651 F.2d 700 (10th Cir. 1981), 79-1228, Bradford v. United States ex rel. Dept. of Interior, Bureau of Land Management Division of Lands and Minerals

Docket Nº:79-1228.
Citation:651 F.2d 700
Party Name:Cleo M. BRADFORD and LaJuan Gay Bradford, husband and wife, Plaintiffs-Appellees, v. UNITED STATES of America, ex rel. DEPARTMENT OF INTERIOR, BUREAU OF LANDMANAGEMENT DIVISION OF LANDS AND MINERALS, Defendant-Appellant, and Pauline Street Johnson; Farmers Union Cooperative Royalty Company, acorporation; Flag Oil Corporation of Delaware, a corporat
Case Date:June 08, 1981
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 700

651 F.2d 700 (10th Cir. 1981)

Cleo M. BRADFORD and LaJuan Gay Bradford, husband and wife,

Plaintiffs-Appellees,

v.

UNITED STATES of America, ex rel. DEPARTMENT OF INTERIOR,

BUREAU OF LANDMANAGEMENT DIVISION OF LANDS AND

MINERALS, Defendant-Appellant,

and

Pauline Street Johnson; Farmers Union Cooperative Royalty

Company, acorporation; Flag Oil Corporation of Delaware, a

corporation; Flag-Redfern OilCompany, a corporation; and J.

D. Lee, Defendants-Appellees,

State of Oklahoma, ex rel. Commissioners of the Land Office;

John S. Badger;and F. Blair Thorp Nuclear

Corporation of New Mexico, a

corporation,Defendants.

No. 79-1228.

United States Court of Appeals, Tenth Circuit

June 8, 1981

Argued Sept. 17, 1980.

Page 701

Martin Green, Atty., Dept. of Justice, Washington, D. C. (Sanford Sagalkin, Acting Asst. Atty. Gen., Washington, D. C., Larry D. Patton, U. S. Atty., and John E. Green, First Asst. U. S. Atty., Oklahoma City, Okl., Carl Strass, Atty., Dept. of Justice, Washington, D. C., with him on the brief), for defendant-appellant United States of America.

Larry M. Weber of Myers, Mollison & Weber, Altus, Okl., for plaintiffs-appellees, Cleo M. Bradford and LaJuan Gay Bradford.

James C. Pinkerton, Tulsa, Okl. (Carl Pinkerton, Tulsa, Okl., with him on the brief), for defendant-appellee Flag-Redfern Oil Co.

Granville Tomerlin of Tomerlin & High, Oklahoma City, Okl., filed brief for defendant-appellee Farmers Union Cooperative Royalty Company. Barney W. Miller of Miller, Smith & Dawson, Oklahoma City, Okl., joined in briefs of Farmers Union Cooperative Royalty Co. and Flag-Redfern Oil Co. for defendant-appellee Pauline Street Johnson. Charles C. Yon of Oklahoma City, Okl., joined in brief of Farmers Union Cooperative Royalty Co. for defendant-appellee J. D. Lee.

Before DOYLE, McKAY and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Plaintiffs Cleo M. and LaJuan Gay Bradford (Bradford) brought this quiet title action pursuant to 28 U.S.C. § 2409a. 1 Named as defendants were the owners of the property to the northwest of the Bradford land, including Pauline Street Johnson, Farmers Union Cooperative Royalty Company,

Page 702

Flag Oil Corporation, J. D. Lee and other interest holders (the Johnson defendants), and the owner of the property to the southeast of the Bradford land, the United States. The property of all parties to the litigation is contiguous to the Red River in Harmon County, Oklahoma.

The original complaint alleged that Bradford owned the entire bed of the Red River adjoining his land, and that the respective defendants owned the entire riverbed adjoining their lands. Bradford sought to establish the lateral boundaries extending across the river between his land and that of the Johnson defendants to the northwest and the United States to the southeast. Appendix A to this opinion is a copy of a diagram, drawn on a 1921 survey, that shows the approximate relationship of the parties' land to one another and to the Red River.

The Johnson defendants filed answers and cross-claims alleging ownership of the entire riverbed adjoining their property. In its answer, counterclaim and cross-petition, the United States admitted the riparian nature of the lands at issue, and that Bradford and the Johnson defendants were entitled to the north one-half of the Red River bed. But it asserted ownership of the south half of the riverbed on the basis of Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771 (1922). In addition, the United States raised 28 U.S.C. § 2409a(f) as an "affirmative defense." That statute provides:

"Any civil action under this section shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States."

