# Petition for A Writ of Certiorari — Bonelli Cattle Co. v. Arizona > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0217%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for A Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 414 U.S. 313 ## Text 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 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 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 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 : 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 : 8 i} i ig § F- ee 8 3 i i g Re F ; zg 38 ay sil Egh F Hq | i i He F ' pa g : 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0217%3A02. Public record. Not legal advice.