed September 15, 1967)

Comes Now the defendants and appeal to the Supreme

Court, State of Arizona from the Judgment and Decree

of the Superior Court of Mohave County, Arizona, made

and entered on the 17th day of July, 1967, in which said

Court granted a Judgment and Decree in favor of the

Dated this 14th day of September, 1967

Dazeexy F. Surra

The Attorney General

By /s/ Dax R. Saumway

Dale R. Shumway

Special Assistant Attorney

General

Attorney for the Defendants

— oes — -

24 *

Supreme Court of the State of Arizona

No. 9115 (Supreme Court)

No. 5631 (Mohave County)

The State of Arizona, The State Land Department and

Obed M. Lassen, State Land Commissioner, Appellants

(Defendants),

Bonelli Cattle Company, a California ene Appellee

(Plaintiff).

October 26, 1967

The following action was taken by the Supreme Court

of the State of Arizona on October 24, 1967, in regard

to the above- entitled cause:

“Order: Petition for direct appeal to Supreme Court

—Denied.

“Further Order: This appeal transferred to Court

of Appeals, Division 1, Phoenix, Arizona.”

Syztvia Hawkinson, Clerk

Lucite Brooks, Assistant Clerk

* 25 *

In the Court of Appeals, State of Arizona

Division One

The State of Arizona, The State Land Department, a

Department of the State of Arizona; OBED M. LASSEN,

State Land Commissioner of the State of Arizona, Appel-

lants,

Bonelli Cattle Company, a California corporation, Appellee.

No. 1 CA-CIV 734, DEPARTMENT A—Arisona Su-

preme Court Number 9115 (this matter was filed in

the Arizona Supreme Court and transferred to this

Court by order of the Supreme Court.)

(Filed February 16, 1970)

Appeal from the Superior Court of Mohave County

Cause Number 5631

Honorable T. J. Mahoney, Judge

AFFIRMED

Gary K. Nelson, The Attorney General Phoenix

By Dale R. Shumway

Special Assistant Attorney General

Attorneys for Appellants

Elmer C. Coker Phoenix

Attorney for Appellee

Cameron, Judge

This is an appeal by the defendant, State Land Depart-

ment, from a judgment in favor of the plaintiff, Bonelli

Cattle Company, which quieted title to certain land [1]

situated along the Colorado River in Mohave County,

Arizona.

We are called upon to answer the following questions:

1. Did the State of Arizona obtain title to the bed

of the Colorado River when admitted to the Union

by virtue of the “equal footing” doctrine?

2. Did the trial court err in not determining whether

the river had moved by avulsion or accretion in

making its decision?

3. When a navigable river is rechanneled by third

parties and the former river bed is exposed by

the removal of the water therefrom, who has title

to the land thus exposed?

The matter was tried upon an agreed statement of facts

which may be summarized as follows:

1, When originally surveyed in 1905-1906, the active

flow channel of the Colorado River was entirely to the

west of the subject land and did not in any way encroach

upon said land. See Exhibit “B” below. [2]

Seœc. 3 /. z2

96 8 Land jn Kelation Jo

7706 River Channel

Subject Lan KS

1706 General Land Office Survey

55. 4. Exhibit B

2. In 1910, the United States conveyed the subject land

to the plaintiff’s predecessor in interest, the Santa Fe

Pacific Railroad Company and the plaintiff is the record

owner in fee simple of the lands involved in the action.

3. Since the original survey and conveyance of the sub-

ject land, the Colorado River has moved eastward, and has

in the past covered much, if not all of, the subject land;

that immediately prior to 1959, the active flow channel of

the river occupied most of the subject land. See Exhibit

“E-1” below.

ec. 3 1% 22

Subject 1 Land dn — — te err

Imile

Subject Land —~SSY

No Revision of 2 map by

hice of River Gn

Fig. 3. Exhibit E-]

rei , Ser. of Racl.

80 8

4 In 1989, the Bureau of Reclamation rechanneled the

‘Colorado River in the area of the subject land resulting in

the active flow channel of the Colorado River being re-

stricted to occupy only a portion of the subject land; that

today part of the subject land lies outside of the artificially

created active flow channel of the Colorado River on both

the east and west sides of the channel. See Exhibit “G”

below.

Gee. 3-/9N, 22W

Svbject Land in relation fe.

Present (Since H= Seca f

of Cohrade River.

Nevada — Ariz.

Compact . >

Centerline of

Sim! channel,

Al. 39-53!

Svbject Land — KSY

1943

Fig. 4. Exhibit? .

2 Resurvey % Sur. of Land Management.

32 -

5. At statehood (14 February 1912) the boundary be-

tween Arizona and Nevada lay a considerable distance

west of the subject land. By virture of the Colorado River

Boundary Compact, the boundary now lies down the center

of the river as rechanneled by the Bureau of Reclamation

in 1959.

After written briefs and oral arguments the trial court

signed a judgment and decree in favor of the plaintiff,

Bonelli Cattle Company, quieting title to the subject land.

