MR. JUSTICE CHOATE
delivered the opinion of the court.
This action is brought by the city of Missoula to quiet title to certain “made” or built-up land deposited at the rear of lots 9 to 14 of block 56 of the W. J. McCormick addition to the city of Missoula during the time the city maintained a municipal dump at the rear of these and other lots.
Defendant claims ownership of said lands by deed from his predecessors in interest and by riparian rights. The trial court found for the defendant.
We eliminate from this opinion the question of title to the 25-foot alley running east and west 130 feet south of the south line of Front street, since the court adjudged the city to be the owner of said alley and quieted its title thereto.
Appellant’s brief assigns 18 specifications of error but all are argued together. Collectively, they raise two questions, first, did the city of Missoula (hereinafter referred to as the city) acquire title to said land by deed from its predecessor in interest, and second, did it acquire title thereto by adverse possession ?
For many years prior to 1930 the McCormick estate was the owner of said lots 9 to 14 inclusive of block 56 of the W. J. McCormick addition to the city of Missoula and other adjacent lots and blocks. Sometime prior to 1930 the city of Missoula established a municipal dump in the rear of all the lots in said block 56 and other lots not material here. In time this dump deposited an area of built-up or “made” land at the rear of said lots and pushed the Missoula river in a southwesterly direction, thereby enlarging the area of said “made” land from a depth of about 80 to about 250 feet, but not beyond the center line of the river as it was before its course was changed by the man-made additions.
All of this built-up land is shown on the map, plaintiff’s exhibit 3, introduced in evidence herein, and constitutes the land involved in this action.
The city claims ownership of all the “-made” land from the northeasterly line of the 25-foot alley shown on said plat and extending south to the Missoula river.'
Plaintiff’s title by deed, if it has one, rests upon a quitclaim deed, plaintiff’s exhibit 2 executed February 12, 1938, by the trustees of the estate of Kate H. MeCromick, deceased, and other grantors, to the city of Missoula. By this deed, said grantors released and quitclaimed to the city their interest in the rfeal property south of the north line of the alley running through'said block 56 and extending south to the bank of the south channel of the Missoula river.
Defendant’s claim of title to said land rests upon the following conveyances and the riparian rights resulting therefrom. -On. February 24, 1936, Thomas N. Marlowe, the duly appointed, qualified and acting trustee of the estate of Kate H. MeCromick, deceased, executed to Fred C. Follman, a deed to lots 9 to 14, inclusive, of block 56 of the McCormick addition to the city of Missoula, according to the official plat thereof. On January 20, 1944, Follman and wife conveyed said lots by a warranty deed to Walter J. Bakke. Defendant therefore claims that since he and his predecessors in interest is and were the owners of said lots 9 to 14 of block 56., they are the owners of all the land added to said lots by the city dump. The deed for the “made” land which was executed to the city by the McCormicks and others was given February 12, 1938, whereas the deed from the trustee of the Kate McCormick estate to defendant’s predecessor Follman for the lots 9 to 14 of said block 56 was given February 24, 1936, almost two years before the city acquired its deed to said “made” land. If therefore, it be established that the deed from the McCormicks to Follman given in 1936 carried with it the riparian rights to said lots, then the deed which was given by the McCormicks and others to the city two years later purporting to convey these same rights, was a nullity.
Effect of Alley Deed as a Severance of Riparian Rights.
To sustain its assertion that defendant did not acquire any ri
parían rights to the lots in question, plaintiff advances the following contention: On August 11, 1930, the executrix of' the estate of Kate H. McCormick, deceased, and other grantors, conveyed to the city a tract of land for alley purposes. This alley is 25 feet wide and extends in a general easterly and westerly direction parallel with Front street, across the “made” land at the rear of blocks 29 and 56 of the said McCormick addition to the city of Missoula, including the “made” land at the rear of lots 9 to 14 of said block 56. Plaintiff contends that the deeding of this alley to the city in 1930 at the time the McCormick estate was the owner of the lots in question, severed said “made” land from lots 9 to 14 and that land which is separated from water by a street or highway, the fee of which is "in the municipality, is not riparian land. Citing 27 R. C. L., page 1075.
A later statement of the rule quoted above will be found in 56 Am. Jur., page 733, section 280, where it is stated as follows:
“Effect of Highway or Easement at or along Water Margin. While there is some authority to the contrary, the majority of the courts have followed the rule that land which is seperated from water by a highway or street the fee of which is in the public is not riparian land; but where the fee in the land covered by the highway or street is in the owner of the land, riparian rights remain in such owner.”
