Petition for A Writ of Certiorari — Bonelli Cattle Co. v. Arizona
Supreme Court brief1973
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gueREM COURT. U. ©
IN THE SUPREME COURT OF THE UNITED|statés © ©"
OCTOBER TERM, 1972 MICHAEL RODAK, JR.,CLERK
E8397
BONELLI CATTLE COMPANY, a California
corporation; COUNTY OF MOHAVE, a po-’
litical subdivision of the State of
Arizona,
Petitioners,
Vv.
THE STATE OF ARIZONA, THE STATE LAND
DEPARTMENT, a Department of the State
of Arizona; ANDREW L. BETTWY, State
Land Commissioner of the State of
Arizona,
Respondents andé=——
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF ARIZONA
~
ELMER C. COKER LEONARD C, LANGFORD
Luhre-Central Building Mohave County Attorney
Phoenix, Arizona 85004 Kingman, Arizona 86401
Attorneys for Petitioners
GARY K. NELSON, The Attorney General
By DALE R. SHUMWAY, Special Assistant
Attorney General
State House
Phoenix, Arizona 85007
Attorneys for Respondents
' anrd-CutreDekibconere=——
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1972
NO,
BONELLI CATTLE COMPANY, a California
corporation; COUNTY OF MOHAVE, @& poe
litical subdivision of the —— of
Arizona,
petibioners;
Vv.
THE STATE OF ARIZONA, THE STATE LAND
DEPARTMENT, a Department of the State
of Arizona; ANDREW L. BETTIWY, State
Land Cqmmissioner of the State of
Arizona, *
Respondents #aé——
a A RE NR ee A ERROR
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF ARIZONA
ELMER @, COKER LEONARD C, LANGFORD
Luhrs-Central Building -Mohave County Attorney
Phoenix, Arizona 85004 Kingman, Arizona 86401
Attorneys for Petitioners
; GARY K. NELSON, The Attorney General |
By DALE R, SHUMWAY, Special Assistant
Attorney General
State House
Phoenix, Arizona 85007
ee
sy a for nm. nme agg
Ds abe
ee
oe st ieee
SUBJECT INDEX
Page
Opinions Below 2
Jurisdiction 3
Questions Presented <-- 4
Constitutional Provisions,
Statutes and Ordinances
Involved «<<------.-. ~ 7
Statement 12
Reasons for Granting the Writ ------ 20
I, Conflict of Authorities ------ 20
II. Importance of the Issue ------ 22
Conclusion were as 30
Map Showing Difference Between
the Hich Water Mark and Bed of
Colorado River as Fixed by
Claridge Decision and as Fixed
by Arizona Supreme Court Deci-
sions as the Decisions Affect
Subject Land 33
Unpublished Reclamation Withdrawal
Order of January 13, 1903, Is-
sued Pursuant to Act of Congress
of June 17, 1902, 32 Stat. 388 ---- 34
APPENDIX - SEPARATE VOLUME
Appendix A. Opinion of the Arizona
Supreme Court, State of
Arizona v. Bonelli Cattle
Company, filed October 4,
1971 ae «6:18
aE EE
RAI ah Ny te, A ep te
SUBJECT INDEX CONTINUED
Page
Appendix B. Opinion of the Arizona
Supreme Court, State of
Arizona v., Bonelli Cattle
Company, filed April 13,
1972 lb
Appendix C, Opinion of the United
States Court of Appeals
for the Ninth Circuit
United States v. Claridge,
filed September 19, 1969 -- le
Appendix D. Map Showing Difference
_ Between the High Water Mark
and Bed of Colorado River
as Fixed by Claridge’ Deci-
Sion and as Fixed by Ariz-
ona Supreme Court Decisions
in State of Arizona v, Boe
nelli Cattle Company as
the Decisions Affect Subject
Land (Same as Appearing on
Page 33 of Petition) --.... 1d
Appendix E, Shoreline (Overlay No, 2) s
of the Lower Colorado River
Statistical Data, Records of
Arizona State Office of the
Bureau of Land Management,
United States Department of
the Interior le
Appendix F. Map of the State of Ariz-
ona Showing Public Land
Ownership in Arizona as of
1971 (Land Status Obtained
From the. Arizona State Of-
fice of the Bureau of Land
Management, United States
Department of Interior ---. lf
en NI LT PTL TT IE TT
SUBJECT INDEX CONTINUED
} Page
APPENDIX I = SEPARATE VOLUME
Reprint of an Article by Robert E,
Lundquist Entitled Artificial Ad-
ditions to Riparian Land: Extend-
ang the Doctrine of Accretion Con-
tained in Volume 14, Number 2, of
the Arizona Law Review Published
by the College of Law of the Uni-
versity of Arizona,
FILED SEPARATELY WITH THE CLERK
The Lower Colonado River Land Use Plan,
a@ Report of the Lower Colorado River
Land Use Advisory Committee, United
States Department of the Interioa,
Stewart L, Udage, Secretary, January
1964,
‘TABLE OF AUTHORITIES CITED |
CASES Page
Arizona v. California,
Hughes v. Washington,
S. Ct. 438 21
State of Arizona v. rg par
11 Ariz. App. 412, 464 P. 2d
929 (vacated 107 Ariz. 465,
9 P. 2d 699)------ - 2, 16
United States v. Claridge
279 F. Supp. 87 ais 4, 18-20
United States v. Claridge,
416 F. 2d 933 (cert. denied
397 U. S. 961, 25 L. Ed. 2d
253, 90 S. Ct. 994) - 4, 18-20
CONSTITUTIONS, STATUTES AND ORDINANCES
United States Code, Title 28,
bas a 4
United States Code, Title 43,
{617 et seq., The Boulder Canyon
Project Act ------- : 4, 7, 10
United States Code, Title 43,
{ 1301 et seq., The Submenged
Lands Act - -- - 6-9, 28
Act of Congress of July 27, 1866,
14 Stat. 292 -- --- ~ 13
Act of Sorgen of June 17, 1902,
Withdrawal Order of January 13, :
1903 ---- socnnonata T> 25>
TABLE OF AUTHORITIES CITED CONTINUED
Page
Act of Congress of June 20, 1910,
c. 310, 36 U. S. Stat. 557,
568-579, Enabling Act of Arizona,
Section 20, Second - 7,11,29
Colorado River Boundary Compact
between Arizona and Nevada
approved by Congress June ié,
1961, Public Law 87-50 87th |
Congress, lst Session (75 Stat.
93) 15
United States Constitution,
Fifth Amendment - 7,10
United States Constitution,
Fourteenth Amendment 7,11
Arizona Constitution,
Article 2, Section 17 (pee!
Arizona Constitution,
Article XX, Section Fourth,
Ordinance 7,12.
TEXTS
Arizona Law Review, Volume 14, No,
2, published by the College of
Law of the University of Arizona,
reprint of an Article by Robert
E. Lundquist entitled: Artifi-
cial Additions to Riparian Land:
Extending the Doctrine of Accre-
tion - ----- w--- 22,23, 2h
Lower Colorado River Land Use
Plan, a Report of the Lower
Colorado River Land Use Advisory
Committee 26
TABLE OF AUTHORITIES CITED CONTINUED
Page
Ownership and Administration of
Public Lands in Arizona ------------ 24
&
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1972
NO.
BONELLI CATTLE COMPANY, a California
corporation; COUNTY OF MOHAVE, a poe
litical subdivision of the State of Sas
Arizona,
Petitioners,
GS Vv.
THE STATE OF ARIZONA, THE STATE LAND
DEPARTMENT, a Department of the State
of Arizona; ANDREW L. BETTWY, State
Land Commissioner of the State of
Arizona,
Respondents amthuedméeniotdtdememes,
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF ARIZONA
eee on aor
bere Lobb 80 ese eer ett tts Spree
Lain Depa cimene—and=SeertesserrSonmrbrrheress—
orrertereesart Tie County Attorney of the
County of Mohave, a political subdivision of
the State of Arizona, and Bonelli Cattle Com-
pany, a California corporation, petitioners,
jointly petition for a writ of certiorari to
review the judgments and decisions of the
Supreme Court of Arizona rendered in this
case respectively on October 4, 1971, and
April 13, 1972; |
OPINIONS BELOW
The Supreme Court of Arizona ren-
dered two decisions.
The first decision of October 4,
1971, was on review on petition of the State
of Arizona of the decision of the Court of
Appeals of Arizona, Division 1, Department A,
decided February 16, 1970, 11 Ariz, App. 412,
464 P, 2d 999, wherein the Court of Appeals
affirmed the judgment of the trial court in
quieting title against the State of Arizona
and its State Land Department to the lands
involved in this litigation situate along
the Colorado River on the Arizona side of
the river, This decision reversed the judg-
ment of the trial court and vacated the opi-
nion of the Court of Appeals and is reported
at 107 Ariz. 465, 489: P. 24 699. (Appen-
dix A, infra). :
Upon timely motion for rehearing
by Bonelli, in which proceeding snveuns amici
curiae briefs were filed including the County
of Mohave supporting the motion for rehearing,
the Supreme Court of Arizona on April 13,
1972, in effect denied the motion for rehear-
ing by supplementing its previous decision,
This latter decision is reported at 108 Ariz.
258, 495 P. 2a 1312 (Appendix B, infra).
In both Supreme Court decisions Jus-
tice Lockwood dissented and filed an opinion
in both decions (Appendix A and B, dna).
JURISDICTION
TWe final decision of. the Supreme
Court of Arizona was filed April 13, 1972.
On joint application of petitioners and re-
spondents, Mr. Justice Dowelas by order dated
June (sic) 12, 1972, extended the time for
filing a petition for a writ of certiorari
to and including September 9, 1972. ,
The jurisdiction of this Court is
invoked under 28 U. S. C. 1257(3).
QUESTIONS PRESENTED
The questions presented herein are
a result of a direct conflict of the deci-
sions of the Arizona Supreme Court (Appen-
dix A and B, infra) with the decision in
United States v. Claridge, reported in 279
F. Supp. 87, affirmed by the United States
Court of Appeals for the Ninth Circuit re- |
ported in 416 F, 2d 933, certiorari denied
March 2, 1970, 397 U. S. 961, 25 L. Ed. 2d 253
90 S. Ct. 994 (Appendix C, infra). These de-
cisions involved ownership and changes of
ownership of lands along the Colorado River
by virtue of its past natural movements and
later changes of the channel as a result of
the constructior. of Hoover Dam and the re-
channelization of the Colorado River by the
United States under the Boulder Canyon Pro-
ject Act passed by Congress in 1928 (43 U.
S. C. 617 et seq.). While the Claridge de-
cision did not involve an area where rechannel-
ization had occurred, the difference between
the high water mark and the bed of the Colora-
do River as fixed by Claridge and as fixed by
the Arizona Supreme Court decisions as they
affect the Bonelli land is clearly shown on
Appendix D, inf{aza, and attached hereto, p. 33.
1. Whether the ordinary high water
mark and bed of a navigable river is estab-
lished by and includes all of the area below
the line created by the water during the us-
ual high flow stage of the river's annual
cycle,
2. Whether changes in the flow pat-
tern of a nav{gable river caused by the con-
struction of dams and rechannelization of the
stream bed by the United States changes or
alters the ordinary high water mark for pis
poses of changing or altering the ownership
of the exposed lands resulting from the con-
struction of such works.
3. Whether Federal or State law
controls the ownership of land gained or
lost by accretion on property conveyed by
the United States prior to statehood.
4, Whether the decisions of the
Arizona Supreme Court affects title to Fede-
ral and Indian lands as well as private
lands bordering the Colorado River.
5. Whether the latter decision
of the Arizona Supreme Court dated April 13,
1972, misconstrues or misinterprets the Sub-
merged Lands Act of Congress as a grant by
Congress to the States of lands formerly
beneath navigable waters up to the ordinary
high water sarc without recognizing that
said Act specifically exempts from the ef-
fect thereof any lands to which title to the
beds of such streams was lawfully patented
or conveyed by the United States or any State
to any person (43 U. S. C. 1301 (f)).
6. Whether the respective decisions
of the Arizona Supreme Court constitute a
taking of property by the State of Arizona
without compensation having been made there-
for in violation of the Fifth and Fourteenth
Amendments to the Constitution of the United
States and the provisions of Article ¥ Sec-
tion 17, Arizona Constitution.
CONSTITUTIONAL PROVISIONS, STATUTES
AND ORDINANCES INVOLVED
The Submerged Lands Act of Congress
enacted in 1953, 43 U. S. C..1301 et seq.
The Act of Congress of June 17, 1902,
32 Stat. 388, and the unpublished Reclama-
tion Withdrawal Order of January 13, 1903,
issued pursuant thereto, a certified copy of
the entire Order being filed separately with
the Clerk and pertinent parts thereof being
set forth herein on page 34 et seq,
The Boulder Canyon Project Act en-
acted in 1928, 43 U. S, C. 617 et seq.
The constitutional and ordinance
provisions involved are:
The Fifth and Fourteenth Amendments
to the Constitution of the United States,
The Enabling Act of Arizona, Sec-
tion 20, Second.
Article 2, §17, Arizona Constitution,
and Section Fourth, Article XX, of the —
ona Constitution, 4
The following are the pertinent parts
of the Submerged Lands Act of Congress en-
acted in 1953, C. 65, Title I, $2, 67 Stat.
29, now appears as 43 U. S. C. Section 1301
and provides in pertinent part:
"J1301, Definitions
"When used in this chapter <--
"(a) The term ‘lands beneath navigable
waters' means --
"(1) -all lands within the boundaries
of each of the respective States which are
covered by nontidal waters that were navi-
gable under the laws of the United States
at the time such State became a member of .
the Union, or acquired sovereignty over
such lands and waters thereafter, up to
the ordinary high water mark as heretofore
or hereafter modified by accretion, ero-
sion, and reliction;
"(¢) The term ‘lands beneath navigable
waters' does not include the beds of
streams in lands now or heretofore con-
stituting a part of the public lands of
the United States if such streams were
not meandered in connection with the pub-
lic survey of such lands under the laws
of the United States and if the title to
the beds of such streams was lawfully pa-
tented or conveyed by the United States or
any State to any person;".
