Amicus Curiae Brief — Bonelli Cattle Co. v. Arizona

October Term, 1972

No. 72-397

BONELLI CATTLE COMPANY, a California corporation;

COUNTY OF MOHAVE, a political subdivision of the

State of Arizona, .

Petitioners,

vs.

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,

Respondents.

On Writ of Certiorari to the Supreme Court of Arizona

Brief for Amicus Curiae State of California

on Behalf of Respondents

Los Calif.

(213) 620-2683,

Attorneys for Amicus Curiae

State of California.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Interest of Amicus Curiae State of California sae

Statement of the Case 2

Questions Presented 3

Argument 4

Introduction 4

I

The Arizona Court Reached the Proper Con-

clusion Concerning River Boundaries ‘po

the Course of the River Moves 5

A. Common Law 5

B. The Results Reached by the Arizona

Supreme Court Are the Same as Would

Have Been Reached Applying Federal

Law

II

| The Arizona Supreme Court Decision Herein

Is Consistent With the Court of Appeals

Decision in United States v. Claridge .......... 9

Til

} é

Petitioners’ Other Contentions Are Without

Merit . 11

A. The Submerged Lands Act Is Immate-

rial to the Instant Case 11

B. There Is No Taking of Private Prop-

erty. <x... 12

Conclusion 14

TABLE OF AUTHORITIES CITED

Cases Page

Arkansas v. Tennessee, 246 U.S. 158 (1918) ........ 7

Barney v. Keokuk, 94 U.S. 324 (1876) .................- 8

Beaver v. United States, 350 F.2d 4, 11 (9th Cir.

1965) 10, 11

City of Long Beach v. Mansell, 3 Cal 3d 462, 476

P.2d 423 (1970) ....... 4

Dartmouth College v. Rose, 257 e 533, 133 N.W.

2d 687 (1965) 10

Hall v. Brannan, etc. Co., 158 Colo. 201, 405 P.2d

749 (1965) 10

Howard v. Ingersoll, 54 U.S. 410 (13 How. 381) —

£0 9 SEMAN Spee eee 9

Hughes v. Washington, 389 U.S. 290 (1967) ........ 12

Illinois Central RR v. Illinois, 146 U.S. 387 (1892)

4

Marine Ry. Co. v. United States, 257 U.S. 47

(1921) 8

Marine Ry. & Coal Co. v. United ene, 265 Fed.

437 (D.C. Cir. 1920) 8, 11

Marks v. Whitney, 6 Cal. 3d 251, 491 P.2d 374

5s) CFE OAREE SS SPIE SRP OF SAS oa 4

Oklahoma v. Texas, 260 U.S. 606, 628-29 (1923).. 13

Philadelphia Co. v. Stimson, 223 U.S. 605 (1912).. 12

State v. Bonelli Cattle Co., 489 P.2d 699 (1971),

rehear. den., 495 P.2d 1312 (1972) ........ a. i1

United States v. Claridge. 279 F. Supp. 82 (D.C.

Ariz. 1966), aff'd 416 F.2d 933 (9th Cir. 1969)

FACS AO RF ARN OR A ERA REE ORO a TCE: 9, 10, 11

United States v. Rands, 389 U.S. 121 (1967) .......... 13

Di ti . 3 Pa ge

Ballentine’s Law Dictionary (3d ed. 1969), pp. 14,

64, 116, 339, 414, 1085, 1229 6

Black’s Law Dictionary (Rev. 4th ed. 1968), pp.

