Perry v. Erling

• Decision Date: 22 January 1965
• Docket Number: No. 8161,8161
• Citation: 132 N.W.2d 889
• Parties: Isabel M. PERRY, Plaintiff and Respondent, v. James P. ERLING, Margaret H. Erling, and Margaret H. Erling, James Phillip Erling and Philip B. Vogel, as Executors of the Estate of Herman C. Erling, Deceased, and Jack Fox, Gladys Fox, Rose Marie Erling, Defendants and Appellants, Park District of the City of Bismarck, a public corporation, Defendant and Appellant, Warren Whitson et al., Defendants.
• Court: North Dakota Supreme Court

Page 889

132 N.W.2d 889

Isabel M. PERRY, Plaintiff and Respondent, v. James P. ERLING, Margaret H. Erling, and Margaret H. Erling, James Phillip Erling and Philip B. Vogel, as Executors of

the Estate of Herman C. Erling, Deceased, and Jack Fox,

Gladys Fox, Rose Marie Erling, Defendants and Appellants,

Park District of the City of Bismarck, a public corporation,

Defendant and Appellant,

Warren Whitson et al., Defendants.

No. 8161.

Supreme Court of North Dakota.

Jan. 22, 1965.

Rehearing Denied Feb. 23, 1965.

Syllabus by the Court

1. Where land which was riparian at the time of the original survey is lost by erosion, so that nonriparian land becomes riparian, and land is thereafter built by accretion to the land which was originally nonriparian, extending over the location formerly occupied by the original riparian land, the owner of the land which was originally nonriparian his title only to the accreted land within the boundaries of the formerly nonriparian tract; and all other land so accreted, extending over the area formerly occupied by the land of the original riparian owner, becomes the property of the owner of the original riparian land.

2. Questions of whether a receiver's receipt should be cancelled and whether a patent should be issued are wholly within the jurisdiction of the Department of the Interior of the United States; and where these questions are at issue in a proceeding before the Secretary of the Interior, this court is without jurisdiction to make an adjudication determining title dependent thereon.

3. Where the record shows that parties are in possession of land under color of title, although title thereto is dependent upon the determination of an issue exclusively within the Department of the Interior of the United States, the parties in possession are entitled to have that possession protected until the issue of title is decided by the Department of the Interior.

Zuger, Zuger & Bucklin, Bismarck, for defendant and appellant Park District of City of Bismarck.

William R. Mills, Bismarck, for defendants and appellants James P. Erling, Margaret H. Erling, and Margaret H. Erling, James Phillip Erling, and Philip B. Vogel, as Executors of Estate of Herman C. Erling, Deceased, and Jack Fox, Gladys Fox, and Rose Marie Erling.

Milton K. Higgins, Bismarck, for plaintiff and respondent.

ERICKSTAD, Judge.

In this case we have two separate appeals from a judgment entered in December, 1963, by the District Court of Burleigh County, quieting title to certain land in the plaintiff, Isabel M. Perry. A trial do novo is demanded.

The defendant Park District of the City of Bismarck, a public corporation, appeals, contending that the Perry action should have been dismissed for the reason that the contested land is owned by the United States Government. Defendants Erling et al. appeal, contending that title to the land should be quieted in the executors of the last will of Herman C. Erling, deceased, on the strength of their counterclaim.

The plaintiff, Mrs. Perry, claims that she is the owner of all land formed as alluvion to the Northeast Quarter of Section 8, Township 138 North of Range 80, situated in Burleigh County, North Dakota, consisting of that land extending west from the western boundary of said Northeast Quarter to the east bank of the Missouri River at low water mark. She claims that said tract of land is alluvion, built by the process of accretion to the Northeast Quarter of said Section 8, and that this land belongs to her as the grantee of a deed from the owner of the Northeast Quarter. She acknowledges that the fractional Northwest Quarter of Section 8, more correctly described as the East Half of the Northwest Quarter and Lots 1 and 2, all in Section 8, and the fractional Northeast Quarter of Section 7, more correctly described as Lot 1 of Section 7, were in existence as public domain when the land was originally surveyed in 1872; that Lots 1 and 2 of Section 8 and Lot 1 of Section 7 were riparian; that these lots and the East Half of the Northwest Quarter of Section 8 were intervening tracts between the Northeast Quarter of Section 8 on the east and the Missouri River on the west; and that therefore the Northeast Quarter of Section 8 was not riparian land at the time of the original survey.

She contends that sometime between 1872 and the present time the Missouri River moved eastward, so that all of the intervening land and some of the Northeast Quarter was lost by erosion, whereby the remaining portion of the Northeast Quarter of Section 8 became riparian, and that thereafter land was rebuilt by imperceptible degrees to the said Northeast Quarter, extending over the locations of the former intervening tracts and some distance beyond those tracts as the river receded to the west.

