State ex rel. Com'rs of Land Office v. Warden

• Decision Date: 29 June 1948
• Docket Number: 32973.
• Citation: 198 P.2d 402,200 Okla. 613,1948 OK 165
• Parties: STATE ex rel. COM'RS OF LAND OFFICE v. WARDEN et al.
• Court: Oklahoma Supreme Court

198 P.2d 402

200 Okla. 613, 1948 OK 165

STATE ex rel. COM'RS OF LAND OFFICE v. WARDEN et al.

No. 32973.

Supreme Court of Oklahoma

June 29, 1948

Rehearing Denied Oct. 12, 1948.

Appeal from District Court, McClain County; Ben T. Williams, Judge.

Action by the State, on the relation of the Commissioners of the Land Office of Oklahoma, against Irving C. Warden and others to foreclose a mortgage. Judgment and sale under foreclosure were set aside, and defendants were permitted to redeem. From a judgment on accounting for rents and profits, both parties appeal.

Judgment reversed and cause remanded for further proceedings.

Syllabus by the Court.

1. The grant to the State of Oklahoma under Section 7 of Enabling Act of June 16, 1906, of Section 36, Township 10 North, Range 4 West, carried title to only so much thereof as lay in Oklahoma Territory, that is, north of the center line of the South Canadian River which was the boundary line between Oklahoma Territory and Indian Territory, and hence carried to the State no title to the bed of the stream that lay south of the center thereof.

2. The Act of the Oklahoma Legislature (Laws 1919 ch. 206, p. 293, sec. 1, Tit. 64 O.S.1941 § 290) was and is ineffective to disturb the title of the riparian owners to the bed of the South Canadian River which passed to them under Federal grants executed prior to statehood.

3. The doctrine that a river continues to be a boundary notwithstanding erosion and accretion, applies notwithstanding that, during periods of high water, the changes in the banks are rapid and material.

4. The medial line of the channel extending from one cut bank to the other, which carries the water in times of substantial flow is what is meant by the terms 'middle of the main channel' and 'mid channel' of a non-navigable river, and same is held to be applicable to the South Canadian River where it is involved herein.

5. An island, not otherwise appropriated, lying north of the medial line of a non-navigable stream, belongs to the owner of the north bank whose title extends to the middle of the stream, and its existence does not alter the rule where, as here, the boundary is midway between the cut banks.

Lonnie L. Corn, Richard A. Jackson, Roy F. Lewis and Floyd Wheeler, all of Oklahoma City, for plaintiff in error.

Cook & Bingaman, of Purcell, for defendants and cross-petitioners in error.

GIBSON Justice.

The parties to this appeal will be designated as they appeared in the trial court, that is, State of Oklahoma on relation of the Commissioners of the Land Office of the State as plaintiff, and Irving C. Ward et al., as defendants.

The litigation began as an action by plaintiff against defendants to foreclose a mortgage held by it on lands of defendants in McClain County, formerly a part of Indian Territory, described as Lots 8, 9 and 10 and North Half of Southwest Quarter of Southwest Quarter and Southeast Quarter of Southwest Quarter of Southwest Quarter of Section 36, Township 10 North, Range 4 West. Plaintiff was awarded default judgment and the property sold at foreclosure sale. Plaintiff became the purchaser, and on confirmation took possession of the premises. On petition of defendants the sale and judgment of foreclosure were subsequently vacated by the court and it was ordered that defendants be permitted to defend and that, upon making good on their proffered tender, they be restored to possession. Plaintiff made supersedeas bond and appealed to this court where the action of the trial court was affirmed. State ex rel. Com'rs of Land Office v. Warden et al., 197 Okl. 97, 168 P.2d 1010.

These lands lie to the south and west of the South Canadian River which formed the boundary line between Indian Territory and Oklahoma Territory and the frontage of said lots was on the river. The portion of section 36 that lay north and east of said river and in what was formerly Oklahoma Territory constituted school land and the title thereto was vested in the plaintiff.

While the petition to vacate was pending the plaintiff, being desirous of leasing the lands so purchased along with other lands owned by it, obtained leave of court so to do upon condition that the proceeds thereof be held subject to order of court pending final determination of the action and to abide the judgment therein. Leases were executed and confirmed by the court, and there was realized therefrom in bonus and rentals an aggregate of more than $40,000.00. Each of the several leases comprised, as a unit, lands claimed by both plaintiff and defendants, with the consequence that the share of each in the amount realized on each lease could be determined only on the basis of their proportionate acreage therein.

