State v. Bonelli Cattle Co., 1

• Citation: 11 Ariz.App. 412,464 P.2d 999
• Decision Date: 16 February 1970
• Docket Number: No. 1,CA-CIV,1
• Parties: The STATE of Arizona, the State Land Department, a Department of the State of Arizona; Obed M. Lassen, State Land Commissioner of the State of Arizona, Appellants, v. BONELLI CATTLE COMPANY, a California corporation, Appellee. 734. . *
• Court: Court of Appeals of Arizona

Page 999

464 P.2d 999

11 Ariz.App. 412

The STATE of Arizona, the State Land Department, a Department of the State of Arizona; Obed M. Lassen, State Land Commissioner of the State of Arizona, Appellants, v. BONELLI CATTLE COMPANY, a California corporation, Appellee.

No. 1 CA-CIV 734.

Court of Appeals of Arizona, Division 1, Department A. ^*

Feb. 16, 1970.

Rehearing Denied April 20, 1970.

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

Elmer C. Coker, Phoenix, for appellee.

CAMERON, Judge.

This is an appeal by the defendant, State Land Department, from a judgment in favor of the plaintiff, Bonelli Cattle Company, which quieted titled to certain land situated along the Colorado River in Mohave County, Arizona.

We are called upon to answer the following questions:

1. Did the State of Arizona obtain title to the bed of the Colorado River when admitted to the Union by virtue of the 'equal footing' doctrine?

2. Did the trial court err in not determining whether the river had moved by avulsion or accretion in making its decision?

3. When a navigable river is rechanneled by third parties and the former river bed is exposed by the removal of the water therefrom, who has title to the land thus exposed?

The matter was tried upon an agreed statement of facts which may be summarized as follows:

1. When originally surveyed in 1905--1906, the active flow channel of the Colorado River was entirely to the west of the subject land and did not in any way encroach upon said land. See Exhibit 'B'.

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

2. In 1910, the United States conveyed the subject land to the plaintiff's predecessor in interest, the Santa fe Pacific Railroad Company and the plaintiff is the record owner in fee simple of the lands involved in the action.

3. Since the original survey and conveyance of the subject land, the Colorado River has moved eastward, and has in the past covered much, if not all of, the subject land; that immediately prior to 1959, the active flow channel of the river occupied most of the subject land. See Exhibit 'E--1'.

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

4. In 1959, the Bureau of Reclamation rechanneled the Colorado River in the area of the subject land resulting in the active flow channel of the Colorado River being restricted to occupy only a portion of the subject land; that today part of the subject land lies outside of the artificially created active flow channel of the Colorado River on both the east and west sides of the channel. See Exhibit 'G' below.

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

5. At statehood (14 February 1912) the boundary between Arizona and Nevada lay a considerable distance west of the subject land. By virtue of the Colorado River Boundary Compact, the boundary now lies down the center of the river as rechanneled by the Bureau of Reclamation in 1959.

After written briefs and oral arguments the trial court signed a judgment and decree in favor of the plaintiff, Bonelli Cattle Company quieting title to the subject land. By 'subject land' we mean the land in controversey to which the plaintiff is attempting to quiet title. In the judgment and decree the court found, Inter alia, that the plaintiff had a proper 'chain' of title to the subject land and:

'(3) That according to the aforesaid Official Plat of Survey approved and filed June 29, 1906, the Colorado River did not pass through any portion of the lands hereinafter described nor border thereon but since said time the Colorado River has moved eastward to various and different points and parcels of said land until its channel was stabilized in 1960 by rechannelization construction work conducted by the Department of the Interior through its Bureau of Reclamation where its stabilized man-made channel now crosses over the westerly portion of the lands hereinafter described and which man-made channel has been declared by Compact of the States of Nevada and Arizona approved by Congress June 16, 1961, Public Law 87--50, Eighty-seventh Congress, First Session (75 Stat. 93) to be the boundary between the States of Nevada and Arizona.

'(4) That the AGREED STATEMENT OF FACTS AND ISSUES do not establish the dates, degree and manner of movement of the Colorado River, but shch issues are immaterial in determination of the rights of the parties in this action.

'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that plaintiff BONELLI CATTLE COMPANY, a California corporation, is the owner in fee simple of and is entitled to the possession, use and enjoyment of the following described real property situate in Mohave County, State of Arizona * * *.'

From this judgment defendant State Land Department appeals claiming title to the property between the property of plaintiff that remained after the eastward movement of the river as shown in Exhibit 'G', supra, and the river as

rechanneled. DOES THE STATE OF ARIZONA OWN THE RIVER BED BY VIRTUE OF THE 'EQUAL FOOTING' DOCTRINE?

