Beaver v. United States

• Decision Date: 24 August 1965
• Docket Number: No. 19312.,19312.
• Parties: R. A. BEAVER et al., Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

350 F.2d 4 (1965)

R. A. BEAVER et al., Appellants, v. UNITED STATES of America, Appellee.

No. 19312.

United States Court of Appeals Ninth Circuit.

August 24, 1965.

C. Randall Bain, Brown, Vlassis & Bain, Phoenix, Ariz., for appellants.

Ramsey Clark, Asst. Atty. Gen., Roger P. Marquis, Richard N. Countiss, Attys., Dept. of Justice, Washington, D. C., Manuel L. Real, U. S. Atty., Los Angeles, Cal., for appellee.

Burton M. Apker, Evans, Kitchel & Jenckes, Geo. Read Carlock, Ryley, Carlock & Ralston, Phoenix, Ariz., James F. Healey, Jr., F. W. Audrain, Bruce M. Jones, Los Angeles, Cal., Harold Pilskaln, Jr., Santa Ana, Cal., for amici curiae (various title insurance companies).

Before BARNES, JERTBERG and MERRILL, Circuit Judges.

BARNES, Circuit Judge:

We extract from appellee's brief what we deem to be a fair statement of the facts and the parties' respective contentions:

"On October 10, 1960, the United States filed this condemnation proceeding to take 11.8 acres of land in Imperial County, California, for use in the Colorado River Front Work and Levee System Project. The United States was of the opinion that it already owned the 11.8 acres (hereafter, the tract) but because appellants claimed an adverse interest this action was instituted to condemn that interest, if any, and to determine any compensation to be paid appellants. The court held two non-jury trials, the first to determine the validity of appellants\' contention that the court lacked jurisdiction because the tract was located in Arizona and, the court having found that the tract was in California, the second to determine the validity of appellants\' claim of title and right to compensation. The court ruled that the United States had at all times possessed full fee simple title to the tract and that appellants had no claim of title or right to compensation. After final judgment in favor of the United States, this timely appeal was taken.

"A brief statement of the physical situation will aid in understanding the various contentions. The Colorado River (hereafter, the river), the boundary between Arizona and California, runs generally east to west along the southern boundary of the tract in question; the tract thus is presumably located on the California side of the River. We say presumably because decision of the jurisdictional question — whether the land is in California or Arizona — likewise decides the basic title question. The tract is bordered on the California side by a section of land officially described as Section 4, Township 9 South, Range 22 East, San Bernardino Meridian, in what is now Imperial County, California. Section 4 has been owned by the United States since the Treaty of Guadalupe Hidalgo, 9 Stat. 922 (1848), and has been withdrawn from public entry since 1929. The tract in question is in the same physical location as land patented to appellants\' predecessor in title in 1914, and, at that time, located in Arizona. Prior to 1902, the river in this area flowed in a channel located several thousand feet north of its present location and along the southern boundary of Section 4. Between 1902 and 1942 the river channel moved in a southerly direction until it established the channel approximately in its present location.

"It is the contention of the United States that the river channel arrived at its present location by a slow accretive movement, eroding the southern (Arizona) bank of the channel and depositing soil on the northern (California) bank. In this manner the land claimed by appellants was washed away and the tract in question was added by accretion to Section 4, owned by the United States; under well-settled principles the tract thus belongs to the United States. Appellants, on the other hand, contend that the river arrived in its present location by several avulsive movements and for this reason the state boundary and the property line boundaries in the area were permanently fixed at the site of the 1902-1912 channel. Therefore, appellants say, the tract is still located in Arizona and appellants\' land was not lost by erosion." (Appellee\'s Br. pp. 3-5. Transcript references omitted.)

In summary, the district court held that the property in dispute had been created on the California side of the river by the gradual process of erosion and accretion. (R. 275-81.) On the basis of this finding, the court concluded that jurisdiction properly lay in the United States District Court for the Southern District of California. The court rejected appellants' theory that Arizona had annexed the tract by prescription (R. 281-83).

