Bear v. U.S.

• Decision Date: 21 January 1987
• Docket Number: Nos. 85-2485,2487NE,s. 85-2485
• Citation: 810 F.2d 153
• Parties: Robin Ann BEAR, et al., Appellants/Cross-appellees, v. UNITED STATES of America, et al., Appellees (Two Cases). The WINNEBAGO TRIBE OF NEBRASKA, Appellant/Cross-appellee, v. UNITED STATES of America, Appellee, The State of Iowa, Appellee/Cross-appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 153

810 F.2d 153

Robin Ann BEAR, et al., Appellants/Cross-appellees, v. UNITED STATES of America, et al., Appellees (Two Cases).

The WINNEBAGO TRIBE OF NEBRASKA, Appellant/Cross-appellee, v. UNITED STATES of America, Appellee, The State of Iowa, Appellee/Cross-appellant.

Nos. 85-2485, 2487NE.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 13, 1986.

Decided Jan. 21, 1987.

Dale T. White of Boulder, Colo., for appellants/cross-appellees.

Sarah P. Robinson of the Dept. of Justice in Washington, D.C., John P. Sarcone, Asst. Atty. Gen., Des Moines, Iowa, for appellees.

Before LAY, Chief Judge, FAGG, Circuit Judge, and LARSON, Senior District Judge. ^*

LARSON, Senior District Judge.

The Winnebago Tribe of Nebraska and several heirs of individual Indian allottees brought suit to quiet title to accreted lands located in Nebraska and Iowa along the Missouri River. All of the land sought by the Tribe and much of the land sought by the heirs of the individual allottees was subject to condemnation proceedings by the United States in the 1970s, and is currently held by the United States. The remainder of the land sought by the heirs is held by two private parties: Briar Cliff College and Sinsinawa Dominican Congregation of the Most Holy Rosary.

The district court granted summary judgment against the Tribe and the heirs, holding that their actions were barred by the doctrine of res judicata as a result of the earlier condemnation proceedings, and further that the heirs' claims were barred by conveyance of the original allotments in 1927 and 1928. Bear v. United States, 611 F.Supp. 589, 595, 602 (D.Neb.1985). Both the Tribe and the heirs have appealed to this Court.

We believe that the individuals transferred away any claims to the accretions which they might have had and find that despite a void settlement between the Tribe and its co-defendant the State of Iowa in the prior condemnation proceeding, the Tribe's claims against the United States in this action are barred by the doctrine of res judicata. Accordingly, we affirm the district court's dismissal of all of plaintiffs' claims.

1. The Individual Allottees' Claims

The individual Indian plaintiffs are the heirs of two Indians, Reuben DeCora and Mrs. Jackson, who received 40 and 39.50 acre allotments from the federal government in 1872. The 40 acre DeCora allotment originally was not riparian to the Missouri River, but it became so between 1872 and 1906 while DeCora still held the allotment. The 39.50 Jackson allotment was only partially riparian in 1872. Like the DeCora allotment, however, the Jackson allotment became fully riparian by 1906. Lands accreted to both tracts as the river gradually receded between 1875 and 1923.

Some time thereafter, both DeCora and Jackson died, and their heirs received trust patents for their allotments. In both cases, the heirs petitioned the United States to sell the allotments, and Thomas Ashford bid on and purchased both parcels. The General Land Office issued fee patents to Ashford for the DeCora allotment on November 1, 1927, and for the Jackson allotment on March 31, 1928.

The current heirs agree the original allotments were conveyed to Ashford in 1927 and 1928, but claim the accreted land was not. The deeds to Ashford contain no exception for the accretions, however, and the district court applied the "well-established principle that accretions ordinarily pass upon a conveyance of a parcel of real estate absent a specific reservation of title." 611 F.Supp. at 595. The court thus found as a matter of law that the accreted lands passed to Ashford and that the heirs had no claim to those lands.

The heirs argue on appeal that the rule relied upon by the district court applies only where the deed or patent conveying the property refers to the land "as shown by the official government survey" and the parcel is shown as being riparian according to that survey. We do not agree that the rule is so limited. Courts have recognized the doctrine in all instances of riparian land, including situations where non-riparian land has become riparian over time. See, e.g., Bone v. May, 208 Iowa 1094, 225 N.W. 367, 368-69 (1929); Worm v. Crowell, 165 Neb. 713, 87 N.W.2d 384, 389-90 (1958). See also III American Law of Property, § 15.27 at 857-58 (1952 & Supp.1977). This is most consistent with the rationale behind the rule, namely, that when land conveyed is bounded by water "it may well be regarded as the expectancy of both grantor and grantee that it should continue to be so bounded," so that the owner "will not be shut off from the water." III American Law of Property, supra, § 15.27 at 857, 859 (footnotes omitted). "Public policy established by custom practically from the inception of the common law is therefore the basis of this law." Id. at 859 (footnote omitted).

