# Opinion — Bonelli Cattle Co. v. Arizona

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opinion
- **Published:** January 1, 1973
- **Citation:** 414 U.S. 313

## Text

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

SE _t

Syren

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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TREISMAN COLIN TNE Se ER —

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RATES RR ALT aN PND IR IN TRE INR aU PO TIN TAME HOTTA rE

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0217%3A12. Public record. Not legal advice.