Opinion — Bonelli Cattle Co. v. Arizona

BONELLI CATTLE CO. v. ARIZONA 313

Syllabus

BONELLI CATTLE CO. er au. v. ARIZONA er At.

CERTIORARI TO THE SUPREME COURT OF ARIZONA

No. 72-397. Argued October 15, 1973—Decided December 17, 1973

Certain land abutting the east bank of the Colorado River was

conveyed in 1910 by federal patent to a railroad company. Upon

admission to the Union in 1912 Arizona succeeded the Federal

Government to title to the bed of the Colorado River. The river's

gradual eastward movement submerged the subject land by erosion

so that title was mechanically transferred to the State as part of

the riverbed. In 1955 petitioner cattle company acquired title to

the original railroad grant, most of which by that time was covered

by water. In 1959 the subject land was abandoned by the

Colorado as a result of a federal rechanneling project. Petitioner

cattle company filed this action to quiet title and prevailed

in the lower courts, but the Arizona Supreme Court reversed,

holding that under the equal-footing doctrine and the Submerged

Lands Act, Arizona held title to the beds of all navigable waters

within its borders and thus to the subject land as a result of the

river’s gradual eastward movement. Held:

1. Ownership of the subject land is governed by federal law.

The issue here is not what rights the State has accorded private

owners in lands that the State holds as sovereign but how far the

State’s sovereign right extends under the equal-footing doctrine

and the federal Submerged Lands Act, i. e., whether the State

retains title to lands formerly beneath the Colorado or whether

title thereto is defeasible by withdrawal of those waters. Pp. 317-

321.

2. The equal-footing doctrine does not support the State’s claim,

since when the water receded from the disputed land, there was

no longer a public purpose to be served by the State, as sovereign,

holding title thereto. Pp. 321-324.

3. Nor does the Submerged Lands Act, which did not abrogate

the federal law of accretion, support the State’s claim, since that

Act does not extend to the States any interest in the beds of

navigable rivers beyond those afforded by the equal-footing

doctrine. Pp. 324-325. -

4. Title to the subject land, under the applicable federal

common law, is vested in petitioner as riparian landowner and

not in the State as owner of the riverbed. Pp. 325-332.

(a) Analysis of the interests of the State and petitioner, in

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Pee gE BRR ELLE ELLIO

314 OCTOBER TERM, 1973

Opinion of the Court 414U.8.

light of the rationales for the federal common-law doctrines of

accretion and avulsion, compels the conclusion that, as between

’ the State, as owner of the riverbed, and petitioner, as riparian

owner, the surfacing of the subject land should be treated as an

accretion; hence title to the disputed land should be vested in

(b) The doctrine of avulsion (whereby an avulsive change

caused by a stream suddenly and perceptively abandoning its old

channel does not affect title and the boundary established by the

former river stream remains at that line, even if the result is to

cut off a landowner’s riparian rights) does not apply here because

of the limited interests of the State in the subject property.

Pp. 328-329.

107 Ariz. 465, 489 P. 2d 699, and 108 Ariz, 258, 495 P. 2d 1312,

reversed and remanded.

Marswaut, J., wrote the opinion of the Court, in which

Bunoer, C. J., and Dovetas, Brennan, Wurre, BLackmuN, and

Powew, JJ., joined. Srewarr, J., filed a dissenting opinion, post,

p. 382, Rexnquist, J., took no part in the consideration or decision

of the case.

Elmer C. Coker argued the cause for petitioners.

With him on the briefs was Leonard C. Langford.

Dale R. Shumway argued the cause for respondents.

With him on the brief was Gary K. Nelson, Attorney

General of Arizona.* ‘

Opinion of the Court by Mr. Justice MARSHALL,

announced by Mr. Justice BRENNAN.

The question for decision is whether title to land

abandoned by the stream of the Colorado River as a

*Briefs of amici curiae urging affirmance were filed by Solicitor

General Bork for the United States, and by Evelle J. Younger,

Attorney General, Jay L. Si avelson, Assistant Attorney General,

and Warren J. Abbott and Jerold A. Krieger, Deputy Attorneys

General, for the State of California.

Briefs of amici curiae were filed by Philip E. von Ammon for the

Santa Fe Pacific Railroad Co., and by David H. Getches for the

Cocopah Tribe of Indians,

TASES ON MR Hee teeming MER ats -

LEP RSE: CANS TNO TR TY RE ee De Ce Sec et,

BONELLI CATTLE CO. v. ARIZONA

313 Opinion of the Court

result of a federal rechanneling project vests in the State

of Arizona, as owner of the beds under navigable streams

within its borders, or in petitioner cattle company, as the

owner of land riparian to the river at the time of the

rechanneling. ‘s

The circumstances that

as part of a larger parcel, to the Santa Fe

Pacific Railroad Co. A survey conducted in 1905 and

1906, and approved by the Surveyor General of the

United States in 1906, indicates that as of the date of

the patent, the Santa Fe parcel abutted the east bank

of the Colorado River.’ Upon admission to the Union

in 1912, Arizona succeeded the Federal Government to

title to the bed of the Colorado River. The exact loca-

tion of the river in 1912 in relation to the subject prop-

erty is unclear from the record, but. it is generally agreed

bank and depositing alluvion on its west bank, result-

ing in the submergence by erosion of the subject land.