The United States cited two decisions of the Supreme Court, Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771 (1922), and Oklahoma v. Texas, 260 U.S. 606, 43 S.Ct. 221, 67 L.Ed. 428 (1923), and their historical notoriety as the sole grounds for establishing the knowledge requirement of the statute.

Subsequently, Bradford filed an amended complaint disclaiming any interest in the south half of the riverbed and alleging only that through the acquisition of his riparian land he had acquired title to the north half. The Johnson defendants did not abandon their claims to the entire riverbed abutting their land.

Pursuant to a pretrial conference and order, Bradford and the United States agreed that the median line of the Red River bed and the boundary between their lands would be established by a recent U. S. Government survey. Bradford and the Johnson defendants agreed that the boundaries between their lands would be determined in accordance with the Oklahoma Supreme Court opinion in Goins v. Merryman, 183 Okl. 155, 80 P.2d 268 (1938). The pretrial order stated that the principal remaining issue was the ownership of the south half of the riverbed claimed by both the United States and the Johnson defendants. Although the pretrial order declared that the district court had jurisdiction over the cause of action, the statute of limitations issue raised in the answer of the United States was not mentioned.

The United States subsequently filed three briefs and an amended answer, all claiming ownership only of the south half of the riverbed adjoining the property of Bradford and the Johnson defendants. The riparian character of the lands was expressly admitted by the United States in these pleadings. The parties thereafter entered into stipulations that declared Bradford the owner of the north half of the riverbed adjoining his land and the United States the owner of the south half, established the boundaries between the lands of Bradford and the United States, resolved all factual disputes, and left the only remaining issue of law the ownership of the south half of the riverbed abutting the property of the Johnson defendants. The case was submitted to the trial court on these stipulations.

As we have stated, the United States based its claim upon the Oklahoma v. Texas

Page 703

cases, particularly the opinion reported at 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771 (1922). The Johnson defendants relied on Choctaw & Chickasaw Nations v. Seay, 235 F.2d 30 (10th Cir.), cert. denied, 352 U.S. 917, 77 S.Ct. 216, 1 L.Ed.2d 123 (1956). Appendix B is a copy of an historical map showing the relation of Oklahoma and the Red River to the lands involved in the cited federal actions. After tracing the history of the Oklahoma v. Texas litigation, the trial court concluded that those cases are not determinative here because they conclusively established ownership of the Red River bed only between the mouth of the North Fork and the 98th degree of west longitude, an area which does not include the land at issue in this case.

According to the stipulated facts, the lands of Bradford and the Johnson defendants and all of the adjoining bed of the Red River originally belonged to the United States. The United States issued the initial patent to the Bradford land to Bradford's predecessor in 1905, and the initial patent to the land now owned by the Johnson defendants in 1925. The common law rule concerning conveyances of riparian land was set out by this court in Seay :

"Under the common law, a grant of land bounded on a non-navigable river by a grantor who owns to the center or thread of the stream conveys to the grantee the land to the center or thread of the stream, unless the terms of the grant and the attendant circumstances clearly denote an intention to stop at the edge or margin of the river.

"When, however, the grantor owns the entire bed of the stream, but no part of the upland on the opposite side, in the absence of a clear indication of a contrary intention from the terms of the grant and the attendant circumstances, the grant will be construed to convey to the grantee the entire bed of the stream."

235 F.2d at 35 (emphasis added). The district court examined the original patent and the circumstances surrounding its conveyance and found no clear indication that the United States intended to retain any part of the Red River bed. Accordingly, it concluded that the Johnson defendants, as successors in interest to the original patentee, own the entire riverbed abutting their property.

The United States raises two issues on appeal. First, it renews its contention that the suit is barred by 28 U.S.C. § 2409a(f). Second, it argues for the first time that the lands at issue were not riparian either when patented or at any time thereafter, and that therefore principles of riparian ownership should not be applied. We hold jurisdiction to be established in this case as a matter of law. Moreover, under the circumstances surrounding this litigation, the interests of justice would not be served by allowing the Government to present a new theory of relief for the first time on appeal. In any event, the Government's new theory is totally without merit under long established principles of property law. Accordingly, the judgment is affirmed.

I.

The Government has consented to be sued in quiet title actions under 28 U.S.C. § 2409a(a). Such an action is barred, however, if it is commenced more than twelve years after the date upon which the plaintiff or his predecessor in interest knew or should have known of the claim of the United States. See 28 U.S.C. § 2409a(f). Timeliness is a jurisdictional prerequisite to suit under section 2409a. Knapp v. United States, 636 F.2d 279, 282 (10th Cir. 1980).

The complaint in this case expressly alleged...

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