C, 65, Title II, § 3, 67 Stat. 30, now appears
as 43 U. S. C. Section 1311 and provides in
bd
pertinent part:
"§1311. Rights of the States - Confirma-
on and esta shment o ©
and ownershino of lands re-
sources: manaremen administra-
on, ie€as ng, Gevelopmen :
use :
"(a) It is determined and declared to
be in the public interest that (1) title
to and ownership of the lands beneath navi-
gable waters within the boundaries of the
respective States, and the natural re-
sources within such lands and waters, and
(2) the right and power to manage, adminis-
ter, lease, develop, and use the said lands
and natural resources all in accordance
with applicable State law be, and they are,
subject to the provisions hereof, recog-
nized, confirmed, established, and vested
in and assigned to the respective States
or the persons who were on June 5, 1950,
entitled thereto under the law of the re-«
spective States in which the land is lo-
cated, and the respective grantees, lessees,
or successors in interest thereof;",
C. 65, Title II, §5, 67 Stat, 32, now appears
as 43 U. S.C. Section 1313 ‘and provides in
pertinent part:
"$1313. Exceptions from confirmation and
establishment o ates e,
power and rights
"There is excepted from the operation of
section 1311 of this title
"(a) * * # 91) lands expressly retained
by or ceded to the United States when the
State entered the Union * # # ®,
enacted by Congress December 21, 1928. C. 42
Fourteenth Amendments to the Constitution of
the United States are:
The Boulder Canyon Project Act was
j1, 45 Stat. 1057, now appears as 43 U.S, C,
Section 617 and the pertinent part provides:
"$617. Colorado River Basin; otection
ana development; SCOPE
an cigental works; water, water
pover, and electrical six: 2. emi-
nent domain
"For the purpose of controlling the floods,
improving navigation and regulating the flow
of the Colorado River, providing the flow of
the Colorado River, providing for storage and
for delivery of the stored waters thereof for
reclamation of public lands and other bene-
ficial uses exclusively within the United
States * * * the Secretary of the Interior
# # * 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 Canyon ade-
quate to create a storage reservoir * ® #
and appurtenant structures located entirely
within the United States connecting the La-
guna Dam, or other suitable diversion dam
*# #2# #&#
The pertinent parts of the Fifth and
"Amendment V. No person shall be * * ®
deprived of * * * property, without due
process of law; nor shall private property
be taken for public use, without just
compensation."
"Amendment XIV, Section 1, * * * No State
shall make or enforce any law which shall
abridge the privileges or immunities of
citizens of the United States; nor shall
any State deprive any person of # # #
eas £ without due process of law;
The following is the pertinent part
of Article 2, Section 17, Constitution of
Arizona:
"Section 17. * * * No private property
shall be taken or damaged for public or
private use without just compensation
having first been made, or paid into
court for the owner * he ne
The pertinent part of Section 20,
Second, of the Act of June 20, 1910, c. 310,
36 U. S, Stat. 557, 568-579, which enabled
the people of the Territory of Arizona to
form a constitution and state government is:
"Second, That the people inhabiting
said proposed State do agree and declare
that they forever disclaim all] right and
title to the unappropriated and ungranted
public lands lying within the boundaries
thereof and to all lands lying within said
boundaries owned or held by any Indian or
Indian tribes, the right or title to which
shall have been acquired through or from
the United States or any prior sovereignty,
and that until the title of such Indian or
Indian tribes shall have been extinguished
the same shall be and remain subject to
the disposition and under the absolut
fm
jurisdiction and control of the Congress
of the United States; * * ®
and the pertinent part of the Ordinance pro-
vided by the Arizona Constitution, Article
XX, Section Fourth, is:
"Fourth, Public lands; Indian lands
"Fourth. The people inhditing this State
do agree and declare that they forever dis-
claim all right and title to the unappro-
priated and ungranted public lands lying
within the boundaries thereof and to all
lands lying within said boundaries owned
or held by any Indian or Indian tribes,
the right or title to which shall have
been acquired through or from the United
States or any prior sovereignty, and that,
until the title of such Indian or Indian
tribes shall have been extinguished, the
same shall be, and remain, subject to the
disposition and under the absolute juris-
diction and control of the Congress of the
United States,"
STATEMENT
The Colorado River was declared to
be a navigable stream by this Court in
Arizona v. California, 283 U. S. 423, 75 L.
Ed 1154 (1930). The Colorado River re-
emerges from Lake Mead through Hoover Dam
and winds its way over 500 miles to the
Gulf of California, forming the western
13
boundary of the State of Arizona. In cer-
tain areas along the river, the boundary
between Arizona and the States of Califor-
nia and Nevada is set by agreement; thus
the middle thread of the river may or may
not coincide with the actual boundary. In
Arizona the river's course is bordered by
the Counties of Mohave and Yuma,
The Bonelli land in question was
originally surveyed in 1905 and 1906 and
the official plat of survey was approved by
the Surveyor General of the United States
Department of the Interior on June 29, 1906.
At that time the Colorado River was entirely
to the west of the subject land and did not
in any way encroach upon said land (see Ap-
pendix D, inf{aa), Pursuant to the Act of
Congress approved July 27, 1866, 14 Stat.
292, the subject lands together with other
lands were conveyed by patent issued by the
United States on November 5, 1910, to The
Atlantic and Pacific Railroad Company, pre-
14
decessor in interest to Santa Fe Pacific
Railroad Company, in accordance with the
official plat of survey.
On February 14, 1912, the State of
Arizona was admitted to the Union, Since~
the original survey and conveyance of the
subject land by the United States the Colo-
rado River has moved eastward and has in
the past covered much, if not all, of the
subject land, Immediately prior to 1959
the active flow channel of the Colorado Ri-
ver occupied almost all of the subject land
with the exception of a small parcel in the
southeast corner thereof (Appendix D, énfaa).
In 1959 the Bureau of Reclamation
‘rechanneled the Colorado River in the area
of the subject land resulting in the active
flow of the Colorado River being restricted
to occupy only a portion of the subject land,
Today part of the subject land lies outside
of the artificially created active flow chan-
nel of the Colorado River on both the east
15
and west sides of the channel or on the>
Arizona and Nevada sides, respectively.
At statehood the boundary between
Arizona and Nevada lay a considerable dis-
tance west of the subject land (Appendix D,.
infra). By virtue of the Colorado River
Boundary Compact between the States of Ari=
zona and Nevada approved by Congress June —
16, 1961, Public Law 87-50, Eighty-seventh
Congress, First Session (75 Stat. 93) the
boundary at this point now lies down the
center of the river as rechanneled by the
Bureau of Reclamation in 1959.
On or about April 13, 1962, the
Bonelli Cattle Company filed an action in
the Superior Court of Mohave County, Arizq
ona, against the State of Arizona and its
State Land Department and State Land Com- .
missioner to quiet title to the subject
land and the cause was submitted to the
court on an agreed statement of facts,
Thereafter the court on July 17, 1967,
i
16
entered its judgment and decree quieting
title to the subject lands in favor of the
plaintiff Bonelli and against the defen-
dants the State of Arizona and its State
Land Department and State Land Commissioner,
From this decision the defendants appealed
to the Court of Appeals of Arizona, Division
1, Department A, and the Court of Appeals by
decision dated February 16, 1970, reported at
1l Ariz. App, 412, 464 P, 24 999, affirmea
the judgment and decree of the superior
court. Upon application of defendants the
Supreme Court of Arizona granted review and
by its decisions of October 4, 1971, and
April 13, 1972, reversed the judgment of the
trial court and vacated the decision of the
Court of Appeals. By said decisions the.
Supreme Court of Arizona in effect held that
the State of Arizona had acquired title to
the Bonelli land by virtue of the fact that
the Colorado River had moved in an eastward
direction in a slow and imperceptible man-
17
ner during which time the State of Arizona>:
acquired title to the land and that the -
channelization of the Colorado River con
fining its flow to a part of the old bea
did not cause a loss of the State's owner=
ship. The Supreme Court in its decisions.
established the State's ownership to the:
land once covered by the Colorado River to
the high water maak,
Upon timely petition for rehearing
by Bonelli and after extensive briefs had ©”
been filed by Bonelli, the Attorney General’
and eight amici curiae, including the County
Attorney of Mohave County (although he is
not named in the reported decision), the Sus:
preme Court of Arizona on April 13, 1972, in
effect denied Bonelli's petition for rehear«
ing by supplementing its first decision;
once again holding that the State's title
extended to the high water maak,
The Claridge decision on the ques-
tions involved herein was rendered ‘November
18
7, 1966, by Judge Craig of the United States
District Court for the District of Arizona,
279 F, Supp. 87, and the affirming decision
of the United States Court of Appeals Ninth
Circuit, 416 F, 2d 933, was issued September
19, 1969. These decisions were never con-
sidered by the Court of Appeals of Arizona
nor the Supreme Court of Arizona in its first
decision. However on the petition for re-
hearing before the Supreme Court of Arizona
Bonelli and amici curiae called to the court's
attention and urged the court that its first
decision of October 4, 1971, as it related
to the extent of the State's ownership of the
land was in direct conflict with the decision
of the United States District Court for the
District of Arizona in Claridge, 279 F. Supp.
87, and affirmed by the United States Court
of Appeals Ninth Circuit, 416 F, 2d 933, and
that therefore the Arizona. Supreme Court's
decisions should be modified accordingly.
The effect of the Claridge decisions
19
was brushed off by the Supreme Court of
Arizona in the following language: “It
should be made clear that Arizona's title
as against private persons is in no way
controlled by the opinion in United States
v. Claridge, 279 F. Supp. 87, aff'd 9th
Cir., 416 F, 2d 933." (page 1314, 495 P,
2d).
The conflict between the two deci-
sions of the Arizona Supreme Court and the :
Claridge decision as to what constitutes
the “high water mark" is clearly shown on
Appendix D, ingaa, and it will be noted. that
the line established by the Arizona Supreme
Court completely wipes out all of Bonelli'ts
title and invades about one-half of Section
2 to the east, which is Federal land.
As a result of these conflicting
decisions in both cases where the State of
Arizona was a party, we have a situation
which presents a critical dilemma as to the
ownership of land along the Colorado River
20
which only this Court can clarify.
REASON FOR GRANTING WRIT
I. Conflict of Authorities.
As stated before, there is a di-
rect conflict between the two decisions of
the Arizona Supreme Court and the Federal
courts relating to the extent of the State's
ownership of land along the Colorado River,
In other words, the State's ownership as
against the United States under the Claridge
decision extends to one line; on the other
hand, the State's ownership under the Ariz-
ona Supreme Court decisions as it applies
against individuals extends to another line
much greater in depth (see Appendix D, inf{aa),
The Claridge case involves almost
an identical factual situation with Bonelli
and was one in which the State of Arizona |
was a party and in which the State of Ariz-
ona petitioned this Court for a writ of cer-
tiorari, which petition was denied March 2,
1970, 397 U. S, 961, 25 L. Ed. 2d 253, 90
21
S. Ct. 994, ofebetaons numbered 1 and 2 here-
in presented are identical in substance with
Questions numbered 1 and 3 presented by the
State of Arizona in its opening brief before
the Ninth Circuit Court of Appeals in Clar-
idge and in the petition for certiorari in
this Court. Both questions were decided
adversely to the State. However, as noted,
the Supreme Court of Arizona in its decisions
holds just the opposite,
Furthermore, the Arizona Supreme
Court decisions are in direct conflict with
the decision of this Court in Hughes v. Wash-
ington, 389 U, S, 290, 19 L, Ed. 2d 530, 88
S, Ct. 438, decided December 11, 1967, where-
in Mr. Justice Black delivered the opinion
of the Court in reversing the Supreme Court
of Washington and unequivocally holds that
federal, not state Laws, control the owner-
ship of land, called accretion, on property
conveyed by the United States prior to state-
hood, It is clear from reading this opinion
that the converse would be true; that is,
that federal Law, and not state Law, contaots
the ownership of Land Lost by accretion
where the Land was conveyed by the United
States prior to statehood, as is the fact
in the case at bar.
II, Impoatance of the Issue,
Since the latter decision of the
Arizona Supreme Court of April 13, 1972,
there has been published in Volume 14, Num-
ber 2, of the Arizona Law Review published
by the College of Law of the University of
Arizona an article by Robert E, ——
entitled Artificial Additions to Riparian
Land: Extending the Doctrine of Accretion,
While respective counsel to this
petition may not fully agree or concur with
Mr. Lundquist's article or his conclusions,
we all unanimously agree that the article
points to the fact that we have a very
serious problem at hand as a result of
the conflict between the Arizona Supreme
23
Court decisions and the decisions-of this
Court and subordinate Federal courts, Couns”
sel believe ‘that this article is of such —
significance and importance that it should
be filed as a separate ~Appendtx “and ttiswe. :
fore a reprint of the article is being se- -
parately filed as Appendix I,
Mr. Lundquist states on the first
page of his article that dredging operations
by the Bureau of Reclamation to rechannel
parts of the Colorado River have already ‘sur-
faced over 2,700 acres of land between the-
natural river bank and the narrower new.
channel and that future daedging will expose
morxe Land, Therefore, as dredging continues
by the Bureau of Reclamation other land titles
will be affected (page 316 Arizona Law Re<
view, Appendix I).