As the river crept eastward, the boundary between

*The federal patent to the Santa Fe Pacific Railroad conveyed a

‘parcel of land in township 19 North of Range 22 West, described as

follows:

“The lots one, two, three, four, five and six, the south half of the

northeast quarter, the south half of the northwest quarter, the north-

parcel of land constituting roughly the eastern half of the original

Santa Fe grant. The Bonelli deed described the subject property 3

as the “Efast] % [of] Section 3, excepting Lot 2 thereof.” 3

4

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316 _ OCTOBER TERM, 1973

Opinion of the Court 414U.5S.

upland owners and the state-owned riverbed moved

mechanically with it, transferring title to the lands which

became part of the riverbed to the State. The opera-

tion of the Hoover Dam, begun-in 1938, reduced the flow

of water in the Colorado River and substantially

decreased its annual flood stage high-water mark. None-

theless, by 1955, when the Bonelli Cattle Co. acquired

title to the subject portion of the original Santa Fe grant,

all but 60 acres in the southeast corner of its parcel was

covered by water. In 1959, a federal Bureau of Recla-

mation Project deepened and rechanneled the Colorado

River in the area of the subject land, thereby confining

the stream of the river to a substantially reduced portion

of the Bonelli property.’

In 1962, the Bonelli Cattle Co. filed the instant action

to quiet title to the land from which the river had with-

drawn as a result of the federal rechanneling project.

The state trial court granted judgment for Bonelli and

against the State of Arizona. The Arizona Court

of Appeals, the State’s intermediate appellate court,

affirmed, upholding Bonelli’s contention that if the

changes in the river were accretive, the surfaced land

belonged to Bonelli, as a riparian owner, and if the

change were avulsive, the land nonetheless belonged to

Bonelli under the doctrine of re-emergence.’

The Arizona Supreme Court reversed,* holding that

under the equal-footing doctrine and the Submerged

Lands Act, Arizona holds title to the beds of all navigable

2The rechannelization also surfaced a small usable pocket of

land on the west bank of the Colorado River which was part of

the Bonelli parcel. This land is not in Arizona by virtue of the

Boundary Compact between Arizona and Nevada, approved by

Congress, Pub. L. 87-50, 75 Stat. 93, and hence is not involved in the

present controversy. .

311 Ariz. App. 412, 464 P. 2d 999 (1970).

4107 Ariz. 465, 489 P. 2d 699 (1971).

BONELLI CATTLE CO. v. ARIZONA 317

313 Opinion of the Court

waters within its borders and thus to the subject land

as a result of the gradual eastward movement of the

river. The Arizona Supreme Court found that, because

the federal rechannelization project was an “engineering

relocation of the waters of the river by artificial means,”

it was, under state law, an avulsive change, which did

not divest the State of its title to the exposed land which

had formerly been part of the riverbed. The court denied

a rehearing and, in a supplemental opinion, clarified the

extent of the dry land owned by the State.° It held

that the -water mark of the river, to which the

State’s ownershi extends, was fixed by the natural state

of the river as it%existed in 1938, before the operation

of Hoover Dam.° We granted certiorari, 410 U. 8.

908 (1973). We hold that the ownership of the subject

land is governed by federal law, and that the land sur-

faced by the narrowing of the river channel belongs, not

to the State as owner of the riverbed, but to Bonelli as

riparian owner. We need not, therefore, reach the

question of whether the Arizona Supreme Court properly

determined the average high-water mark of the river.

I

The first issue we must decide is whether state or

federal law governs this controversy. The State of

Arizona claims title to the subject land by virtue of the

equal-footing doctrine’ and the Submerged Lands Act? £

the basic principles of which are as follows. When the ~

°108 Ariz. 258, 495 P. 2d 1312 (1972).

° Before the operation. of Hoover Dam, the river’s annual spring :

floods covered substantially more of the adjacent land than at an:

time thereafter. It is to the high-water mark of the river at this

annual flood stage that the State of Arizona claims title.

*See Joint Res. No. 8, To Admit the Territories of New Mexico F

and Arizona as States into the Union on an equal footing with the’

original States, 37 Stat. 39.

* 67 Stat. 29, 48 U.S. C. § 1301 et seq.

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318 OCTOBER TERM, 1973

Opinion of the Court 414 U.S.

Original Colonies ratified the Constitution, they succeeded

to the Crown’s title and interest in the beds of navigable

waters within their respective borders. As new States

were forged out of the federal territories after the for-

mation of the Union, they were “admitted [with] the same

rights, sovereignty and jurisdiction . . . as the original

States possess within their respective borders.” Mum-

ford v. Wardwell, 6 Wall. 423, 436 (1867). Accord-

ingly, title to lands beneath navigable waters passed

from the Federal Government to the new States,

upon their admission to the Union, under the equal-foot-

ing doctrine. See, e. g., Pollard’s Lessee v. Hagan,

8 How. 212 (1845); Shively v. Bowlby, 152 U. S. 1

(1894); Weber v. Board of Harbor Comm'rs, 18 Wall.

