Nesbitt v. Wolfkiel

• Citation: 598 P.2d 1046,100 Idaho 396
• Decision Date: 15 June 1979
• Docket Number: No. 12510,12510
• Parties: Donald B. NESBITT and Betty L. Nesbitt, husband and wife, Plaintiffs-Appellants, v. Albert WOLFKIEL and Ruth Wolfkiel, husband and wife, Defendants-Respondents.
• Court: United States State Supreme Court of Idaho

Page 1046

598 P.2d 1046

100 Idaho 396

Donald B. NESBITT and Betty L. Nesbitt, husband and wife, Plaintiffs-Appellants, v. Albert WOLFKIEL and Ruth Wolfkiel, husband and wife, Defendants-Respondents.

No. 12510.

Supreme Court of Idaho.

June 15, 1979.

Rehearing Denied Sept. 7, 1979.

Roger L. Williams of Schiller, Williams & Schiller, Nampa, for plaintiffs-appellants.

Leon R. Weeks of Weeks, Yost, White & Ahrens, Nampa, for defendants-respondents.

DONALDSON, Justice.

Appellants, Donald and Betty Nesbitt, originally brought this action in district court seeking damages for the respondents', Albert and Ruth Wolfkiel, alleged willful trespass upon land purportedly belonging to the Nesbitts. The Wolfkiels denied any trespass, and asserted that they are the owners of the land in question and that the Nesbitts are the trespassers. In a memorandum opinion after a trial on the merits, the trial court held that the Wolfkiels acquired title to the disputed property by accretion as well as adverse possession. The Nesbitts then brought this appeal.

The facts surrounding this litigation, as determined by the trial court in its memorandum decision, are as follows. The Nesbitts own lot 2, section 16, Township 4 North, Range 1 West, Boise Meridian, Ada County, Idaho as well as other properties in the area of lot 2 not pertinent to this action. The Wolfkiels own lot 7 of section 16, Township 4 North, Range 1 West, Boise Meridian, Ada County, Idaho. They also own other land in this area not pertinent to this action.

The United States Government patented both lot 2 and lot 7 to the predecessors in title of the parties to this action. Originally, lot 2, containing 29.80 acres, was situated north of the Boise River, and lot 7, containing 35.78 acres, was directly opposite lot 2 to the south and across the river. At the time the lots were originally surveyed in 1867, both were riparian lots on the Boise River. That same survey indicates that in 1867 the Boise River flowed through this disputed area in a channel south of where it flows today. Thus the mutual boundary between lot 2 and lot 7 in 1867 was the southerly channel of the Boise River. From 1867 to 1930 the Boise River, as a result of upstream dam construction, cut a new channel several hundred feet north of the old southerly channel. Over that period of time the south channel began to recede, and in 1943 it ceased to flow except at periods of high water.

From the time that the Wolfkiels took possession of lot 7 in 1947, having procured it from Mr. Wolfkiel's father's estate, they occupied lot 7 as well as the ground which was formerly the southern channel of the Boise River and that portion of lot 2, located south of the new north channel of the Boise River. Mr. Wolfkiel testified that he had helped his father fence the disputed piece of property down to and along the northern channel of the Boise River in 1930 and that that fence had been maintained there for the past 40 to 45 years. He stated further that he had used the disputed property as a feedlot at one time and that he made improvements to the property consisting of feeder bins. Further, the Wolfkiels pastured cattle in this area from time to time since they took possession of lot 7.

The Ada County Tax Assessor's Office has always taxed the Nesbitts and the Wolfkiels by reference to lot 2 and lot 7 respectively, without any description by metes and bounds. From the time that the Nesbitts took possession of lot 2 until 1967, they paid property tax on lot 2 for the full 29.80 acres. In 1967 the Assessor's Office discovered that the course of the Boise River had changed in a northerly direction. As a result, from 1967 to the present, the Assessor's Office has only assessed the Nesbitts with a property tax on that part of lot 2 lying north of the Boise River where it presently flows. The Assessor's Office never reassessed any part of the property which the Nesbitts lost from lot 2 because of the river's change in direction to the Wolfkiels as part of lot 7. The Wolfkiels have always paid the property tax with respect to the original 35.78 acres contained in lot 7, but they have never paid any property tax, nor did the Assessor's Office ever assess them a tax, for the property now in dispute.

Based on these facts the trial judge concluded that the Wolfkiels acquired title to the disputed property by accretion and that the Nesbitts lost title to the disputed property by erosion. The court concluded further that given the growth of lot 7 by accretion and considering the evidence in support of the fact that the Wolfkiels and their predecessors in interest paid all taxes assessed on lot 7, fenced and improved the disputed property as well as grazed cattle on it, the Wolfkiels made out a case of title by adverse possession under I.C. § 5-210.

The essential issue which the Nesbitts raise on appeal is whether the evidence adduced at trial supports the trial court's conclusions. We limit our review, of course, to a determination of whether there is competent evidence in the record before us to support the trial court's conclusions. Edgeller v. Johnston, 74 Idaho 359, 368, 262 P.2d 1006, 1011 (1953). Where there is evidence to support the trial court's findings, this Court will not disturb them on appeal. Id. Based on our review we hold that there was insufficient evidence upon which the trial court could conclude that the Wolfkiels established title to the disputed property on the basis of accretion but that there was sufficient evidence to support his conclusion that the Wolfkiels established title on the basis of adverse possession.

In his memorandum decision the trial judge noted the generally accepted rule that the owner of riparian land acquires title to all additions to his land caused by accretion and loses title to such portions of his land which are worn or washed away by erosion by water in a stream, unless the change takes place suddenly by avulsion. ¹ See 78 Am.Jur.2d 406 et seq. Further, the trial judge interpreted the case of Joplin v. Kitchens, 87 Idaho 530, 394 P.2d 313 (1964) to stand for the proposition that "(i)f there is no evidence to the contrary, it is presumed that the change in location of a river channel was not by avulsion." The court concluded that since in this case there was no specific evidence that the river changed by avulsion, the presumption of accretion would apply. Thus the Wolfkiels acquired title to the disputed property by accretion and the Nesbitts lost title to that same property by erosion. It is true that absent clear evidence to the contrary, the law will presume accretion rather than avulsion. See generally 78 Am.Jur. 2d Waters § 427 (1975). However, the presumption is overcome where the evidence sufficiently shows an avulsive change. State ex rel. Com'rs of Land Office v. Seelke, 568 P.2d 650 (Okl.App.1977).

The record before us indicates that when a survey was conducted in 1867, the Boise River flowed through the southern channel only. The northern channel has been generally located in the area where it now flows since the early 1920's; although, water continued to flow through the southern channel at times of high water until 1943. It is evident, therefore, that sometime during the period of 1867 to the early 1920's the river substantially changed course to the northern channel.

We also note, as did the trial court, that it was during this period of time that the Boise River was considered to be a vagrant stream. Scott v. Watkins, 63 Idaho 506, 122 P.2d 220 (1942); Fischer v. Davis, 24 Idaho 216, 133 P. 910 (1913). Because of the vagrant nature of the Boise River from 1867 until the early...