United States v. 11,993.32 ACRES OF LAND, ETC.

• Decision Date: 11 November 1953
• Docket Number: Civ. A. No. 2400.
• Citation: 116 F. Supp. 671
• Parties: UNITED STATES v. 11,993.32 ACRES OF LAND, MORE OR LESS, IN MOUNTRAIL AND MCKENZIE COUNTIES, N. D. et al.
• Court: U.S. District Court — District of South Dakota

116 F. Supp. 671

UNITED STATES v. 11,993.32 ACRES OF LAND, MORE OR LESS, IN MOUNTRAIL AND MCKENZIE COUNTIES, N. D. et al.

Civ. A. No. 2400.

United States District Court D. North Dakota, Northwestern Division.

November 11, 1953.

P. W. Lanier, U. S. Atty., Fargo, N. D., Max Caplan, Bureau of Land Management, Billings, Mont., and Dale Kent, Missouri River Division, Corps of Engineers, Omaha, Neb., for plaintiff.

Halvor L. Halvorson, Jr., of Minot, N. D., for defendant Earl Nice.

Roy A. Ilvedson and Kenneth G. Pringle, of Ilvedson, Pringle & Herigstad, Minot, N. D., for defendants George O'Malley and Francis K. Goodall.

Milton K. Higgins, John C. Gunness, of Cox, Cox, Pearce & Engebretson, Bismarck, N. D., John S. Miller, Tulsa, Okl., and Ella Van Berkom, Minot, N. D., amici curiae.

VOGEL, District Judge.

This is a condemnation proceedings by the United States to acquire lands for the reservoir to be created back of the Garrison Dam on the Missouri River in North Dakota. This action was commenced against certain described tracts, plus accretions: V-1926, owned by George O'Malley, containing 1103 acres, more or less; V-1934, owned by Earl L. Nice, containing 416.24 acres, more or less; and V-1966, owned by Francis K. Goodall, containing 308.67 acres, more or less. On October 14, 1952, plaintiff moved to dismiss the action as to a portion of the land in each of those tracts. On October 27, 1952, this motion was granted as of right. The result was that the legal descriptions remained the same, except the words "plus accretions" were omitted as to each tract, and the stated acreage was reduced to 829.99 acres in V-1926, to 122.12 acres in V-1934, and to 279.50 acres in V-1966.

Thus, the acreage in dispute here totals over 696 acres.

Thereafter, on September 29, September 30 and October 5, 1953, each of the defendants filed a supplemental answer claiming ownership of the accreted lands and severance damages therefor. As to the owners Nice and O'Malley, plaintiff filed replies denying that they owned the land as to which they claimed severance damages. On October 2, 1953, plaintiff moved for summary judgment that the lands be decreed to be the lands of the United States Government, as to which the United States has never divested itself of title.

Subsequently, on November 5, 1953, it was stipulated between the attorneys for the respective parties herein that the Motion for Summary Judgment filed by the United States on October 1, 1953, should be determined by the Court without further hearing or notice to any of the parties herein, and that such motion should be determined on the record existing in the files as of November 5, 1953, including all such matters as were stipulated at the pre-trial conference on September 30, 1953.

At such pre-trial conference, the parties stipulated into the record photostatic copies of the entry and patent in each case and the field notes and official plats of the survey for each tract involved, as well as a photostatic copy of the surveying instructions relating to meander lines issued by the Public Lands Department, dated June 30, 1894.

The entry (dated November 5, 1906) and patent (dated June 7, 1909) relating to the lands in V-1926 describe the "south half of the southeast quarter of Section twenty-one and the Lots one and two of Section twenty-eight in Township one hundred fifty-three north of Range ninety-three west of the Fifth Principal Meridian, North Dakota, containing one hundred forty-six and sixty-hundredths acres, according to the Official Plat of the Survey of the said lands, returned to the General Land Office by the Surveyor General." The application for entry contains an oath that the applicant has not acquired title to, nor is claiming under any of the agricultural public land laws, an amount of land which, together with the land applied for, would exceed in the aggregate 320 acres. The patent contains the following habendum: "To Have and to Hold the same, together with all the rights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging."

The entry (dated October 23, 1907) and patent (dated May 12, 1913) relating to the lands in V-1934 describe "Lots one, two and three of Section twenty-nine and the Lots three and four of Section twenty-eight in Township one hundred fifty-three north of Range ninety-three west of the Fifth Principal Meridian, North Dakota, containing one hundred fifty-three and ten-hundredths acres, according to the Official Plat of the Survey of the said Land." The habendum in the patent states, "with the appurtenances thereof."