57, 65-66 (1873).

In order for the States to guarantee full public enjoy-

ment of their navigable watercourses,’ it has been held

that their title to the bed of a navigable river mechani-

cally follows the river’s gradual changes in course. See

Oklahoma vy. Texas, 268 U. S. 252 (1925). Thus, where

portions of 4 riparian owner’s land are encroached upon

by a navigable stream, under federal law, the State

succeeds to title in the bed of the river to its new high-

water mark.

The Submerged Lands Act of 1953 did not disturb

these doctrines or their inherent limitations. The Act

merely confirmed the States’ pre-existing rights in the

beds of the navigable waterways within their boundaries

by, in effect, quitclaiming all federal claims thereto.

And, consonant ‘with the above-described common-law

doctrine concerning title to the bed of a river that has

shifted course, the Submerged Lands Act quitclaims all

federal rights to title to lands beneath the navigable

streams, as “hereafter modified by aceretion, erosion, and

reliction.” 43 U. S. C. § 1301 (a)(1).

®* See discussion, infra, at 321-324.

BONELLI CATTLE OO. ». ARIZONA

313 Opinion of the Court

The State of Arizona asserts title to the subject land

on the basis of the following application of these prin-

ciples. When Arizona achieved statehood ir 1912, it

assumed title to the land beneath the stream of the

Colorado River, by virtue of the equal-footing doctrine.”

320 OCTOBER TERM, 1973

Opinion of the Court 414U.8.

to the lands formerly beneath the stream of the Colorado

River or whether that title is defeasible by the with-

drawal of those waters. As this Court observed in Borar,

Ltd. v. Los Angeles, 296 U. S. 10, 22 (1935): “The ques-

tion as to the extent of this federal grant, that is, as to

the limit of the land conveyed, . . . is necessarily a federal

question. . . . [I]t involves the ascertainment of the

essentia¥ basis of a right asserted under federal law.” _

Arkansas v. Tennessee, supra, and the cazes cited *

therein are not to the contrary. In Arkansas v. Ten-

nessee, for example, we held that federal law governed

the question of how far into the river channel a State :

held title. Only then did this Court turn to state law —

to determine whether riparian owners had been accorded

any rights in that land. But even the State’s disposi-

tion of its submerged land vis-a-vis pri owners was

to be “in each case limited by the interstate boundary,” a

matter determined by federal law. 246 U. S., at 176.

Similarly, in Shively v. Bowlby, 152 U. S. 1 (1894), the

Court held that under settled federal law, the tidelands

there at issue belonged to the State in its sovereign

capacity; hence whether the State had accorded riparian

owners any interests in the tidelands properly remained

a matter of local law; “if [the States] choose to. resign

to the riparian proprietor rights which properly belong to

them in their sovereign capacity, it is not for others to

raise objections.” Jd., at 43. In Barney v. Keokuk, 94

U. 8. 324, 338 (1877), the Court left it to the States to

decide whether to accord title to the land beneath non-

tidal navigable waters to riparian owners after recognizing

that under federal law such lands belong to the States.

See also Scott v. Lattig, 227 U. S. 229, 242 (1913).

The present case, however, does not involve a question

of the disposition of lands, the title*to which is vested

in the State as a matter of settled federal law. The

very question to be decided is the nature and extent of

\

BONELLI CATTLE CO. v. ARIZONA

313 Opinion of the Court

the title to the bed of a navigable stream held by the

State under the equal-footing doctrine and the Sub-

merged Lands Act. In this case, the question of title

as-between the State and a private landowner necessarily

depends on a construction of a “Tight asserted under

federal law.” ™

II

We cannot accep

footing doctrine su

“[T ]Jitle to the . . . lands under water .. . enures to

the State within which they are situated.... Such

title . . . [is] held in trust for the public purposes of

cessors all the rights he had property— including his riparian

rights. We need not, however, decide whether Hughes compels the

application of federal law to the controversy before us, because the

State's claim in this case is premised on a construction of the federal

cal leg doctzine smd the ionall i Sul ;

Act.

322 OCTOBER TERM, 1973

Opinion of the Court 414 U.S.

navigation and fishery.” Hardin v. Jordan, 140 U.S.

371, 381 (1891).

See United States v. Kansas City Life Ins. Co., 339 U. 8.

799, 808 (1950). As this Court observed in an earlier

federal water law case:

“Such waters . . . are incapable of ordinary and

private occupation, cultivation and improvement;

and their natural and primary uses are public in

their nature, for highways of navigation and com-

merce, domestic and f , and for the purpose of

fishing ....” Shively v. Bowlby, supra, at 11.

