State v. Bonelli Cattle Company

489 P.2d 699, 107 Ariz. 465, 1971 Ariz. LEXIS 343
CourtArizona Supreme Court
DecidedOctober 4, 1971
Docket10030-PR
StatusPublished
Cited by17 cases

This text of 489 P.2d 699 (State v. Bonelli Cattle Company) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bonelli Cattle Company, 489 P.2d 699, 107 Ariz. 465, 1971 Ariz. LEXIS 343 (Ark. 1971).

Opinions

STRUCKMEYER, Chief Justice.

This action was brought by Bonelli Cattle Company, a corporation, to quiet title to certain lands lying within the bed of the Colorado River in Mohave County, Arizona. The Superior Court on an agreed statement of facts entered judgment quieting title against the State and the judgment was affirmed by the Court of Appeals, 11 Ariz.App. 412, 464 P.2d 999. Opinion of the Court of Appeals vacated. Judgment of the Superior Court reversed.

The issue to be determined is whether ownership of Arizona in the bed and banks of the Colorado River acquired by erosion has been lost because dredging has channelized the water of the river, confining it to a part of the bed.

[467]*467Bonelli claims as the owner the East half of Section 3, Township 19 North, Range 22 West of the Gila and Salt River Base and Meridian. It acquired title by deed dated August 12, 1955. Its grantor traces its title to a patent by the United States dated November 5, 1910 issued to Santa Fe Pacific Railroad Company.

A United States Geological Survey map of this area dated 1902-1903 shows that at that time the river’s east bank was approximately one-quarter of a mile west of Section 3. No evidence was produced as to the course of the river thereafter until 1938, but there seems to be general agreement that during this period the river moved steadily eastward. By April 24, 1938 the river’s channel covered all of the east half of Section 3 except a small portion of the southeast corner.

In the year 1938, the flow of the river was brought under control by the construction of the Hoover Dam, and thereafter water was released only in such quantities as was suitable for downstream irrigation. This discharge of water apparently has not been sufficient to cause any significant erosion or reliction in the river. By a map of the United States Geological Survey, Department of Interior, (the Davis Dam Quadrangle) dated 1950, the river is shown as being nearly three-fourths of a mile wide, flowing in part over the west half of Section 3. In 1959 and 1960 the river was dredged by the United States Department of Interior and the water which had theretofore spread over almost the entire width of the river’s bed was confined to the dredged portion, principally within the west half of Section 4 and only partially within the east half of Section 3. That part of the former channel on the east half of Section 3, over which water no longer flows, is the subject matter of this controversy. The plaintiff, Bonelli, is claiming the exposed portion of the bed of the river.

Ordinarily in the United States the bed of a non-navigable river or stream is owned by the riparian owners. Where the stream forms the boundary between owners, each owns on his side to the middle thread. However, the rule is not always applied to navigable rivers. By congressional enactment, the State of Arizona owns title to the beds of all navigable streams within its borders, 67 U.S.Stat. 30, 43 U.S.C. § 1311; Kansas v. Colorado, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956. Since the Colorado River is not wholly within Arizona’s borders, but is, itself, the border, Arizona’s title extends from the center of the channel eastward to the river’s high water line. Arizona v. California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154; and see Mumford v. Wardwell, 73 U.S. 423, 18 L.Ed. 756; Pollard v. Hagan, 44 U.S. 212, 11 L.Ed. 565; Morgan v. Colorado River Indian Tribe, 103 Ariz. 425, 443 P.2d 421. As an aside, it may be observed that the boundary between Arizona and Nevada is not the channel’s thread. The boundary has been fixed by agreement between the two states.

It is common knowledge that rivers move sometimes so slowly as to be imperceptible during the lifetime of any single individual, and sometimes so rapidly by floods that the river’s banks visibly disintegrate. Where the change is sudden and rapid, the change is said to be by avulsion. United States v. Claridge et al., U. S. District Court, Phoenix, 279 F.Supp. 87; Hirt v. Entus, 37 Wash.2d 418, 224 P.2d 620. Erosion, on the other hand, is the eating away of the soil by the river’s current, and is a gradual, imperceptible process. Where the river moves by erosion, the boundary moves with the stream, but where the river moves by avulsion, the boundary remains in the center of the old channel, Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396, 36 L.Ed. 186; State v. Jacobs, 93 Ariz. 336, 380 P.2d 998.

From the statement of facts and the exhibits introduced in the instant case, we are unable to say whether the eastward movement of the Colorado River between 1903 and 1938 was by avulsion or erosion. It is to be recognized that avulsive changes [468]*468are generally events so momentous that evidence is available to establish them. In the instant case, the failure to produce such evidence is an indication that the changes in the watercourse were imperceptible. The rule of law is that in the absence of clear evidence to the contrary, the movement of the river will be presumed to be by erosion, Arnd v. Harrington, 227 Iowa 43, 287 N.W. 292; Kitteridge v. Ritter, 172 Iowa 55, 151 N.W. 1097.

It follows from what has been said that as the river moved eastward across Section 3, the thread of its channel moved with it and the title of the State of Arizona to the east one-half of the river bed also shifted correspondingly, — the east high water line of the river finally becoming the plaintiff’s west boundary. As the river moved eastward, engulfing most of Section 3 in the channel of the river, the land to which plaintiff held title decreased so that, by 1938, the owners of the east one-half of Section 3 had, by the operation of natural forces, lost most of it to Arizona.

It is Bonelli’s position that when the United States Government dredged the river in 1959, confining the waters thereof to a portion of the river’s bed so as to prevent unreasonable loss of water by absorption and evaporation, the portion of the bed which was not used for the flow of water reverted to the previous owners. But we do not think so.

A stream is a watercourse having banks and channel through which waters flow, at least periodically. Southern Pacific Co. v. Proebstel, 61 Ariz. 412, 150 P.2d 81. As has been said:

“A watercourse does not lose its character as such by reason of the fact that it is improved by deepening or is artificially controlled, nor because it is used as a conduit to carry other waters. Again, the character of a watercourse is not changed by the fact that a pond is created by a dam. Nor does a watercourse lose its character as such because all the water has been diverted therefrom,, no matter for how long a period * * * nor by reason of the fact that the water has all been dammed at a place far up the stream.

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Bluebook (online)
489 P.2d 699, 107 Ariz. 465, 1971 Ariz. LEXIS 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bonelli-cattle-company-ariz-1971.