The entry (dated November 26, 1909) and patent (dated April 6, 1915) relating to the lands in V-1966 describe "Lot two and the west half of the northeast quarter of Section thirty-four in Township one hundred fifty-three north of Range ninety-three west of the Fifth Principal Meridian, North Dakota, containing one hundred nineteen and fifty-hundredths acres, according to the Official Plat of the Survey of the said Land." The application for homestead entry carries an oath that the applicant has not entered and acquired title to, or claims under an entry made under any of the non-mineral public land laws, an amount of land which, together with the land applied for, exceeds in the aggregate 320 acres. The habendum in this patent likewise states, "with the appurtenances thereof."

It appears from the field notes and official plats of the survey, approved January 8, 1897, that the lots described in the patents were bounded, at the time of survey, on one side by the Missouri River which was surveyed by meander line. According to the Manual of Surveying Instructions (1894), page 56, rivers were to be meandered at the ordinary mean high water mark.

It is to be noted that none of the patents conveys the maximum amount of land which a homesteader might have acquired.

At the pre-trial conference, it was stipulated that W. R. Bandy is now Regional Chief of Engineering, Bureau of Land Management, and has been United States Deputy Surveyor for the General Land Office on Public Land Surveys (1906), Assistant Chief Engineer on irrigation projects in Idaho (1909-1910) and, since 1911, United States cadastral engineer for the General Land Office, now the Bureau of Land Management. It was agreed that he would testify that, as a result of his personal inspection of the lands on September 22, 23 and 24, 1952, and July 22, 1953, his opinion is that, with respect to Lot 2, Sec. 34, Twp. 153 N., R. 93 W. (V-1966), there existed at the date of homestead entry of such lot, and at all times subsequent thereto, a strip of land formed by accretion about 1500 feet in width between the meander line as shown on the plat and the actual right bank of the Missouri River at the date of entry, and similarly a strip of accretions 600 feet wide as to Lots 1 and 2, Sec. 28 (V-1926) and a strip 700 feet wide as to Lots 3 and 4 of Sec. 28 and Lots 1 and 2 of Section 29 (V-1934).

It was stipulated that the defendants have been using the accretion lands in question and have improved the lands by clearing parts of them. The stipulation further provided that up until these particular actions no claim has been made for accretion lands in similar condemnation suits or negotiations with landowners. In so stipulating, the District Attorney stated that in explanation thereof the fact was "that this was not discovered to be true until subsequent to these happenings". The representatives of the Government also acknowledged that they knew of no specific instance where the Government had asserted any possessory rights by way of actual occupancy or improvements on the lands in question.

Shortly after the pre-trial conference, a letter, dated December 17, 1931, from D. K. Parrot, Acting Assistant Commissioner of the General Land Office, to George O'Malley, owner of lands in Tract V-1926 involved herein, was admitted into the record as Exhibit No. 13. The letter is as follows:

"Reference is made to your letter dated November 12, 1931, relative to areas formed along the Missouri River in T. 153 N., R. 93 W., 5th P. M., North Dakota.

"The plat of the above-mentioned township approved January 8, 1897, shows that the Missouri River was meandered and the river is represented as the boundary of the fractional lots abutting thereon.

"In making the public-land surveys, rivers are meandered for the purpose of ascertaining the quantities of land in the fractional sections, and not as boundary lines. The official plat prepared from the field notes represents the meander line as the border line of the river, and shows to a demonstration that the river bank, and not the meander line, is the boundary of the fractional lots (see Railroad Company v. Schurmeir, 7 Wall. 272 19 L.Ed. 74). The disposal of land by the United States that is bounded by a meandered stream, as shown by the plat of the original survey, therefore, under ordinary conditions, conveys to the patentee title to the actual bank of the stream, and after disposal the United States does not claim areas formed by accretion or by a sudden change in the course of the river in front of the patented lands. The laws of the State in which the lands are situated govern with respect to the extent of the riparian rights of the shore owners, and this office has no jurisdiction in the matter.

"The Supreme Court of the United States, in the case of Nebraska v. Iowa (143 U.S. 359 12 S.Ct. 396, 36 L.Ed. 186), held that when grants of land border on running water and the banks are changed by the gradual process known as accretion, the riparian owners boundary line still remains the stream, but when the boundary stream suddenly abandons its old bed and seeks a new course by the process known as avulsion, the boundary remains as it was in the center of the old channel."

There is nothing in the record, other than the physical fact itself as determined by Mr. Bandy, to show that the patentees were...