At a subsequent trial of the remaining issues, the district court found the land in question had accreted to government-owned land in California, and its title had thus been acquired by the United States Government. The court also rejected appellants' arguments (1) that they hold a vested interest under the Color of Title Act, 43 U.S.C. § 1068 (R. 404-05); (2) that the doctrine of re-emergence should be applied (R. 405); (3) that the United States cannot claim the tract because it induced the accretion process; and (4) that the United States is estopped from asserting title to land which appellants had improved. Final judgment was entered denying compensation to appellants and this appeal followed. We are asked to reconsider these four theories of recovery which the district court rejected.

Estoppel.

From 1914, when the United States first issued its patent to the land, until 1940, this land was ostensibly privately owned, taxable land. In 1940, as a result of unpaid taxes, the land was "taken" by taxing authorities of the State of Arizona, and the County of Yuma. The land was subsequently sold to a private party in 1942 and was maintained in private hands until late 1960.

The Colorado River which abutted this land altered its course during the relevant years and "shifted" the disputed parcel, not as one would expect, from east to west, but from south to north, i. e., the river's new channel shifted from north of the subject parcel to the south. Precisely when this "shift" took place is one of the matters in dispute.

Appellants complain that eyewitness testimony to the character of the river's change was almost nonexistent, and, as a result, the parties and the trier of fact below were required to rely on old maps, aerial photographs and "theoretical reconstructions by hydrologists or engineers." Such a complaint, of course, is only incidentally relevant to appellants' claim of estoppel; once there exists substantial and valid evidence to enable the trier of fact to conclude that an accretion has taken place the issue cannot here be raised, unless that conclusion is clearly erroneous. For example, Exhibit 10 depicts the river as south of the subject land as of 1930. That evidence alone, we assume, would be sufficient upon which to base a finding of fact.

Were this a dispute between two private individuals, the doctrine of equitable estoppel would undoubtedly apply. But it is not such a dispute. Does the same doctrine apply to the government when it becomes a plaintiff in a condemnation proceeding? The government, of course, says it does not; the plaintiffs urge that it does.

Appellants rely primarily upon United States v. Certain Parcels of Land, 131 F.Supp. 65 (S.D.Cal.1955); State of Iowa v. Carr, 191 F. 257 (8th Cir. 1911); State of Michigan v. Jackson L. & S. R. R., 69 F. 116 (6th Cir. 1895).

We assume for the purposes of this case that (1) ordinarily the doctrine of equitable estoppel does not apply against the United States, particularly in those cases where it has not consented to be sued; (2) the general rule can be and has been recognized to be inapplicable, particularly where the United States has consented to be sued, or has instituted the litigation.

With the assumptions of the law in mind, we next consider the government's position that here involved is accreted land, to which a special rule applies — i. e., that such land can be disposed of only by Congress under Art. IV, Sec. 3, Cl. 2 of the Constitution.¹ And see Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 330, 335-336, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (electric energy) and State of Alabama v. State of Texas, 347 U.S. 272, 74 S.Ct. 481, 98 L.Ed. 689 (1954) (submerged lands).

We will consider later whether the land here involved is governed by the doctrine of accretion, avulsion, or re-emergence. We assume here it is accreted land. If accreted land, it is not the land originally patented by the United States in 1914. If it is not the original land but rather is accreted land (accreted to land to which the title rests in the United States), then it also is land owned by the United States, whose title can be divested only by Act of Congress.

"`The power over the public land thus entrusted to Congress is without limitations. "And it is not for the courts to say how that trust shall be administered. That is for Congress to determine."'" State of Alabama v. State of Texas, supra at 273, 74 S.Ct. at 482, quoting from United States v. City and County of San Francisco, 310 U.S. 16, 29-30, 60 S.Ct. 749, 84 L.Ed. 1050 (1940).

This title, says the government, cannot be lost — by mistake, Lee Wilson & Co. v. United States, 245 U.S. 24, 31, 38 S.Ct. 21, 62 L.Ed. 128 (1917) (dealing with meander lines); or by unauthorized actions, Utah Power & Light Co. v. United States, 243 U.S. 389, 408-409, 37 S.Ct. 387, 61 L.Ed. 791 (1917). "The United States is neither bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit." Id. at 409, 37 S.Ct. at 391. Nor can title be lost by acquiescence of employees of the executive branch of the government. United States v. State of California, 332 U.S. 19, 39-40, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947). As a general rule laches or neglect of duty on the part of officers of the government ...