36-37, 102, 173-74, 529, 530, 647, 1455, 1594... 6

Statutes

67 Statutes at Large, p. 29 ce 11

Statutes at Large, p. 252 13

Textbooks

56 American Jurisprudence, Waters, Secs. 476,

477, pp. 891-95 6

Ill American Law of Property (Casner ed. 1952),

Sec. 15.26, pp. 855-56 6

III American Law of Property, Sec. 15.29, p. 862 .. 10

6 Powell, The Law of Real Property (3d ed.

1939), Sec. 983, pp. 607-11 6, 7

2 Shalowitz, Shore and Sea Boundaries (1964),

p. 455 11

5A Thompson, Commentaries on the Modern Law

of Real Property.(1957) Repl.), Secs. 2560-63,

pp. 599-619 ......... 7

4 Tiffany, The Law of Real Property (3d ed.

1939), Sec. 1219, pp. 613-15 7

ee

pacers remanence epeaetennene

Supreme Court of the United States

October Tern. 1972

No. 72-397

-e———_—_-

BONELLI CATTLE COMPANY, a California corporation;

COUNTY OF MOHAVE, a political subdivision of the

State of Arizona,

Petitioners,

vs. Hey

Tue 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,

Respondents.

On Writ of Certiorari to the Supreme Court of Arizona —

- Brief for Amicus Curiae State of California

on Behalf of Respondents ?

INTEREST OF AMICUS CURIAE STATE OF CALIFORNIA

Petitioners have ably established the importance of

this case to the State of Arizona. The same problem

that exists in this case also appears along the California

side of the Colorado River as well as in other navigable

rivers in California and other States. of the Union. The

question of major importance to California is the own-

ership of the natural bed of a navigable waterway, such

as the Colorado River, when it becomes dry due. to

the activities of the United States or any other lawful

agency. Presently there are several lawsuits pending in

somes

which California is claiming ownership of such lands

made dry due to channelization of the Colorado River

by the United States Bureau of Reclamation. Resolu-

tion of this matter will assist the states in settling these

cases. ?

The lands along the Colorado River are becoming

ever more popular and valuable for recreational uses.

As this occurs, the question of land ownership becomes

more important. The resolution of the legal questions

by this Court raised in the instant case will aid Cali-

fornia, as well as all states having similar problems

with navigable rivers, to resolve expeditiously these title

questions. In this way there may be orderly dévelop-

ment, including preservation of these vast recreational

areas.

STATEMENT OF THE CASE

The following is a summary of the facts in the in-

stant case as stated in the Agreed Statement of Facts

and Issues. (Appendix pp. 6-18.)

This is a quiet title action to the land described as

follows:

Lot 1, the S % NE % and the SE % of Section 3,

Township 19 North, Range 22 West, Gila and

~ __ Salt River Mesitlian

Petitioner, Bonelli Cattle Co., acquired title through

mesne conveyances from Santa Fe Pacific Railroad

Company. Santa Fe received title from a United States

Patent dated November 5, 1910, pursuant to Act of

Congress July 27, 1866 “for the purpose of aiding in

the construction of said railroad and telegraph line to

the Pacific Coast . . .” At the time of the grant to

Santa Fe, the property -in question was not riparian

land along the Colorado River.

siasicmseshtininshieendunanasiedemeniapeiiaieaciegtascitiantand ileus i

.

7

yg ———

sislilein

The Colorado River betweem 1906, the date of the

original survey of said lands, and 1959, the date of

' channelization of the river, moved eastward through

natural causes. By 1954, the river covered most of the

property here involved. During the winter of 1959 and

the early part of 1960, the United States Burean of

Reclamation channelized and stabilized the Colorado

River, thereby confining the river to the western part

of the land in question. For a pictorial representation

of the position of the river in 1906, 1960 and after

nelization of the Colorado River left the land in ques-

tion dry and usable. The present controversy then arose.

The Supreme Court of Arizona held that the part of

‘the former riverbed made dry by the actions of the

Bureau of Reclamation belonged to the State of Ari-

zona. State v. Bonelli Cattle Co., 489 P.2d 699 (1971),

rehearing denied, 495 P.2d 1312 (1972).

QUESTIONS PRESENTED

While the petitioners contend that there are six ques-

tions before this Court, amicus curiae State of Cali-

mrsafiee aimbot: finn Thiethme venus on

lows:

1. When a navigable river is rechannelized leav-

ing a portion of the natural bed dry, does the state or

the riparian owner have title to the former bed?