According to the records of the
Arizona State Office of the Bureau of Land
Management, United States Department of the
Interior, there are 273 miles of shoreline
24
in Arizona along the Colorado River, ‘or
this shoreline, 87 miles or 32% is controlled
by the Bureau of Reclamation and the Bureau
of Land Management; 59 miles or 22% is ‘owned
by Indians; 71 miles or 26% is controlled
by the Bureau of Sports, Fisheries and Wild-
life; and 45 miles or 16% is privately owned
or owned by the State of Arizona, This
statistical data and overlay is attached
as Appendix E, in{aa,
In 1971 the Department of Economie
Planning and Development-Planning Division-
of the State of Arizona published an of-
ficial report entitled Ownership and Adminis-
tration of Public Lands in Anizona (see page
317 Arizona Law Review, Appendix I). As a
pocket part of this official report is a map
of the State of Arizona showing public land
ownership in Arizona as of 1971. The land
status was obtained from the Arizona State
Office of the Bureau of Land Management,
United States Department of the Interior,
25
This map clearly shows the ownership of
land along the Colorado River and is filed
as Appendix F, <infaa.
Of the 45 miles or 16% of private
and State land, Appendix E, infra, it is
agreed that by virtue of the Reclamation
Withdrawal Order of January 13, 1903, and
subsequent withdrawal orders the State's
ownership constitutes a very small portion
of the area.
Justice Lockwood in her dissenting
opinion of the first decision of October 4,
1971, at 489 P. 2d 706, mentions the agri-
cultural developments bordering the Colorado
River and its importance. The agricultural
development is within Yuma County. However,
millions of dollars have been expended by
private capital and plans for the expendi-
ture of other millions of dollars by public
agencies, the Indians, the Federal govern-
ment and individuals on lands along the Colo-
rado River in Mohave County are of great
o
ve
G?
4
26.
significance. . This. Court can take. judicial...
notice of the birth and.development. of the
great city along the Colorado River in Mo-
have County known as Lake Havasu City. pur-
chased and developed by the McCullough in-
terests at which place at the cost of several
million dollars McCullough purchased, trans-
ported and installed the London Bridge.
The Department of the Interior has
made extensive studies and plans for.the deve-
lopment of public and Indian lands along the
Colorado River for recreational purposes which
will make it one of the greatest recreational
areas in the entire continental United States.
(See The Lower Colonado River Land Use Plan,
a Report of the Lower Colorado River Land
Use Advisory Commitice, United States. De-
partment of the Interior, Stewart L,. Udall,
Secretary, January 1964, . Extra copies: of.
this document are not available because it
is out of print, and therefore only one
copy is available for filing with. the
oa
$4
; . is Se 5
yar eS - i |
eS 2
~ & 4 :
<7 |
Sea
as
a - ,
a ‘
~
:
‘> ee :
,
4
27
Clerk, This plan as will be indicated there-
in is still in full force and effect.)
While Justice Struckmeyer in his
latter opinion remarks on page 1313 of the
reported decision, 495 P, 2d, that the. eco-
nomic impact of the court's decision is.a
matter of legislative consideration rather
than the concern of the court, one of the
very main reasons for this joint petition
by opposing counsel is due to the fact that
the Legislature of Arizona cannot intelli-
gently consider legislation for the relief
of private owners of land along the shore-
line of the Colorado River due to the cone
flict between the decisions of the Arizona
Supreme Court, this Court and those of
subordinate Federal courts, particularly
the conflict that now exists between the
Claridge decision and the Bonelli decisions
as to the extent. of the State's ownership,
We respectfully submit that only this Court
by granting certiorari can provide the
solution.
The statistical data furnished by
the Bureau of Land Management, Appendix E,
infra, relate only to shoreline land without
any information as to the depth of that
shoreline land. In other words, an examina-
tion of Appendix D, infra, clearly shows
that the extent of the Claridge decision
would only affect a quarter mile or at the
most a half mile of Bonelli shoreline land
while the effect of the Arizona Supreme
Court's decisions embrace all of the Bonelli
land and extends a mile or more covering
half of the Federal land in Sections 10 and
2. Ih some cases where the Colorado River
is known to have flowed at one time for a
distance of 4 or 5 miles to the east of the
present channelized stream, the State's
title would extend to this point.
The Arizona Supreme Court cited the
Submerged Lands Act, 43 U. S. C., 1301 et
seq., in its supplemental opinion (495 P. 2d
29
1312) as authority for title vesting in the
State, but the Court refused to recognize
that this same Act exempted from: the provi-
sions thereof any lands to which title to:
the beds of such atreans was lawfully pae’
tented or conveyed by the United States or
any State to any person, or to which title
had been retained by or ceded to the United
States when Arizona entered the Union,
Furthermore the Arizona Supreme
Court in both of its decisions completely
ignored the mandatory provisions of Section
20, Second, of the Enabling Act of Arizona
and the effect of the unrevoked Reclamation
Withdrawal Order of January 13, 1903, and
subsequent withdrawals both before and after
statehood which withdrew land sien the Colo-
rado River from any form of entry; particu-
larly the January 13, 1903, withdrawal which —
withdrew 6 miles of lands from all forms of
entry except homestead entries (not appli-~ |
cable here) from the center of the Colorado
30
River eastward. These withdrawals and the
mandatory provisions of the Enabling Act
and the Arizona Constitution accepting the -
same casts a serious cloud upon the validity
of the Supreme Court of Arizona's decisions
and as a result a serious cloud on any title
to lands along the Colorado River now in
existence or which heaea{ter may be granted
by the United States,
CONCLUSION
Unless this Court takes jurisdiction
and grants certiorari, it is submitted that
the owners of patented lands along the Colo-
rado River, the Indians and the Federal govern-
ment will be in a complete state of confusion
and apprehension.
Under the Arizona Gntieinn Court spans
sions there is no way for the owner of private
land along the Colorado River to definitely
determine how much of his land has been taken
by the State of Arizona or affected by the
decisions. As a result of the Arizona Su-
31
preme Court decisions, no person can with any.
degree of safety and assurance of stability
develop and improve his land at any one given
point because of the vagueness and uncertain-
ty of the decisions and the conflict with )
Claridge and of contemplated future channel-
ization of the Colorado River by the Bureau
of Reclamation to stabilize the river flow.
The Arizona Supreme Court by its de-
cisions has adopted a rule of property which
casts serious constitutional doubt upon the
powers of the Legislature of Arizona to change
or modify unless these decisions are reversed
or at least modified and clarified by this
Court.
It is therefore respectfully sub-
mitted that this petition for the writ of
certiorari should be granted and counsel be
permitted to file their respective briefs on
the questions raised herein,
32
Respectfully submitted,
ELMER C. COKER
Luhrs-Central Building, Suite J
132 South Central Avenue
Phoenix, Arizona, 85004
Attorney for Petitioner Bonelli Cattle Company
LEONARD C, LANGFORD
Mohave County Attorney
Mohave County Court. House
Kingman, Arizona, 86401
Attorney for Petitioner County of Mohave
Gunemersenesete
‘Serancaitliaeehdeishinsianleiair SR.
S eeeeaaiinis miaibiais 4 ‘ee |
. |
(inneniennibeeeneererennaret es POPSreaiie
33
Sueseor Lawo ou thew Ck:
Cectree 3, T. 19, RK. 22 W, CFS REM.
SS) —— Suszecr Lavo
Ares ivarer hiarKk
uncer Murzen Sreres
v. haaseree, ATY F.
Sure 27 & (9% GCA)
4ulb F. Ad 983 Hren Waren Marn
uaveR Agzzoua ¥.
“9S Pickd IBIA ©
4 * “¢ & fr ia se te x
: < ee oe a ee
eS ‘¢ Ya £4 ve { fs
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ff tw Be oe
3h
DEPARTMENT OF THE INTERIOR,
WASHINGTON,
January 31, 1903.
2 ee |
The Commissioner of the General Land Office.
Sir: |
In a letter of the 26th instant to
the Department the Director of the Geologi-
cal Survey recommended that the public lands
in certain described areas in Arizona * * *#
be withdrawn from entry under the provisions
of the act of June 17, 1902-32 Stat. 388-
except that homestead entries may be made
therein subject to the conditions of the act,
such withdrawals to be additional to with-
drawals already made for the Colorado River
Survey in Arizona * * # , |
He has suggested that the local of-
ficers be instructed to make such notations
as may be possible on the maps in their of-
fices, and has recommended with reference
to the unsurveyed townships that the with-
drawals should be noted in the tract books
35
of your office where the townships fall in
tract books already opened and that whan
ever possible new tract books should be
opened to contain the others and that like
action be taken by the local land officers. _
I enclose a copy of the letter for
your information and hereby direct the tem-
porary withdrawal of the public lands in-
cluded in the descriptions given, from set-
tlement, entry or other form of disposition.
under the public land laws except the home-
stead laws. All lands entered and entries
made under the homestead laws within the
limits of this withdrawal, during its con-
tinuance, shall be subject to all the pro-
visions, limitations, charges, terms and —
' conditions of the act mentioned,
You are also directed to cause the
withdrawal of the unsurveyed townships to
be noted as recommended if practicable.
Very respectfully,
E, A. HITCHCOCK
Secretary
36
Request for additional withdrawals, Colorado
River Survey.
Jan. 26, 1903.
The Honorable,
The Secretary of the Interior,
Washington, D. C,
Sir:
As a result of further examinations
in the field I have the honor to request
additional withdrawals to those already made
for the Colorado River survey in Arizona
# # ®, under the provisions of the act of
June 17, 1902 (32 Stat. 388), as stated be-
low:
COLORADO RIVER SURVEY IN ARIZONA-G AND SRM
Ts. 7, 8, 10, 11, 12, 13 S, R. 20 W,
T. 11 S., Rs. 20, 21, 22, 23, 24 and 25 W.
‘T. 12 S., Rs. 19, 20, 21, 22 and 23 W,
T. 13 S., Rs. 18, 19 and 20 W.; also
All lands in Arizona lying within six miles
of the Colorado River, west of the 114th
Meridian.
37
In regard to the withdrawal of
these unsurveyed townships and the lands
along the Colorado River in Arizona * *# #,
I desire to state that the land being un-
surveyed, it is impossible to make a more
definite description. The most important
object to be obtained by this withdrawal
is to prevent the attachment of rights
for reservoirs and canals, which will take
water from the river for irrigation, power
or other purposes, and it is understood
that the progress sheets which are kept
up in the General Land Office, will show
the proposed withdrawals and make it poss-
ible to decide whether an application for
such purposes may be in conflict therewith.
It is suggested that the Commissioner of
the General Land Office be asked to in-
struct the local land officers to make
such notations as may be possible on the
Land Office maps in their offices which are
consulted in connection with applications
38
for rights of way over unsurveyed lands, as
may show the locations of these withdrawals.
As to the unsurveyed townships des-
cribed, it is recommended that the Commis-
sioner of the General Land Office should
note the withdrawals in the tract books in
case the townships fall in books already
opened and whenever possible should open
new tract books to contain the others; also
that a similar action be taken by the lecal
land offices. .
It is recommended that the public
land in the area described be withdrawn
from entry, except that homestead entries
may be made therein subject to the condi-
tions prescribed in the act.
Very respectfully,
(Name does not appear)
Director,
BONELLI CATTLE COMPANY, A California
corporation; COUNTY OF MOHAVE, a po-
litical subdivision of the State of
Arizona,
Petitioners,
Vv.
THE STATE OF ARIZONA, THE STATE LAND
DEPARTMENT, a Department of the State
of Arizona; ANDREW L. BETTWY, State
Land Commissioner of the State of
Arizona,
Respondents gas
Sees, .
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF ARIZONA
(APPENDIX A THROUGH F)
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1972
NO,
BONELLI CATTLE COMPANY, a California
corporation; COUNTY OF MOHAVE, a po-
litical subdivision of the State of
Arizona,
Petitioners
Vv.
THE STATE OF ARIZONA, THE STATE LAND
DEPARTMENT, a Department of the State
of Arizona; ANDREW L, BETIWY, State
Land Commissioner of the State of
Arizona,
Res entsa@ililiie
APPENDIX
TO
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF ARIZONA
(APPENDIX A THROUGH F)
APPENDIX - SUBJECT INDEX
Page
Appendix A. Opinion of the Arizona
Supreme Court, State of
Arizona v. Bonelli Cattle
Company, filed October 4,
1971 - --- la
Appendix B, Opinion of the Arizona
Supreme Court, State of
Arizona v. Bonelli Cattle
Company, filed April 13,
1972 lb
Appendix C, Opinion of the United
States Court of Appeals
for the Ninth Circuit
United States v. Claridge,
filed September 19, 1969 -- le
Appendix D. Map Showing Difference
Between the High Water Mark
and Bed of Colorado River
as Fixed~by Claridge Deci-
Sion and as Fixed by Ariz-
ona Supreme Court Decisions
in State of Arizona v, Boe
nelli Cattle Company as
the Decisions Affect Subject
Land (Same as Appearing on
Page 33 of Petition)-----. ld
Appendix E, Shoreline (Overlay No, 2)
of the Lower Colorado River
Statistical Data, Records of
Arizona: State Office of the
Bureau of Land Management,
United States Department of
'. the Interior ------ :
le
-
APPENDIX - SUBJECT INDEX CONTINUED
; Page
Appendix F. Map of the State of Ariz-
ona Showing Public Land
Ownership in Arizona as of
1971 (Land Status Obtained
From the Arizona State Of-
fice of the Bureau of Land
Management, United States
Department of Interior)--
APPENDIX I += SEPARATE VOLUME
if
Reprint of an Article by Robert E,
Lundquist Entitled Artificial Ad-
ditions to Riparian Land: Extend-
ang the Doctrine of Accretion Con-
tained in Volume 14, Number 2, of
the Arizona Law Review Published
by the College of Law of the Uni-e
versity of Arizona.
FILED SEPARATELY WITH THE CLERK
The Lower Colorado River Land Use Plan,
a@ Report of the Lower Colorado Rivera
Land Use Advisory Committee, United
States Department of the Interioa,
Stewart L, Udall, Secretary, January
1964,
—————EE__ el,
APPENDIX A
IN THE SUPREME COURT OF THE
STATE OF ARIZONA
En Banc
THE STATE OF ARIZONA, THE STATE LAND DEPART-
MENT, a Department of the State of Arizona;
ANDREW L, BETTWY, State Land Commissioner
of the State of Arizona,
Appellants,
Vv.