As indicated by the text writer quoted above, the rule stated is not universal. A discussion of same will be found in 22 L. R. A., N. S., at page 674 in the accompanying case note with citation of authorities, of which we refer to the following: Ennis v. Grover, 53 Misc. 66, 103 N. Y. S. 1088, affirmed in 120 App. Div. 879, 105 N. Y. S. 1114. This case held that the existence of a public street or road between the Avater’s edge of the upland and the tideland would not be permitted to separate riparian rights from the upland; Prior v. Comstock, 17 R. I. 1, 19 A. 1079. Without discussion as to AAdio OAvned the fee in the street, this case lays doAvn the broad proposition that in the absence of any reservation or incompatible grant, the laying
out of a street in front of uplands would not deprive the owner of his general riparian rights; Municipality No. 2 v. Orleans Cotton Press, 18 La. 122, 36 Am. Dee. 624. This case held that regardless of the ownership of the fee of a street lying between a tract of land and navigable water, the existence of such street does not prevent the gaining of alluvion from belonging to such land upon the ground that the lot owner’s exposed situation burdens him with the risk of loss through the agency of the river, and he should be allowed the benefits which it might confer as a compensation.
Apart from the fact that the rule of severance contended for by the city is not universally recognized, we should be reluctant to apply it to the facts of the case at bar. In our opinion, the “severance” claimed is more technical than actual. It may be said that the alley “severed” the McCormick land north of the alley from that south of the alley. The alley, however, did not touch the water’s edge.
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MR. JUSTICE CHOATE
delivered the opinion of the court.
This action is brought by the city of Missoula to quiet title to certain “made” or built-up land deposited at the rear of lots 9 to 14 of block 56 of the W. J. McCormick addition to the city of Missoula during the time the city maintained a municipal dump at the rear of these and other lots.
Defendant claims ownership of said lands by deed from his predecessors in interest and by riparian rights. The trial court found for the defendant.
We eliminate from this opinion the question of title to the 25-foot alley running east and west 130 feet south of the south line of Front street, since the court adjudged the city to be the owner of said alley and quieted its title thereto.
Appellant’s brief assigns 18 specifications of error but all are argued together. Collectively, they raise two questions, first, did the city of Missoula (hereinafter referred to as the city) acquire title to said land by deed from its predecessor in interest, and second, did it acquire title thereto by adverse possession ?
For many years prior to 1930 the McCormick estate was the owner of said lots 9 to 14 inclusive of block 56 of the W. J. McCormick addition to the city of Missoula and other adjacent lots and blocks. Sometime prior to 1930 the city of Missoula established a municipal dump in the rear of all the lots in said block 56 and other lots not material here. In time this dump deposited an area of built-up or “made” land at the rear of said lots and pushed the Missoula river in a southwesterly direction, thereby enlarging the area of said “made” land from a depth of about 80 to about 250 feet, but not beyond the center line of the river as it was before its course was changed by the man-made additions.
All of this built-up land is shown on the map, plaintiff’s exhibit 3, introduced in evidence herein, and constitutes the land involved in this action.
The city claims ownership of all the “-made” land from the northeasterly line of the 25-foot alley shown on said plat and extending south to the Missoula river.'
Plaintiff’s title by deed, if it has one, rests upon a quitclaim deed, plaintiff’s exhibit 2 executed February 12, 1938, by the trustees of the estate of Kate H. MeCromick, deceased, and other grantors, to the city of Missoula. By this deed, said grantors released and quitclaimed to the city their interest in the rfeal property south of the north line of the alley running through'said block 56 and extending south to the bank of the south channel of the Missoula river.
Defendant’s claim of title to said land rests upon the following conveyances and the riparian rights resulting therefrom. -On. February 24, 1936, Thomas N. Marlowe, the duly appointed, qualified and acting trustee of the estate of Kate H. MeCromick, deceased, executed to Fred C. Follman, a deed to lots 9 to 14, inclusive, of block 56 of the McCormick addition to the city of Missoula, according to the official plat thereof. On January 20, 1944, Follman and wife conveyed said lots by a warranty deed to Walter J. Bakke. Defendant therefore claims that since he and his predecessors in interest is and were the owners of said lots 9 to 14 of block 56., they are the owners of all the land added to said lots by the city dump. The deed for the “made” land which was executed to the city by the McCormicks and others was given February 12, 1938, whereas the deed from the trustee of the Kate McCormick estate to defendant’s predecessor Follman for the lots 9 to 14 of said block 56 was given February 24, 1936, almost two years before the city acquired its deed to said “made” land. If therefore, it be established that the deed from the McCormicks to Follman given in 1936 carried with it the riparian rights to said lots, then the deed which was given by the McCormicks and others to the city two years later purporting to convey these same rights, was a nullity.