The following is a reproduction of the pertinent portion of a plat of the original government survey of 1872.

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

The defendant Park District contends that the plaintiff failed to prove that all of the intervening land was lost by erosion and that thereafter the land in contest was rebuilt by imperceptible degrees as accretion to the Northeast Quarter of Section 8 but maintains that, even if this were proved, the plaintiff, a nonriparian owner at the time of the original survey, could claim title only of the accretions within the boundary lines of the Northeast Quarter of Section 8; and that all other accretions extending across the western boundary of said Northeast Quarter to the Missouri River on the west became the property of the owner of the former intervening riparian land.

Our statute on accretions reads as follows:

'47-06-05. Riparian accretions.--Where from natural causes land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material or by the recession of the stream, such land belongs to the owner of the bank, subject to any existing right of way over the bank.' North Dakota Century Code.

Heretofore this court has not been asked to apply this statute to factual situations similar to this case. The decisions of other courts which have considered comparable facts are in conflict. The rule contended for by the plaintiff is stated by an early Iowa decision which cites a number of cases in support thereof.

'It also appears to be the law that, where the lands of a riparian owner have been slowly and gradually eroded by a navigable stream, and the river has usurped and taken up the location of said land, the riparian owner of the land at the newly formed river bank becomes entitled to the accretions that may thereafter be formed against said bank, even though they should extend over the same territory where lands of a former riparian owner had been located before the erosion took place. * * * Yearsley v. Gipple, 104 Neb. 88, 175 N.W. 641, 8 A.L.R. 636; Welles v. Bailey, 55 Conn. 292, 10 Atl. 565, 3 Am.St.Rep. 48; Widdecomb[e] v. Chiles, 173 Mo. 195, 73 S.W. 444, 61 L.R.A. 309, 96 Am.St.Rep. 507; Wood v. McAlpine, 85 Kan. 657, 118 Pac. 1060; Fowler v. Wood, 73 Kan. 511, 85 Pac. 763, 6 L.R.A. (N.S.) 162, 117 Am.St.Rep. 534; Naylor v. Cox, 114 Mo. 232, 21 S.W. 589; Peuker v. Canter, 62 Kan. 363, 63 Pac. 617.' Payne v. Hall, 192 Iowa 780, 185 N.W. 912, at 915.

In an Iowa decision rendered in 1959, that court said:

'* * * Right or wrong, it is well established that lands of riparian owner are as subject to being lost by the gradual process of erosion by the river as they are of being added to by the process of accretion. We said in Payne v. Hall, 192 Iowa 780, 783, 185 N.W. 912, 914: 'Where the lands of a riparian owner are removed by the gradual process of erosion by the river, the land being no longer capable of identification, but having been carried away entirely, and the river occupies the identical space formerly occupied by the lands of the riparian owner, the title to the land so occupied by owner of of the river passes from the owner of the land to the state." Wilcox v. Pinney, 250 Iowa 1378, 98 N.W.2d 720, at 723.

The Nebraska Supreme Court expressed its version of the rule in Wemmer v. Young:

'If by gradual erosion a river becomes the boundary of land, the owner thereof is a riparian owner and is entitled to all accretion thereof. If by the process of accretion and reliction the water of a stream gradually recedes, changes the channel of the stream, and leaves the land dry that was previously submerged by water, the land becomes the property of the riparian owner. The erosion of a river which cuts entirely across riparian land and into the land of an adjoining owner operates to destroy the title of him whose land was originally riparian and he may not reassert his title if the river reverses its traverse wanderings and new land is formed within what were his original boundaries. Worm v. Crowell, * * * [165 Neb. 713, 87 N.W.2d 384].' Wemmer v. Young, 167 Neb. 495, 93 N.W.2d 837, at 848.

In the leading decision propounding the defendant Park District's view, the Supreme Court of South Dakota said:

'In Peuker v. Canter, 62 Kan. 363, 63 Pac. 617, the Missouri river washed away all of the tract that was riparian to the river and for some distance into the more river and for some distance into receded and, by accretion, restored all of both tracts precisely as was done in this case. The Supreme Court of Kansas followed the rule announced in Welles v. Bailey, [55 Conn. 292, 10 A. 565, 3 Am.St.Rep. 48] * * *. This rule appears, as is indicated by some of the above-quoted language, to have sprung from the fact that, when the riparian estate is destroyed and carried away, the boundary line between that and the adjacent estate is obliterated and lost, and that, in case of restoration by accretion or relication, there is no way of identifying the original estate, and therefore it is deemed to have been entirely destroyed and lost. But no such reason...