BONELLI CATTLE COMPANY, a California corpor-
ation,
Appellee, -
No. 10030-PR
(October 4, 1971)
Appeal from the Superior Court of Pinal (44c)
County
Honorable T. J, Mahoney, Judge
Reversed with Directions
Opinion of the Court of Appeals, Division One
1l Ariz. App. 412, 464 P. 2d 999
Vacated
Gary K, Nelson
The Attorney General Phoenix
by Dale R, Shumway
Special Assistant Attorney General
Phoenix
2a
Elmer C,. Coker : Phoenix
geteiney for Appellee
STRUCKMEYER, Chief Justice
This action was brought by Bonelli
Cattle Company, a corporation, to quiet ti-
tle to certain lands lying within the bed of
the Colorado River in Mohave County, Arizona,
The Superior Court on an agreed statement of
facts entered judgment quieting title against
the State and the judgment was affirmed by
the Court of Appeals, 11 Ariz. App. 412, 464
P, 2d 999, Opinion of the Court of Appeals
vacated, Judgment of the Superior Court re-
versed.
The issue to be determined is whe-
ther ownership of Arizona in the beds and
banks of the Colorado River acquired by ero-
sion has been lost because dredging has
channelized the water of the river, confin-
ing it to a part of the bed.
Bonelli claims as the pa the East
half of Section 3, Township 19 North, Range
22 West of the Gila and Salt River Base and
A GE ad ee ee
3a
Meridian, It acquired title by deed dated
August 12, 2955. Its grantor traces its ti-
‘tle toa pabent by the United States dated
November 5, 1910 issued to Santa Fe Pacific
Railroad Company.
A United States Geological Survey
map of this area dated 1902-1903 shows that
at that ene the river's east bank was ap-
proximately one-quarter of a mile west of
Section 3. No evidence was produced as to
the course of the river thereafter until
1938, but there seems to be general agree-
ment that during this period the river moved
steadily eastward. By April 24, 1938 the
river's channel covered all of the east half
of Section 3 except a small portion of the
southeast corner,
In the year 1938, the flow of the
river was brought under control by the con-
struction of the Hoover Dam, and thereafter
water was released only in such quantities
as was suitable for downstream irrigation.
py ee Rae aor era
Tee 7 a a e — .
Oe eet te ae ere cee ee ee
Ka
This discharge of water apparently has not
been sufficient to cause any significant ero-
sion or reliction in the river. By a map of
the United States Geological Survey, Depart-
ment of Interior, (the Davis Dam Quadrangle)
dated 1950, the river is shown as being nearly
three-fourths of a mile wide, flowing in part
over the west half of Section 3. In 1959 and
1960 the river was dredged by the United
States Department of Interior and the water
which had theretofore spread over almost the
entire width of the river's bed was confined
to the dredged portion, principally within
the west half of Section 4 and only partially
within the east half of Section 3. That part
of the former channel on the east half of
Section 3, over which water no longer flows,
is the subject matter of this controversy.
The plaintiff, Bonelli, is claiming the ex-
posed portion of the bed of the river.
Ordinarily in the United States the
bed of a non-navigable river or stream is
5a
-
owned by the riparian owners. Where the
stream forms the boundary between owners,
each owns on his side to the middle thread.
However, the rule is not always applied to
navigable rivers. By congressional enact-
ment, the State of Arizona owns title to
the beds of all navigable streams within
its border, 67 U. S. Stat. 30, 43.-U.S.C.
$1311; Kansas v. Colorado, 206 U.S. 46, 51
L, Ed. 956, 27 S.Ct. 655. Since the Colo-
rado River is not wholly within Arizona's
borders, but is, itself, the border, Ariz-
ona's title extends from the center of the
' channel eastward to the river's high water
line, Arizona v. California, 283 U.S. 423,
75 L. Ed. 1154, 51 S.Ct. 522; and see
Mumford v. Wardwell, 73 U.S. 423, 18 L. Ed.
756; Pollard v. Hagan, 44 U. Si 212, leks
Ed, 565; Morgan v. Colorado Indian Tribe,
103 Ariz. 425, 443 P. 2d 421. As an aside,
it may be observed that the boundary between
Arizona and Nevada is not the channel's
ct ne TL LE
oe
6a
thread, The boundary has been fixed by agree-
ment between the two states,
It is. common knowledge that rivers
move sometimes so slowly as to be impercep-
tible during the lifetime of any single indi-
vidual, and sometimes so rapidly by floods
that the river's banks visibly disintegrate,
Where the change is sudden and rapid, the
change is said to be by avulsion. U. S. v.
Claridge et al., U. S, District Court, Phoe-
nix, Civ. 5080; Hirt v. Entus, 37 Wash. 24 |
418, 224 P, 2d 620. Erosion, on the other
hand, is the eating away of the soil by the
river's current, and is a gradual, imper-
ceptible process. Where the river moves by
erosion, the boundary moves with the stream,
but where the river moves by avulsion, the
boundary remains in the center of the old
channel, Nebraska v. Iowa, 143 U.S. 359, 36
L. Ed. 186, 12 S. Ct. 396; State v. Jacobs,
93 Ariz, 336, 380 P. 2d 998,
From the statement of facts and the
7a
exhibits introduced in the instant case, we
are unable to say whether the eastward move~
ment of the Colorado River between 1903 and
1938 was by avulsion or erosion. It is to
be recognized that avulsive changes are gene-
rally events SO momentous that evidence is
Svatlable to establish them. In the instant
case, the failure to produce such evidence
is an indication that the changes in the water-
course were imperceptible. The rule of law
is that in the absence of clear evidence to
the contrary, the movement of the river will
be presumed to be by erosion, Arnd v. Harring-
ton, 227 Iowa 43, 287 N.W. 292; Kitteridge
v. Ritter, 172 Iowa 55, 151 N. W. 1097.
It follows from what has been said
that as the river moved eastward across Sec-
tion 3, the thread of its channel moved with
it and the title of the State of Arizona to
the east one-half of the river bed also shif-
ted correspondingly, -- the east high water
line of the river finally becoming the plain-
tiff's west boundary. As the river moved _
eastward, engulfing most of Section 3 in the
channel of the river, the land to which plain-
tiff held title decreased so that, by 1938,
the owners of the east one-half of Section 3
had, by the operation of natural forces, lost
most of it ho kadaveuns |
It is Bonelli's position that when
the United States Government dredged the ri-
ver in 1959, confining the waters thereof
to a portion of the river's bed so as to pre-
vent unreasonable loss of water by absorp-
tion and evaporation, the portion of the bed
which was not used for the flow of water re-
verted to the previous owners, But we do not
think so,
A stream is a watercourse having
banks and channel through which waters flow,
at least periodically. Southern Pacific Co,
v. Proebstel, 61 Ariz. 412, 150 P, 2d 81.
As has been said:
"A watercourse does not lose its character
as such by reason of the fact that it is
9a
improved by deepening or is artificially
controlled, nor because it is used as a
conduit to carry other waters, Again,
the character of a watercourse is not chang-
ead by the fact that a pond is created by a
dam. Nor does a watercourse ‘lose“its charac
ter as such because all the water has been
diverted therefrom, no macvver for how long a
erica © * * nor by reason of the fact that
Ee water has. all been dammed at a place
far up the stream.* * * " (Emphasis in
original.) Smith v. City of Los Angeles,
66 Cal. App. 2d 562, 153 P. 2a 69.
Obviously, a river does not have to flow con-
tinuously across the aoe of its bed to the
high water mark in order to avoid a claim by
abutting owners to a part of the river's bed,
The channel of a river is the bed of the stream
over which its waters run, Benjamin V, Manis~-
tee River Imp. Co., 42 Mich, 628, 4 N.W. 483,
and the bed of a river is the space contained
between its®banks, Pulley v. Municipality No.
2, 18 La. 278, Arizona does not lose title
to the bed of the river to high water mark
simply because the river has been dammed and
its water channelized to a part of the bed.
The plaintiff argues what it calls
the "artificial accretion" theory, urging
10a
that an abutting owner is entitled to the
accretion caused by artificial conditions
over which he has no control. An accretion
is a "gradual and imperceptible accumula-
tion of land by natural causes," Black's
Law Dictionary. In the instant case, the
exposed portion of the channel was not
brought into existence gradually or imper-
ceptibly. The exposure was man-made and
the channel was uncovered rapidly and percep-
tibly.
The plaintiff also argues what it
calls the "re-emergence" theory. This oc-
curs where a river which formerly eroded an
abutting owner's land recedes so that the
eroded land reappears -- a process known as
reliction. Reliction is an increase of land
by a permanent withdrawal or retrogression
s
of a river. We believe, however, that the
dredging of the river is an engineering relo-~
cation of the waters of the river by artifi-
cial means and is not a true case of with-
drawal or retrogression,.
We are not unaware that there are jur-
isdictions which have held that the land to
the low water mark of a river or lake belongs
to the abutting owners, see e, g., State En-
gineer v, Cowles Brothers, Nev. _# 4 878
P, 2d 159, We think, however, the better rule
is that the courts have no authority to give
away the title to land which clearly belongs
to the state, Where, as here, the abutting
owner's title extends only to the high water
mark, and the beds and banks belong to the
state, we can find no solid legal reason for
concluding that the land below the high wa-
ter mark to the water's edge belongs to the
abutting owners.
Where a river shifts to a new loca-
tion as a result of unnatural forces, the
state does not lose title to the bed of the
stream in the old location. People v., Shasta
Pipe and Supply Co., 70 Cal. Rptr. 618; Pad-
gett v. Central and Southern Florida Flood
12a
Control District (Fla.), 178 So. 2a 900;
State v. Aucoin, 206 La. 786, 20 So, 2d
136; Ray v. State (Tex.), 153 S.W. 2d 660;
Wilemon v, City and County of Dallas Levee
Imp. Dist., (Tex.), 264 S.W. 24 543 (cert
den. 348 U.S, 829).
The judgment of the Superior Court
is reversed with directions to enter judg-
ment quieting title in the State of Arizona
from the Nevada boundary to the high water
mark,
HAYS, V. C. J., ROBERT 0, ROYLSTON,
P, J., Superior Court Pima County, WARREN L.
McCARTHY, J., Superior Court Maricopa County,
concur,
NOTE: Justices JESSE A. UDALL and
JAMES DUKE CAMERON having announced their
disqualification to sit in the determina-
tion of this matter, the Honorable ROBERT 0,
ROYLSTON and Honorable WARREN L. McCARTHY
were called to sit in their stead.
LOCKWOOD, Justice (Dissenting):
13a
I cannot coneur with the result at
which Chief Justice Struckmeyer arrives in
this case,
‘Chief Justice Struckmeyer has amply
set forth the facts in the case, and his dis-
cussion of rights of a riparian proprietor in
land under the common law is an excellent dis-
sertation up to a point.
It must be borne in mind, of course,
that the question here involves not the right
to the use of the water of a river or stream,
but involves the title to land bordering on,
or beneath such river or stream, In the case
of use of the water, the common law riparian
right of owners of land bordering the river
or stream was abrogated and the doctrine of
prior appropriation established by the First
Territorial Legislature in 1864 and has ob-
tained by statute and Arizona Constitution
ever since. But there are other “ri
rights" belonging to owners of land bordering
rivers or streams unaffected by the Constitu-
Ika
tion and statutes regarding use of such wa-
ters by appropriation, There is no inconsis-
tency in our constitutional and statutory
provisions repudiating the doctrine of ri-
parian rights and establishing the doctrine
of prior appropriation (so far as the waters
named by the legislative acts are concerned)
and in the application of riparian rights in
land owners to increase or decrease of land
by accretion or reliction. See Water Conser-
vation Dist.No. 1 v. Cotton Co., 39 Ariz.
65, 4% P. 2a 369; State v. Gunther & Shirley
Co., 5 Ariz. App. 77, 423 P. 2d 352.
As early as 1864 the Arizona Terri-
torial Legislature first enunciated the pol-
icy of adoption of the common law as “the .
rule of decision" and as modified by subse-
quent legislative acts, that rule has obtained
to the present. We must, however, examine
to what extent the common law has become a
rixea "rule of decision". An examination
of succeeding legislative enactments is
15a
therefore illuminating,
A.R.S..$1-201 presently reads as
follows:
"The common law only so far as it is con-
sistent w a adapte o the natura
and physical conditions o s state
an e necessities o @ people
or, and not repugnant to or TRCSHETECERS
with the constitution of the United States
or the constitution or laws of this. state,
or established customs of the people of
this state, 1s adooted and ShETT be the
ruie o ecisions in ali courts o s
State.” (Emphasis adaea,.)
The Territorial Legislature in
1864 adopted §7 of Chapter 61, which reads
as follows;
"The common law of England, so far
as it is not repugnant to, or inconsis~-
tent with, the constitution and laws of
the United States, or the bill of rights
or laws of this Territory, is hereby
adopted, and shall be the rule of deci-
sior in all the courts of this Territory."
The same statutory provision was carried
forward appearing as {3438 of the Compiled
Statutes of 1877, as follows:
"The common law of England, so far
as it is not repugnant to, or inconsistent
with, the constitution and laws of the
United States, or the bill of rights or
laws of this Territory, is hereby adopted,
and shall be therule of decision in all
16a
the courts of this Territory."
In 1887 the statutes were revised,
The provision adopting the common law was
significantly modified to fead as follows:
"The common law of England so far
only as It is consistent with and adapted
to the natural and physical condition or
this territory, ana the necessities or
the people thereor, and not repugnant to,
or inconsistent with the constitution of
the United States, or bill of rights, or
laws of this territory, or established
customs of the people of this ions Be
is hereby adoptea and shall be e ruie
of decision in all the courts of this
territory." (Emphasis supplied.) R.S.A.