By “subject land” we mean the land in controversy to

which the plaintiff is attempting to quiet title. In the judg-

ment and decree the court found, inter alia, that the plain-

tiff had a proper “chain” of title to the subject land and:

“(3) That according to the aforesaid Official Plat of

Survey approved and filed June 29, 1906, the Colorado

River did not pass through any portion of the lands

hereinafter described nor border thereon but since

said time the Colorado River has moved eastward to

various and different points and parcels of said land

until its channel was stablized in 1960 by rechanneli-

zation construction work conducted by the Depart-

ment of the Interior through its Bureau of Reclamation

where its stabilized man-made channel now crosses

over the westerly portion of the lands hereinafter

described and which man-made channel has been de-

clared by Compact of the States of Nevada and

Arizona approved by Congress June 16, 1961, Public

Law 87-50, Eighty-seventh Congress, First Session

(75 Stat. 93) to be the boundary between the States

of Nevada and Arizona.

“(4) That the AGREED STATEMENT OF FACTS

AND ISSUES do not establish the dates, degree and

manner of movement of the Colorado River, but such

issues are immaterial in determination of the rights

of the parties in this action.

“TT IS THEREFORE ORDERED, ADJUDGED

AND DECREED that plaintiff BONELLI CATTLE

33 :

COMPANY, a California corporation, is the

in fee simple of and is entitled to the possession, use

and enjoyment of the following described real prop-

erty situate in Mohave County, State of Arizona

se? *."[6]

From this judgment defendant State Land Department ap-

peals claiming title to the property between the property of

plaintiff that remained after the eastward movement of the

river as shown in Exhibit “G”, supra, and the river as re-

channeled.

DOES THE STATE OF ARIZONA OWN THE RIVER

BED BY VIRTUE OF THE

“EQUAL FOOTING” DOCTRINE?

It is the contention of the State of Arizona that under the

“equal footing” doctrine, upon admission to the Union, the

State of Arizona obtained title to the bed of the Colorado

River. With this we must agree.

The Colorado River as it flows through this section of

its reach is a navigable river, Arizona vs California, 283

US. 423, 75 L.Ed. 1154, 51 S. Ct. 522 (1931), and once deter-

mined to be navigable remains so. U.S. vs Appalachian

Electric Power Co., 311 U.S. 377, 85 L.Ed.2d 43, 61 S.Ct.

291 (1940). See also Boulder Canyon Project Act, Ch. 42,

45 Stat. 1057 (1928), 43 U.S. C., Sec. 617, et seq. (1953).

In Pollard’s Lessee vs Hagen, 44 U.S. (3 Howard) 212,

11 L.Ed. 565 (1845), the court held that the Constitution

did not pass title of the beds of navigable waters to the

United States, but reserved title to the several states. Be-

cause new states entered the Union on an equal footing

with all the other states, title to the beds underlying navi-

gable waters passes to the new states upon admission.

Mumford vs Wardwell, 73 U.S. (6 Wall.) 423, 18 L.Ed. 756

(1867), Weber vs Board of Harbor Commissioners, 85 U.S.

(18 Wall.) 57, 21 L.Ed. 798 (1873), Shively vs Bowlby, 152

US. 1, 38 L. Ed. 331, 14 S.Ct. 548 (1893), Martin, et al. vs

Waddell, 41 U.S. (16 Peters’) 367, 410 L.Ed, 997 (1842),

Hardin vs Jordan, 140 U.S. 371, 35 L.Ed. 428, 11 S.Ct. 808

[7] (1891), Kansas vs Colorado, 206 U.S. 46, 51 L.Ed. 956,

27 S.Ct. 655 (1906), Tyson vs State of Iowa, 8th Cir., 283

F. 2d 802 (1960).

e Res. Wo. A

Angust 1911, 37 U.S. Stat. 39, that Arizona was admitted

on “equal footing” with the other states of the Union:.

“Joint Resolution To admit the Territories of New

Mexico and Arizona as States into the Union upon an

equal footing with the original States.

“Resolved by the Senate and House of Representatives

of the United States of America in Congress assem-

bled, That the Territories of New Mexico and Arizona

are hereby admitted into the Union upon an equal

footing with the original States, in accordance with the

terms of an Act entitled ‘An Act to enable the people

of New Mexico to form a constitution and State gov-

ernment and be admitted into the Union on an equal

footing with the original States; and to enable the

people of Arizona to form a constitution and State

government and be admitted into the Union on an

equal footing with the original States’ commonly called

the enabling Act approved June Twentieth, nineteen

hundred and ten, and upon the terms and conditions

hereinafter set forth. * * *.” (emphasis ours)

The Arizona Supreme Court has recently stated in con-

struing the title to the bed of the Colorado River:

“We therefore hold that the State of Arizona holds

title and control over the submerged land and naviga-

ble waters where the accident occurred.” Morgan vs

Colorado River Indian Tribe, 103 Ariz. 425, 427, 443

Pac.2d 421 (1968).