The State’s title is to the “[river]bed as a bed,” ** and

the State of Arizona will continue to hold title to the

bed beneath the Colorado River to its .present high-

water mark. But the exposed land involved here is no

longer, as described in Shively “incapable of ordinary

and private occupation . . . [whose] primary uses are

public in their nature, for highways of navigation ....” *

The equal-footing doctrine was never intended to provide

a State with a windfall of thousands of acres of dry land

exposed when the main thread of a navigable stream is -

changed.* It would be at odds with the fundamental

12 State v. Gill, 259 Ala. 177, 183, 66 So. 2d 141, 145 (1953). For

& perceptive discussion of the historical antecedents for the sov-

ereign’s rights in the beds of navigable waterways and of the State’s

modern interests in those lands, see Lundquist, Artificial Additions

to Riparian Land: Extending the Doctrine of Accretion, 14 Ariz.

L. Rey. 315 (1972).

48 152 U.S&., at 11.

The Supreme Court of Arizona relied on this Court’s decisions

in Goodtitle v. Kibbe, 9 How. 471 (1850), and Pollard’s Lessee v.

Hagan, 3 How. 212 (1845), for the proposition that a federal rechan-

neling project could not diminish the extent of the State’s landhold-

ings. Those decisions involved post-statehood.federal patents of land

covered by navigable waters at the time of statehood. This Court held

only that since title to lands beneath navigable waters was vested in

BONELLI CATTLE CO. ». ARIZONA 323

313 Opinion of the Court

purpose of the original grant to the States to afford a

State title to land from which a navigable stream had

receded unless the land was exposed as part of a naviga-

tional or related public project of which it was a necessary

and integral part or unless, of course, the artificial accre-

tion was somehow caused by the upland owner himself.

There has been no showing that the rechannelization

ject lands for the protection of navigation or related

public goals." Indeed, the State of Arizona did not par-

ticipate in the rechannelization of the Colorado River,

although it had implicitly assented to the project.**

But, when the water receded from the land, there win

no longer a public benefit to be protected ; consequently,

Alabama at statehood, the Federal Government. did not. thereafter

own the ‘subject lands, hence its attempted conveyance was void

The Court did not intimate that the operation of federal law could

hot diminish the State’s title to lands formerly beneath navigable

sed in tidelands belonging to it under a series of interstate compacts.

324° OCTOBER TERM, 1973

Opinion of the Court 4140.8.

the State, as sovereign, has no need for title. That the

cause of the recession was artificial, or that the rate was

perceptible, should be of no effect.

Nor does the Submerged Lands Act provide a basis..

for the State’s claim to the subject lands. The Arizona

Supreme Court incorrectly construed this Act as a grant

by Congress to the States of lands “formerly . . . beneath

navigable waters.”** The Act did not abrogate the

federal law of accretion, but defined lands beneath navi-

gable waters as being those covered by streams as “here-

after modified by accretion, erosion, and reliction.” *

Contrary to the implication raised by tife Arizona

Supreme Court, the Act creates no new rights for the

States in the beds of their inland waterways. The

Act is not a grant of title to land but only a quit-

claim of federal proprietary rights in the beds of navi-

gable waterways.” The Act specifically excepts from

its scope lands lawfully conveyed or patented by the

United States.” Since the Act does not extend to the

States any interest beyond those afforded by the equal-

17108 Ariz. 258, 259, 495 P. 2d 1312, 1313 (1972) (emphasis

added).

18 43 U.S. C. § 1301 (a) (1).

19 The legislative history of the Act indicates that it was intended

to be merely confirmatory of the State’s existing rights in the beds of

their navigable waterways. S. Rep. No. 133, 83d Cong., Ist Sess.,

pt. 1, pp. 6-8 (1953), People v. Hecker, 179 Cal. App. 2d 823, 4 Cal.

Rptr. 334 (1960). See generally 1953 U. S. Code Cong. & Ad.

News 1395-1640. Congress was concerned about this Court’s

decision in United States v. California, 332 U.S. 19 (1947), which

held that the Federal Government had a “paramount interest” in

the marginal sea-lands “outside of inland waters, but within terri-

torial limits”’—and that the States had no title in those lands.

See H. R. Rep. No. 1778, 80th Cong., 2d Sess., 5 (1948). That

concern is irrelevant to the case before us, which involves an inland

waterway.

20 43 U. 8. C. § 1301 (f).

BONELLI CATTLE CO. v. ARIZONA 325

313 Opinion of the Court

footing doctrine, the State can no more base its claim to

lands unnecessary to a navigational purpose on the Sub-

merged Lands Act than on that doctrine.

Ill

The question remains as to who owns the subject land

under the applicable federal common law. It is, of

course, clear that the State of Arizona did hold title

to the subject property before the waters of the river

receded. Both the State and the Solicitor General

of the United States as amicus curiae, urge that the

federal common-law doctrine of avulsion is applicable

and thus that the State remains holder of titlé in the

former riverbed. Bonelli, the only private claimant,

argues that the narrowing of the river course should

properly be characterized as an artificial accretion, hence

that the disputed land, which had originally been lost

from the Bonelli parcel to the river by erosion, should

once again belong to it as the riparian owner.