1887 §2935.
Thereafter a new code was enacted
in 1901 by the Territorial Legislature,
Therein all statute laws and titles of the
Revised Statutes of 1887 were repealed (ex-
cept a certain Title 3 regarding assignment
for benefits of creditors, not here rele-
vant.) In this revision no general adopt-
ion of the common law as "the rule of deci-
sion" was adopted. The only reference there-
to was regarding evidence, reading:
"The common law as now vracticed and un-
derstood shall in its application to ey
17a
dence, be followed and practiced by the
courts of this territory, so far as the
same may not be inconsistent with this
title or any other law," Section 2533,
R.S.A. 1901,
However, the Territorial Legisla-
ture of 1907 on March 5th adopted Chapter
10, which was entitled "To Revive Chapter
Five of Title LX of the Revised Statutes of
1887." In Chapter 10, §8, the Legislature
reenacted in practically identical wording
former {2935 of the Revised Statutes of 1887,
reading as follows:
"The Common Law, so far only as it is con-
sistent with, and adapte ° e natura
and physical condition of this ierritory,
ana the necessities of the peopie thereof,
and not. repugnan °o, or consistent w
the Constitution of the United States, or
bill of rights, or laws of this Territory,
or established customs of the people of
this Territory, 1s hereby adopted and shall
be the rule of decision in all courts of
this Territory." Session Laws of the 24th
Legislative Assembly of the Territory of |
Arizona of 1907, Chapter 10, 48, p. 11
(Emphasis supplied.)
In the first State Code adopted in
1913, §5555 is practically identical to the
1907 provision, The same statute was carried
forward in the 1928 Code as $3043, and there-
18a
after it was carried forward without change
to the present. $1-201, A.R.S. 1956, still in
effect,
The First Territorial Legislature,
in 1864 hadresponded to the urging of Gover-
nor Goodwin that they "adopt a permanent po-
licy as to the use of water for agriculture
as well as mining purposes," The Legislature
adopted Article 22 of the Bill of Rights,
reading as follows:
"All streams, lakes, and ponds of water
capable of being us for the purposes of
navigation or irrigation, are hereby de-
clared to be pubdic property; and no indi-
vidual or corpofation shall have the right
to appropriate/them exclusively to their
except under such equit-
able regulations and restrictions as the
Legislature shall provide for that purpose."
Immediately thereafter the language, supra,
of Chapter 55 of the Howell Code was enacted,
which also established the policy of appro-
priation as opposed to riparian rights in
waters of rivers, creeks and streams of run-
ning water in the Territory of Arizona.
Thereafter, in the case of Boquillas Land
19a
and Cattle Co, v. St. David Coop, Assn., 11
Ariz, 128, 89 Pac. 504 (filed March 22,1907)
affirmed 213 U.S, 339, 29 S, Ct, 493, 53 L.
Ed. 822 (1909), the right of the state to
abrogate the common law rules of riparian
rights to the ae of water, and to establish
the right of appropriation of water was up-
held, The Court discussed the development
of.the custom of using irrigation water by
right of appropriation without regard to the
riparian character of the lands being in
force by virtue of Mexican Law before the ac-
quisition of the State of Arizona under the
Treaty of Guadalupe didalgo and the Gadsden
Purchase, The Court stated: "Our statutes,
as well as those of New Mexico, seem to have
hed their origin in the Mexican law, as modi-
fied by custom," 11 Ariz. at 139, 89 Pac.
at 508,
In a concurring opinion outstanding
for its brevity and clarity, Territorial Su-
preme Court Judge Nave commented on the com-
mon law as follows:
"The essence of the common law is flexi-
bility and adaptability. It is not a body
of fixed rules, but is the best product of
human reason applied to the premises of
the ordinary and extraordinary conditions
of life, as, from time to time, they are
brought before tribunals. Hence, though
the common law is homogeneous, yet it finds
widely different expression in different
jurisdictions. Should the common law be-
come so crystallized that its expressions
must take the same form, wherever the
common law system prevails, irrespective
of physical, social, or other conditions
peculiar to the locality, it would cease
to be the common law of history, and would
be but an inelastic and arbitrary code.
The common law historically has carried with
it, and as part of it, the principle that
precedents -- earlier deductions from known
conditions -- must yield to the reasor of
different or modified conditions. This is
expressed, and analogously applied in
People v. Appraisers, 33 N. Y. 461, where
it is said: 'No doctrine is better settled
than that such portions of the law of Eng-
land as are not adapted to our condition
form no part of the law of this state.
This exception includes, not only such.
laws as are inconsistent with the spirit
of our institutions, but such as were
framed with special reference to the
physical condition of a country differing
widely from our own, It is contrary to
the spirit of the common law itself to
apply a rule founded on a particular rea-
son to a case where that reason utterly
Saepanes 1l Ariz, at 140, 89 Pac. at
506,
And in Maricopa County Municipal
2la
Water Conserv. Dist. No. 1 v. Southwest :
Cotton Co., 39 Ariz. 65, 4 P. 2d 369, the
Court paraphrased the language of Judge
Nave and stated:
"It is true that the common law is
not in its nature and character an absolute,
fixed, and inflexible system; it is rather
a system of general juridical truths,
founded on reason, natural justice, and
enlightened public policy, which are con-
Gitionally explained with the progress of
society, and which adapt themselves to
the gradual changes of that society and
the conditions, exigencies, and usages
of the country. It is never entirely
stationary, but is modified and extended
by analogous construction and custom so
as to embrace new relations springing up
from time to time from an amelioration or
change of society, or different physical
conditions arising in the countries to
which it is to be applied. Should it ever
become so crystallized that its expressions
must take the same form, irrespective of
physical, social or other conditions, pe-
culiar to the locality or the character
and habits of the people, it would cease
to be the common law, and become a rigid
and arbitrary code. And we think, as sug-
gested by the Supreme Court of the United
States in Boguillas ete. Co, v. St. David
etc. Assn., supra, the doctrine of liberal
interpretation set forth in paragraph 2935,
supra, was equally implied in the Howell
Code. But no judicial interpretation of
the common law can ever prevail against an
explicit declaration of public policy made
by the legislature when acting within its
-.isdiction. This declaration we have —
-een was made in the Bill of Right er
s
22a
the Howell Code, and it has never been
changed in substance up to the present,"
39. Ariz, at 81, 82, 4 P. 2d at 375...
The question here involved is one
of first impression, and one on. which our
Legislature has never spoken through its
statutory powers, But I believe in view of
the importance of the agricultural develop-
ments bordering the Colorado River, and our
constitutional policy prohibiting a taking
of private property without just compensa-
tion, our decision should not be based on
a construction of common law out of harmony
with the conditions and usages of a bur-
geoning agricultural industry which flour-
ishes most effectively by its use of land
bordering the Colorado River,
It is well established that upon
the formation of each new state in the Union,
it became the owner of the navigable rivers
therein together with the land underlying
such waters. Under Joint Resolution No, 8
(21 August 1911) 37 U, S. Stat. 39, Congress
23a
authorized the admission of Arizona with’
other States of the Union upon an "equal ©
footing", Therefore the State of Arizona —
acquired sovereignty over the navigable
rivers within its borders, together with’ the
land underlying the same. The Colorado Ri-
ver, at the location in question here, is a
navigable river by adjudication. Arizona v.
California, 283 U. S. 423, 75 L. Ed. 1154,
51 S, Ct. 522. No new rights were conferred
by Congress in 67 U, S. Stat. 29, 43 U. S. C.
$1301, such statute merely confirming as a
"quit-claim" all previous rights in navi-
gable rivers, People v. Hector, 179 Cal.
App. 2d 823, 4 Cal, Rptr, 334 (1960), Since
the Colorado River formed the boundary be-
tween Arizona and the states of California
and Nevada, the sovereignty of Arizona ex~
tended only to the middle of the stream of
the Colorado River on such boundary, and
eastward to the river's high water line, at
the time Arizona became a state. Owners of
24a
land abutting the river owned only to the
high water mark, under the common law. As
to their rights upon a change in the river's
banks, the common law rule with regard to
accretion and reliction was not necessarily
in conflict with Arizona law. The nature of
the title to the riverbed so acquired, how-
ever, is another matter. As stated in State
v. R. E. Janes Gravel Co., 175 S.W. 2a 739
(Tex. Civ. App. 1903; meversed on other grounds
in Manfrais v., State, 142 Tex. 559, 180 S. wW,
24 144 (1944), “the title to a riparian owner
is ‘a base fee, determinable upon the occu-
pancy of his soil by the river,' and that the
title of the State to the riverbed is likewise
a ‘base or qualified' fee, ‘determinable in
favor of the riparians upon the abandonment
of the bed by the river.'" 175 S. W, 2d at
741.
This holding is entirely consistent
with the provision in our Constitution that
no private property should be taken or dam-
25a
aged for public or private use without just
compensation having been first made. Article
2, $17, Arizona Constitution, The state
properly has a governmental interest in the
control of the navigable river, and there+
fore in the land beneath it, so long as the
river covers the land of a riparian pro-
prietor, However, it is when the river is
withdrawn from land originally owned by the
riparian proprietor that governmental in-
terest ceases to exist. It is more consis-
tent with Article 2, §17 of our Constitu-
tion that the riparian proprietor's property
right, hitherto subjected to the qualified
fee of the state by the accretive movement
of the river, should be completely restored
to him; otherwise there is a taking by the
state of private property for public use
without just compensation. To permit the
State to retain title to the property under
such circumstances would controvert the
provision of the Constitution,
26a
To hold, as I believe we should,
that the state’s qualified title is ter-
minated, and the riparian proprietor's title
is released from its subservience, is in
harmony with and is not repugnant to or in-
consistent with the provisions of Article 2,
§17, supra, or of A. R. S. J1-201.
Supporting this conclusion, Michigan
has held that riparian land rights are pro-
perty for the taking or destruction of which
by the state compensation must be made, Klais |
v. Danowski, 373 Mich. 262, 129 N. W. 2d 414
(1964):
"The question is raised whether the
patentees and those claiming under them
have lost from the then dry lands origin-
ally patented to them title to so much of
the private claims as, subsequent to the
date of patent, may have become inundated
by rising lake levels or through the pro-
cesses of avulsion or erosion, That the
answer shotlld be held to be in the negative
is supported by Muiry v. Norton, 100 N, Y.
424, 3 N. E. 581, In re City of New York,
256° a. Fs 227, 176 N,. E, 171, ‘In re City
of New York v. Realty Associates, 256 N, Y.
222, 176 N. E, 173, and City of Chicago
Vv. Ward, 169 Ill. 392, 48 N, E, 927, 38
L. (R. A. 849, The owner's continuing title
and ownership, after the lands became sub-
merged and, thereafter, when their restora-
27a
tion to dry coh@ition oomben either from
natural forces or oom by Ss
fe Hold to that same effect." 373 Mich.
at 276-277, 129 N. W. 2d-at 421 (Emphasis
supplied.)
Likewise the State of California has hed that
all of its navigable waterways and the lands
lying beneath them are held by the state "as
trustee of a public trust for the benefit of
the people", Colberg, Inc. v. State, 67 Cal.
2a 408, 62 Cal. Rptr 401, 432 P. 2a 3 (1967),
cert. den, 390 U. S. 949 (1968) citing People
vy. Gold Run D. & M, Co,, 66°Cal. 136, 152,
4h Pac, 1152 (1884); Martin v. Wadel, 41 U.S.
(16 Pet.) 367, 10 L, Ed. 997 (1842); Shively
v, Bowlby, 152 U. S. 1, 14 S. Ct, 548, 38 L.
Ed. 331 (1894); Miramar Company v. City of
Santa Barbara, 23 Cal. 24.170, 143 P. 2d 1
(1943), The law witth regard: to the so-
vereignty of California over navigable
streams was early declared in the case of
Eldridge v. Cowell, 4 Cal. 80 (1854), in
the following language:
"She (the State of California) holds the
28a
complete sovereignty over her navigable
bays and rivers, and although her owner-
ship is, by the law of nations, and the —
common and civil law, attributed to her
for the purpose of vreserving the public
easement, or right of navigation, there
is nothing to prevent the exercise of
her power in certain cases to destroy
the easement, in order to subserve the .
reneral good, which, when done, subjects
the land to private proprietorship."
& Cal. at 87.
In Colbert, Inc. v, State, supra,
the Supreme Court of California stated as
follows:
"As we have shown above, the power of
the State of California to deal with its
navigable waters, though subject to the
superior federal power, is considerably
wider in scope than that paramount power.
The state, as owner of its navigable
waterways subject to a trust fom the bene-
fit of the people, may act relative to
those waterways in any manner consistent
with the improvement of commercial traf-
fic and intercourse, We are of the fur-
ther view that the law of California bur-
dens property riparian or litoral to navi-
gable waters with a servitude commensur-
ate with the power of the state over such
navigable waters, and that ‘when the act
{of the state) is done, if it does not
embrace the actual taking of property,
ut results mereiy in some urious ef-
fect upon the property, the property ow-
ner must, for the sake of the general
welfare, yield uncompensated obedience, '
(Gray v. Reclamation District No, 1500,
supra, 174 Cal. 622, 636, 163 P. 1024,
1030.3" (Emphasis supplied.)
29a
The State of Texas departs somewhat
from the English Common Law as to rights of
riparian proprietors in land abutting on
navigable rivers when tre river has aban-
doned its course through either avulsive or
accretive processes, When the Republic of
Texas was formed, by treaty with Mexico, it
agreed to protect existing property rights
of owners under various Mexican land grants.
Nevertheless in 1840 the Republic of Texas
adopted the Common Law as the rule of deci-
sion with certain exceptions as to rights in
In the land-
certain Mexican land grants.
mark case of Manry v. Robinson, et al, 56 S.