2. Did the closing of Hoover Dam fix the position

of the Colorado River for boundary purposes?

The position of the State of California is that the

state retains title to lands uncovered by channelization,

and that the closing of Hoover Dam did not fix the

position of the river for boundary purposes, ;

INTRODUCTION .

Each state holds the lands underlying navigable wa-

ters in trust for all the people of that state, and subject

to the navigational servitude retained by the federal

government. The state’s trust encompasses the tradi-

tional uses of commerce, navigation and fisheries as

well as ownership of the bed. The nature of this trust

in California has recently been reiterated in Marks v.

Whitney, 6 Cal. 3d 251, 259-60, 491 P.2d 374 (1971).

In Marks, the Court noted “the public uses to which

tidelands are subject are sufficiently flexible to encom-

pass changing needs.” While Marks spoke of the tide-

lands trust, the same trust is applicable to all lands

underlying navigable waters. Illinois Central RR v.

Illinois, 146 U.S. 387, 436-37 (1892). This trust is a

restriction upon the state’s use of such lands even

though they have been reclaimed and are dry. See

City of Long Beach v. Mansell, 3 Cal. 3d 462, 482-83,

476 P.2d 423 (1970).

If, as we contend, the State of Arizona retains title

to the subject lands, said title is held subject to the

public trust. These lands, which are adjacent to the

river are most useful to provide access to the river for

boating, fishing, or other recreational purposes, as weil

as possible uses relating to commerce. Therefore, the

state does not own these lands merely for the purpose of

having a bed for a river, but for all trust purposes. . °

The location and inventory of the public trust lands

‘is essential to their proper administration. This case

deals precisely with this problem, namely the applica-

tion of principles concerning ownership of beds of navi-

gable rivers when an artificial change has been made.

— rm aes

a SS

The artificial change in this case was the narrowing of

the flowing stream by dredging and channglization. by

the United States Bureau of Reclamation in exercise

of the federal navigational servitude. California submits

that the rules applicable to ownership in the event of

avulsion or artificial change in the location of a river

I

The Arizona Court Reached the Proper Conclusion

Concerning ‘River Boundaries When ‘the Course

of the River Moves

Petitioners make much of the fact that the Arizona

Supreme Court apparently used state, rather than fed-

eral laws, to determine this case. However, the main

question, i.e., who owns the dry riverbed after chan-

nelization, is answered the same way whether federal

law or state law is applied. In either situation the State

of Arizona would be the owner of the land in dispute.

See Memorandum for the United States. as amicus

curiae filed January 3, 1973.

A. Common Law

channelization of the river in the instant case, it is

necessary that. the legal definition of, and distinctions

beteee ‘vestons tac bo Sedat These terms are

equally applicable to federal and state rules. %

The term “accretion” denotes the process whereby

the area of littoral or riparian land is increased by the

gradual and imperceptible deposit of sand, soil or other

solid material upon the margin of the water. Although

the word “alluvion” (sometimes spelled “alluvium”) is

usually applied to the deposit itself, as distinguished

miallllacs:

from the act, it is often used synonymously with “ac-

cretion.”

“Erosion,” or the converse of accretion, is the gradu-

al wearing away or loss of land bordering on a body

of water or watercourse by the action of the water.

“Reliction” (sometimes “dereliction”) is the process

whereby land that had been covered by water becomes

uncovered or exposed by the imperceptible recession of

the water (i.e., the lowering of the water level); al-

though frequently used interchangeably with “alluvion,”

the term “reliction” in its precise legal meaning refers

to land uncovered by gradual exposure rather than

land building up on the bottom, shore or bank. Many

authorities hold that the recession must be permanent .

in order to constitute reliction.

“Submergence,” or the converse of reliction, denotes

the disappearance of land under water and the forma-

tion of a navigable body of water over it.