Federal law recognizes the doctrine of accretion

whereby the “grantee of land bounded bya body of

navigable water acquires a right to any .. . gradual

accretion formed along the shore.” Hughes vy. Wash-

ington, 389 U. S. 290, 293 (1967); accord, Jones v.

Johnston, 18 How. 150, 156 (1856). When there is a

gradual and imperceptible accumulation of land on a

navigable riverbank, by way of alluvion or reliction, the

riparian owner is the beneficiary of title to the surfaced

land:

“It is the established rule that a riparian pro-

prietor of land bounded by a stream, the banks of

which are changed by the gradual and imperceptible

process of accretion or erosion, continues to hold to

the stream as his boundary; if his land is increased

he is not accountable for the gain, and if it is

306 OCTOBER TERM, 1973

Opinion of the Court 414U.8.

diminished he has no recourse for the loss.” Phila-

delphia Co. v. Stimson, 223 U. 8. 605, 624 (1912).

There are a number of interrelated reasons for the

application ofsthe doctrine of accretion. First, where

lands are bounded by water, it may well be regarded

as the expectancy of the riparian owners that they should

continue to be so bounded.” Second, the quality of

being riparian, especially to navigable water, may be the

land’s “most valuable feature” and is part and parcel

of the ownership of the land itself. Hughes v. Wash-

ington, supra, at 293; Yates v. Milwaukee, 10 Wall. 497,

504 (1871). Riparianness also encompasses the vested

right to future alluvion, which is an “essential attribute

of the original property.” County of St. Clair v. Loving-

ston, 23 Wall. 46, 68 (1874). By requiring that the up-

land owner suffer the burden of erosion and by giving

him the benefit of accretions, riparianness is maintained.

Finally, there is a compensation theory at work. Ripar-

ian land is at the mercy of the wanderings of the river.

Since a riparian owner is subject to losing land by erosion

beyond his control, he should benefit from any addition

to his lands by the accretions thereto which are equally

beyond his control. Jbid. The effect of the doctrine of

accretion is to give the riparian owner a “ ‘ “fee, determi-

nable upon the occupancy of his soil by the river,” and

[to afford] the State [a title] to the river bed [which is]

likewise a . . . “qualified” fee, “determinable in favor of

the riparians upon the abandonment of the bed by the

river.” 39)? 22

21 F. g., Nebraska v. Iowa, 143 U. S. 359, 365-366 (1892); Hardin

v. Jordan, 140 U. 8. 371 (1891); Anderson-Tully Co. v. Tingle, 166

F. 2d 224, 227-228 (CA5), cert, denied, 335 U.S. 816 (1948).

22 107 Ariz., at 472, 489 P. 2d, at 706 (Lockwood, J., dissenting),

quoting, State v. R. E. Janes Gravel Co., 175 8. W. 2d 739, 741 (Tex.

Ss

a

BONELLI CATTLE CO. v. ARIZONA 327

313 Opinion of the Court

The doctrine of accretion applies to changes in the

river course due to artificial as well as natural causes.

County of St. Clair v. Lovingston, supra, at 64-69; United

States v. Claridge, 416 F. 2d 933 (CA9 1969), cert. denied,

397 U. S. 961 (1970) (changes in the Colorado River’s

course, caused by the construction of Hoover Dam, are

accretive), Where accretions to riparian land are caused

by conditions created by strangers to the land, the upland

owner remains the beneficiary thereof.”

But the federal law is otherwise where “a stream sud-

denly and perceptibly abandons its old channel.” Phila-

delphia Co. v. Stimson, 223 U. S., at 624-625. Such an

avulsive change does not affect title and the boundary

established by the former river stream remains at that

line, even if the result is to cut off a landowner’s riparian

rights. St. Louis v. Rutz, 1388 U. S. 226, 245 (1891).

The rationale for the doctrine of avulsion is a need to

mitigate the hardship that a shift in title caused by a

sudden movement of the river would cause the abutting

landowners were the accretion principle to be applied.

As this Court, quoting from 8 Op. Atty. Gen. 175,

observed in Nebraska v. Iowa, 143 U. S. 359, 362 (1892):

““{When in] deserting its original bed, the river

forces for itself a new channel in another direction,

then the nation, through whose territory the river

thus breaks its way, suffers injury by the loss of

territory greater than the benefit of retaining the

natural river boundary, and that boundary remains

in the middle of the deserted river bed.’ ”

Civ. App. 1943), rev’d on other grounds sub nom. Maufrais v. State,

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

*8 See sources collected at Burns v. Forbes, 412 F. 2d 995, 997 n. 2

(CA3 1969); cf. Beaver v. United States, 350 F. 2d 4, 11 (CA9

1965), cert. denied, 383 U. 8. 937 (1966); Esso Standard Oil Co.

v. Jones, 233 La. 915, 98 So. 2d 236, aff’d on rehearing, 233 La. 940,

98 So. 2d 244 (1957).

—_——————— |

328 OCTOBER TERM, 1973

Opinion of the Court 414 U.S.