It is the contention of the State of Arizona that under the 'equal footing' doctrine, upon admission to the Union, the State of Arizona obtained title to the bed of the Colorado River. With this we must agree.

The Colorado River as it flows through this section of its reach is a navigable river, Arizona v. California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154 (1931), and once determined to be navigable remains so. United States v. Appalachian Electric Power Co., 311 U.S. 377, 85 L.Ed. 43, 61 S.Ct. 291 (1940). See also Boulder Canyon Project Act, Ch. 42, 45 Stat. 1057 (1928), 43 U.S.C., Sec. 617 et seq. (1953).

In Pollard's Lessee v. Hagan, 44 U.S. (3 Howard) 212, 11 L.Ed. 565 (1845), the court held that the Constitution did not pass title of the beds of navigable waters to the United States, but reserved title to the several states. Because new states entered the Union on an Equal footing with all the other states, title to the beds underlying navigable waters passes to the new states upon admission. Mumford v. Wardwell, 73 U.S. (6 Wall.) 423, 18 L.Ed. 756 (1867), Weber v. Board of Harbor Commissioners, 85 U.S. (18 Wall.) 57, 21 L.Ed. 798 (1873), Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1893), Martin, et al. v. Waddell, 41 U.S. (16 Peters') 367, 10 L.Ed. 997 (1842), Hardin v. Jordan, 140 U.S. 371, 35 L.Ed. 428, 11 S.Ct. 808 (1891), Kansas v. Colorado, 206 U.S. 46, 51 L.Ed. 956, 27 S.Ct. 655 (1906), Tyson v. State of Iowa, 8th Cir., 283 F.2d 802 (1960).

In addition, Congress recognized in Joint Res. No. 8, 21 August 1911, 37 U.S. Stat. 39, that Arizona was admitted on 'equal footing' with the other states of the Union:

'Joint Resolution To admit the Territories of New Mexico and Arizona as States into the Union upon an equal footing with the original States.

'Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the Territories of New Mexico and Arizona are hereby admitted into the Union Upon an equal footing with the original States, in accordance with the terms of an Act entitled 'An Act to enable the people of New Mexico to form a constitution and State government and be admitted into the Union on an equal footing with the original States; and to enable the people of Arizona to form a constitution and State government and be admitted into the Union On an equal footing with the original States' commonly called the enabling Act approved June Twentieth, nineteen hundred and ten, and upon the terms and conditions hereinafter set forth. * * *' (emphasis ours)

The Arizona Supreme Court has recently stated in construing the title to the bed of the Colorado River:

'We therefore hold that the State of Arizona holds Title and Control over the submerged lands and navigable waters where the accident occurred.' Morgan v. Colorado River Indian Tribe, 103 Ariz. 425, 427, 443 P.2d 421, 423 (1968).

See also Cherokee Nation or Tribe of Indians in Oklahoma v. Oklahoma, 10 Cir., 402 F.2d 739 (1968).

We therefore hold that under the 'equal footing' doctrine the State of Arizona obtained title to the river bed of the Colorado River as it existed in

1912 and at the location of the river in the instant case. WAS THE TRIAL COURT REQUIRED TO FIND WHETHER THE RIVER MOVED BY ACCRETION OR AVULSION?

The only conclusion that can be drawn from the agreed statement of facts and the attached maps and photographs in evidince is that sometime between the making of the original survey in 1905 and 1906 and 24 April 1938, the channel of the Colorado River moved in an undetermined manner to a position where the bed of the river ran over and occupied most of the subject land to which the plaintiff claims title. We are not in a position to determine from the record whether this change was accretive or avulsive nor do we believe the record was sufficient to enable the trial court to so determine.

It is contended by the appellant, State of Arizona, that before the trial court could determine the matter it was required to make a finding of fact whether the river had moved to and over plaintiff's land by accretion or avulsion. Appellant points out the general rule that where a change occurs in the location of the river through a process of erosion or accretion which is a natural and gradual movement of the river, the State would gain title to the bed of the river as it slowly moved losing title to the land that the river has abandoned. The owners of the bank would also lose or gain as the case may be during this slow, imperceptible process. We agree that this is the generally accepted law in regard to accretion in Arizona. Arizona v. Gunther & Shirley Company, 5 Ariz.App. 77, 83, 423 P.2d 352 (1967) (review denied 21 March 1967), State v. Jacobs, 93 Ariz. 336, 380 P.2d 998 (1963).

The State admits that as to avulsive changes neither the State as owner of the river bed nor the parties...