W. 2d 438, 122 Tex. 213 (1932), a most il-
luminating discussion of the development of
rights of riparian owners in and to land, is
found, The Court there traced the development
of riparian land rights from their incep-
tion in Roman law (commonly referred to as
the civil law) through the adaptations of
the civil law by the various countries into
30a
which it was carried by the Romans, These
of course included England, France, Spain
and Mexico, and our own country. The Laws
of England with reference to rivers was
founded upon the Roman Law but with adapta-
tions to meet the conditions existing in
England, Similarly, France, Spain, Mexico
and the various states in the United States
adopted interpretations best adapted to
their physical conditions and customs,
The development of the law with re-
gard to rights of riparian proprietors in
the States of California and Texas were
strongly influenced by the fact that the
title to much of the land derived from Mexi-
can land grants. Some of the land within
the boundaries of the now State of Arizona,
also derived title from Mexican land grants.
Likewise, having been a part of Mexico, Ari-
zona was subject to many of the same customs
which arose out of Mexican law, which in
general followed the civil law. Boquillas,
With regard to the development of
laws with reference to rivers, from Roman
Civil Law through the English Common Law,
and its various adaptations in our South-_
west, we quote from the historical account
given in Manry, supra:
"There can be no doubt but that the
laws of England with reference to rivers
were founded upon the Roman law. Autho-
rities supra and post; Hardin v. Jordan,
140 U. S, 371, 390, 1i S. Ct. 808, 35 Ta
Ed. 428, The two Systems of law were
similar in many resvects, but differed in
some material particulars. Under the
civil law, all perennial streams were pubd-
lic, while under the comion law navigable
streams within tidewater limits on
the soeeoce of prescription, dedication,
or ac ariiament, were pu Ce utho-
rities ae Gould cae" Waters (3d Ed.)
$51, 52, 53; Coulson & Forbes on Waters
(4th’Ed.3 pp. 77, 78, 449, 450; Halsbury's
Laws of England, "vol. 25 DP. 398, 0760;
Hardin v, Jordan, 140 U. S, 13, 383, "11
S. Ct, 808, 35 ‘ Ed, 428,
"There is a difference of opinion
among writers on the Roman law as to
whether or not the beds of public streams
under that system of jurisprudence belonged
to the sovereign or to the owners of adja-
cent land,
"England in adopting the Roman law
as to its nontidal streams adopted the con-
struction insisted on by Selden, Vinnius
32a
Mr. Farnham -(vol. 1, $49), “and others,
that the title of the riparians extended
to the center of the seen a s
=a
s 4 Z
aveions: while France Soain ue Te cise
aaopted cnat interpretation. indicated 6
one as occupied, Ie
Tovereinn, because that Sonstruction was
"Each of the nations dasbed tin Yeb Le8Se
ing its interpretation of the Roman law as
to the ownership of stream beds, so lon
as occupied chose that rule which was Fest
Suited to its conditions, The’ ph ay
dence of all the nations mentioned, — ce,
Spain, Mexico, Texas (down to ELIO PE and
England (as to nontidal streams) however,
arree with the Koman iaw, that when a r Ver
abandons its bed ana selects a new channel,
Supra; Farmham on Watere, sake i rig.”
56 S. W. 2d at 446, 122 Tex, at 230-231,
(Emphasis supplied. )
"Under the English common law the
sovereign owned only those portions of
river beds which were within tidewater
limits. River.calls extended to the me-
dial line of boundary streams above tide-
water, whether navigable or not, and the
beds were the property of the riparians,
Hardin v, Jordan, 140 U. S. 371, 383,388,
11S. Ct. 808, 35 L. Ed. 4283 Shively v.
Bowlby, 152 U. + t Pegs » F 14 8. Ct, 548
38 L. Ed. 331; 4 Ruling Case Law, p. 82;
33a
ee, seat p. 83, 015; 9 Corpus Juris,
6 161i; gh ges on Wa er.
ip Bed bers ‘A bus, vol. 2 §) 413 N15 5
Kinkead v, Turgeon, 74 Neb. 573, 164 N
1061, 109 N.W. 744, 1L. R. A. (N, s. es
Rep. 740, 13. Ann. Cas. 43; 37 tia 3 Case
Law, p.'1358, $4268, 272;°9 Corpus Juris,
p. 184, 1593" JE 185; $161, 63; Packer v.
Bird, 137 U. 661, 666, "11° 8. Ct. 210,
_ 34 L. Ed, 819; “Lorman v,. *Bensgon, 8 Mich,
18, 77 Am. Dec, 435; Kent's Commentaries
(13th Ed.) vol. 3, DD. 592, 593; Coulson
& Forbes Law of Waters (In *Engiand) , pp.
91, 77; Halsbury's Laws of England, *yol,
i744, "756, 7157.
"The beds of navigable streams
above tidewater were parts of the coter-
minous estates, but so long as occupied
by navigable waters the ownership and
control by the owners was limited by the
public right of navigation, predicated
upon custom, dedication, or act of Par-
liament, but not upon original ownership
and control by the sovereign, nor upon
the common law. Halsbury's Laws of Eng-
land, vol. 28, p. 406, §784; p. 398, O§
760, "761, 762; D. 396, §756; Coulson &
Forbes on Waters Ciith’ Ed.) p. 450; Hale's
De Jure Maris as published in Moore's His
tory and Laws of the Foreshore, etc. (3d
Ed.) p- 370 et seq.; Farnham on Waters,
vol. 1, §48; Kinkead v. Turgeon, 74 Neb.
573, 104 N. Ww. 1061, 109, N. W. "744, 1
L. R. A. (N.S. 762, 7 L. R. A. (N.'S.)
316, 121 Am. St. Rep, 740, 743, 13 Ann
Cas. 43," Id., 56 S. W. 3a at *Hh5—W46
122 Tex. at 229. .(Emphasis in original. )
"These illustrations suffice to show
bas to the law of streams we have only
28,
-
34a
adopted such rules of the common law as
are suitable to our conditions and as are
in harmony with the basic principles of
our jurisprudence with reference to the
law of waters.
"We will now examine the question
as to whether or not we have adopted the
claimed common law rule that the beds of
ail navigable streams upon abandonment
are the property of the state.
"No such rule ever existed under
the common law of England, There are re-
spectable authorities for the statement
that the beds of navigable streams within
tidewater limits upon abandonment rema
the property of the Crown; but this is
because the rivers and their beds where
the tide ebbs and flows are arms of the
sea and not because of navigability alone.
Authorities supra; Bacon's Abridgment, vol.
8, pp. 14, 19; Farnham on Waters, vol, 1,
§38; Hale's De Jure Maris in Moore's His-
tory of the Foreshore, etc. (3d Ed.) pp.
378 to 380; Mayor of Carlisle v. Graham,
L. R. Ex., vol. 4, p. 360,
"The rule of the common law as to
rivers above tidewater, which are, as
Bacon's Abridgment says, ‘no original per
or appendix of the sea,' was, an s tha
e adjacen ands extend to the medial
line, burdened with certain easements inci-
dent to navigation, if navigable, and that
upon abandonment of the beds in full title
pass to the riparian owners. Authorities
supra; Bacon's Abridgment, vol, 8, p. 14;
Farnham on Waters, vol. 1, $48; Hale's De
Jure Maris in Moore's History of the Fore-
shore, etc. (3d Ed.) pp. 370 to 373; Kin-
kead v. Turgeon, 74 Neb. 573, 104 N. W,
1061, 109 N. W. 744, 1 L. R. A. (N, Ss.)
762, 7 L. R. A. (N, S.) 316, 121 Am, St.
35a
Rep. 740, 13 Ann. Cas. 43.
"In our opinion, in adopting the
common law, we adopted the last-named
rule, since the rule to the extent that
it assigned the beds of nontidal navi-
gable streams upon abandonment to the
riparians was consistent with our then
established system of jurisprudence,
and better suited to our conditions than
the other rule of the common law stated
above. Id., 56 S. W. 2d at 447-448, 122
Tex. at 233 (Emphasis in original.)
The United States government
through its Bureau of Reclamation, with-
out permission or consent from or by plain-
tiff or any express consent by the State
(although there is an indication that the
State approved the rechanneling project),
changed the channel of the Colorado River
by relocating and rechanneling it in the
latter part of 1959 and the early. part of
1960, This caused an abandonment by the
river of a large portion of Section 3
which was originally owned, by virtue of
United States patent, by those from whom
plaintiff derived title. Under the customs
established in Arizona Territory, by re-
36a
ference to Mexican law, the plaintiff would
thereby have regained his land, bounded by
the high water mark of the rechanneled river,
Otherwise, the state, no longer having a
governmental capacity over land formerly
existing by virtue of its being beneath a
navigable river, would be in effect taking
property of plaintiff without compensation.
I would, for the foregoing reasons,
affirm the judgment of the trial court
quieting title in the plaintiff to the land
in question,
LORNA E. LOCKWOOD, Justice
ib
APPENDIX B
IN THE SUPREME COURT OF THE
STATE OF ARIZONA
In Banc
THE STATE OF ARIZONA, THE STATE LAND DEPART-
MENT, a@ Department of the State of Arizona;
ANDREW L. BETTWY, State Land Commissioner
of the State of Arizona,
Appellants,
Vv.
BONELLI CATTLE COMPANY, a California corpor-
ation,
Appellee,
No. 10030=-PR
(April 13, 1972)
Appeal from the Superior Court of Mohave
County
Honorable T. J. Mahoney, Judge
SUPPLEMENTAL OPINION
Gary K. Nelson Phoenix
The Attorney General
by Dale R. Shumway Phoenix
Special Assistant Attorney General
Attorneys for Appellants
Elmer C. Coker Phoenix
Attorney for Appellee
Snell & Wilmer
by Maynard P. Goudy, Esq.
Fennemore, Craig, von Ammon &
Udall Phoenix
by John J. O'Connor, III, Esq.
Streich, Lang, Weeks, Phoenix |
Cardon & French
by Dan M. Durrant, Esq.
Evans, Kitchel & Jenckes, P. C.
by Burton M. Apker, Esq.
Bilby, Thompson, Shoenhair &
Warnock, P. C.
by W. E. Dolph, Esq.
Robertson, Molloy, Fickett &
Jones, P. C.
by Russell E. Jones, Esq.
Westover, Keddie & Choules Yuma
by G. Thomas Choules, Esq.
Amici Curiae
STRUCKMEYER, Justice
Appellee Bonelli and others who
have appeared as amici curiae have princi-
pally advanced economic reasons for rehear-
ing our decision in State v. Bonelli Cattle
Company, 107 Ariz. 465, 489 P.2d 699 (1971).
Such are more properly matters of legislative
consideration than the concern of a court
3b
whose responsibility is to adhere to the law
as it finds it so that rights will not depend
on the personal idiosyncracies of its members
or hang in suspense when economic considera-
tions change. ”
We are concerned, however, with
one possible area of misunderstanding. In
our decision, we used the words “high water
line" and "high water mark." In particular,
we directed the court below to quiet title
in Arizona from the Nevada line to the high
water mark. The parties question the mean-
ing of our use of the words "high water
mark,"
The title to all lands within the
beds of navigable waters including all re-
claimed lands which formerly were beneath
navigable waters up to the ordinary high
water mark was quit claimed in 1953 to the
States by the Submerged Lands Act of Congress,
67 Stat. 29, 43 U.S.C.A. 8 1301 et seq. The
Act specifically included lands "heretofore
4b
or hereafter modified by aceretion, erosion
and reliction." Beyond argument, title to
and ownership of the lands beneath the Colo-
rado River. is in the State of Arizona from
the Nevada boundary up to the ordinary high
water mark in the natural channel as it ex-
isted prior to the taming of the river in
1938 by the completion of the Hoover Dam and
the subsequent lowering of the channel by
dredging.
Congress, of course, could not con-
stitutionally diminish the property rights
of the states to the beds of navigable rivers
as settled by over 100 years of decisions of
the Supreme Court of the United States com-
mencing with Pollard v. Hagan, 3 How. 212,
in 1845. Most certainly, the United States
government could not claim additional rights
‘in the bed of a navigable river by the con-
struction of dams and artificial channels.
Nor do we find such an intent.
In considering Congress! language,
5b | :
we take it that the word "ordinary" is used
in its customary sense, meaning “not wnncsmon
or exceptional," Webster's Third Intesnetiens2.
Dictionary. This is confirmed by an examina-
tion of the opinions in Pollard v. Hagan,
supra, and Goodtitle v. Kibbe, 9 How. 471.
In Pollard v. Hagan, the trial
court in Alabama charged the jury that if it
believed the premises sued for were below
the “usual high water mark" at the time Ala-
bama was admitted to the Union, then the
plaintiffs acquired no title through patents
of the United States government "whether the
waters had receded by the labor of man only,
or by alluvion." (Emphasis supplied.) The
Supreme Court of Alabama affirmed the judg-
ment entered on the jury's verdict and its
judgment, in tum, was affirmed by the Su-
preme Court of the United States. In Good-
title v. Kibbe, supra, the Supreme Court of
the United States reconsidered the issues
‘decided in Pollard v. Hagan and reaffirmed
_
——
&
6b
its previous decision. There, the trial
court instructed the jury that if plaintiff's
land was below “ordinary high water mark" at
the time Alabama was admitted to the Union,
the confirming Act of Congress and the patent
from the United States government conveyed no
title. (Emphasis supplied.)
It is in the sense of the usual and
ordinary that the words “high water line" and
"high water mark" where used in our decision
are to be understood.
It should be made clear that Ari-
zona‘'s title as against private persons is
in no way controlled by the opinion in United
States v. Claridge, 279 F.Supp. 87, aff'd
416 F.2d 933. The patent through which
Bonelli Cattle Company claims title was is-
sued by the United States November 5, 1910.
The subsequent artificial control of the
river could not deprive Arizona of property
rights in the bed which were constitutionally
vested prior to the completion of the Hoover
7b
Dam in 1938 and the later rechannelization
by dredging. The condition of the Colorado
River at or immediately prior to its control
by artificial works is the appropriate time
for determining the rights of the parties,
although, of course, evidence of the river's
condition thereafter may be illuminating.