The Arizona Supreme Court held that because the re-

channeling of the Colorado River was an “erigineering

relocation of the waters of the river by artificial means,”

it was, under state law, an avulsion and did not divest

the State of title to the land from which the river had

withdrawn. But federal law must be applied with a

view toward the limited nature of the sovereign’s rights

in the riverbed, and an analysis of the interests of the

State and Bonelli, in light of the rationales for the federal

common-law doctrines of accretion and avulsion, compels

the conclusion that, as between the State, as owner of

the riverbed, and Bonelli, as a riparian owner, the sur-

facing of the subject land should be treated as accretion ;

hence title to the disputed land should be vested in

Bonelli.

The rationale for the application of the doctrine of

avulsion is not applicable to this dispute because of the

limited interests of the State in the subject property.

The Federal Government, which holds a paramount navi-

gable servitude in the river,* determined that it was tod

wide and shallow to permit navigation in the area of

the subject land, and that the river therefore needed to

be deepened and rechanneled. The resulting changes

in the river’s thread actually enhanced the State’s inter-

est in the navigability of the river. The State’s acqui-

sition of the exposed land here could only be a windfall,

since unnecessary to the State’s purpose in holding title

to the beds of the navigable streams within its borders.”

Accordingly, the narrowing of the river and vesting of

title to the surfaced land in riparian owners does not

detract from the State’s legitimate interest in title to

24 See, e. g., Philadelphia, Co. v. Stimson, 223 U. 8. 605, 633-635

(1912).

25 See discussion, supra, at 321-324.

ee

—

BONELLI CATTLE CO. v. ARIZONA

313 Opinion of the Court

the riverbed,”* so as to require mitigation of the accretion

principle by application of the doctrine of avulsion.

The policies behind the doctrine of accretion are, how-

ever, fully applicable. That doctrine guarantees the

riparian character of land by automatically granting to

a riparian owner title to lands which form between his

holdings and the river and thus threaten to destroy that .

valuable feature of his property. The riparian owner

‘is at the mercy, not only of the natural forces which create

such intervening lands, but also, because of the naviga-

tional servitude, of governmental forces which may

similarly affect the riparian quality of his estate.

Accordingly, where land cast up in the Federal Govern-

ment’s exercise of the servitude is not related to further-

ing the navigational or related public interests, the accre-

tion. doctrine should provide a disposition of the land as

between the riparian owner and the State. See Mi

son v. Silver Beach Assn., 342 Mass. 251, 173 N. E/2d 273

(1961).

Similarly, riparian lands may suffer noncompensable

losses or be deprived of their ri character altogether

by the State or Federal Government in the exercise of

the navigational servitude. In compensation for such

losses, land surfaced in the course of such governmental

activity should inure to the riparian owner where not

necessary to the navigational project or its purpose. In

26 The State may well have an interest in the river as an inter-

state boundary justifying application of avulsion principles to deter-

mining the location of that boundary; “[t]he emergence of .

land . . . ought not in reason to have any controlling effect upon the

location of the boundary line... .” Arkansas v. Tennessee, 246

U. 8. 158, 175 (1918). But, since the:land elaimed by the State and

petitioner is already limited by the interstate boundary, however

determined, there is no such interest to compel application of avulsion

principles to the disposition of title to the subject property.

:

“No other rule can be applied on just principles.

Every proprietor whose land is thus bounded [by

a navigable stream], is subject to loss, by the same

means which may add to his territory: and as he

is without remedy for his loss, in this way, he cannot

2" Under the doctrine of re-emergence, when identifiable riparian

land, once lost by erosion, subsequently re-emerges as a result of

perceptible change in the river course, title to the surfaced land re-

vests im its former owner. See Arkansas v. Tennessee, 246 U. S., at

174-175; Beaver v. United States, 350 F.2d, at 11. The re-emergence

doctrine has been accepted by a number of States, Herron v. Choctaw

& Chickasaw Nations, 228 F. 2d 830 (CA10 1956) (applying Okis-

homa law); State v. Gill, 259 Ala. 177, 66 So. 2d 141 (1953); Bsso

Standard Oil Co. v. Jones, 233 La. 915, 98 So. 2d 236, aff'd on rehear-

ing, 233 La. 940, 98 So. 2d 244 (1957); Mulry v. Norton, 100

N. Y. 424, 3 N. E. 581 (1885). Because of the limited interest of

the State in the former riverbed, we have held the doctrine of

avulsion inapplicable to this suit between the State and a private

riparian owner, who is seeking title to surfaced land identifiable as

part of his original parcel. In that sense, we have embraced the

re-emergence concept.

But we need not here determine whether, in a suit between private

landowners ‘(or in which the State daims title im some capacity

other than as owner of the riverbed), the differing interests of the

parties might require a holding that the rechannelization should be

treated as an avulsion. Nor need we determine whether, im a suit

‘between a riparian owner and a former owner of surfaced land, the

former should take the property as an accretion or the latter as s

re-emergence. It is only the State's claim to title under the equal-

footing doctrine which required the invocation of federal law to

resolve the instant dispute.