Effect of Alley Deed as a Severance of Riparian Rights.
To sustain its assertion that defendant did not acquire any ri
parían rights to the lots in question, plaintiff advances the following contention: On August 11, 1930, the executrix of' the estate of Kate H. McCormick, deceased, and other grantors, conveyed to the city a tract of land for alley purposes. This alley is 25 feet wide and extends in a general easterly and westerly direction parallel with Front street, across the “made” land at the rear of blocks 29 and 56 of the said McCormick addition to the city of Missoula, including the “made” land at the rear of lots 9 to 14 of said block 56. Plaintiff contends that the deeding of this alley to the city in 1930 at the time the McCormick estate was the owner of the lots in question, severed said “made” land from lots 9 to 14 and that land which is separated from water by a street or highway, the fee of which is "in the municipality, is not riparian land. Citing 27 R. C. L., page 1075.
A later statement of the rule quoted above will be found in 56 Am. Jur., page 733, section 280, where it is stated as follows:
“Effect of Highway or Easement at or along Water Margin. While there is some authority to the contrary, the majority of the courts have followed the rule that land which is seperated from water by a highway or street the fee of which is in the public is not riparian land; but where the fee in the land covered by the highway or street is in the owner of the land, riparian rights remain in such owner.”
As indicated by the text writer quoted above, the rule stated is not universal. A discussion of same will be found in 22 L. R. A., N. S., at page 674 in the accompanying case note with citation of authorities, of which we refer to the following: Ennis v. Grover, 53 Misc. 66, 103 N. Y. S. 1088, affirmed in 120 App. Div. 879, 105 N. Y. S. 1114. This case held that the existence of a public street or road between the Avater’s edge of the upland and the tideland would not be permitted to separate riparian rights from the upland; Prior v. Comstock, 17 R. I. 1, 19 A. 1079. Without discussion as to AAdio OAvned the fee in the street, this case lays doAvn the broad proposition that in the absence of any reservation or incompatible grant, the laying
out of a street in front of uplands would not deprive the owner of his general riparian rights; Municipality No. 2 v. Orleans Cotton Press, 18 La. 122, 36 Am. Dee. 624. This case held that regardless of the ownership of the fee of a street lying between a tract of land and navigable water, the existence of such street does not prevent the gaining of alluvion from belonging to such land upon the ground that the lot owner’s exposed situation burdens him with the risk of loss through the agency of the river, and he should be allowed the benefits which it might confer as a compensation.
Apart from the fact that the rule of severance contended for by the city is not universally recognized, we should be reluctant to apply it to the facts of the case at bar. In our opinion, the “severance” claimed is more technical than actual. It may be said that the alley “severed” the McCormick land north of the alley from that south of the alley. The alley, however, did not touch the water’s edge. It did not lie “at or along the water margin” and it left a substantial area of “made” land which could be and was occupied and used without hindrance from the so-called severance. The alley did not in fact sever the entire tract of “made” land in the sense of separating or placing it apart from anything else. Instead, the alley ran over, upon and across the “made” land and all that the alley accomplished was to separate one piece of “made” land from another.
We are of the opinion that the “made” land south of the south line of the alley remained riparian land after the giving of the alley deed and that said riparian rights passed to the defendant’s predecessor Follman and from him to the defendant. The cases cited in the dissenting opinion in support of the statement that the alley deed to the city cut off any right of Bakke to any interest in the land south of the alley, do not support the statement made. Had the deed to the alley described the south boundary of the alley as the river, then those cases and authorities would be applicable but since the river was not the
boundary of the alley these cases and authorities does not apply here.
Effect of Deeds According to Official Plat as Carrying the Made Land.
The record in this case contains a stipulation that the lots in question abut on what is now called the Missoula river; that the water of the river actually goes to the edge of the land and that there is no land intervening between said lots and the river. Under such facts the provisions of section 6771, Revised Codes of Montana, 1935, become applicable, namely, that the owner of land which borders upon any other water than a navigable lake or stream, takes to the middle of the stream. This is also the rule in other jurisdictions. Thus in Brown v. Huger, 21 How. 305, 16 L. Ed. 125, the Supreme Court of the United States held that where a line is described as running in a certain direction to a river and thence up or down with the river, these words imply that the line is to follow the river according to its meanderings and turnings and in water courses not navigable, must be to the center of the stream. See also Conner v. Jarrett, 120 W. Va. 633, 200 S. E. 39, supporting the above rule.
