Hogue v. Bourgois

• Decision Date: 11 May 1955
• Docket Number: No. 7469,7469
• Parties: Raymond HOGUE, Edward Hogue, Roy Small, Thore Naaden, A. R. Tavis, Paul Wachter, and Eugene Wachter, Plaintiffs-Appellants, and The State of North Dakota, Intervenor-Appellant, v. Ervin BOURGOIS, Milan G. Ward, Birlea O. Ward, Robert G. Ward; Imogene Ward Christensen, Claire Ward Engelhardt, and Steve Ward, Heirs of R. D. Ward, deceased; Callie Campbell, Stephen Callaway, James Callaway and Virginia Callaway Williamson, Heirs of Mrs. J. C. Calloway, deceased; Mrs. A. Lincoln Shute, Albert Bourgois, Martha Schmidt, Christine B. Bechill, Paul Bourgois, Ruth Bourgois, Ervin Bourgois, as Guardian of the Person and Estate of Ruth Bourgois, Incompetent, Sidney Bourgois, Gilbert Bourgois, Helen Bourgois, Josephine Hoge, Ira Hoge, William Hoge, Clara Fristad, Paul Hoge; Norman Hoge, Robert Hoge, Marlys Hoge Riker, Jerome Hoge, Catherine E. Morris, as Guardian of the Person and Estate of Jerome Hoge; May Alice Sims, Henry Entzel, Mathilda Entzel, Delilah Wetzstein, Katherine Borden, James T. McGillic, Blossom L. McGillic, Claude A. Henderson, Charles Zachmeier, Soder Investment Co., a corporation, Northern Pacific Railway Company, a corporation, Continental Oil Company, a corporation, The Pure Oil Company, a corporation, The Carter Oil Company, a corporation, Phillips Petroleum Company, a corporation, Shell Oil Company, a corporation, Federal Farm Mortgage Corporation, a corporation, Morton County, a public corporation, all persons unknown claiming by, through, or under the following deceased persons, viz., Martin Bourgois, Aidyth Ward, Gus Hoge, and Helene L. Bourgois, and all persons unknown claiming some interest or estate in or lien or encumbrance upon the property described in the complaint, Defendants-Respondents.
• Court: North Dakota Supreme Court

Page 47

71 N.W.2d 47

54 A.L.R.2d 633

Raymond HOGUE, Edward Hogue, Roy Small, Thore Naaden, A. R Tavis, Paul Wachter, and Eugene Wachter Plaintiffs-Appellants, and The State of North Dakota, Intervenor-Appellant, v. Ervin BOURGOIS, Milan G. Ward, Birlea O. Ward, Robert G. Ward; Imogene Ward Christensen, Claire Ward Engelhardt, and Steve Ward, Heirs of R. D. Ward, deceased; Callie Campbell Stephen Callaway, James Callaway and Virginia Callaway Williamson, Heirs of Mrs. J. C. Calloway, deceased; Mrs. A Lincoln Shute, Albert Bourgois, Martha Schmidt, Christine B. Bechill, Paul Bourgois, Ruth Bourgois, Ervin Bourgois, as Guardian of the Person and Estate of Ruth Bourgois, Incompetent, Sidney Bourgois, Gilbert Bourgois, Helen Bourgois, Josephine Hoge, Ira Hoge, William Hoge, Clara Fristad, Paul Hoge; Norman Hoge, Robert Hoge, Marlys Hoge Riker, Jerome Hoge, Catherine E. Morris, as Guardian of the Person and Estate of Jerome Hoge; May Alice Sims, Henry Entzel, Mathilda Entzel, Delilah Wetzstein, Katherine Borden, James T. McGillic, Blossom L. McGillic, Claude A. Henderson, Charles Zachmeier, Soder Investment Co., a corporation, Northern Pacific Railway Company, a corporation, Continental Oil Company, a corporation, The Pure Oil Company, a corporation, The Carter Oil Company, a corporation, Phillips Petroleum Company, a corporation, Shell Oil Company, a corporation, Federal Farm Mortgage Corporation, a corporation, Morton County, a public corporation, all persons unknown claiming by, through, or under the following deceased persons, viz., Martin Bourgois, Aidyth Ward, Gus Hoge, and Helene L. Bourgois, and all persons unknown claiming some interest or estate in or lien or encumbrance upon the property described in the complaint, Defendants-Respondents.

No. 7469.

Supreme Court of North Dakota.

May 11, 1955.

Rehearing Denied July 1, 1955.

Syllabus by the Court.

1. The Missouri River is a navigable stream in the State of North Dakota.

2. The title of the State of North Dakota to lands below low water mark of a navigable stream is coextensive with the bed of the stream as it may exist from time to time.

3. As patented lands riparian to a navigable stream are eroded and washed away by the action of the water and become submerged below low water mark the title to such submerged lands passes by operation of law to the State of North Dakota.

4. Where an island or accumulation of land forms apart from the mainland by the deposit of alluvial accretions in the bed of a navigable stream the title to such island or accumulation of land, together with all additions thereto formed by natural causes through the gradual and imperceptible process of accretion, is vested in the State of North Dakota.

5. The owner of an island in a navigable stream is entitled to land added thereto by accretion to the same extent as the owner of land on the shore of the mainland. Where the accretion commences with the shore of the island and afterward extends to the mainland, or any distance short thereof, all the accretion belongs to the owner of the island; but, where accretions to the island and to the mainland eventually meet, the owner of each owns the accretions to the line of contact.

