United States v. 62.57 Acres of Land in Yuma County, Ariz.

• Decision Date: 01 October 1971
• Docket Number: No. 25222.,25222.
• Citation: 449 F.2d 5
• Parties: UNITED STATES of America, Appellant, v. 62.57 ACRES OF LAND IN YUMA COUNTY, ARIZONA, Fort Yuma Land and Investment, Inc., et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

449 F.2d 5 (1971)

UNITED STATES of America, Appellant, v. 62.57 ACRES OF LAND IN YUMA COUNTY, ARIZONA, Fort Yuma Land and Investment, Inc., et al., Appellees.

No. 25222.

United States Court of Appeals, Ninth Circuit.

October 1, 1971.

Richard S. Allemann (argued), Asst. U. S. Atty., Richard K. Burke, U. S. Atty., Phoenix, Ariz.; Shiro Kashiwa, Asst. Atty. Gen., Washington, D. C., for appellant.

Thaddeus G. Baker (argued), of Brandt & Baker, Tom C. Cole, of Westover, Keddie & Choules, Yuma, Ariz., Charles F. Wheatley, Jr., Grace Powers Monaco, Washington, D. C., for appellees.

Before BROWNING and TRASK, Circuit Judges, and BYRNE, District Judge.^*

TRASK, Circuit Judge:

The United States seeks title, by this combined condemnation-ejectment action, to 145 acres of land on the west side of the Colorado River, but in Yuma County, Arizona. This land is presently occupied by the Fort Yuma Land and Investment, Inc.¹ The United States as appellant claims title to the property as accretion to federal lands riparian to the river on the California side. The appellees claim title to the same land by virtue of two patents issued to their predecessors in title. They contend that when the two patents issued there was a small portion of the patented land which was on the California side. From this riparian foothold appellees claim the lands by accretion and deny the claim of the United States for lack of riparian ownership.

The United States District Court during the trial made findings of some facts which were undisputed and entered an order consisting of twelve items which it stated involved controlling questions of law as to which there was a substantial ground for difference of opinion, and that an immediate appeal from the order might materially advance the ultimate termination of the litigation. Under 28 U.S.C. § 1292(b) an interlocutory appeal was applied for and allowed by this court.

Anna Roberts made a homestead entry in 1901 upon the NE¼ of Section 8, Township 8 S., Range 22 W., of the Gila and Salt River Meridian. Patent to the land issued in 1905 exactly as described in the entry. John B. Caruth made a homestead entry in 1904 to the NW¼, Section 9, Township 8 S., Range 22 W., of the Gila and Salt River Meridian and patent was duly issued with an identical legal description in 1925. (Appellant's brief at 4). These lands described in relation to the Gila and Salt River Meridian were situated on the east side of the river in the State of Arizona and were nonriparian parcels at the dates of entry. Lands on the west side of the Colorado River insofar as they are involved here, were owned by the United States. They had been officially surveyed in 1856 and their legal descriptions were tied to the San Bernardino Meridian. That survey did not show the lands in question here because at that time they were on the east side of the river.

From 1874 to the dates which are critical to this litigation, the Colorado River in the area of the proposed patents had gradually moved eastward.² It is the contention of the appellees that as of the date of the patent of the Roberts parcel and of the Caruth parcel, and as a result of the movement of the river, portions of the quarter sections described in their patents were located on the west side of the Colorado River and were conveyed by those patents. This gave appellees the claim of a riparian foothold on the west side so that accretions there, resulting from the river's eastward movement, would add to appellees' land. Appellants respond that this is a disputed question of fact to be resolved at trial, but even assuming its verity, the patents could under no circumstances have been effective to convey land on the California side of the river. This for the reason that the legal descriptions in the patents were in terms of the Gila and Salt River Meridian which referred to Arizona lands on the east side of the river, and simply did not describe any lands on the west side of the river.

The order of the district court which creates the question of law includes the following items of dispute:

"WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED:

* * * * * *

"5. That the controlling date as to the effect of the Colorado River in relation to the lands is the date of issuance of the patents, that is, February 17, 1905, as to the Roberts\' patent, and June 29, 1925 as to the Caruth patent.

* * * * * *

"9. That regardless of the position of the Colorado River as of the date of the issuance of the respective patents, each patent conveyed the entire one-quarter section applied for except any portion that might be in the river bed.