In Carter Oil Co. v. Watson, 7 Cir., 116 F. (2d) 195, it is held that a grant of land bordering on a river carries to the grantee exclusive rights and title to the center of the river, unless by terms of the grant a different intention is clearly shown.
The ease of Hutton v. Yolo Orchard Co., 203 Cal. 724, 265 Pac. 933, cited in the dissenting opinion is not in point with the case at bar because the circumstances there considered showed an intent to make the bank of the stream, not the center of the stream, the boundary.
Therefore, in the ease at bar the transfer by the McCormick Estate to Follman of lots 9 to 14 according to the official plat thereof the Missoula river, which it is stipulated as a matter of fact is non-navigable, established the south line of said lots at the middle of the stream where it has been at all times since. The middle of the stream has always been a considerable distance south of the south point of the land as it now
exists. Admittedly, the “made” land in question was built up prior to the year 1930. We are of the opinion that this “made” land passed by the deed from the McCormick estate to Follman on February 24, 1936, regardless of the fact that the deed of conveyance described the land by reference to the official plat, where, as here, it was stipulated that the plat showed facts indicating that the lots extended to the middle of the river and that the river was actually the south boundary of the lots..
Ownership of “Made” Land as Accretions.
Counsel for respondent has cited in his brief a number of cases involving riparian lands which have been added to a main body of land by accretion. Without going into the distinction between “accretion,” “reliction,” “acclusion,” and “alluvion,” (See Farnham on Water and Water Rights, p. 320, sec. 69 and sec. 6820, Rev. Codes 1935) it is sufficient to note that “accretion” refers generally to the gradual and imperceptible addition of sediment to the shore by the action of water. In the ease at bar the “made” land can scarcely be regarded as accretion since it was a deposit of land created by human agency as distinguished from one created by natural causes. However, the courts have sometimes applied the rule relative to the ownership of accretions to the ownership of “made” land created by human agency. We see no reason why that rule should not be applied to the case at bar since in principle there would seem to be no difference between the ownership of “made” land created by a city dump and ownership of similar land created by water-borne deposits resulting from natural causes. In Memphis v. Waite, 102 Tenn. 274, 52 S. W. 161, it was held that a riparian owner on the banks of a river is the owner of the accretions formed to his land even though these accretions are caused or greatly accelerated by the action of the city and public in making such land its dumping ground. See also Grant v. Fletcher, D. C., 283 F. 243; Gillihan v. Cieloha, 74 Or. 462, 145 Pac, 1061; Tatum v. City of St. Louis, 125 Mo. 647, 28 S. W. 1002.
Adverse Possession.
In the closing lines of its brief, plaintiff
: makes the claim that during all the time since 1930 the city has exercised ownership over the “made” land involved herein and that its title therein should therefore be quitted. ¥e shall not discuss this assignment at length for the reason that there is ample evidence in the record to sustain the trial court’s findings that such occupancy of said land as the city is shown to have established was, at least up to 1943 when the drill tower was built, neither exclusive nor open and adverse. See Le Vasseur v. Roullman, 93 Mont. 552, 20 Pac. (2d) 250 and cases cited. The fact is that both the city, the defendant and his predecessor Follman claimed to own the “made” land in question.
The following are a few of the acts of the defendant and his predecessor Follman tending to show their actual as well as asserted dominion over said property. In the year 1936, Foil-man gave permission in writing to the Portland Cement Company to store materials upon the following described premises: “All ground owned by the party of the second part lying between the Missoula river and Front street and upstream from the new bridge being built at the foot of Harris street as more specifically shown in defendant’s exhibit C.”
During the time that Follman owned the lots he stored lumber from time to time upon the disputed portion of the dump south of the alley and erected or caused to be erected electric light poles along said alley. Follman always claimed ownership of the land to the water’s edge and several times when requested by the city engineer to give a deed for the land in question he refused to do so.
Bakke likewise claimed to own the “’made” land and stored his trucks and equipment upon it. At the time of the trial he testified that there were probably 10 or 12 vehicles and about four or six dump boxes taken off trucks which were stored on that property. The fire chief requested him to remove this equipment but he refused to do so. On the record presented the court was warranted in finding that the city has not
established adverse possession or user of the “made” land involved in this action.
We have given consideration to all of plaintiff’s other contentions but find them without merit. The judgment is affirmed.
Associate Justices Gibson, Angstman and Metcalf, concur.