See also Cherokee Nation vs Oklahoma, 402 F. 2d 739 (1968).

We therefore hold that under the “equal footing” doctrine

1 so

the State of Arizona obtained title to the river bed of the

Colorado River as it existed in 1912 and at the location of

the river in the instant ease. [S]

WAS THE TRIAL COURT REQUIRED TO FIND

WHETHER THE RIVER MOVED BY

ACCRETION OR AVULSION?

The only conclusion that can be drawn from the agreed

statement of facts and the attached maps and photographs

in evidence is that sometime between the making of the

original survey in 1905 and 1906 and 24 April 1938, the

channel of the Colorado River moved in an undetermined

manner to a position where the bed of the river ran over

and occupied most of the subject land to which the plaintiff

claims title. We are not in a position to determine from

the record whether this change was accretive or avulsive

nor do we believe the record was sufficient to enable the

trial court to so determine.

It is contended by the appellant, State of Arizona, that

before the trial court could determine the matter it was

required to make a finding of fact whether the river had

moved to and over plaintiff’s land by accretion or avulsion.

Appellant points out the general rule that where a change

occurs in the location of the river through a process of

erosion or accretion which is a natural and gradual move-

ment of the river, the State would gain title to the bed of

the river as it slowly moved losing title to the land that

the river has abandoned, The owners of the bank would

also lose or gain as the case may be during this slow,

imperceptible process. We agree that this is the generally

accepted law in regard to accretion in Arizona. Arizona vs

Gunther & Shirley Company, 5 Ariz.App. 77, 83, 423 Pac.2d

352 (1967) (review denied 21 March 1967), State vs Jacobs,

93 Ariz. 336, 380 Pac.2d 998 (1963).

The State admits that as to avulsive changes neither the

State as owner of the river bed nor the parties riparian

[9] thereto lose or gain any interest or title to the land

as changed. The general law in this regard is summarized

in 65 C. J. S., Navigable Waters, § 86 (b) (1966):

“Ordinarily an avulsion does not divest the title to

lands covered, or uncovered, or shifted by the action

of the stream, provided the former boundary can be

determined or the land reclaimed within a reasonable

time; nor does it confer title to lands uncovered by

the water. If the land afterward reappears, the ripar-

jan owner retains his title thereto, provided the iden-

tity of the land can be established, although it has been

held that, where land is obliterated by an avulsion, the

owner loses title thereto. Further, a riparian owner

may reclaim lands submerged by an avulsion either by

natural or by artificial means. It has been held that, in

applying the law of avulsion, it is immaterial whether

a stream is navigable or non-navigable, since the same

principles apply to each.”

There is admittedly a minority view in this regard which

holds that as to a navigable river the State acquires the

title to the new bed, loses title to the old bed, with the abut-

ting landowners acquiring title to the old bed. Manry vs

Robison, 122 Tex. 213, 56 S.W.2d 438 (1932), Seabrook

Land Company vs Lipscomb (Tex.), 331 S. W. 2d 429 (1960),

Maufrais vs State, 142 Tex. 559, 180 S.W.2d 144 (1944).

This follows logically the view that the bed of a navigable

river should be in the State in order to avoid any interfer-

ence in the exercise of the State’s sovereignty over the river:

“The doctrine is well established that one of the inci-

dents of sovereignty is control of navigable waters and

ownership of land thereunder.” 3 American Law of

Property, § 12.27b (A. J. Casner ed. 1952)

37 3

But even if we were to adopt the majority view, we [10]

do not believe that the trial court was required to make a de-

termination of the matter of movement for the reason that

where the facts are insufficient to establish the manner in

which a navigable river has moved there is a presumption

that such movement was by accretion rather than by avul-

sion. Nebraska vs Iowa, 143 U.S. 359, 36 L.Ed. 186, 12 S. Ct. :

396 (1892), County of St. Clair vs Lovingston, 90 U.S. (23

Wall.) 46, 23 L.Ed. 59 (1874), Kitteridge vs Ritter, 172

Towa 55, 151 N.W. 1097 (1915). This presumption is based

in logie in that an avulsive change is usually an event of

such magnitude that it is normally noted, if not by the ripar-

ian landowner, at least by persons in the vicinity and testi-

mony is therefore easy to obtain as to the fact of the avulsive

change. The fact that no evidence is available to indicate

the manner of movement is in itself an indication that the

movement was slow and imperceptible and therefore accre-

tive rather than avulsive.

We therefore hold that there being a presumption that

the movement was accretive there is a presumption that the

State of Arizona owned the bed of the river as it had moved

to and upon plaintiff’s property.

WHAT WERE THE RIGHTS OF THE PARTIES

WHEN THE RIVER WAS RECHANNELED?

