Murray v. State

• Decision Date: 09 June 1979
• Docket Number: No. 49565,49565
• Citation: 596 P.2d 805,226 Kan. 26
• Parties: James D. MURRAY et al., Appellants, v. STATE of Kansas et al., Appellees.
• Court: Kansas Supreme Court

Page 805

596 P.2d 805

226 Kan. 26

James D. MURRAY et al., Appellants, v. STATE of Kansas et al., Appellees.

No. 49565.

Supreme Court of Kansas.

June 9, 1979.

Syllabus by the Court

1. The interpretation placed on the Constitution and laws of the United States by the decisions of the Supreme Court of the United States is controlling upon state courts and must be followed.

2. The State of Kansas owns the riverbed of navigable rivers within the boundaries of this state.

3. Whether a river changes boundaries by avulsion or accretion is a question of fact to be determined from the evidence.

4. Avulsion is the sudden visible and violent movement of the channel due to storm, flood, or other known violent cause.

5. Accretion is the slow and imperceptible deposit of alluvium or silt on one bank and erosion of the other bank which gradually changes the location of the river channel.

6. When a river or other watercourse is the boundary line between land owned by different parties, the boundary moves as the river's location changes by accretion. If, however, the river suddenly changes its course by avulsion the boundary line remains at the old channel and is forever stabilized there.

7. Where the course of a navigable river moves slowly by accretion, the state continues to own the riverbed while the riparian owner on one side may lose land which is eroded or washed away, and the riparian owner on the other side may gain land by the process of accretion.

8. When a navigable river changes course by avulsion, the state must acquire title to the new channel by purchase or condemnation; it retains title to the abandoned channel, which it may sell; and the holdings of the owners of land riparian to the old channel are unaffected by the avulsive change.

9. The process of erosion-accretion is gradual; while the erosion process may be visible, it is something that occurs naturally, slowly, and regularly; the accretion process is gradual and imperceptible; and a new channel is never Suddenly formed.

10. The process of avulsion is characterized by a sudden or rapid change; a new channel is formed, usually by a violent eruption or major flood; and there is visible evidence thereafter of an abandoned river channel.

11. Where there is a dispute as to whether changes in the course of a river resulted from accretion or avulsion, there is a presumption that the changes resulted from gradual erosion and accretion; one who claims that the change was by avulsion has the burden of showing the avulsion.

John D. Conderman of Arthur, Green, Arthur & Conderman, Manhattan, argued the cause and was on the brief for appellants.

Donald Patterson of Fisher, Patterson, Sayler & Smith, Topeka, argued the cause and was on the brief for appellees Albert D. Wood, Frank Miller, Jr., and Winifred Miller.

Janet A. Chubb, Asst. Atty. Gen., argued the cause, and Curt T. Schneider, Atty. Gen., and Jonathan P. Small, Asst. Atty. Gen., were with her on the brief for appellee State of Kansas.

MILLER, Justice:

This is an appeal by the plaintiffs, James D. Murray and Jeanne F. Hoffman, individually and as trustees of certain trusts created in the wills of Edward F. Murray, Sr. and Esther M. Murray, from judgment entered in the Riley District Court quieting title to certain real estate in the defendant, Albert D. Wood, and quieting title to certain other real estate in the defendants, Frank Miller, Jr. and Winifred Miller. The plaintiffs, who will be referred to as the Murrays, are the appellants; defendants Wood and the Millers, together with the State of Kansas, appear as appellees.

Prior to 1951, land owned by the Murrays, land owned by the Millers, and land owned by Wood, were each riparian to the Kansas river, a navigable stream. The river channel change suddenly, or by avulsion, following the 1951 flood. The State of Kansas, in 1967, sold the abandoned riverbed to the Millers and to Wood, and issued patents to them. The principal issues before us in this appeal are whether the river channel moved by accretion or avulsion during the period from 1857 to 1951; whether the State owned the land it sold in 1967; and whether the sale and conveyance by the State, without notice to the Murrays, was procedurally and constitutionally valid.

OWNERSHIP OF THE LAND

The land here involved lies in the west half and the northeast quarter of section 33, township 10 south, range 7 east of the 6th principal meridian in Riley County, Kansas. Murrays owned (for all purposes here involved) the northwest quarter of section 33. Wood and the Millers owned land in the southwest quarter of section 33, and the Millers also owned a tract in the northeast quarter of that section. According to the 1857 government survey, the Kansas river channel traversed the southwest quarter of section 33, starting in approximately the middle of the south line of the southwest quarter and proceeding in a northeasterly direction toward the northeast corner of that quarter section. The river proceeded across the southeast corner of the northwest quarter and then continued into the east half of section 33.