Accretion, erosion, reliction and submergence gen-

erally all involve what are legally characterized as

“gradual and imperceptible” changes. They are distin-

guished from “avulsion,” which is (1) the more rapid,

perceptible and often violent removal of or addition to

land due to the action of water, or (2) the sudden

natural or artificial change in the bed or course of

a river.

Regarding definitions of these terms generally, see:

56 Am. Jur. Waters §§ 476, 477, pp. 891-95; III

American Law of Property (Casner ed. 1952) § 15.26,

pp. 855-56; Black’s Law Dictionary (Rev. 4th ed.

1968) 36-37, 102, 173-74, 529, 530, 647, 1455, 1594;

Ballentine’s Law Dictionary (3d ed. 1969) 14, 64,

116, 339, 414, 1085, 1229; 6 Powell, The Law of

seal

Real Property (3d ed. 1939) § 983, pp. 607-11; 5A

Thompson, Commentaries on the Modern Law of Real

Property (1957 Repl.) §§ 2560-63, pp. 599-619; 4

Tiffany, The Law of Real Property (3d ed. 1939)

§ 1219, pp. 613-15.

The rules of law relating to boundary changes when

a river changes its course are stated in Arkansas v.

Tennessee, 246 U.S. 158, 173 (1918).

“. . « It is settled beyond the possibility of dispute

that where running streams are the boundaries be-

tween States, the same rule applies as between pri-

vate proprietors, namely, that when the bed and

channel are changed by the natural and gradual

processes known as erosion and accretion, the

boundary follows the varying course of the stream;

while if the stream from any cause, natural or

artificial, suddenly leaves its old bed and forms a

new one, by the process known as an avulsion,

the resulting change of channel works no change

of boundary, which remains in the middle of the

old channel, although no water may be flowing in

it, and irrespective of subsequent changes in the

new channel. New Orleans v.. United States, 10

Pet. 662, 717; Jefferis v. East Omaha Land Co.,

134 U.S. 178, 189; Nebraska v. Iowa, 143 U.S.

359, 361, 367, 370; Missouri v. Nebraska, 196

US. 23, 34-36.”

Applying the above stated rules of law to the instant

situation, it is apparent that the Supreme Court of

Arizona reached the proper conclusion. As expressly ad-

mitted by the petitioners, the actions of the United

States Bureau of Reclamation caused an avulsive change

along the bed of the Colorado River. (Pet. Brief p.

seit

28.) Since an avulsive change does not alter boundaries,

the boundary of the state owned land beneath the Colo-

rado River remained in the same position as before the

works of the Bureau.

B. The Results Reached by the Arizona Supreme Court Are

the Same as Would Have Been Reached Applying Federal

Law

Even applying federal law to the instant case, as ar-

gued by the Solicitor General, the State of Arizona

would retain title to the land in question. The case of

Marine Ry. Co. v. United States, 257 U.S. 47 (1921),

‘is directly in point. The land in that case “lay be-

low low water mark until it was filled in by the United

States in 1910-1912 by dredging from the bottom of

the river and depositing the material on the other side

of a riprap wall built on the river bed.” The facts are

more thoroughly discussed in Marine Ry. & Coal Co. v.

United States, 265 Fed. 437 (D.C. Cir. 1920). The

United States, by grant from Maryland creating the Dis-

trict of Columbia, received title to the Potomac River.

-soil reclaimed. [Citation.]” In the Marine Ry. & Coal

Co. case, the dredging operation took place between

1910-1912. In the instant case the period was even

shorter, i.e., late winter of 1959 to early 1960. Thus,

Roe ye agpetnc pln mang: tar tests BB ga 324,

337-38 (1876) Sanh, menrene inate meleined by eiinie

means,” that

United States v. Claridge, 279 F. Supp. 82 (D.C.

1966), affd 416 F.2d 933 (9th Cir. 1969).

“high water mark,” in the legal effect of dams, and in

the legal effect of rechannelization of a riverbed. We

submit that none of these inconsistencies exist.