The plaintiff was the owner of the land bordering the

river before the river was rechanneled and was the riparian

owner. Turner vs Schneider, 4 Mich. App. 388, 144 N.W.2d

848 (1966). The question before the Court is whether the

State can claim title to the area between the river and pe-

titioner’s land after rechanneling. The law is well settled

that in determining this question state law applies. Shively

vs Bowlby, 152 U.S. 1, 38 L.Ed. 331, 14 S.Ct. 548 (1894).

[11]

: me

land title is concerned, State of Arizona vs Gunther &

Shirley Company, supra. One of the rights of a riparian

landowner is access to the water, and to allow the state to

retain title to the intervening property would allow the

State to terminate this very valuable right. Colberg, Inc.

vs State, 62 Cal. Rptr. 401, 432 Pac.2d 3 (1967). Two theories

have been advanced to cover this situation. The first is

called the “artificial accretion” doctrine. It has been stated:

«“* © Tjhere are authorities broadly according an

upland owner the right to accretions resulting from

artificial causes, or holding that the riparian owner is

entitled to accretions when caused or aided by artificial

conditions created by third persons in which he has no

part.” 65 C. J. S., Navigable Waters, § 82(2) (1966).

And:

che court divided accretion or accession into

three classes: (a) Accession made either by a retreat-

ing of the river or by the insensible addition of alluvi-

on; (b) Accession made by the ‘instantaneous casting

up of the bed of the stream’ above the water-level and

against the upland, and (c) Accretions to the upland

made by a stranger ‘without the authority of govern-

ment,’ immediately contiguous to the upland so as

to exelude the water from contact with the upland,

and thus (unless these accretions belong to the up-

lands) deprive the owner of the upland of the oppor-

tunity to have the alluvial accretions. Accessions under

group (a) would be the property of the upland owner.

Accessions under group (b) would be the property of

the owner of the bed of the stream, here the State of

Alabama. Accessions under group (c) [12] would

inure to the benefit of the riparian owner. * * *” State

vs Gill, 259 Ala. 177, 180, 66 S.2d 141 (1953). See also

Beso Standard on Company vs Jone; 28 La. 95, 98

§.2d 236 (1957).

The doctrine of re-emergence has ‘also been urged in case

of this kind:

Ae an alternative theory of recovery, appellants raised

a title claim under the doctrine of re-emergence, That

doctrine rests upon ‘easy identification’ of riparian -

land ‘lost’ and ‘found’ again by re-emergence from the

stream bed. These elements oe

“We agree with the government:

25 de in order for the doctrine to be applied in

those states that recognize it, two things must

occur; First, the water-course must move across

and submerge riparian land so that land formerly

non-riparian is made riparian; then the water-

course must return to or near its original bed so

that the riparian land that had been submerged

is uncovered, or re-emerges.

° * se * *

‘The United States’ land to which the tract has

accreted was riparian originally and one of the

reasons for the doétrine of accretion is to allow

that land to remain riparian. Philadelphia Co. v.

Stimson, 223 U.S. 605, 624 [32 S. Ct. 340, 56 L. Ed.

570] (1912). * * “.“

Beaver vs United States, 350 F. 2d 4, 11 (1965).

If the removal of the water from the land was by the

process of reliction, which is gradual and analogous to

accretion, the theory of artificial accretion would apply. If

the water was suddenly removed by a man-made avulsion

then the doctrine of re-emergence would apply. In either

event we feel that the State may not take advantage of

this man-made rechanneling to extinguish plaintiff’s ripar-

ian land rights along this navigable river and deny plain-

tiff [13] title to the land previously owned.

2 g

Nothing we say herein should be construed to affect title

to land west of the boundary in the State of Nevada or land

along non-navigable streams.

Judgment affirmed.

James Duke Cameron, Judge. Concurring: Francis J.

Donofrio, Presiding Judge, Department A, Henry S.

Stevens, Judge. (Reported 11 Ariz. App. 412, 464 P. 2d

909.) [14]

Sa a

In the Court of Appeals, State of Arizona

Di „ a One

(Title Omitted in Printing)

MOTION FOR REHEARING

(Filed March 3, 1970)

Comes now the State of Arizona and the State Land

Department, and respectfully moves this Court under Rule

47(a) of the Rules of the Supreme Court for rehearing of

the Court’s decision dated February 16, 1970, upon th

following grounds:

The decision of the Court is in direct conflict with the law

relating to ownership of the bed of a navigable stream, as

set forth in the cases cited by the Court at pages 7 and 8

of the decision.

II.

The Court correctly held that the State of Arizona under

the “equal footing” doctrine obtained title to the river bed

of the Colorado River as it existed in 1912 and at the loca-

tion of the river in the instant case and that the legal pre-

sumption is applicable to find that the movement of the

Colorado River prior to 1960 was by the natural process

of accretion. The Court however erred in its holding re-

garding the effect of [1] the man-made changes subse-

quent to 1960 upon the state’s title to the stream bed.

III.