Since Arizona's title to the bed
of the Colorado River is the mark to which
the water formerly rose at the time of or in
the seasons of ordinary high water, and since
we deem it desirable that any possible con-
troversy be avoided, we approve for the pur-
pose of determining the bed and banks this
particular language of Justice Curtis con-
curring in Howard v. Ingersoll, 13 How. 381,
427:
"(T)he banks of a river are those ele-
vations of lend which confine the
waters when they rise out of the bed;
and the bed is that soil so usually
covered by water as.to be distinguish-
able from the banks, by the character
of the soil, or vegetation, or both,
produced by the common presence and
action of flowing water."
8b
- Further, we approve the definition
of “high water mark" as applied to a natural
channel by the Supreme Court of Iowa in
State v. Sorenson, 222 Iowa 1248, 271 N. W.
234:
"An accepted definition of ‘high-water
mark' is set out in the case of City
of Cedar Rapids v. Marshall, 199 Iowa,
1262, loc. cit. 1264, 203 N.W. 932,
933, where this court said: "The term
‘ordinary high-water mark' has been
frequently defined by this and many
other courts. It is not the sie
reached by unusual floods, but itis
the line to which high water ordinarily
reaches, (Citing case.)" ‘High Water
mark' means what its language imports
-- a water mark. It is co-ordinate with
the limit of the bed of the water; and
that only is to be considered the bed
which the water occupies sufficiently
long and continuously to wrest it from
vegetation, and destroy its value for
agricultural purposes.' * * * Bennett
v. National Starch Mfg. Co., 103 Iowa,
207, 72 N.W. 507;* * * Houghton v. C.,
D. & M.R. Co., 47 Iowa, 370.
The high-water mark, therefore,
may be defined as to the line to which
high water ordinarily reaches, and is
not the line reached by the water in
unusual floods. It is that line below
which the soil is unfit for vegetation
or agricultural purposes."
Our decision directing the
Superior Court of Mohave County to enter
9b
judgment quieting title in the State of Ari-
zona from the Nevada boundary to the high
water mark as supplemented by this decision
is approved,
HAYS, C. J., ROBERT ©, ROYLSTON,
Judge, Superior Court, Pima County, and
WARREN L. McCARTHY, Judge, Superior Court,
Maricopa County, concur.
NOTE: Justice James Duke Cameron and Retired
Justice Jesse A. Udall having an-
nounced their disqualification to sit
in the determination of this matter,
the Honorable Robert 0. Roylston and
Honorable Warren L. McCarthy were
called to sit in their stead.
«= LOCKWOOD, Justice (Dissenting) :
., dissent from the holding in the
foregoing supplemental opinion which reaf- |
firms the original decision ordering the
title to the property involved quieted in
the State of Arizona.
Tne reasons for my dissent are
10b
na :
runay (get) corte, as attached to the original
)
opinion.~ They are basically two-fold:
(1) The majority of the court
justifies its decision by application of
common law principles of rights of riparian
land owners. In my opinion the common law
is inapplicable because the principles adopt-
ed are not, pursuant to the statutory provi-
sions of A.R.S. 68 1-201, "consistent with
and adapted to the natural and physical con-
ditions of this state and the necessities
of the people thereof." (2) The decision
violates the provisions of Article 2, 8 17,
Arizona Constitution, in that the result,
i. e., permitting the state to acquire with-
out compensation large quantities of prop-
erty from private owners, constitutes a
taking of the land for public use without
' just compensation having been made therefor.
le
APPENDIX C
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 ARIZONA, EX REL.,
OBED M. LASSEN,
Defendants-Appellants,
No. 22312
(September 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 loca-
ted on the Arizona side of the Colorado
‘*"Floonorable John F. Kilkenny, United States
District Judge for the District of Oregon,
sitting by designation, ©
2c
River in the Palo Verde valley. Judgment of
the District Court was rendered in favor of
the United States. 279 F.Supp. 87 (D.Ariz.
1967). From that judgment the defendants
and the State of Arizona, as intervenor,
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 becoming a state in 1912.
They contend that at that time the lands
were in the bed of the Colorado River! and
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 District Court. For the pure
poses of this appeal it is sufficient 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
3e
its “ordinary high water" and that the valley,
from bluff to bluff, thus. constituted the
bed of the river. By eliminating these
floods, appellants contend, 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
@ river is the natural physical character-
istic placed upcn the iands by the action
eof 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 9l.
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).
The District Court was therefore
not in error in ruling that a precise loca-
. | he
tion 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 re-
Sult in avulsive changes and it was not
constructed for the purpose of reducing
riverbed holdings. 43 U.S.C. 8 617. 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, per-
haps, structures are erected for the
specific purpose of causing the accre-
tion."
For the reasons set forth in the
opinion of the District Court, judgment is
affirmed.
5¢
FOOTNOTES
1. (Page 1 Jor Decision, Page 2c this
Appendix) Confirming prior case law, the
Submerged Lands Act of 1953, 67 Stat. 29,
43 U.S.C. 81301(a)(1), in effect quitclaims
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 modified by accre-
tion, erosion, and reliction * * #,"
APPENDIX D
The sketch on Page 2d of this
APPENDIX D is a composite of the three
Sketches referred to by Judge Cameron in
his decision of the Arizona Court of Appeals
identified as Figures 2, 3 and 4, Pages
1000, 1001 and 1002, 464 P.2d, 11 Az. App.
412, et seq.
2d
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FOLD OUT IS TOO LARGE TO BE FILMED
.
™
IN THE SUPREME COURT OF THE UNITED os os ainl
Fh ta [OpAsy Bere
‘3 .
4
OCTOBER TERM, 1972
wo. t2- 397 4
BONELLI CATTLE COMPANY, a California
corporation; COUNTY OF MOHAVE, a po-
litical subdivision of the State of
Arizona,
Petitioners,
Vv.
THE STATE OF ARIZONA, THE STATE LAND
DEPARTMENT, 2 Department of the State
of Arizona; ANDREW L. BETTWY, State
Land Commissioner of the State of
Arizona,
Respondents wehune .
APPENDIX I
TO
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF ARIZONA
Reprint of an Article by Robert E.
Lundquist Entitled Artificial Ad-
ditions to Riparian Land: Extend-
ing the Doctrine of Accretion Con-
tained in Volume 14, Number 2, of _
the Arizona Law Review Published
by the College of Law of the i
versity of Arizona.
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Fa ects E
aA
Artificial Additions to Riparian Land: Extending
the Doctrine of Accretion
Robert E. Lundquist
The banks of rivers are rarely, if ever, immobile. A fast flowing
river will create erosion of the banks which will be carried as particles
in suspension, while a gentle flow will cause deposition leading to ac-
cretion. If the volume of flow decreases, lands will be re-exposed or
relicited. ‘Twists and turns in the river channel will cause erosion on
one bank and accretion on the other; if the terrain steepens or flattens,
river speeds will vary with a concomitant variation in the rate-of ero-
to
sid tit dae 22 toch sieuand Dead oun tek to ip SUE en
owner, as the accretion doctrine would require for natural accretions,*
but in the state, which owns the beds of navigable rivers to the ordi-
nary high water mark."
trine of accretion to man-made additions to riparian land. Instead
Tt it he ate
Cir. 1969), cert. denied, 397
2a i312 (1972).
Ariz. App. 412, 464 ra 999 (A990).
infra.
"GS How
S.
—, 495 P.
, Arizona State Land Commissioner, to Arizona
offices.
(1971),
11
4U
F.2d 933 (9th
D. Ariz. 1969).
Co., 108 Ariz.
416
(
5
notes 37-40
v. Bonelli Cattle.
aff g 279 F. Supp.
vet | (EE
i en
< wisrdacs
"Us
11. United States v.
ing on 32-36 105-110 infra.
U.S. 961 (1970)
Lhe
Hata
ii
(Vou. 14
: ill
ge ager Fomor Sn a ante git
qalgyety
Ce
tie Lt
geage
HA
Hilt Le
RE
Rene i iE if tea
Filitin
ue
i : 3 8d
eae ie
2geae
LE ill 3 iiss
(
i
Tal
a
#e
A
[a]
Het
‘
HT
wgety
gies
Hii
Aas
4a
ae
1845)
waters
grant after statehood of reclaimed
44 US. (3 How.) 212, 222-23,
a lands : beneath navigable
supra
lard’s Lessee
21. See Fraser.
22. Pollard’s
Alabama
effect).
cry
Sali “ys oe Ca: 311 US. 377 (1940).
. Appalachian
1
s 4
491 (1964);
o.,
Co., 123 Il. 535
woe
Gravel
ar hh
Pitch
nee ee ae
“320 ARIZONA LAW REVIEW (Vou. 14
reach of the commerce clause and federal power over waters.** The
second is used to determine the existence or nonexistence of a public
right of use analogous to the jus publicum. For example, suppose X
owns land through which a stream runs. X also owns the bed. The
stream at places is only a few inches deep. May Y canoe over X’s
stream freely or would Y be a trespasser? A majority of jurisdictions
hold that Y has the right of passage.” :
The third and narrowest definition of navigability, the one which
has most relevance to this analysis, is applied to determine whether
the state presumptively holds title to the bed of the watercourse. The
presumption attaches if the body of water in question was being used
as a highway at or around the time of the admission of the particular
state to the Union.** It is the bed of this type of navigable waterway
which is presumptively held by the state. Arizona, for example, was
admitted to the Union in 1912. Around that time the Colorado Riv-
er was being used as a highway by rivercraft from Yuma on the Mexi-
In order to clear up the controversy surrounding conflicting state
and federal claim of ownership of the coastal tidelands, Congress
passed the Submerged Lands Act in 1953.**° The Act amounted to
28. See materials cited at note 20 supra.
29. E.g., People v. Mack, Civil No. 12936 (Cal. App. 15, 1971), 3 BNA
Env. Rep. Cas. 1391 (1971); Day v. a SS .2d 137 (Wyo. 1961); cf.
aoe S eet Se e 1 N.M. 207, 182 P.2d 421 (1945). See also Muench v.
Serv. Comm'n, 261 492, 53 N.W.2d 514 (1952). But?see Hartman v.
Public
Tresise, 36 Colo. neg Seong Ales .
US. 9, 1
4 1 (1971) pe peeaey Sane ee hee
Warr Base F pitted ong pak pag ag a0 C1972) Id.
rom . 39, . ia.
California, 283 US. 423, 453 (1931).
title to ownership of the lands beneath na watér within the
boundaries of the fg ates resources within such
33. Id. § 1301 (a)(1).
34. Id. $ 1301(a)(3).
+4 pot Reso No. 133, 83d Cong., 1
this legislation is to write the law
of the United States} believed it to be in the
ee A
by the Constitution.” d. at 8.
37. Nebraska v. 143 U.S. 359 (1892
961 i970) aff; 279 F nae 1967)
39. Fontenelie v. © Tribe of Nebraska, 298 F. Supp. 855 (D. Neb. 1969),
aff'd, 430 F.24 143 (8th Cir, 1970).
ail
pak w eal Ghee br etek, & Gs Solads Coomore
California and Arizona. In some areas the action of the water erodes
the west bank while depositing alluvion on the east bank, causing the
, fiver channel to move gradually westward. The boundary between
the two states follows the movement of the channel. Where the shore-
line is the boundary between the upland and the state-owned bed, ac-
cretion or erosion can cause the upland to gain or lose ground since
the legal boundary follows the shoreline.
Titan <. ak ates ae hake
> anarte
of the land
é
i? qiiiit'j 3
re
iii
gee
si
ey ale date
i ‘tail
2d 224,
2d 835,
COMMENTARIES *262; see BLacx’s Law Dicrionary 482 (4th
Co.
948
v.
926)
Roman
Yarborough, 130 Eng. Rep. 1023, 1024 (CP. 1828)
RIVERS AND THE ACCRETION DOCTRINE
Another
7. Cf. Gifford v.
along waterways.“* No such distinction was drawn in
1972}
also
Ht
" The
46, 69 (1874);
671, 78 (D.N.D. 195
kos 405 P.2d 749, 750 (1965):
294 tise? ; Philadelphia
(23 Wall.
201,
US. 290,
116 F
Lovingston, 90 U.S.
Ase NE 277
supra note 45.
Sexe 1199352 Ane of
V, . P
Brannan Sand & = “oe
x ashington,
48.
United
Hall v.
324 ARIZONA LAW REVIEW (Vou. 14
upland owner suffer the burden -of erosion and by giving him the
benefit of accretion, riparianness is maintained. All of the rationales
are somewhat interrelated, and many of the earlier opinions contain
references to most if not all of them.*°
2. Avulsion. Whereas-accretion is the gradual and impercepti-
ble** addition of land, avulsion is the “rapid, easily perceived, and
sometimes violent, shifts of land incident to floods, storms or channel
there is a fortuitous sudden change in the location of the river bed,
the riparian right of one is extinguished by the fee ownership of land
by another. If the state owns the bed of the river in the example,
the state retains title to the old bed. A holds title to the new bed
since the river is now running over his land. If the river were the
50. See, e.g., County of St. Clair v. Lovingston, 90 U.S. (23 Wall.) 46 (1874);
Adams v. Frothingham, 3 Mass. 352 (1807); State ex rel. Rickey . Sense 27 Ore
52, 342 P.2d 803 (1959).
$1. See note 45 su
52. Bauman v. Choview-Chicasew Nations, 333 F.2d 785, 789 (10th Cir. 1964),
cert. denied, 379 US. 965 (1965).
53. Id. See Nebraska v. Iowa, 143 U.S. 965 (1965).
Blackstone said that the doctrine of avulsion would also apply if there were a
sudden loss of land by a ri owner and a sudden increment of land across the
river or downstream: “he have what the river has left in any other as a
1972) | RIVERS AND THE ACCRETION DOCTRINE 325
least bit navigable, however, A’s title would be burdened with the
navigation easement. .