The Millers, Wood, and the Murrays each derived title by mesne conveyances from the patentees designated in United States Patents issued more than a century ago. The Millers were the owners of Lot 5, which originally included all that part of the southwest quarter of section 33, lying east of the Kansas river, and also Lot 3, which included all that part of the northeast quarter of section 33 lying east of the Kansas river. Wood was the owner of Lots 6 and 7, which included all that part of the southwest quarter of section 33 lying west of the

Kansas river. The Murrays were the owners of Lot 2, which included all that part of the southeast quarter of the northwest quarter of section 33 lying north and west of the Kansas river. The 1857 survey indicates that Lot 2 then contained 31 acres. Between 1857 and 1951, the river channel moved in a northwesterly direction into the northwest quarter, thus markedly reducing the acreage in Lot 2 lying north and west of the river. Immediately prior to the 1951 flood, Lot 2 had shrunk to approximately 9 acres, plus railroad and highway rights of way and a small triangular acreage north and west of the highway which is not involved here. During the flood, the nine acre tract was further eroded, and the river cut a new channel about one mile to the southeast.

A CHANGE IN FEDERAL DECISIONAL LAW

The petition was filed and this case was commenced on December 14, 1973. Three days later, on December 17, 1973, the United States Supreme Court handed down its opinion in Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 94 S.Ct. 517, 38 L.Ed.2d 526 (1973), holding that ownership of the abandoned riverbed of a navigable stream is governed by federal law. The Colorado river's course was changed by a federal rechanneling project; the Supreme Court of Arizona had held that the change in the river's course was an avulsive change, and that under Arizona law, title to the abandoned riverbed remained in the State. The United States Supreme Court reversed, holding that title to the abandoned riverbed vested in the riparian landowners under the applicable federal common law.

The case now before us was briefed and tried under the Bonelli doctrine. However, before a final judgment was entered, the United States Supreme Court on January 12, 1977, announced its decision in State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977), overruling the Bonelli decision. Corvallis holds that the determination of title to the abandoned bed of a navigable river is a matter determinable under state law, rather than under the federal common law.

At the time the decision in Corvallis was announced, the trial court in this case had communicated its findings to counsel, but stated that a journal entry of judgment could not be entered until a survey was made; thus, no journal entry had been filed and judgment had not been entered. Shortly after the Corvallis decision was announced, defendants Miller and Wood filed a motion asking the trial court to set aside its conclusions of law (which were based on Bonelli ); to adopt new conclusions, based on Corvallis and the applicable Kansas law; and to settle the form of the journal entry. That motion was sustained, and the final journal entry of judgment was filed September 19, 1977, incorporating the Corvallis holding as the law of this case.

THE TRIAL COURT'S JUDGMENT

The evidence was hotly disputed; there was testimony from the parties; from many witnesses who had observed the land from shortly after the turn of the century until the time of trial; and from expert witnesses: surveyors, a geologist, and a forester. The trial judge made detailed findings and conclusions 41 separate findings of fact and 27 conclusions of law which we summarize as follows:

FINDINGS OF FACT

"2. By a patent issued by the United States of America, dated September 1, 1860, plaintiffs' predecessors in title were granted title to (lot 2, section 33, township ten south, range 7 east, in the district of lands formerly subject to sale at Ogden now Junction City, Kansas).

"3. Lot 2 . . . was bordered at the time of the Government Survey (1857) . . . on the south and east by the Kansas River . . .

"5. Plaintiffs acquired title to (lot 2, with certain exceptions not here material) as a result of the administration of the estates of Esther Mabel Murray and E. F. Murray, Sr. "7. Miller, on the 24th day of April, 1957, by Warranty Deed, acquired title to Lot 5 . . .

"8. On the 29th day of June, 1956, Miller acquired title to a portion of Lot 3 . . .

"8a. At all and any times material to this action any ground that was north of the south line of the northwest quarter of Section 33, Township 10 South, Range 7 East of the 6th Principal Meridian and west of the east line of the northwest quarter of said Section 33, but southeast of...