The Court erred in hold: (1) that the man-made changes

in the stream bed brought about by rechannelization of the

Colorado River were the result of artifieial aceretion; and

(2) that the sudden removal of the water from the bed of

; 2.

the stream previously owned by the State of Arizona

brought to bear the doctrine of re-emergence.

(Argument omitted)

Respectfully submitted,

Gary K. Newson,

The Attorney General

/s/ Date R. Saumway

Dale R. Shumway :

Special Assistant Attorney General

159 State Capitol Building

Phoenix, Arizona 85007

Attorneys for the Appellants [2]

; ms:

In tze Court of Appeals, State of Arizona

Division One

(Title Omitted in Printing)

ORDER

(Filed April 20, 1970)

The motion of the appellants for a rehearing and the

response of the appellee together with the appellee’s re-

quest for oral argument have been considered by the Court.

It Is Ordered denying the request for oral Berk

It Is Further Ordered denying the motion for rehearing.

Francis J. Donorrro

Presiding Judge, Department A

Ree 44

In the Court of Appeals, State of Arizona

(Title Omitted in Printing)

PETITION FOR REVIEW

(Filed April 23, 1970)

Comes Now the State of Arizona, by and through its at-

torneys Gary K. Nelson, the Attorney General, and Dale R.

Shumway, Special Assistant Attorney General and peti-

tions for a review of this case by the Supreme Court of

Arizona.

Dated: This 22nd day of April, 1970.

Gary K. NxLSON

The Attorney General

By /s/ Date R. Snunwar

Dale R. Shumway

Special Assistant Attorney General

189 State Capitol Building

Phoenix, Arizona 85007

Attorneys for Appellants

45 *

Supreme Court of the State of Arizona

No. 10030. PR (Supreme Court)

No. 1 CA-CIV 734 (Court of Appeals)

No. 5631 (Mohave County)

The State of Arizona, the State Land Department, a De-

partment of the State of Arizona; Obed M. Lassen, State

Land Commissioner of the State of Arizona, Appellants,

| V.

Bonelli Cattle Company, a California corporation, Appellee.

May 13, 1970

The following action was taken by the Supreme Court of

the State of Arizona on May 12, 1970, in regard to the

above-entitled cause:

“Ordered: Petition for Review—DENIED.”

Record returned to the Court of Appeals, Division One,

this 13th day of May, 1970.

Sytvm Hawkinson, Clerk

Mary Ann Hopxins, Deputy Clerk

“a.

In the Court of Appeals, State of Arizona

partment of the State of Arizona; Obed M. Lassen, State

Land. Commissioner of the State of Arizona, Appellants,

; 5 V. 2 5 ae

Bonnelli Cattle Company, a California corporation, Appel-

lee.

No. 1 CA-CIV 734, Department A—Arizona

Supreme Court Number 9115

MANDATE

(Filed May 15, 1970)

To: The Honorable Superior Court for Mohave County,

Arizona, in relation to Cause No. 5631.

GREETINGS:

The above cause was presented in your Court and was

brought before Division One of the Court of Appeals of the

State of Arizona in the manner prescribed by law. This

Court rendered its opinion and caused the same to be filed

on the 16th day of February, 1970.

A petition for review was filed. The record was forward-

ed to the Arizona Supreme Court. By order dated the 12th

day of May, 1970, the Arizona Supreme Court denied the

petition for review, Supreme Court No. 10030-PR.

Now, Therefore, You Are Commanded that such pro-

ceedings be had in said cause as shall be required to comply

with the opinion of this Court, a copy of the opinion being

attached hereto.

Judge, Department A, Division One of the Court of

of the State of Arizona, this 15th day of May, 1970.

(SEAL)

Cass Gantt, Clerk

/8/ Gtzewna L. Denton

Deputy Clerk

48 5

Supreme Court of the State of Arizona %

Neo. 10030-PR (Supreme Court)

No. 1 CA-CTV 734 (Court of Appeals)

No. 5631 (Mohave County) ,

The State of Arizona, the State Land Department, a De-

partment of the State of Arizona; Obed M. Lassen, State

Land Commissioner of the State of Arizona, Appellants,

Bonelli Cattle Company, a California corporation, Appel-

lee.

MOTION FOR RECONSIDERATION OF

MOTION FOR REHEARING

(Filed May 26, 1970)

Come Now the State of Arizona and The State Land De-

partment and respectfully moves this Court for reconsider-

ation of this Court’s Order denying the Petition for Review

heretofore filed with the Court and for review of the deci-

sion heretofore rendered in this matter by Division One of

the Court of Appeals.

Dated: This 26th day of May, 1970.

Gary K. NxLSOx

The Attorney General

By /s/ Dal R. Snunwar

Dale R. Shumway

Special Assistant Attorney General

159 State Capitol Building

Phoenix, Arizona 85007

Attorneys for Appellants

(Memorandum of Law omitted)

Supreme Court of the State of Arizona

(Title Omitted in Printing)

RESPONSE TO, APPELLANTS’ MOTION

FOR RECONSIDERATION

(Filed May 28, 1970)

The Appellants by and through the Attorney General

have filed in this Court a Motion for Reconsideration of its

Order of May 12 denying Appellants’ Petition for Review

of the decision of Division One of the Court of Appeals

dated February 16, 1970, and reported in 464 P. 2d 999.

