Peterson v. Morton
| Decision Date | 31 January 1979 |
| Docket Number | Civ. No. LV-1926. |
| Parties | Blanche W. PETERSON and Flay O. Peterson, Plaintiffs, v. Rogers C. MORTON, the Secretary of the Interior of the United States of America, the United States of America, and the State of Nevada, Defendants. |
| Court | U.S. District Court — District of Nevada |
Edward G. Marshall, Las Vegas, Nev., for plaintiffs.
B. Mahlon Brown, U. S. Atty., Las Vegas, Nev., John E. Lindskold, Dept. of Justice, Washington, D. C., for the U. S.
Robert F. List, Atty. Gen., State of Nev., Carson City, Nev., Thomas G. Nelson, Sp. Asst. Atty. Gen., Twin Falls, Idaho, for State of Nev.
It is plaintiffs' claim that their predecessors in interest owned land on the east side of the Colorado River in Arizona, including a parcel of approximately 310 acres. Over time, the Colorado River moved easterly across this parcel and now most of the parcel has emerged from the river and is situated in Nevada, the western side of the river. Plaintiffs ask this Court to quiet title in them to that part of the 310 acres, a parcel of approximately 259 acres referred to herein as the "subject parcel," that has emerged on the Nevada side of the river. Plaintiffs assert jurisdiction in this court to quiet title in them under Title 28, U.S.C., § 2409a.
Defendants claim that plaintiffs' land was entirely eroded away in the physical sense by the easterly movement of the river and has disappeared. It is gone. It exists no more. Plaintiffs' soil was washed away grain by grain, particle by particle. It was carried off by the river and deposited on other lands downstream adding to such other lands, that is, it accreted to such other downstream lands. True, defendants concede, the geographical position on the earth's surface where the plaintiffs' land had been situated, still exists but, as the river moved easterly, eroding away the plaintiffs' land, this geographical position became submerged in the river and for many years was actually under water in the bed of the river. True, this geographical position where plaintiffs' 310-acre parcel had been located has now nearly all emerged from the river as dry land on the Nevada side of the river, but this is not plaintiffs' property; it is just the geographical position where plaintiffs' property once was. This land that has emerged on the Nevada side of the river, the subject parcel of 259 acres, was created by accretion of soil eroded away upstream by the river. The defendant United States, as the owner of the riparian uplands, claims title to the subject parcel. The defendant State of Nevada claims title to a portion of the subject parcel.
The subject parcel was a part of a large parcel of public lands patented by the United States to the Santa Fe Railroad Company in 1910. Plaintiffs offered into evidence the said patent and further documentary proof of title in them by mesne conveyances from the Santa Fe Railroad Company and rested their case in chief.1
The defendants do not dispute plaintiffs' evidence of title by mesne conveyances from the Santa Fe Railroad, the patentee of the United States. However, defendants offered proof tending to show:
1. That the Colorado River, in historic times, i. e., since approximately 1850, has moved slowly and imperceptibly eastward, eventually eroding away the plaintiffs' property;
2. That between approximately 1915 and 1934, the geographic position on the earth's surface where plaintiffs' property had been situated, was physically submerged under the water of the river;
3. That thereafter most of the geographic position on the earth's surface where the eroded-away property had been situated, emerged from the water on the westerly, the Nevada, side of the river 4. That in 1960 when the permanent channelization of the Colorado River, in the area of concern, was completed, nearly all of the geographic position in the shape of what had been plaintiffs' property was now dry land on the western, or Nevada, side of the river;
5. That this dry land, the subject parcel of 259 acres, in the same geographic position where plaintiffs' land had been, was new land formed by accretion from soil transported by the river, either eroded away from upstream riparian lands or picked up upstream from the river bed itself;
6. The defendant United States claims title to the subject parcel in its proprietary capacity only. The defendant United States as owner of the riparian uplands, i. e., the public domain in Nevada, claims title to the subject parcel contending that the subject parcel had accreted to the riparian uplands owned by the United States. The State of Nevada initially claimed only an executory interest in the subject parcel by virtue of a contract between the United States and Nevada whereby the United States agreed to sell certain public lands to Nevada, including the subject parcel. At the close of the trial, however, the State of Nevada claimed, in addition to its rights under the executory contract with the United States, title to that part of the subject parcel that lies between the western bank of the permanently channelized river and the modern westerly ordinary high water mark of the river.
