Tyson v. State of Iowa

• Decision Date: 16 November 1960
• Docket Number: 16464.,No. 16460,16460
• Citation: 283 F.2d 802
• Parties: Ned TYSON et al., Appellants, v. STATE OF IOWA et al., Appellees. John SCHROEDER et al., Appellants, v. Ned TYSON et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

283 F.2d 802 (1960)

Ned TYSON et al., Appellants, v. STATE OF IOWA et al., Appellees.

John SCHROEDER et al., Appellants, v. Ned TYSON et al., Appellees.

Nos. 16460, 16464.

United States Court of Appeals Eighth Circuit.

November 16, 1960.

COPYRIGHT MATERIAL OMITTED

Philip J. Willson, Council Bluffs, Iowa, Raymond A. Smith, Council Bluffs, Iowa, and Philip O'Hanlon, Blair, Neb., on the brief, for appellants Ned Tyson, Harry Tyson, Viggo Anderson and Birdie Anderson.

William L. Walker, Lincoln, Neb., and Roy M. Harrop, Omaha, Neb., Earl Ludlam, Lincoln, Neb., on the brief, for appellants John Schroeder, Roy M. Harrop, Homestead Corp., Jay P. Gibbs and G. Burton Kelly.

Michael Murray, Logan, Iowa, Norman A. Erbe, Atty. Gen. of Iowa, and James H. Gritton, Asst. Atty. Gen. of Iowa, on the brief, for appellees.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and REGISTER, District Judge.

VAN OOSTERHOUT, Circuit Judge.

United States of America brought this condemnation action, pursuant to constitutional and statutory authority, to acquire 242.83 acres of specifically described land located in Harrison County, Iowa, for the purpose of stabilizing the channel of the Missouri River. A declaration of taking was filed and $12,680, the estimated just compensation, was deposited in the registry of the court. The government has taken possession of the land.

Numerous claimants of title to the land were made defendants. No one has contested the government's right to condemn the land. There being conflicting claims of ownership, pursuant to court order, a separate trial was conducted before the court without a jury on the issue of the ownership of the condemned land, reserving the question of just compensation for later determination.

The land here involved borders on the Missouri River. The title problems are created by the shifting of the course of the Missouri River. Fact issues are presented as to whether the land of the original record title holders was completely washed away and destroyed and as to where the new land formed and as to what land the accretions attached.

The court, after hearing the evidence of all parties upon the title and ownership issues, filed a comprehensive and well considered opinion, not officially reported, incorporating its findings of fact and conclusions of law and determining that the State of Iowa is the owner of all the land in controversy and that none of the other claimants had any title to or interest in the land. After finding, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., that no just reason for delay existed, the court directed entry of final judgment denying the claims of all defendants other than the State of Iowa.

The trial court acquired jurisdiction pursuant to 28 U.S.C.A. § 1345 because the action was commenced by the Government. An appeal lies from the judgment by the parties whose claims were rejected and denied because the judgment is made final as to them, as provided by Rule 54(b).

Separate, timely appeals from the judgment were filed by the following claimants:

1. Ned Tyson, Harry Tyson, Viggo Anderson and Birdie Anderson, who for convenience will hereinafter be called the Tyson claimants.

2. John Schroeder, Roy M. Harrop, Homestead Corporation, Jay P. Gibbs and G. Burton Kelly, who will hereinafter be called the Harrop claimants.

W. W. Freeland apparently claims part of this land as an accretion to riparian lands owned by him, but we find no record of any notice of appeal filed by him, nor was any brief filed in his behalf. We therefore give Freeland's claim no consideration.

The Tyson claimants have established ownership of lands in Nebraska on the Nebraska bank of the Missouri River and claim all the land here in controversy as accretions to such land.

The Harrop claimants assert that they are record owners of title to specified portions of the land in controversy based on the fact that the legal description contained in their record title coincides with the government survey lines as to part of the land in controversy. For the purposes of this case, we assume that the Harrop claimants have established title to the land the legal descriptions of which fall within the original government survey lines relating to the land here in controversy.¹

The State of Iowa claims that all of the land in controversy developed in the form of islands that arose in the bed of the Missouri River, commencing about 1946, and accretions attaching thereto. The court upheld this contention and declared the State of Iowa to be the owner of all the land.

The Harrop claims to various portions of the land do not conflict with each other, but are adverse to the Tyson and State of Iowa claims. The Tyson claims are adverse to the Harrop claims and to the State's claim.

