Smith v. U.S.
| Decision Date | 13 March 1979 |
| Docket Number | Nos. 77-1214,77-1215,s. 77-1214 |
| Citation | 593 F.2d 982 |
| Parties | Theron S. SMITH, Jesse Helzer and Violet Elma Helzer, husband and wife, and Amoco Production Company, Plaintiffs-Appellants-Cross-Appellees, v. UNITED STATES of America, Defendant-Appellee-Cross-Appellant, and J. P. Stephenson, Elmer M. Novak, the Charles and Els Bendheim Foundation, Inc., Gertrude Jo Myers, Executrix of the Estate of Louis P. Myers, Deceased, and the Termo Company, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Bryce L. Hodgden of Hieronymus, Hodgden & Halley, Woodward, Okl., and Frank W. Wewerka, Amoco Products Company, Denver, Colo., for plaintiffs-appellants-cross-appellees.
E. Blumhagen, Watonga, Okl., for defendant-appellee J. P. Stephenson.
C. Harold Thweatt of Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, Okl., for defendant-appellee The Termo Co.
James W. Moorman, Acting Asst. Atty. Gen., George R. Hyde and Glen R. Goodsell, Dept. of Justice, Washington, D. C., and John E. Green, U. S. Atty., Oklahoma City, Okl., for defendant-appellee-cross-appellant United States of America.
Before SETH, Chief Judge, and DOYLE and LOGAN, Circuit Judges.
Plaintiffs-appellants Theron S. Smith, Jesse Helzer and Violet Elma Helzer, who own land on the west bank of the South Canadian River in Dewey County, Oklahoma, filed a suit in federal court to quiet title to surface and mineral rights in 147.12 acres of land on the east side of the river. Jurisdiction is based upon 28 U.S.C. § 2409a, since the United States is named a defendant and claims title to the surface and mineral rights of the tract. J. P. Stephenson claims to own the surface rights of the land. Amoco Production Company became a party because it has a mineral lease on the tract if it is owned by Smith and the Helzers. The Termo Company has an oil and gas lease from the United States on portions of the disputed acreage and is operating a producing natural gas well on the property. The other defendants named in the action did not appear because their only interests are in lands contiguous to the contested parcels.
The principal factual issue before the trial judge was whether the 147.12 acres were added to the east side of the South Canadian River by accretion or avulsion. After hearing a number of witnesses and considering aerial photographs taken through the years, the court declared that "there's just no doubt in the world about it in my mind, and I have no difficulty at all in determining that these changes were brought about by accretion rather than avulsion." He therefore sustained a summary judgment motion by the United States and the Termo Company to quiet title to the mineral rights in the acreage against all other parties.
On the question of ownership of the surface rights, however, the court ruled that they belonged to Stephenson and not to the United States. The United States had originally owned lots 2 and 4, according to an 1874 survey, which at that time abutted the east bank of the South Canadian River and contained approximately 37.08 acres. In 1966 the United States sold these lots to Stephenson, reserving oil, gas, potash and sodium mineral rights, but gave a patent to the two lots, described as containing 37.08 acres. The court held that Stephenson's purchase gave him the surface rights to the additional 147.12 acres, most of which had been added by accretion to the two lots prior to 1966.
One question on appeal is whether there is substantial evidence to support the trial court's finding on accretion. The United States has cross-appealed the court's conclusion that Stephenson is entitled to the ownership of the surface rights in the property.
There are differences between the parties as to whether federal or Oklahoma law applies to this case, in view of the fact that at least the mineral rights to lots 2 and 4 involved here have always been owned by the United States. See Wilcox v. Jackson, 38 U.S. (13 Peters) 498, 10 L.Ed. 264 (1839). The record demonstrates the trial judge perceived no difference between federal and Oklahoma law as it affected the accretion-avulsion fact issue. We agree. See Stone v. McFarlin, 249 F.2d 54 (10th Cir. 1957); Olsen v. Jones, 412 P.2d 162 (Okl.1966); Okl.Stat.Ann. tit. 60, §§ 335-336 (West 1971). We must uphold the trial court's finding on this issue unless it is clearly erroneous. Fed.R.Civ.P. 52(a).