BONELLI CATTLE CO. v. ARIZONA

Opimion of the Court

be held accountable for his gain.” New Orleans v-

United States, 10 Pet. 662, 717 (1836).

Finally, recognition of the State’s claim to the subject

land would raise a serious constitutional issue as to

whether the State’s assertion of title is a taking without

compensation, a question which we find unnecessary to

decide on our view of the case. As Mr Justice Srew-

arT warned in Hughes v. Washington, 389 U. S_ at 208

(concurring opinion):

' “Although the State in this case made no attempt to

take the accreted lands by eminent domaim. it achieved

property is held subject to the exercise of that

The government may, without paying compensation,

deprive a riparian owner of his common-law right to use

flowing water, St. Anthonys Falls Water Power Co. v. St.

Paul Water Comm'rs, 168 U. S. 349 (1897), or to build

a wharf over the water, Shively v. Bowlby, 152 U.S 1

(1894). We have held that the State may deprive the

owner of the riparian character of his property im the

exercise of its navigational servitude. United States v.

Rands, 389 U.S. 121 (1967). But there is no claim here

by the State that depriving Bonelli of the subject land

is necessary to any navigational or related purpose. Cf

United States v. River Rouge Co. 269 U. S 411,

332 OCTOBER TERM, 1973

Srewarr, J., dissenting 414U.8.

419 (1926); Colberg, Inc. v. State, 67 Cal. 2d 408,

482 P. 2d 3 (1967), cert. denied, 390 U. S. 949 (1968).

Moreover, what is involved in this case is not just the

diminution or elimination of riparian rights, but the

State’s attempt to completely divest all of Bonelli’s title

and interest in the subject land. See Yates v. Mil-

waukee, 10 Waill., at 504.

IV

We hold that title to the subject land, which was

exposed by the federal rechannelization of the Colorado

River, is vested in petitioner Bonelli Cattle Co. The

judgment of the Supreme Court of Arizona is reversed

and the case remanded for further proceedings not incon-

sistent with this opinion.

Reversed and remanded.

Mr. Justice REHNQuIsT took no part in the considera-

tion or decision of this case.

Mr. Justice Stewart, dissenting.

The Court in this case holds that federal common

law governs the resolution of conflicting claims to the

exposed bed of a navigable river between Arizona as the

owner of the riverbed and a riparian landowner.’ I

1 The Court emphasizes the fact that it is the State that holds

the title to the riverbed property. The nature of the title held by

the State, however, is such that it could be conveyed to a private

owner. (“{Ty]he settled law of this country [is] that the ownership

of and dominion and sovereignty over lands covered by tide waters,

or navigable [rivers], within the limits of the several States, belong

to the respective States within which they are found, with the

consequent right to use or dispose of any portion thereof . . ..”

Shively v. Bowlby, 152 U.S. 1, 47 (1894); Mlinois Central R. Co. v.

Minois, 146 U. S. 387, 435 (1892); United States v. Holt Bank,

270 U. 8. 49, 54-55 (1926).) Simce the State could hardly convey

more title than it held, it would appear from the Court's opinion

BONELL] CATTLE CO. r. ARIZONA 338

Srewanr. J_ dasentimg

under which this Court has long held “that the new

and jurisdietion - . _ as the orginal States possess within

their respective borders.” Mumford v. Wardwell, 6 Wall.

423, 436 (1867).

After the Revolution, the 13 Original States succeeded

both to the Crown's title to the beds underlying navi-

gable rivers and to its sovereignty over that property.

Td., at 436. “[T]he shores of navigable waters and the

soils under the same im the orginal States were not

granted by the Constitution to the United States, but

were reserved to the several States” Jbid If the

equal-footing doctrine means what it says, then the States

that were later admitted to the Union must hold the

same title and must exercise the same sovereignty. Weber

v. Board of Harber Comm'rs, 18 Wall. 57, 65-66 (1873) ;

Shively v. Bewiby, 152 U. S. 1, 16 (1894); Pollard’s

Lessee V. Hagan, 3 How. 212. 223 (1845). Just as with

This Court has repeatedly recognized a State’s power,

as a function of its sovereignty over the lands within

-OCTOBER TERM, 1973

»

Srewarr, J., dissenting 414U.58.

such as those applied by the Supreme Court of Arizona

in this case:

“Th[e] right of the States to regulate and control

the shores of tide waters, and the land under

them, is the same as that which is exercised by

the Crown in England. In this country the same

rule has been extended to our great navigable

lakes .. . ; and also . . . to navigable rivers .. . ; but

it depends on the law of each State to what waters

and to what extent this prerogative of the State

over the lands under water shall be exercised.”

Hardin v. Jordan, 140 U. 8. 371, 382 (1891).