"10. That if any land described in the application for either patent lay west of the westerly ordinary low water mark of the Colorado River and riparian to it as of the date of issuance of the respective patents, said land was conveyed to the patentee.

"11. That any eastward accretive movements of the Colorado River subsequent to the issuance of the patents would add and accrete to any lands conveyed by the patents which lay on the west side of and riparian to the Colorado River.

"12. That a patent describing a quarter-section of land in Arizona by reference to the Gila and Salt River Base and Meridian conveys any portion of that aliquot part which at the time of issuance of the patent is physically located in California by reason of erosive and accretive movements of the Colorado River subsequent to the Gila and Salt River Base and Meridian survey." C.T. 371-72.

With respect to the controlling date for identifying the position of the river with relation to the lands, no case has been called to our attention which is decisive on the point. Appellants reason from the cases holding that when a patent issues, the legal title thus acquired relates back to the date of entry. United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 334-335, 26 S.Ct. 282, 50 L.Ed. 499 (1906). Thus they urge that entry is the controlling date because rights are established then. As of that date they contend the lands were in Arizona and no accretions on the west side of the river could attach to them. A closer view of Detroit Lumber, however, as appellees are quick to point out, discloses that the court there says the doctrine is one designed to cut off the rights of intervening claimants. Id. at 335, 26 S.Ct. 282. That view adopts the reasoning of the Court in Gibson v. Chouteau, 13 Wall. 92, 80 U.S. 92, 20 L. Ed. 534 (1871), where it said:

"The doctrine of relation is a fiction of law adopted by the courts solely for the purpose of justice, and is only applied for the security and protection of persons who stand in some privity with the party that initiated proceedings for the land. * * *" 80 U.S. 100.

Thus appellees argue that the relation back theory has no application here as between a grantor and grantee to alter the obligation to convey land as called for in the entry and patent.

Appellees insist that it is the date of patent which is the controlling date for determining the position of the river. With this legal position established they hope to prove that as of those dates there was a portion of the lands in question which was situated on the west side of the river and riparian thereto, to which accretions could attach and that these riparian lands were conveyed to appellees. Appellees cite authorities which tend to support their position although not directly apposite. The case most nearly in point, according to appellees, is Johnston v. Jones, 66 U. S. 209, 17 L.Ed. 117 (1862), which involved a dispute between two claimants to land formed by accretion on the shore of Lake Michigan. A claimed error in the proceedings below was a failure to consider a title bond given by grantor to grantee prior to actual conveyance of title, which would have created an equitable right in the grantee. It was asserted that the doctrine of relation back would then apply. Said the Court:

"The plaintiff could recover only upon a legal title. That title was vested in him, if at all, by the deed from Robert A. Kinzie of the 22d of October, 1835. The equities subsisting at any time between those parties could not in any wise affect the result of the action." Id. at 221.

We agree with appellees and the trial court that the doctrine of relation back does not assist the appellants and that the date of patent is the controlling date.

The government relies also on Jefferis v. East Omaha Land Co., 134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872 (1890). In this case the land patented was described as Lot 4 "according to the official plat of the survey of said land, returned to the general land-office by the surveyor general." Id. at 194, 10 S.Ct. at 522. That plat, however, shows the Missouri River as the north boundary of Lot 4. The Court therefore held that:

"The patent passed the title of the United States to lot 4, not only as it was at the time of the survey in 1851, but as it was at the date of the patent in 1855, so that the United States did not retain any interest in any accretion formed between the survey in 1851 and the date of the patent." Id. at 195, 10 S.Ct. at 522.

Thus it was the date of the patent which controlled the size of the estate which the patentee acquired. And if a river marked one of the boundaries as of the date of entry then the patentee took his estate accordingly, be there erosion or accretion.

The difference between Jefferis and the case now before us is that here there was no boundary marked by the Colorado River as of the date of entry or survey.

Nor can appellant rely upon Beaver v. United States, 350 F.2d 4 (9th Cir. 1965), cert. denied, 383 U.S. 937, 86 S. Ct. 1067, 15 L.Ed.2d 854 (1966). There the patent had issued according to the legal description in the application for entry. All of the land there appears to have been in Arizona at the date of patent.³ Thereafter, the accretion occurred which eroded the patented land on the Arizona side and increased the lands...