The undersigned as the attorney for Appellee who has

practised before this Court since 1934 and having the great-

est respect and admiration for this Court and what it

stands for, realizes that this Court in its discretion and

under the authority granted to it by the Constitution and

statutes has the power and authority to grant and honor

such a motion. However, there appears to be a lack of pree-

edent either by decision of this Court or by its Rules duly

promulgated to authorize the entertainment of such a

motion.

The undersigned agrees with eminent counsel for the

Appellants that the question decided by the Honorable T.

J. Mahoney, the presiding Judge of the Mohave County

Superior Court and Division [1] One of the Court of Ap-

peals is one of great importance not only to the State of

Arizona but to its citizens similarly situated, but believes

that this question has already been adversely decided

against Appellants not only by the Court of Appeals but by

this Court in considering Appellants’ Petition for Review.

Tt is respectfully submitted that Appellants’ Motion is pri-

marily based upon questions of fact and law already fully

briefed and argued before the Court of Appeals and in

Appellants’ Petition for Rehearing before the Court of

Appeals and Appellee’s response thereto.

If this Honorable Court should decide that it will enter-

tain the Motion for Reconsideration, it is respectfully re-

quested that Appellee be granted at least thirty days from

the date of such Order granting the Motion within which to

further answer and respond to Appellants’ Memorandum

in Support of their Motion. g

In the event that Appellants’ Motion is granted, Appel-

lee joins with Appellants, due to the importance of this

issue, in their Request for Oral Argument.

Respectfully submitted,

Emer C. Coker

Luhrs-Central Building, Suite J

132 South Central Avenue

Phoenix, Arizona 85004

Attorney for Appellee [2]

Supreme Court of the State of Arizona

(Title omitted in printing)

June 4, 1970

The following action was taken by the Supreme Court of

the State of Arizona on June 2, 1970 in regard to the

above-entitled cause:

“Ordered: Motion for reconsideration of Petition for

Review—Granted.

Further Ordered: Denying request for oral argument.

Further Ordered: Directing the Court of Appeals, Di-

vision No. 1, to recall the mandate.

Justice Jesse A. Udall did not participate in the determi-

nation of this matter.”

Sytvia Hawxrxson, Clerk

By /s, Luna Brooxs

Deputy Clerk

In the Court of Appeals, State of Arizona

The State of Arizona, the State Land Department, a Depart-

ment of the State of Arizona; Obed M. Lassen, State Land

Commissioner of the State of Arizona, Appellants,

Bonelli Cattle Company, a California corporation, Appellee.

No. 1 CA-CIV 734, Department A

(Supreme Court No. 10030-PR

Mohave County Superior Court No. 5631)

(Filed June 8, 1970)

The Supreme Court of the State of Arizona entered the

following order in its Cause No. 10030-PR, June 2, 1970;

“Ordered: Motion for reconsideration of Petition for

Review Granted.

Further Ordered: Denying request for oral argument.

Further Ordered: Directing the Court of Appeals, Di-

vision 1, to recall the mandate.”

Pursuant to the foregoing,

It Is Hereby Ordered recalling the mandate heretofore

issued by the Court of Appeals, Division One, Department

It Is Further Ordered that the Clerk of the Superior

Court for Mohave County, Arizona, return the record on

appeal to the Clerk of the Court of Appeals, Division One.

James Duke CaMERON

Chief Judge

Supreme Court of the State of Arizona

No. 10030-PR (Supreme Court)

No. 1 CA-CIV 734 (Court of Appeals)

No. 5631 (Mohave County)

The State of Arizona, the State Land Department, a Depart-

ment of the State of Arizona; Obed M. Lassen, State Land

Commissioner of the State of Arizona, Appellants, :

v. D

Bonelli Cattle Company, a California corporation, Appellee.

June 18, 1970

The following action was taken by the Supreme Court of

the State of Arizona on June 16, 1970, in regard to the

above-entitled cause: ;

“Ordered: Submitted.”

Sytvia Hawkinson, Clerk

By /s, Lwucmzz Brooxs

Deputy Clerk

In the Supreme Court of the State of Arizona -

The State of Arizona, the State Land Department, a Depart-

ment of the State of Arizona; Andrew L. Bettwy, State

Land Commissioner of the State of Arizona, Appellants,

Bonelli Cattle Company, a California corporation, Appellee.

No. 10030-PR

(October 4, 1971) |

Appeal from the Superior Court of Pinal (sic) County

Honorable T. J. Mahoney, Judge

Reversed with Directions

Opinion of the Court of Appeals, Division One

11 Ariz. App. 412, 464 P. 2d 999

pe Vacated

This Opinion was printed and is contained in Appendix

to Petition for a Writ of Certiorari to the Supreme Court

of the State of Arizona, appearing as Appendix A therein,

pages la through 36a, inclusive, and is reported at 107

Ariz. 465, 489 P. 2d 699.