With respect to an avulsion exposing large portions of

riverbed and leading to conflicting claims to the owner-

ship of the exposed land, virtually the twin of this case,

the Court has said:

“How the land that emerges . . . shall be disposed

of as between public and private ownership is a

matter to be determined according to the law of

each State, under the familiar doctrine that it is

for the States to establish for themselves such rules

of property as they deem expedient with respect to

the navigable waters within their borders and the

riparian lands adjacent to*them. ... Thus, [the

State] may limit riparian ownership by the ordi-

nary high-water mark . . . [or] may, in the case of

an avulsion followed by a drying up of the old

channel of the river, recognize the right of former

riparian owners to be restored to that which they

have lost through gradual erosions in times preced-

ing the avulsion... .” Arkansas v. Tennessee, 246

U. 8. 158, 175-176 (1918).

BONELLI CATTLE CO. v. ARIZONA 335

313 Srewart, J., dissenting :

Along the same vein, the Court has said:

“Tt is generally conceded that the riparian title at-

taches to subsequent accretions to the land effected

by the gradual and impercéptible operation of nat-

ural causes. But whether it attaches to land re-

claimed by artificial means from the bed of the

river, or to sudden accretions produced by unusual

floods, is a question which each State decides for

itself. . . . The confusion of navigable with tide

water, found in the monuments of the common law,

long prevailed in this country .... [I]t laid the

_ foundation in many States of doctrines with regard

to the ownership of the soil in navigable waters

above tide-water at variance with sound principles

of public policy. Whether, as rules of property, it

would now be safe to change these doctrines where

they have been applied . . . is for the several States

themselves to determine. . . . [The decision]

properly belongs to the States by their inherent

sovereignty ... .” Barney v. Keokuk, 94 U. 8.

324, 337-338 (1877).

To put the matter bluntly, the Court’s application

of the equal-footing doctrine in this case seems to me

wholly wrong. While conceding that the later-admitted

States have “ ‘the same rights, sovereignty and jurisdic-

tion . . . as the original States possess within their

respéctive borders,’” ante, at 318, the Court holds that

“the nature and extent of the title to the bed of a.

navigable stream held by the State under the equal-

footing doctrine” involves a “ ‘right asserted under federal

law’ ” that must be determined under the rules of federal

common law. The effect of the Court’s analysis is com-

pletely to undercut the equal-footing doctrine. As noted

above, the original States derived their sovereign rights

OCTOBER TERM, 1973

Srewart, J., dissenting 414 U.8.

and powers directly from the Crown after the Revolu-

tion. and retained whatever powers they did not later

surrender or limit in the Federal Constitution. Even

under the Court's “title” analysis, therefore, federal com-

mon law would not govern the conflicting claims in-

volved here if the river were located in Massachusetts

or Virginia, rather than in Arizona...

The upshot of the Court’s decision is that the 13 Orig-

inal States are free to develop and apply their own

rules of property law for the resolution of conflicting

claims to an exposed bed of a river, while those States ad-

mitted after the Constitution’s ratification must under

today’s decision knuckle under to this Court’s super-

visory view of “federal common law.” A later-admitted

State like Arizona is thus not at all on an equal footing

with the original States in the exercise of sovereignty

over real property within its boundaries. And the vehicle

used by the Court to arrive at this unjust result is, in-

credibly, the very doctrine that was intended to insure

to the new States equal footing with the original States.

Thus, the Court’s strange application of the equal-

footing doctrine brings that constitutional principle into

fundamental conflict with the purpose it was intended

to serve.

If the equal-footing doctrine means anything, it means

that Arizona cannot be treated as a second-class State.

It means that, upon admission to the Union, it

received title to, and sovereignty over, the beds of

navigable rivers within its boundaries, to the same

extent as the original States after the Revolution.

As a function of that sovereignty, Arizona courts have

the power to develop and apply state common law

in determining legal questions that arise with respect to

this property, including conflicting claims to the bed

that is later exposed by the vagaries of the river. And

j

4

|

]

;

| BONELLI CATTLE CO. v. ARIZONA

Srewart, J., dissenting

~ wer of the Arizona courts to decide this contro-

the polnder state law surely includes the power to

versy it in a way that we here might think is wholly

decide

wrong.

Sourt implies, but does not hold, that the decision of the

*The supreme Court might constitute a taking of the petitioner

Arizona npany’s property without compensation, in violation of due

cattle cor law. My conviction that this infirmity was present in the

process Gf the Washington Supreme Court was the reason for my

decision neurrence in Hughes v. Washington, 389 U. S. 290, 294-298

special CP7ughes was a case in which a state court effected a retro-

(1967). ange in state property law that resulted in an unconstitu-

active ching of property without compensation. That, however, is

tional taltuation here. The Arizona Supreme Court simply applied

not the shed property rules with regard to the effects of avulsion,

its establ erosion, and reliction in resolving conflicting claims to the

accretion verhed. It declined the petitioners’ invitation to adopt the

pose’ hed” re-emergence doctrine as part of the law of Arizona.

enlighte, therefore, does not involve a retroactive alteration of

This 48’ such as would constitute an unconstitutional taking of