Our first problem is to determine what law controls. Since this is not a diversity of citizenship action, the rule of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, does not apply. United States v. Standard Oil Co., 332 U.S. 301, 307, 67 S.Ct. 1604, 91 L.Ed. 2067.

In cases arising under federal law, in some situations federal courts have determined the rights of the parties upon the basis of state law. At pages 308 and 309 of 332 U.S., at page 1608 of 67 S.Ct. of the Standard Oil case, supra, the court states:

"It is true, of course, that in many situations, and apart from any supposed influence of the Erie decision, rights, interests and legal relations of the United States are determined by application of state law, where Congress has not acted specifically. `In our choice of the applicable federal rule we have occasionally selected state law.\' Clearfield Trust Co. v. United States, 318 U.S. at 367, 63 S.Ct. 573, at page 575, 87 L.Ed. 838. The Government, for instance, may place itself in a position where its rights necessarily are determinable by state law, as when it purchases real estate from one whose title is invalid by that law in relation to another\'s claim. Cf. United States v. Fox, 94 U.S. 315, 24 L.Ed. 192. In other situations it may fairly be taken that Congress has consented to application of state law, when acting partially in relation to federal interests and functions, through failure to make other provision concerning matters ordinarily so governed. And in still others state law may furnish convenient solutions in no way inconsistent with adequate protection of the federal interest."

In City of St. Louis v. Rutz, 138 U.S. 226, 242, 11 S.Ct. 337, 343, 34 L.Ed. 941:

"The question as to whether the fee of the plaintiff, as a riparian proprietor on the Mississippi River, extends to the middle thread of the stream, or only to the water\'s edge, is a question in regard to a rule of property, which is governed by the local law of Illinois."

and at page 250 of 138 U.S., at page 346 of 11 S.Ct., we find:

"The title to land acquired by accretion is a title acquired under the operation of the law of the state, which each state determines for itself."

See also State of Arkansas v. Tennessee, 246 U.S. 158, 175-176, 38 S.Ct. 301, 62 L.Ed. 638.

The Government has taken no part in the title dispute. It is ready and willing to pay just compensation to the party determined to be the rightful owner of the land it is condemning. No controversy exists as to the right to condemn. Under such circumstances, we believe that the ownership of the land should be determined by the law of the state in which the land is situated.

The Missouri River originally served as the boundary line between Iowa and Nebraska. The river constantly changed its course, thus shifting and varying the state boundary, placing land that was in one state in the other state, thus creating troublesome problems of jurisdiction and taxation. A commission was appointed by the States of Iowa and Nebraska to attempt to work out a permanent solution to the common boundary problem. As a result, in 1943 a compact was entered into between the States of Iowa and Nebraska, and approved by Congress,² which fixed and specifically designated the permanent boundary line between the states.

Such boundary was fixed at the center line of the proposed stabilized channel of the Missouri River, as shown by certain designated maps and plats on file in the office of the United States Engineers at Omaha, Nebraska, and elsewhere.

In 1943 when the permanent boundary was established, the river at the point here in controversy flowed approximately in the designed channel specified in the compact. Shortly thereafter the river commenced a gradual movement to the south and east, shifting back and forth to some extent, moving to a maximum extent of approximately a half mile. Such movement of the river resulted in gradually destroying and completely washing away all previously existing land in the area here involved and in the building up of new land by accretion. It is undisputed that all the land involved in this action is located within the boundaries of the State of Iowa as fixed by the compact.

The Iowa law applicable to the Harrop claims is reviewed and fully set out by the Supreme Court of Iowa in the recent case of Wilcox v. Pinney, 250 Iowa 1378, 98 N.W.2d 720, 723, the court stating:

"Right or wrong, it is well established that lands of a riparian owner are as subject to being lost by the gradual process of erosion by the river as they are of being added to by the process of accretion. We said in Payne v. Hall, 192 Iowa 780, 783, 185 N.W. 912, 914: `Where the lands of a riparian owner are removed by the gradual process of erosion by the river, the land being no longer capable of identification, but having been carried away entirely, and the river occupies the identical space formerly occupied by the lands of the riparian owner, the title to the land so occupied by the bed of the river passes from the owner of the land to the state.\' We reaffirmed this pronouncement in Rupp v. Kirk, 231 Iowa 1387, 1397, 4

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