In the Supreme Court of the State of Arizona

(Title omitted in printing)

MOTION FOR REHEARING

(Filed January 17, 1972)

Comes Now the Appellee and, under Rule 9(a), respect-

fully moves this Court for a rehearing of the Court’s de-

cision rendered October 4, 1971, upon the following grounds:

That the Court erred in holding that the State’s owner-

ship of lands under the Colorado River extends from the

center of the stream (Nevada boundary in this instance)

to the high-water mark for the reason that the general rule

is that the State’s title to the bed and shore extends only

to the line of the ordinary or mean high-water mark.

Pr,

That the decision of the Court violates the principle that

the court cannot legislate by judicial fiat, such power being

reserved solely in the Legislature and the people through

the initiative procedure of our State Constitution or by an

amendment to the Constitution [1] itself, particularly

when the Legislature is fully aware of the problem and in

recent years has been advised by the Attorney General to

enact legislation affecting titles along the Colorado River,

which it has failed to do.

si EEE ane

That the doctrine of equitable estoppel applies to the

State of Arizona in its claim of ownership to the lands

along the Colorado River, a navigable stream, particularly

in view of the fact that the question herein is not that of

preserving public lands since the State of Arizona never

had record title to the lands along the Colorado River, but

it is now, for the first time, claiming title to the lands after

large sums of money have been invested in the development

thereof by record tithe owners in good faith and in reliance

upon their titles, which titles have long been recognized as

being valid, thereby barring and estopping -the 8 of

Arizona from asserting such claim.

ios OLS

That the Court in its decision has apparently failed to

realize the full effect and impact of the ruling it has handed

down as it affects vested property rights along the banks

of the entire area in the State of Arizona where the Colorado

River flows, whose source of title was derived from patents

issued by the United States of America dating back, in some

instances, prior to statehood and which lands as a result

of such title have been greatly improved and developed by

the record owners involving millions of dollars, which im-

provements have been financed by lending institutions and

title insured by title companies based upon the record

title. [2]

That the decision of the Court constitutes a taking of

private property for public use and purposes without just

compensation in violation of the State Constitution and the

Constitution of the United States of America.

That the Court erred in holding as a matter of law that

when the United States dredged and channelized the Colo-

rado River for the express purpose of aiding and control-

ling navigation, flood control and conservation of water

for irrigation purposes that the State’s title to the ordinary

high-water mark of the old channel in its natural condition

acquired through erosion was not affected thereby.

(Preface and Argument omitted)

Respectfully submitted,

ELunn C. Coxer

Luhrs-Central Building, Suite J

132 South Central Avenue

Attorney for Appellee [3]

In the Supreme Court of the State of Arizona

(Title omitted in printing)

January 26, 1972

The following action was taken by the Supreme Court of

the State of Arizona on January 25, 1972 in regard to the

above-mentioned cause:

“Ordered: Granting all petitions filed asking for leave

to file Amici Curiae Briefs herein.”

(Relative to the Motion for Rehearing)

Crirrorp H. Warp, Clerk

By /s/ Mary Ann Hopxins

8 Deputy Clerk

To:

Burton M. Apker, of Evans, Kitchel & Jenckes, P.C., 363

North First Avenue, Phoenix 85003

Elmer C. Coker, Esq., Luhrs-Central Building, Suite J,

Phoenix 85004

Donald D. Paul, Esq., of Woolway, Paul & Magnus, 607

South Hobart Boulevard, Los Angeles, California 90010

Philip A. Edlund, Esq., of Fennemore, Craig, von Ammon

& Udall, Suite 900, 411 North Central Avenue, Phoenix

85004

Leonard C. Langford, Mohave County Attorney, Court-

house, Kingman 86401

Dale R. Shumway, Special Assistant Attorney General, 159

State Capitol Building, Phoenix 85007

In the Supreme Court of the State of Arizona

. (Title omitted in printing)

OBJECTION TO MOTION FOR REHEARING

(Filed January 31, 1972)

Come Now the appellants, pursuant to Rule 9 (b), and

object to the Motion for Rehearing for the reason that all

of the legal issues have been presented to the Court and

based upon the facts, as agreed to by the parties in the

trial Court, the decision of the Court has been entered. No

new facts or law are available to the Court upon which to

base a different decision if rehearing were granted. We,

therefore, respectfully request the Court to deny the Motion

for Rehearing.

Dated January 26, 1972.

Dare R. Seumway

Dale R. Shumway

Special Counsel to the Attorney

General

Udall, Shumway & Blackhurst

64 E. Broadway, Suite 4

Tempe, Arizona 85282

Attorney for Appellants

(Memorandum omitted)

In the Supreme Court of the State of Arieona

(Title omitted in printing)

(Filed April 13, 1972)

Itis ordered: Motion for Rehearing denied.