Both the Arizona Court and the Claridge Court

use the same definition of “high water mark”. Both

cite the definition in Howard v. I , 54 U.S, 410

(13 How. 381) (1851), that the ordinary high water

mark is that line reached during ordinary high flow,

but not during the flood stages of a river. See United

States v. Claridge, supra, 416 F.2d 933 (9th Cir.

1969); State v. Bonelli Cattle Co, 495 P.2d 1312,

1314 (1972).

The Court in Claridge held that the closing of

Hoover Dam had no effect on land ownership along

the river. The Bonelli Court however, held that “the

condition of the Colorado River at or immediately prior

to its control by artificial works is the appropriate time

for determining the right of the parties, although, of

course, evidence of the river’s condition thereafter may

be illuminating.” The reason for this appears in the

Statement of facts in the Court's first opinion (State

v. Bonelli Cattle Co., 489 P.2d 699, 701 (1971)),

where the court stated that there had been no signifi-

cant changes in the river between the closing of the

dam and the channelization by the United States. The

Claridge Court relied on Beaver v. United States, 350

F.2d.4, 11 (9th Cir. 1965). The Beaver case was con-

cerned with the effects of the Laguna Damon the

Colorado River. In that case, the trial court “found the

building of the dam was an insignificant factor in the

subsequent accretion.” These three cases may be easily

reconciled. by adopting a reasonable position which

‘amicus, curaie State of California supports and which is

implied in the Beaver case. Generally, the closing of a

dam only affects the flow of a river and keeps it from

flooding. The closing of the dam does not cause the

Tiver to change its course, and therefore the closing

of itself does not cause avulsive changes. If the meander-

ings of a river still occur, by reason of normal accre-

tion that changes in a river are gradual and impercep-

tible. Hall v. Brannan, etc. Co., 158 Colo. 201, 405

P.2d 749, 750 (1965); Dartmouth College v. Rose, 257

La. 533, 133 N.W. 2d 687, 689 (1965); III

American Law of Property, supra, § 15.29, p. 862.

‘However, when as in property close to a dam, it can

‘be shown by evidence that the closing of the dam

‘caused a relatively sudden and perceptible change in

the course or bed of the river, the closing then should

‘be considered a man-made avulsive change. In the in-

stant case, there is nothing in the record to show that

the closing of Hoover Dam caused the Colorado River to

ite tis ‘coutec Ge bed i "the ‘vicinity of the ‘property

here involved.

The third conflict between the two cases alleged by

petitioner is non-existent, that is, the question of the ef-

- fects of channelization or dredging. While the language

in the Claridge case, quoting from Beaver v. United

States, supra, recognizes that dredging does not change

the “accretion doctrine,” the Bonelli Court held that the

case was avulsive is conceded by petitioners at page 28

of their brief. As noted above, this Court has held that

dredging and filling similar to that which occurred in

the instant case does not change boundaries along a

river. Marine Ry. Co. v. United States, supra.

I ore

Petitioners’ Other Contentions Are Without Merit

A. The Submerged Lands Act Is Immaterial to the Instant Case

That the various states held title to the lands under-

lying navigable waters had been long established in the

United States before the Submerged Lands Act,. (67

Stat. 29.)

“, + + The act confers rights in three categories

of cases: lands under inland navigable waters,

tidelands (lands between high-and low-water

marks), and lands under the open sea. Insofar

as the first two categories are concerned, the act

is merely declaratory of existing law and gives legis-

lative expression to the doctrines enunciated by

_the Supreme Court in a long line of decisions be-

“ginning with Martin v. Waddell, 16 Pet. 367 (41

“S. 1842), and Pollard’s Lessee v. Hagan, 3 How.

212 (44 U.S. 1845).”

2 Shalowitz, Shore and Sea Boundaries, 455

(1964).

Furthermore, there is no contention made by the pri-

vate parties that the original United States patent specif-

ically included the riverbed. In fact, the Colorado River

iil ten

‘was some distance from the lands at the time of the

patent.

