State v. Bonelli Cattle Co.

• Decision Date: 13 April 1972
• Docket Number: No. 10030-PR,10030-PR
• Citation: 495 P.2d 1312,108 Ariz. 258
• Parties: The STATE of Arizona et al., Appellants, v. BONELLI CATTLE COMPANY, a California corporation, Appellee.
• Court: Arizona Supreme Court

Page 1312

495 P.2d 1312

108 Ariz. 258

The STATE of Arizona et al., Appellants, v. BONELLI CATTLE COMPANY, a California corporation, Appellee.

No. 10030-PR.

Supreme Court of Arizona, In Banc.

April 13, 1972.

Gary K. Nelson, Atty. Gen., by Dale R. Shumway, Special Asst. Atty. Gen., Phoenix, for appellants.

Elmer C. Coker, Phoenix, for appellee.

Snell & Wilmer, by Maynard P. Goudy, Fennemore, Craig, von Ammon & Udall, by John J. O'Connor, III, Streich, Lang, Weeks, Cardon & French, by Dan M. Durrant, Evans, Kitchel & Jenckes, P.C., by Burton M. Apker, Phoenix, Bilby, Thompson, Shoenhair & Warnock, P.C., by W. E. Dolph, Jr., Robertson, Molloy, Fickett & Jones, P.C., by Russell E. Jones, Tucson, Westover, Keddie & Choules, by G. Thomas Choules, Yuma, amici curiae.

STRUCKMEYER, Justice.

Appellee Bonelli and others who have appeared as amici curiae have principally advanced economic reasons for rehearing our decision in State v. Bonelli Cattle Company, 107 Ariz. 465, 489 P.2d 699 (1971). Such are more properly matters of legislative consideration than the concern of a court whose responsibility is to adhere to the law as it finds it so that rights will not depend on the personal idiosyncracies of its members or hang in suspense when economic considerations change.

We are concerned, however, with one possible area of misunderstanding. In our decision, we used the words 'high water line' and 'high water mark.' In particular, we directed the court below to quiet title in Arizona from the Nevada line to the high water mark. The parties question the meaning of our use of the words 'high water mark.'

The title to all lands within the beds of navigable waters including all reclaimed lands which formerly were beneath navigable waters up to the ordinary high water mark was quit claimed in 1953 to the states by the Submerged Lands Act of Congress, 67 Stat. 29, 43 U.S.C.A. § 1301 et seq. The Act specifically included lands 'heretofore or hereafter modified by accretion, erosion, and reliction.' Beyond argument, title to and ownership of the lands beneath the Colorado River is in the State of Arizona from the Nevada boundary up to the ordinary high water mark in the natural channel as it existed prior to the taming of the river in 1938 by the completion of the Hoover Dam and the subsequent lowering of the channel by dredging.

Congress, or course, could not constitutionally diminish the property rights of the states to the beds of navigable rivers as settled by over 100 years of decisions of the Supreme Court of the United States commencing with Pollard v. Hagan, 44 U.S. 212, 3 How. 212, 11 L.Ed. 565, in 1845. Most certainly, the United States government could not claim additional rights in the bed of a navigable river by the construction of dams and artificial channels. Nor do we find such an intent.

In considering Congress' language, in its customary sense, meaning 'not uncommon or exceptional,' Webster's Third International Dictionary. This is confirmed by an examination of the opinions in Pollard v. Hagan, supra, and Goodtitle v. Kibbe, 50 U.S. 471, 9 How. 471, 13 L.Ed. 220.

In Pollard v. Hagan, the trial court in Alabama charged the jury that if it believed the premises sued for were below the 'usual high water mark' at the time Alabama was admitted to the Union, then the plaintiffs acquired no title through patents of the United States government 'whether the waters had receded by the labor of man only, or by alluvion.' (Emphasis supplied.) The Supreme Court of Alabama affirmed the judgment entered on the jury's verdict and its judgment, in turn, was affirmed by the Supreme Court of the United States. In Goodtitle v. Kibbe, supra, the Supreme Court of the United States reconsidered the issues decided in Pollard v. Hagan and reaffirmed its previous decision. There, the trial court instructed the jury that if plaintiff's land was below 'ordinary high water mark' at the time Alabama was admitted to the Union, the confirming Act of Congress and the patent from the United States government conveyed no title. (Emphasis supplied.)

It is in the sense of the usual and ordinary that the words 'high water line' and 'high water mark' where used in our decision are to be understood.

It should be made clear that Arizona's title as against private persons is in no way controlled by the opinion in United States v. Claridge, 279 F.Supp. 87, aff'd 9th Cir., 416 F.2d 933. The patent through which Bonelli Cattle Company claims title was issued by the United States November 5, 1910. The subsequent artificial control of the river could not deprive Arizona of property rights in the bed which were constitutionally vested prior to the completion of the Hoover Dam in 1938 and the later rechannelization by dredging. The condition of the Colorado River at or immediately prior to its control by artificial works is the appropriate time for determining the rights of the parties, although, of course, evidence of the river's condition thereafter may be...