Following the affirmance by this court of the vacation of the sale and foreclosure judgment, there arose the question of plaintiff's accounting to defendants for their proportion of the proceeds of the leases less the amount thereof retained by plaintiff in satisfaction of the mortgage indebtedness. The issue thereon involved the location of the boundary line between defendants' lots and the school land of plaintiff, and it is from the judgment of the court thereon that both plaintiff and defendants appeal.

The trial court held that the lots of defendants were riparian and by reason of the non-navigability of the stream the north and east lines of the lots extended to the center of the channel thereof. The court decreed what was the center line and held that of the 334.2 acres under leases the defendants were owners of 285.5 acres and awarded defendants judgment for the sum of $36,516.85, the corresponding portion of the bonus and rentals received. Both plaintiff and defendants contend that the median line established by the court is incorrect. We deem that question decisive of the appeal.

Plaintiff's first contention challenges the correctness of the judgment that defendants owned any part of the river bed. It is asserted that defendants' title could extend no further than the south bank of the stream for two reasons. One, that the grant of section 36 to the State as school land carried with it title to the bed of the stream. The other that by reason of Tit. 64 O.S.1941 § 290, which appropriates to the State streams of two chains or more and the beds thereof, the right of defendants, if any, yielded to the sovereign power of the State. No authorities are cited or argument presented in support of the first ground. And to hold that section 36, in Oklahoma Territory, includes the entire bed of the stream adjacent to said section must rest on the assumption that the bed was wholly within Oklahoma Territory, for which there is no basis in fact. The lots of defendants were a part of the lands patented to the Choctaw and Chickasaw Nations in 1842, and therein the northern boundary was described as '* * * beginning near Fort Smith, where the Arkansas boundary crosses the Arkansas River running thence to the source of the Canadian fork, if in the limits of the United States, or to those limits'. Under the Federal rule of construction, which is controlling ( George F. Packer v. Jake Bird et al., 137 U.S. 661-673, 11 S.Ct. 210, 34 L.Ed. 819), the river, not being navigable, the middle of the channel became the boundary. Brown v. Huger, 21 How. 305, 16 L.Ed. 125; Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 43 S.Ct. 60, 67 L.Ed. 140. The lands of the defendants were duly sold and conveyed by the tribal authorities October 13, 1913, and defendants deraign their title thereto through mesne conveyances from the grantee. In the tribal grant of said lots no mention is made of the river bed but the acreage thereof is based upon the meander lines of the south bank as established by an official survey. That the effect of the grant under the circumstances was no less effective to convey to the riparian grantee title to the middle of the channel is no less clear under both Federal and State authorities. Gertrude H. Hardin v. Conrad N. Jordan, 140 U.S. 371, 11 S.Ct. 808, 35 L.Ed. 428; Phillips Petroleum Co. v. Davis, 194 Okl. 84, 147 P.2d 135; Braddock v. Wilkins, 182 Okl. 5, 75 P.2d 1139; Aladdin Petroleum Corp. et al. v. State ex rel., Com'rs of Land Office, Okl.Sup., 191 P.2d 224.

In support of the second ground of the contention reliance is placed entirely upon the force of Tit. 64 O.S.1941 § 290, to vest title to the river bed in the State notwithstanding the title thereto had passed from the United States and become vested in the Tribe prior to statehood. It is recognized in the argument that under the rule announced in Brewer-Elliott Oil & Gas Co. v. United States, 8 Cir., 270 F. 100, and affirmed in 260 U.S. 77, 43 S.Ct. 60, 67 L.Ed. 140. United States v. Champlin Refining Co., 8 Cir., 156 F.2d 769, and others, wherein navigability is held to be a Federal question, the State would be precluded from asserting title to the bed of the stream against that of the riparian owners but it is contended that such should not be the State rule. We deem it unnecessary to discuss the argument thereon because, in light of the facts stated, it is clear that the question comes squarely within the principles involved in Aladdin Petroleum Corp. et al. v. State ex rel. Com'rs of Land Office (supra) which was decided since this cause was briefed. Since we there held that the State under similar circumstances could not by said statutes divest the riparian owner of title to the river bed we hold that the same is true in this case for the reasons therein stated.

Introduced in evidence was the 1872 U. S. Survey of the stream, the 1899 U. S. Survey of the meander lines of the south bank thereof and a 1929 unofficial survey of the south bank, and two surveys made in 1946, one at the instance of p...