B. There Is No Taking of Private Property

The property in question is a former riverbed owned

by the State of Arizona in its sovereign capacity. As

with uplands bordering upon tidelands, they are sub-

ject to “considerable control” by the state. See Hughes

v. Washington, 389 U.S. 290, 294, n.3 (1967). The fact

that access to the water is cut off by the lawful act

of the United States in furtherance of its powers over

navigable waters has long been held not to constitute a

taking. See Philadelphia Co. v. Stimson, 223 U.S. 605

(1912). It should be noted that at the time of the

original patent to Santa Fe from the United States, the

property in question was not littoral to the Colorado

River.

Justice Lockwood in her dissent, 489 P.2d 699, 703-

710, bases her conclusion that there is a “taking” on

the fact that the plaintiffs, or their predecessor, once

owned the land in question and that they have lost

their riparian rights. There are at least three rebuttals

to this reasoning. First, following petitioners’ logic, if

the state wished to construct a harbor, recreational fa-

cilities or other structures for trust purposes by filling

in part of the river, the state would immediately lose

title to the land and thus be prevented from exercising

the trust. Secondly, if the river had been rechannelized

on to lands other than those of petitioners, the former

owners of those lands would be riparian, and petition-

ers would, as in the instant case, not be riparian. Third-

ly, the loss of riparian rights, if there was any, was

caused by the action of the United States and not by

the State of Arizona. This situation was specifically

discussed in United States v, Rands, 389 U.S. 121, 123

(1967), where this Court stated: _ 3

gated to pay compensation, the United States may

change the course of a navigable stream, South

_ Carolina v. Georgia, 93 U.S. 4 (1876), Or other-

wise impair or destroy a riparian ownet’s ‘access to

navigable waters, Gibson v. United States, 166

US. 269 (1897); Scranton v. Wheeler, 179 U.S.

141 (1900); United States v. Commodore Park,

Inc., 324 U.S. 386 (1945), even though the mar-

ket value of the riparian owner’s land is substan-

tially diminished.” ith

On page 20 of petitioners’ brief, they appear to argue

that since the land is now suitable for agricultural or

development purposes, it meets. the test. of uplands as;

defined in Oklahoma v. Texas, 260 U.S. 606, 628-29

(1923). That case, however, involved the boundary be-

tween Texas and Oklahoma along the Red River. The

case only incidentally discussed the question of avulsion

or accretion. The concern in that case was the bank

of the Red River, as defined in the Treaty of 1819

(Stat. 252). The Court merely held that where a river

is in a state of nature, the bank thereof is located

waterward of lands suitable for agriculture. The State

of California agrees that some éleven years after the

Colorado River moved from these lands by a man-made

avulsive change, they may now meet that definition of

uplands. This, however, is not’ the question before this

Court. What must be determined is whether these lands

were below the high water mark of the river in its last

natural position prior to the avulsive change. In other

words, were these part of the bed of the Colorado

River in 1959, before channelization? The State of Cali-

fornia submits that they were.

The beds of navigable rivers are owned by the re-

spective states in their sovereign capacities. As the river

. bed changes slowly and imperceptibly so does the bound-

ary between the adjacent property and the state owned

bed. However, when through natural or artificial

causes the bed is altered suddenly, the boundary of the

old bed remains as it was before the change.

In the instant case, the rechannelization of the

Colorado River was an avulsive change and _ therefore

there was no change in ownership of the old bed.

The State of Arizona title to the old dry bed

as it existed just prior to channelization. This was the

holding of the Supreme Court of Arizona and should

be affirmed by this Court.

Respectfully submitted,

EVELLE J. YOUNGER,

Attorney General of the State of

California,

Jay L. SHAVELSON,

Assistant Attorney General of

the State of California,

WARREN J. ABBOTT,

Jeroip A. KRIEGER,

Deputy Attorneys General of the

_ State of California,

Attorneys for Amicus Curiae

State of California. ~