Bauman v. Choctaw-Chickasaw Nations, 333 F.2d 785, 789 (10th Cir. 1964) states the difference between the two doctrines as follows:
"Accretion" denotes the process by which the area of owned land is increased by the gradual deposit of soil due to the action of a bounding river or other body of water. Accretion occurs when the change in the river is gradual and imperceptible. The gradualness of the process distinguishes accretion from the more rapid, easily perceived, and sometimes violent, shifts of land incident to floods, storms or channel breakthroughs known as "avulsion." A sudden change in the channel of a river, as occurs in the case of avulsion, does not affect title to the lands thus transferred from one side of the river to the other. (Footnotes omitted.)
The plaintiffs' evidence consisted of testimony by individuals who had lived near the South Canadian River for many years. Their evidence focused on several dates from 1904 through the 1950's when the river was at a high water or flood stage. Witnesses testified about observing large chunks of soil break off into the river and float away in the rapid waters. One witness recalled several times in the 1930's and 1940's when what he considered to be floods caused the river to move in and out of its banks. This witness said, "there was so much change in it; it never remained the same." And after 1940 "there really wasn't any certain channel . . . ; it was all over," while at other times "there was no water at all." Plaintiffs' witnesses recalled a number of times when they considered the waters to be in a flood stage, although a university professor, Richard DeVries, testifying as an expert witness for the defense, stated that there were only two official floods recorded on the river, as measured at stations some distance from the tract, one in 1904 and one in 1937. DeVries said that the South Canadian was a "braided" river with no single identifiable channel but instead several small channels that would "braid" around each other as they worked their way through the sandy river bottom soil. This witness and another gave opinion testimony that the additions to the east side of the river were definitely imperceptible at any single point in time and were caused by accretion, not avulsion.
We believe the aerial photographs of the area taken at various times from 1941 through 1976, introduced into evidence, graphically support the court's finding that the additions were by a slow process of growth on the east bank of the river, as the river channel deposited sand and silt along its banks. There was evidence that the soil gradually firmed until trees and other vegetation grew in relative abundance. Two dams and reservoirs built upstream in the 1960's now substantially reduce the likelihood of flooding and unpredictable high water on this river, and decrease the risk of further shifting. From the photographs it appears that a narrower and deeper channel has developed or the river now carries less water in normal times. What would be regarded as riverbed has definitely diminished through the years.
Even the testimony most favorable to the plaintiffs only substantiates the suddenness of high water on several occasions and the gradual erosion of land from the west bank. No one particular flood or other sudden or violent force separated plaintiffs' land and deposited it on the other side. We therefore affirm the trial court's finding that the change was due to accretion and not to avulsion, and its conclusion that the mineral rights under the 147.12 acres properly belong to the United States, thus validating Termo's oil and gas lease with respect to this tract.
Resolving the dispute over title to the surface rights is more difficult. Since most of the 147.12 acres accreted to lots 2 and 4 prior to 1966, they are owned by the United States unless they were conveyed to Stephenson. Federal law controls the determination of whether these lands were transferred by the patent to Stephenson. Hughes v. Washington, 389 U.S. 290, 88 S.Ct. 438, 19 L.Ed.2d 530 (1967).
It has long been recognized that where the government has conveyed land by reference to a plat, and one of the boundaries is the meanderings of a river or other body of water, accretions which occur after the entry by the conveyee accrue to the benefit of the landowner. Jones v. Johnston, 59 U.S. (18 How.) 150, 15 L.Ed. 320 (1856); Jefferis v. East Omaha Land Co.,134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872 (1890); Hughes v. Washington, 389 U.S. 290, 88 S.Ct. 438, 19 L.Ed.2d 530 (1967). The rationale for this rule is that if land bounds upon a river (or other body of water) it is subject to loss by erosion, and hence should be entitled to the gain which accrues by accretion. Also, access to water is often the most valuable feature of the property and what was water frontage property when received should continue to have that benefit. Further, a different rule would subject the landowner to continuous harassing litigation challenging the location of the original water line. Id. at 293-94, 88 S.Ct. 438.
Does the same reasoning apply when the accretion has occurred prior to the entry of the patentee? If a landowner has, by accretion, acquired additional acreage and then makes a conveyance it is, in the first instance, a matter of the intention between the parties as to what the grantee takes. If the document is plain in stating whether the accretions pass, then the intent should be given full effect. See Jones v....
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