Although plaintiffs concede the physical facts that their land was once located east of the Colorado River in Arizona, and that the subject parcel, title to which plaintiffs claim, is now situated west of the Colorado River in Nevada, plaintiffs resist defendants' claim that plaintiffs' land eroded away and that the subject parcel is not plaintiffs' land but new land formed by accretion from soil transported by the river, eroded away upstream. Plaintiffs offered evidence that the Colorado River generally, and in the area of the subject parcel, was subject to frequent avulsions.2 Plaintiffs contend that the evidence shows that the eastward movement of the river inundating and passing over plaintiffs' property was by frequent avulsions, as well as the result of some erosion. Plaintiffs argue that since they have established legal title, defendants have the burden of proof that plaintiffs lost title by erosion, which burden plaintiffs say defendants have not met. Plaintiffs further argue that in view of plaintiffs' proof of avulsion, together with defendants' failure to prove loss of plaintiffs' title by erosion, this Court should decree that the subject parcel is in fact 259 acres of the 310 acres that the plaintiffs acquired by purchase and is owned by plaintiffs.3
The defendant United States claims that the twelve-year statute of limitations within which an action under 28 U.S.C. § 2409a may be brought (28 U.S.C. § 2409a(f)) began to run on April 22, 1960, and hence plaintiffs' claim is barred because the original complaint herein was not filed until October 25, 1972. It is the theory of the United States that P.L. 86-433, 74 Stat. 74, approved April 22, 1960, gave plaintiffs notice of the adverse claim of the United States to the subject parcel. The Government argues that from P.L. 86-433 the plaintiffs knew, or should have known, of the federal claim to the subject parcel. This Court finds to the contrary. P.L. 86-433 authorized the United States to convey certain public lands, situated in Nevada, to the State of Nevada. It is not clear at all that P.L. 86-433 described the subject parcel but, assuming that it does, Section 5 of the Act provides that:
The subject parcel is located in Mojave Valley. Mojave Valley is approximately 30 miles long. The subject parcel is approximately 4½ miles north of the point where the Nevada-California state line intersects the 35th degree of latitude. The subject parcel is about 13 miles south of Davis Dam. Davis Dam is approximately 60 miles south of Hoover Dam. Davis Dam is about 70 miles north of Parker Dam.
The area of concern in this litigation is an approximate 4-mile stretch of the Colorado River through Mojave Valley just south of Big Bend, between the chalk cliffs on the Nevada side and Mojave Point on the Arizona side. The chalk cliffs restrict the flow of the river, preventing if from flowing farther west after it flows southwesterly around Big Bend to the chalk cliffs. Mojave Point is a large circular-appearing protrusion of a mesa rising more than 50 feet above the valley floor. Mojave Point restricts the easterly flow of the river, forcing the river to flow around it to the west before it can flow farther south and downstream. See Exhibits L and 33.
Plaintiffs and defendants produced two highly qualified expert witnesses, Mr. John S. McEwan for the defendants, and Mr. William S. Gookin for the plaintiffs.
Reading through the transcript of testimony for the first time might cause one to believe that there is considerable conflict between the testimony of the two experts. However, after careful study, this Court finds that the areas of disagreement are narrow and, although in those areas the experts strongly differ, McEwan and Gookin are, generally speaking, in agreement. Their expertise and the integrity each demonstrated during examination make both of them most credible witnesses. Each of them have contributed much assistance to the Court.
According to the expert testimony, the area of concern in this litigation and Mojave Valley as a whole, was once a part of the Gulf of California,...
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