The Supreme Court has recognized the universal acceptance of this rule, noting differences only in the descriptions of the rule's rationale:

By some, the rule has been vindicated on the principle of natural justice, that he who sustains the burden of losses and of repairs, imposed by the continguity of waters, ought to receive whatever benefits they may bring by accretion; by others it is derived from the principle of public policy, that it is the interest of the community that all land should have an owner, and most convenient that insensible additions to the shore should follow the title to the shore itself.

Jefferis v. East Omaha Land Co., 134 U.S. 178, 189, 10 S.Ct. 518, 520, 33 L.Ed. 872 (1890) (citation omitted). See Hughes v. Washington, 389 U.S. 290, 293-94, 88 S.Ct. 438, 440-41, 19 L.Ed.2d 530 (1967); DeBoer v. United States, 653 F.2d 1313, 1315 (9th Cir.1981).

Thus, the authorities have consistently maintained that accretions must be expressly excluded from a conveyance to avoid their transfer. See III American Law of Property, supra, § 15.27 at 859; Wemmer v. Young, 167 Neb. 495, 93 N.W.2d 837, 851 (1958); Worm v. Crowell, supra, 87 N.W.2d at 390. This Court has previously held that alloted lands are treated no differently. Fontenelle v. Omaha Tribe, 430 F.2d 143, 147 (8th Cir.1970). Because the accretions to the DeCora and Jackson allotments were not exempted from the conveyances to Ashford in this case, Ashford received title to the accretions as well as to the original allotments and the heirs have no valid claim to any of these lands.

The heirs argue that the "substantial accretion" rule changes this result, but we do not agree. The "substantial accretion" rule has been applied in situations where the government has granted a patent to land which had been surveyed long before entry on the land and which, unknown to the government, had benefited from the addition of substantial accretions where the purchaser would be unjustly enriched by ownership of the accretions. DeBoer v. United States, 653 F.2d 1313 1315-16 (9th Cir.1981); Smith v. United States, 593 F.2d 982, 984-88 (10th Cir.1979). Assuming the heirs of individual allottees could stand in the same shoes as the government, there is no evidence that the heirs who conveyed the allotments were unaware of the accretions. In fact, the accretions formed while the original allottees were in possession of the land and before its transfer to Ashford. The heirs who actually sold the property were also in possession and had been renting the land prior to its sale.

Moreover, while the heirs characterize Ashford's payments of $1203 for the Jackson allotment and $1500 for the DeCora allotment as compensation for the original allotments only, there is no evidence of unjust enrichment. A similar tract with accretions of 520 acres sold for only slightly more money than the DeCora and Jackson allotments ($1600), yet the DeCora and Jackson accretions were smaller in size: 200 and 300 acres respectively.

Thus, we believe the district court correctly held that the individual allottees heirs' claims should be dismissed on the ground that the conveyances to Ashford in 1927 and 1928 included the accreted land along with the original allotments. ¹

2. The Tribe's Claims

The Tribe's claims to accreted lands involve consideration of a different set of circumstances. All of the land claimed by the Tribe was the subject of condemnation proceedings initiated by the United States in 1970, in which the Tribe and the State of Iowa, among others, were defendants. The Tribe claimed ownership of the land as accretions to the Winnebago Reservation, just as it seeks to do in this action. The State claimed ownership to the same land under its sovereign doctrine of state ownership of the bed and banks of navigable streams.

Prior to the hearing on the issues of ownership and just compensation, ² the Tribe and the State entered into a stipulation "to effect a settlement of their respective property rights ... and to avoid the expense and inconvenience entailed in litigating said title disputes" in which the Tribe relinquished its alleged right to the lands at issue in exchange for a parcel of real estate from Iowa known as Omadi Bend, or alternatively, for $45,000. The stipulation was signed by attorneys for the Tribe and the State.

After the stipulation was executed, the condemnation action proceeded, and after hearing, the district court held that the State of Iowa owned the land. The United States was subsequently awarded title to the land through the court's condemnation judgment, and Iowa received just compensation for the land from the United States. The court's judgment specifically provided:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all defendants, known or unknown, named and designated in the Complaint filed herein, other than the parties to whom compensation is specifically awarded herein, are forever barred and excluded from asserting any right, title, interest or estate in lien upon, or claim against, the estate taken in said tract.

No appeal was taken by the Tribe.

The Tribe argued...