Dated this 13th day of April, 1972.

/s/ Jack D. H. Hays

Jack D. H. Hays

Chief Justice

61 :

In the Supreme Court of the State of Arizona

In Bane

The State of Arizona, the State Land Department, a Depart-

ment of the State of Arizona; Andrew L. Bettwy, State Land

Commissioner of the State of Arizona, Appellants,

Bonelli Cattle Company, a California corporation, Appellee.

No. 10030-PR

(April 13, 1972)

Appeal from the Superior Court of Mohave County

Honorable T. J. Mahoney, Judge

SUPPLEMENTAL OPINION

This Opinion was printed and is contained in Appendix

to Petition for a Writ of Certiorari to the Supreme Court

of the State of Arizona, appearing as Appendix B therein,

pages 1b through 10b, inclusive, and is reported at 108 Ariz.

258, 495 P. 2d 1312.

In the Supreme Court of the State of Arizona

No. 10030-PR

MANDATE

(Issued April 13, 1972)

To the Honorable the Superior Court of the State of

Arizona in and for the County of Mohave

GREETING: _

Whereas, lately in the Superior Court of the State of Ari-

zona in and for the County of Mohave, before you in a

cause between

Bonelli Cattle Company, a California

corporation,

Plaintiff,

vs.

The State of Arizona, the State Land De-

partment, a Department of the State of

Arizona; Obed M. Lassen, State Land

Commissioner of the State of Arizona,

Defendants.

Cause No. 5631

said Superior Court entered its Judgment and Decree on

the 17th day of July, 1967, in favor of the plaintiff and

against the defendants. [ 1 ]

as by the inspection of the record of the said Superior

Court, which was brought into the Supreme Court of the

State of Arizona by virtue of an appeal by defendants,

agreeably to the law in such ease made and provided fully

and at large appears. This case was transferred from the

Supreme Court to the Court of Appeals, Division One, on

October 26, 1967.

And Whereas, in November, in the year of our Lord one

thousand nine hundred and sixty-nine, the said cause came

on to be heard before the said Court of Appeals, Division

One, and was subinitted for decision after argument of

counsel.

On Consideration Whereof, it was on the 16th day of

February, in the year of our Lord one thousand nine

hundred and seventy, ordered by said Court that the judg-

ment of the said Superior Court in this caitse, appealed

from be, and the same is hereby affirmed.

Whereupon, on April 23, 1970, The State of Arizona filed

a Petition for Review by the Supreme Court, on considera-

tion of which the said Supreme Court, on May 12, 1970,

ordered that the Petition for Review be denied. On May 26,

1970, a Motion for Reconsideration of Petition for Review

was filed by the State of Arizona and the State Land De-

partment, on consideration of which the said Supreme

Court, on June 2, 1970, ordered that the Motion be granted

and the Petition for Review be submitted for decision. It

was on the 4th day of October, 1971, ordered by this Court

that the opinion of the Court of Appeals, Division One, be

vacated, and the judgment of the Superior Court be re-

versed with directions to enter judgment quieting title in

the State of Arizona from the Nevada boundary to the high

water mark. :

On January 17, 1972, a Motion for Rehearing was filed

by Bonelli Cattle Company; and on April 13, 1972, the

— —— —

Supreme Court ordered the Motion for Rehearing denied.

It was on the 13th day of April, 1972, that this Court order-

ed that the decision directing the Superior Court of Mohave

County to enter judgment quieting title in the State of

Arizona from the Nevada boundary to the high water mark

as supplement is approved.

You therefore are hereby commanded that such proceed-

ings be had in said cause, as according to the decision and

order of this Court, and as according to right and justice,

and to law, ought to be had.

Witness, the Honorable Jack D. H. Hays, Chief Justice

of the Supreme Court of the State of Arizona, the Thir-

teenth day of April, in the year of our Lord one thousand

nine hundred and seventy-two.

Cxrrrorp H. Warp, Clerk

Deputy Clerk of the Supreme

Court of the State of Arizona

Supreme Court of the United States

Office of the Clerk

Washington, D. C. 20543

January 22, 1973

Elmer C. Coker, Esq.

Luhrs-Central Bldg., Suite J.

132 South Central Avenue

Phoenix, Arizona 85004

RE: BONELLI CATTLE CO. v. ARIZONA

No. 72-397

Dear Mr. Coker:

The Court today took the following action in the above

case:

“The petition for a writ of certiorari is granted. Mr.

Justice Rehnquist took no part in the consideration or

decision of this petition.”

Enclosed are memorandums describing the time require-

ments and procedures under the Rules.

The additional docketing fee of $50, Rule 52(a) is due and

payable.

Very truly yours,

Micuagt Ropak, In., Clerk

= By /s/ Hexen K. Lovennay

(Mrs.) Helen K. Loughran

Assisiant Clerk

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.