State v. Loy

• Decision Date: 21 November 1945
• Docket Number: 6940.
• Citation: 20 N.W.2d 668,74 N.D. 182
• Parties: STATE v. LOY et al.
• Court: North Dakota Supreme Court

20 N.W.2d 668

74 N.D. 182

STATE v. LOY et al.

No. 6940.

Supreme Court of North Dakota

November 21, 1945

Syllabus by the Court.

1. The evidence in the case is considered and it is held, that the land described in the complaint in this action was formed as an island by accretion to the bed of the Missouri River, a navigable stream.

2. Conveyances by the United States, before the admission of North Dakota to statehood, of fractional subdivisions in the territory which later became North Dakota and bordering on the Missouri River, a navigable stream, carried with them no title to the bed of the river.

3. The beds of navigable streams are not 'unappropraited public lands' included within the disclaimer of title by the State of North Dakota, contained in section 4 of the Enabling Act.

4. Title to the lands underlying navigable waters within its boundaries passed to the State of North Dakota upon its admission to statehood.

5. The State of North Dakota has power to, and did, reserve to itself by statute the title to 'Islands and accumulations of land formed in the beds of streams which are navigable.' Section 47-0608, R.C.1943.

Alvin C. Strutz, Atty. Gen., and P. O. Sathre and C. E. Brace, Asst. Attys. Gen., for plaintiff-respondent.

Wilcox & Wilcox, of Center, and Hyland & Foster, of Bismarck, for defendants-appellants.

BURKE, Judge.

This is a statutory action to determine adverse claims to a tract of land lying in Sections 6, 7, 8, 17 and 18 of Township 144 North, Range 84 West of the 5th principal meridian Mercer County, North Dakota, containing 1145.5 acres. The State of North Dakota is plaintiff. Its claim of title to the described land rested upon the allegation that the land was formed as an island in the bed of the Missouri River, a navigable stream. The defendants each claimed title to a portion of the land as an accretion to riparian lands owned by them respectively. The defendants also urged that the riverside boundary of their riparian lands was the thread of the stream and that they each thus acquired title to any island or islands that formed in the river between the thread of the stream and their respective holdings. The trial court found against the defendants upon both contentions and rendered judgment quieting title to the said land in the State of North Dakota. The defendants have appealed from the judgment and have demanded a trial anew in this court.

It is conceded by all parties that the Missouri River is a navigable stream. There are thus but two questions in the lawsuit. 1. Was the land in question formed as an island in the bed of the Missorui River? 2. If it was so formed, to whom does it belong?

The original governmental plat of Township 144 North, Range 84 West surveyed in 1881 shows that the Missouri River entered the township in its northwest corner, the right bank of the river intersecting the northern boundary at a point approximately one half mile from the west boundary of the township. Thence the direction of the line of the right bank was slightly east of south to the south line of section 6, thence south across section 7. As the river entered section 18, it turned almost 90~ to the east, its right bank curving in an irregular arc for approximately three quarters of a mile. As shown by the plat the right bank of the river is eastern boundary of lands owned by defendants in sections 6 and 7 and the northeastern and northern boundary of lands owned by defendants in section 18. As shown by this survey, the river varied in width as it flowed by defendants' lands from half a mile to a mile (distances are approximate), the narrowest point being at the bend of the river in section 18. This plat shows no bars or other obstructions in the river. It does show a large sand bar extending into the stream from its left bank opposite defendants' property indicating that at that time the thread of the stream was closer to the right bank, the side upon which defendants' lands lay. This plat also shows that the Knife River, an unnavigable tributary of the Missouri, entered the Missouri at an acute angle from the northwest at a point in section 6 a little over a quarter of a mile south of the north line of the township.

According to the record the next survey of this area was made in the years 1889 to 1891. The results of the survey are shown by a map published by the Chief of Engineers United States Army in 1891. This map shows marked changes in topography. The river had cut behind the bar upon its left bank and was then a mile to a mile and a quarter in width opposite defendants' lands in sections 6, 7 and 18. The right bank of the river was as shwon by the original survey except in the southern portion of section 7 where a bar approximately three eighths of a mile long and one eighth of a mile wide projected from the bank. In the river was a large bar over two miles in length extending south from the north line of the township to a point opposite the bend of the river in section 18. A growth of brush is shown upon the west side of the bar. No vegetation is shown upon its eastern half nor upon its northern or southern extremities. This bar divided the stream, part of which flowed upon the west side thereof and part on the east. Apparently the main channel was upon the east for it is in this channel that the river soundings are shown. The mouth of the Knife River had moved southward approximately one fourth mile so that it emptied into the Missouri at a point south of the northern end of the large bar in the river. Thus all of the waters of the Knife were confined to that part of the Missouri which flowed upon the west side of the bar. This map shows conclusively that the large bar was an island in the river at the time the survey upon which it is founded was made.

The testimony of the witnesses of both the plaintiff and the defendants is that it remained an island at least until 1909. Mr. Loy, the principal witness for the defendants, testified that Missouri River water ceased flowing west of this bar in low water 'close to 1909, 10 or 11, in there somewhere.' The testimony of other witnesses places the date much later and shows that the main channel of the river shifted constantly from one side of the island to the other, but that all times until about 1916 there was Missouri River water in both channels.

The claim of the defendants is, as we understand it, that the nucleus of the large bar was formed as an accretion to the right bank of the river in sections 7 and 18, and after the bar had projected from the shore a considerable but indefinite distance into the river, the river cut through between the bank and the outer extremity of the bar by avulsion, that the rights they had acquired to the bar by accretion could not be destroyed by avulsion, that the bar and the subsequent accretions thereto remained their property despite the fact that for a long period thereafter it remained an island.

There was only one witness whose testimony tended to support this theory. It was the witness H. C. Loy. He stated a sand bar commenced building out from the shore on the right bank of the river in sections 7 and 18 along in '87 or '88 or possibly '89 and that the river 'jumped across the bar quite a while after it started to form.'

On the other hand, Mrs. August Borner testified that when she came to the vicinity of Stanton in 1886 there was an island bar in the Missouri River east of the village. Stanton is located upon the bank of the river in the southern part of section 6, its southern boundary being the south line of section 6. She stated that the land in controversy here was formed by accretion to this island. There is no other testimony in the case concerning the process by which the bar or island had its origin. The testimony of all other witnesses related to the vagaries of the stream from the year 1895 until the present day. Defendants lay considerable stress upon the fact that the trees upon the west side of the island are larger than those upon any other part, and are approximately the same size as the trees on the accretion land on the river bank. They say this fact supports Mr Loy's statement as to the manner of origin of the island. It does so only in the sense that it is consistent with Mr. Loy's contentions. It is not, however, inconsistent with the claim that the land in controversy was formed as an island and by the accretions thereto. The size and location of the trees is consistent with topography shown by the survey made by the Chief of Engineers U.S. Army in 1891. This survey shows both the island and an accretion to the west bank of the river. It shows that the vegetation is heaviest near western side of the island, but that this vegetation does not extend to the island's western shore. It also shows little or no vegetation upon the accretion to the west bank of the river. If, as is probable, the land bearing the heaviest growth was formed first, the bar in the river was formed before the accretion to the bank or in other words it was formed as an island. Other topographical features shown by this survey, such as the size and the...