New land abutting a waterway is presumed to be accretive rather
than avulsive." Since an avulsive change would certainly be noticed
not be the case where the gradual accretive process has occurred.
Thus, in the absence of such proof, a change is presumed to be ac-
land as well as to plaintiffs’ land. The Massachusetts court declared
that title to the lost land re-vested in the plaintiffs:
It is not, however, every disar>earance of land by erosion or
facgl! ¥- Brannan Sand & Gravel Co. 158 Colo. 201, 214, 403 P2d
5. Herron v. Chocta & Chickasa Nations, 228 F.2d 830 10th Cir. 1956);
Klais v. Denoweki, 373, Mich. 262, 129 N.W.2d 414 (1964); Moly v. Seon
100 N.Y. 424, 3 N.E. $81 (1885); Hunzicker v. Kleeden, 161 Okla. 102, 17 P.2d 384
$3 Us. ‘997 (1966) ecsg anne es rule); In re City of Buffalo, 28 319, 99
° " re eke >
N.E. 850 (1912 izing rule); Annot., 41 A.L_R. 382 (1926).
56. 100 NY. toe ee ra thee, ee
This rationale has been followed in other jurisdictions®* and rea-
son seems to commend it. Since the advance of the water divested the
title of the upland owner to the state in order to guarantee full public
enjoyment of the watercourse,** when the water recedes from the land,
there is no longer a public benefit to be protected. Consequently, the
state has no need for the title. That the cause of the recession of the ©
waters is “artificial” or man-made should be of no effect. Title should
re-vest in the former owner unless the land was created as part of a
navigational project of which it is a necessary and integral part,°° or
unless the artificial addition is caused by the upland owner without
government approval.**
Accretions Caused in Part or in Whole by the Works of Man
There are basically three types of “unnatural” land accumula-
tions along a waterway. The first is distinguishable from natural ac-
cretion only because man has interfered with the currents of the water-
way, thus causing an accretion where otherwise there would be none.
For example, where a state builds a dike and a city dumps debris into
a river to protect a harbor,*? or the federal government builds a dam,**
or a third party builds a revetment to protect a right-of-way, these
actions affect the currents and the rate of flow of the water and cause
( se Oklahoma law); Hunzicker v. Kieeden, 161 Oki. 102,17 2d 364 (ised)
60. sy
ae " See Burns v. Forbes, 412 F.24 995 (34 Cir, 1968).
Clair v. ) 46 (1874)
62. peomeey a 90 U.S. (23 R
63. U States v. ig) < ey .24 933 va Cir. 1969), cert. denied, 397
U.S. 961 (1970); Bew States, 350 F.2d 4, 11 (9th Cir. 1965), cert
denied, U.S. 937 (1966). See also Solomon v. Sioux , 243 Iowa 634, 51 N.W.
2d 472 Se sad na ees keen govemment a of dikes and
pa an. artificial reliction of river and slowed current, Within
to 3 the upland had been extended by over 300 feet of relicted and accreted
land. itle was held to be in the upland owner and not in the city as grantee of the
State and owner of the bed.
or "= eae 956 on Ok ts Wall.) 46, 6 (1874)
f , County v. Lovingston,
Abbot Co. v. City of Angeles, 340 P.2d 14, 19-21 ( .), vacated,
53 Cal. 2d 346 P.2d 385 (41959); see Krimlofski v. Matters, 174 Neb. 774, 119
N.W.2d 501 (1963). See also cases in note 62 supra.
change and not the source.**
A second type of unnatural addition to riparian land may occur
where a human agency has caused out of the water by
66. County of St. Clair + Penge, 90 US. 23 Wall. 69 (1874).
67. See generally Amaet, 134 A.L.R. 467 (asaiy” ge be Pande
bam, 3 Mass. 352 (1807). see Patton v, City of Wilmington, 169
me 141 (1915).
But
. Nordale v. Waxberg, 84 F.
1022 (9th Cir, 1950). On the other
creted land where
df
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i
ig
§
F-
ee
8
3
i
i
g
Re
F
;
zg
38
ay
sil
Egh
F
Hq
|
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:
of
233 La. 915, 98 So. 2d 236 (1957),
|:
71. Eg. Sieck v. Godsey, 254 Iowa 624, 118 N.W.2d 555 (1962); see
, 129 N.W.2d 491 (1964). But see cases cited in note 68
i
beach for public purposes and claimed title to the beach. An injunc-
tion was granted and title to the land surfaced by the operation was
held to be in the plaintiff. The court reasoned that although the
at ae eee ernie Eee
authorized by the legislature and financed by the public, the
plage gmaemesit ec om me ge = ie
compensation and could not have successfully demanded it of the fed-
eral government.*° The Alabama court denied the state’s claim to the
new land, holding that the title was in the plaintiff as the upland own-
er. The court noted that although the federal government had the
hi and ‘best use, of rae access to or
util: in at eos ale aoe Gad takings of real
*Sapemtiedaytncatichadh real property shall
remains
aE, Se Seder end ‘tate nevigntionsl servitades the riparian
a (Sar bam, 25, 178 NE 24 273 1961).
95, 140 So. 24 838 (1962). See text &
1 omen eg
79. Sune ¥: om 35 tn 7 66 So. 2d 141 (1953).
80. U.S. Const. art. I, § 8. See materials cited note 77 supra; cf. United
States v. Twin City Power Co., 350 U.S 22) Cissey
en
grad
tA]
ANALYsIS OF BONELLI
The River's Changing Path
BUOY
aed
Because the Colorado River was navigable in fact when the United
Hitt
4°;
HE
i:
i
af
tee
ol H
te
a
:
gpageepae gages
TERE aE
ath ff BHLE a1 i
& He ge? an yahe : Hitsa: g
l at sli 4H clita
; piles PPR IITH ES
Caaf ety aye
er, : Tr ned ey g :
l ceil 3 Listigit
Pre le:
Wits HA
£8
ih
LE
tie
li!
in
or
ming of the river may also have prevented
rather than eroding it.
sequent reversal of direction of
3
Guaanilip-eh ee Remsiacel emnd
In 1955 Bonelli acquired a deed to the subject half
iti
Hi
Stato cdkesknks Wr aitlbon ‘ot os
Bie
s
=
i
ges
te
aEPaes
after the land was re-exposed by the federal
10 years
dredging project, Bonelli
brought this action to quiet title.
EB. 581 (1885); text accompanying
Ss
100 N.Y. 424, 3 N
it Hi
oe Boel atl
by
702. The cases cited
RIVERS AND THE ACCRETION DOCTRINE
it should be restored to the upland no matter what the cause of resur-
ey ep
ag 5°23 a
iia a4 Hilt rf ee
yl i ij sf 23
5 tt]
Heal SHH De a
233. FP: r E33 a5 ;
ssltl a lie
Bg
over
the physical area of the disputed land. No one say with any
measure of certainty that a certain cubic yard is attributable to relic-
tion; this cubic yard to alluvion,.or that to spoil.
Consideration of the theories behind the accretion doctrine sup-
ports awarding ‘the new land to the riparian. By the theory of ac-
cession, the upland owner has a right to accreted lands to that
fruit." That some party has
tional servitude,*** surfaced. land. should inure where it is not needed as
an integral part of the navigational project.*** The state, for instance,
might show that, due to varying releases of water through Hoover Dam,
the land disputed in Bonelli is needed to carry periodic over-flow of the
river.°* Or it might show that the land is needed for a dike or similar
tiver-control project. Absent such a demonstration, however, the new
land should vest in the upland owner to preserve his riparian status.
The riparian owner has no control over natural forces which might
ee er ee NS, SETA OS Oe Oe
99. See note 41 supra.
100. See text & note 42 supra.
101. See note 77 supra. ..
102. id.
1193, See Michaelson v, Silver Beach Imp. Asv'n, 342 Mas. 251, 173 N.B.24 273
OrTOa. Sen Ray v. Siem, 153 &W24 660 (Tex. Civ. App. 1941). See also ote
96 supra. .
agen
ua
el
2, 1313-14 (1972). -
495 P.2d 131
"1301-1343 (1970).
1301
10S. 108 Ariz. —,
106. 43 USC.
$$
(Vou. 14
ARIZONA LAW REVIEW
4
'
Court ef Arizona, therefore, may look to the
E
é
Bidi
definition of the high water mark is as far-reaching
f He
of Hoover Dam since 1938 has re-
along the river which
_. The result of this interpretation of the court’s definition of the
high water mark is that the bed of the river is a mosaic, predom-
DH ETHH HEE
aisuili
aiehine
Raat
rei uitly
PH HHH
ilaiail
ecilaettaliclas
2d at 1 1314.
R
Tone Beet 32-36 epee, See also Arizona v. California,
poke
notes 37-54
at —, 495
110. See text
381 U.S. 139, 177
111. See
112. 108
113, id,
The ominous void in Bonelli should be filled by an express judi-
cial affirmation of the riparian right of access to navigable waters.
Statutes in derogation of the common law should be strictly con-
strued.** It is inconceivable that in adopting the appropriation doc-
trine the Arizona constitutional convention sought to deny the com-
mon law right of a riparian in Yuma, for instance, to wharf out into
the river to provide mooring for rivercraft. Since the section of the
state constitution purporting to abolish riparian rights is contained in
the water use article, it should be limited to the abolition of the ri-
parian usufructory right only. The right of access is not inconsistent
with the appropriation system.*** ;
State v. Bonelli Cattle Co., 107 Ariz. 465, 469-72, 489 P.2d 699, 703-06
116.
oD taaaerr ee
py v. werk Shirley x) arise. 77, 423 P.2d 352 (1967). ©
1972) RIVERS AND THE ACCRETION DOCTRINE
APPLICATION OF FEDERAL Law
Since the Bonelli parcel is federally patented land, grounds n
in that case. In United States v. Washington'** the Ninth Circuit
that when title is in or derived from the federal government,
tion of ownership of accretions is to be determined by federal
That case dealt with accretions to federally held is,
denied any right to accretions, and the state claimed the new
The court awarded the disputed land to the federal government
the owner of the upland.
A later case, Hughes v. Washington,’** dealt the
law denying littoral owners any accretions. This upland had be:
erally patented to the plaintiff's predecessor-in-interest
ington's statehood. The Supreme Court of the United
United States v. Washington with approval, held that what
conveyed by, and
the extent of ownership under a . . . federal grant [are] gov-
erned by federal law. This is as true whether doubt as to any
boundary is based on a broad question as to the general defini-
tion of the shoreline or on a particularized problem relating to
the ownership of accretion.1% [Emphasis added.]
The disputed land was awarded to the upland owner by operation of
the accretion doctrine. It is apparent then, that the issue as to the
ownership of post-Hoover Dam accretions is a matter of federal law
to the land disputed in that case, other federally patented lands, In-
dian lands, and federally held lands.”
The issue of ownership of reclamations, however, may or may
not be a matter of federal law where federally held or federally granted
lands are involved. It is possible that Hughes and Washinton could
be limited to their facts so that federal law is applicable only to “natur-
al” or water-borne additions to such lands. ‘This limitation would
leave the disposition of reclamations to the determination of ‘state
law.'** The cases might easily be read, however, to include recla-
rt ELE
2B
iit
hal
122. 294 F.2d 830 (9th Cir. 1961), :
120. 294 P28 830 (th Ce ), cert, denied, 369 US. 817 (1962)
sat; deb ideas Sounds eniags sdes as ie Cir. 1969), cert. denied,
397 U.S. 961 (1970), affg 279 F. 87 RY Ariz. ier); Beaver v. United States,
"te ie Seay ne PRANTL BENE
It is generally conceded that the riparian title ‘
[Vou 14
ARIZONA LAW REVIEW |
i
ia
ait
£9
:
:
BE
z.
£3
FE
=
agae
rid
é
not needed for a navigational purpose, title
ALTERNATIVE RESOLUTIONS
The Bonelli result on the reclamativa issue will cause
stretches of land along the Colorado River to lose their riparian char-
many
‘Bs
is
v. Wash-
830 (9th
dictum
upland
3d Cir. 1969) (
connection with the
of reclamations. Indian lands, how-
$ 1313.
See also
ite
43 U.S.C. $§ 1301-1343, 1301(a)(3),
12 F.2d 997 (
ving no
US. 324 (1876),. ery
v. Wathen aoe 2d
Ala. 177, 183, 66 So. 2d 141, 145 (1953); see text &
bf
Wik ESE
ue
HPP bs ata
a bonus of large acreages of that same valuable land
any effort or expenditure on their part. Either result is ar-
without
set
i
an
af
siqibe
Hult
mio. Caran pean
Hie
riparian for this loss or to renounce its
allow the riparian to take it.’**
interest in the new land and
A second alternative, which could also be
to allow a right of easement across the i
aes
i i
‘th
g
aa
cing
ARIZONA LAW REVIEW [Vou 14 |
tom which interposes itself between the upland and the new channel. —
A reasonable price could be set which should be the fair market value —
of the land less the value attributable to its proximity to the river, since —
the original parcel was riparian prior to the dredging. If a particular
riparian values the right of access, he should be permitted to pur-
chase as much of the frontage as he desires up to the limit of his orig-
inal shoreline. A reasonable time limit could be set within which to —
notify the state of an intent to purchase. Failure to exercise the op-
The proceeds from such sales could be deposited in a fund es-
tablished to promote the broad purposes of the public trust from which —
upland owner and were then lost to the river by erosion, re-exposure of
the lost acreage should result in an award to the upland owner by the
doctrine of re-emergence. Fm Sapa Se ep yt te ot
no effect.
The broader holding regarding the reclamation issue failed to
consider the certain loss of riparian status due to forces wholly be-
134. See generally Sax, supra note 19.
alive Saa% 82
ble ide
ae tli
ggas
ar 3Eg2
iit H 1
HHH HAL
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.