6. The evidence in this case is examined and it is Held: That the island or accumulation of land known as Bourgois Island was formed apart from the mainland by the deposit of alluvial accretions in the bed of the Missouri River, a navigable stream; that additions were formed thereto by natural causes through the gradual and imperceptible process of accretion; and that the plaintiffs, by competent survey, have established for all practical purposes the boundary of the island and the line of contact between it and the mainland and, under the applicable statutes and rules governing alluvial accretions and riparian rights, have perfected title to the island.

Strutz, Jansonius & Fleck, Bismarck, for appellants.

Charles D. Cooley, Mandan, for plaintiffs-appellants.

Paul Benson, Atty. Gen., and C. E. Brace, Asst. Atty. Gen., for intervenor and appellant the State of North Dakota.

Rausch & Chapman, Bismarck, for defendant Ervin Bourgois, individually and on behalf of all the heirs of Martin Bourgois, deceased.

C. L. Young, Bismarck, for defendants Milan G. Ward, Birlea O. Ward, Robert G. Ward and the heirs of R. D. Ward, the heirs of Mrs. J. C. Calloway, Mrs. A. Lincoln Shute, and the heirs of Aldyth Ward.

Register & Thompson, Bismarck, for defendant Soder Investment Company.

Cox, Cox, Pearce & Engebretson, Bismarck, for defendants Continental Oil Company, The Pure Oil Company, The Carter Oil Company and Phillips Petroleum Company.

EUGENE A. BURDICK, District Judge.

This is an action to quiet title and to determine adverse claims to a tract of land surveyed and platted as 'Bourgois Island' in Burleigh County. The plaintiffs allege title by appropriate conveyance from the State of North Dakota by its Board of University and School Lands in June, 1950 and contend that Bourgois Island formed as an island in the Missouri River and grew to its present size by the accretion of alluvial deposits. The defendants by answer deny the allegations of ownership by the plaintiff and allege ownership of Bourgois Island by virtue of various grants in the chain of title from the patentees of the federal government. The action was tried to the Hon. George Thom, Jr., District Judge, without a jury. The district court made its findings of fact, conclusions of law and order for judgment and judgment was entered thereon in favor of the defendants and against the plaintiffs. The plaintiffs have perfected an appeal from the judgment and have demanded a trial anew in this court.

The uncontroverted testimony shows that the Missouri River in the vicinity of the lands in controversy flows in a southerly direction. In this locality the west bank of the river is Morton County and the east bank is Burleigh County. At the time of the original government survey in 1876 the riparian lands on the east bank were Lots 1, 2, 3, and 4 of Section 27, Lots 1, 2, and 3 of Section 34, and Lot 1 of Section 33 in Township 140 North of Range 81 West of the Fifth Principal Meridian and Lot 1 of Section 4 in Township 139 North of Range 81 West of the Fifth Principal Meridian. These lots were surveyed by the federal government and meandered on the plat to conform to the flowage of the Missouri River. The lots claimed by the defendants were eventually patented and conveyed in varying interests to the defendants.

In about the year 1904 a sand bar formed in the Missouri River immediately to the west of Lots 1, 2, and 3 of said Section 34. This bar formed by the deposit of alluvial accretions to the bed of the stream overlying stratum of earth which had never previously been patented or granted and became the nucleus of Bourgois Island. When first recognized the bar comprised between fifteen and twenty acres. The current of the stream bifurcated and formed a channel on either side of the bar. A navigable channel has always existed on the west side of the bar. At about the same time the bar appeared the east channel of the river commenced to erode the mainland on the east. River boats navigated the channels on both sides of the bar. The erosion of the mainland proceeded eastward at a rate of about twenty to forty rods per year until about 1922 at which time the east channel reached its farthermost limits. In this process patented lands claimed by defendants were totally destroyed. As the east channel moved eastward the east side of the bar which formed the west bank of the east channel grew progressively and imperceptively by the deposit of alluvion by the process of accretion. By 1928 the bar, by reason of aggradation which occurs in the Missouri River during periods of high water, had been built up in elevation to the point where it had become fast dry land comprising several hundred acres and was capable of being used for grazing and other agricultural purposes and had achieved the stability and dignity of an island. This is evidenced by the fact that in the spring of the year 1928 the State Land Department assumed control over this island and leased it to W. F. and F. L. Schafer for agricultural purposes for the season of 1928.

In the course of time, as the river spent its force in the lengthened east channel, the west channel resumed the entire burden of the stream. The east channel gradually filled up by sedimentation from the more sluggish current. By 1942, the east channel had stopped flowing altogether during periods of low water, but continued to flow during periods of high water. Continued exposure to high water increased the aggradation of the bed of the east channel and added accretions to the mainland as well as to the island so that the island and the mainland became virtually joined except during periods of high water. The island and the mainland maintained their individual character during the time the east channel of the river changed from a navigable and destructive current to a harmless strip of lowlands connecting the island to the mainland. At no time did the current in the east channel of the river reverse its action and appreciably erode the island or materially restore to the mainland alluvial deposits by accretion, although there is evidence that as the stream in the east channel ceased to flow, alluvial deposits were restored to the mainland to the line of contact between it and the island in the bed of the east channel. See illustrative sketch by the court.

The defendants do not contend nor does the evidence establish that the defendants or those through whom they claim have perfected title upon any theory of adverse possession or prescriptive use.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The defendants contend only that while the lands of their predecessors in interest were washed away by erosion of the river, lands, by alluvial accretions,...