No. 89-118 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

JAMES E. EDWARDS, 

plaintiff and Respondent, 

-vsROY E. SEVERIN, 

Defendant and Appellant. 

APPEAL FROM: ~istrict Court of the Thirteenth ~udicial ~istrict, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James A. Patten, ~illings, Montana 

For Respondent: 

Kenneth D. Tolliver, ~illings, Montana 

Filed: 

Submitted on Briefs: Oct. 20, 1989 

Decided: January 29, 1990 

* 
Justice John C. Sheehy delivered the Opinion of the Court. 

plaintiff James Edwards brought suit in the District 

Court, Thirteenth Judicial District, Yellowstone County, 

seeking compensatory and punitive damages against Roy severin 

for wrongfully denying Edwards and his successor access to 

Edward's property. In addition, Edwards sought damages for 

the wrongful logging of lumber on state land leased by 

Edwards. The District Court found that Severin acted 

oppressively and maliciously in denying Edwards access, that 

Severin was guilty of trespass, and awarded Edwards $53,375 

in damages. From that judgment, severin appeals. We affirm 

in part and reverse in part. 

The issues raised by Severin are: 

1. Whether severin has a valid claim to ~innie Island 

by accretion or otherwise. 

2. Whether the District Court erred in ruling Edwards 

has a prescriptive easement to Minnie Island. 

3. Whether the District Court erred in allowing 

Edwards, as a lessee, damages for removal of timber from 

Minnie Island. 

The property in question is land adjacent to the 

Yellowstone River near Laurel, Montana, known as ~innie 

Island situated between the lands of Edwards and Severin. 

The river channel in this area has undergone several changes 

since Montana statehood. Ice jams have caused the main 

channel of the Yellowstone to shift several times. In the 

past, the Yellowstone had flowed between the properties of 

Severin and Edwards. Indeed, the old channels seasonally 

fill with water to this day, restricting access to Edwards' 

property. 
It is clear from the record that ~innie Island began to 

form in the channel between the parties' lands at some time 

between 1889 and 1916, when it was first noted by surveyors. 

The process by which Minnie Island was formed over the 

years precludes Severin's claim of ownership by accretion. 

Under our statutory law, whether a stream is navigable or 

non-navigable, land formed by imperceptible degrees upon the 

bank of the stream belongs to the owner of the bank, subject 

to any existing right-of-way over the bank. Section 

70-18-201, MCA. If a stream is navigable, and islands and 

accumulation of land are formed in the bed of the stream, 

title to the island or accumulation belongs to the State, 

where there is no title or prescription to the contrary. 

Section 70-18-203, MCA. Under the facts of this case, ~innie 

Island formed in the bed of the Yellowstone River, a 

navigable stream. Therefore, title to Minnie Island vested 

in the State, since there is no title or prescription to the 

contrary. The State has asserted its title to the island by 

leasing it to Edwards. severin recognized the State's title 

by offering to purchase the island from the State. 

Further, under our statutory law, if an island forms in 

a non-navigable stream, it belongs to the owner of the shore 

where the island forms. Section 70-18-204, MCA. severin 

maintains there is no evidence to support the ~istrict 

Court's conclusion that the Yellowstone River is navigable at 

the place here involved. He further points to Bode v. 

Rollwitz, et al. (1921), 60 Mont. 481, 199 P. 688, where this 

Court sustained a decision that the Yellowstone was not 

navigable at a point shortly downstream from the place here 

involved. However, as this Court said in Montana coalition 

for Stream Access v. Curran (1984), 210 Mont. 38, 682 P.2d 

163, 166, citing The ~anial Ball (1870), 77 U.S. (10 Wall) 

557, 19 L,.Ed. 999, the capability of use by the public for 
purposes of transportation or commerce affords the true 

criterion of navigability of a stream. In this case there 

was unrefuted testimony that the river was large enough to 

float logs, and it is used extensively for organized 

recreational river floats involving many boats and rafts. 

The District Co.urt properly considered the river was 

navigable at this point. 

The court correctly determined that Minnie Island was 

not formed by accretion, and therefore not subject to 

Severin's claim of ownership. It is an island, albeit one no 

longer surrounded entirely by water. There are no valid 

adverse claims to defeat the State's title. Thus, Severin's 

contention of ownership must fail. 

Severin's second issue regarding prescriptive easements 

to Minnie Island incorrectly assumes the court granted 

Edwards prescriptive rights to Minnie Island. The District 

Court's conclusion of law no. 5 states only that Edwards has 

a prescriptive right to cross the backwater channel in order 

to reach Minnie Island, which Edwards leased from the State. 

s his sets the stage for damages against severin for 

wrongfully refusing Edwards and his successors access to the 

leased land and Edwards' adjoining property. 

The third issue is whether the court erred in granting 

Edwards damages for removal of timber from Minnie Island by 

Severin and his successor. severin maintains that the issue 

of damages for taking timber is raised for the first time on 

appeal and may not be considered by this Court. However, the 

pleadings in this cause sought no such damages. The damage 

item for timber was clearly outside the issues before the 

District Co.urt. his Court nust address the propriety of 

such damages. 

It is clear that the state of Montana is the owner of 

~innie Island. Edwards is a lessee, whose lease grants him 
grazing rights. No mention is made in the lease as to timber 

rights. A tenant for years is not afforded timber rights by 

reason of his tenancy. Section 70-16-104, MCA, allows a 

tenant to harvest only the "annual products of the soil 

... " Timber rights are not included in this definition. 

Edwards maintains that as between him and Severin, the 

damages for timber taking should stand since Edwards was 

rightfully in possession. Moreover, Edwards suggests that if 

such damages are collected by Edwards from Severin, Edwards 

may be required to pay such monies to the State as the true 

owner of the property. Edwards, however, has no standing to 

collect damages for the State. If the taking of the timber 

by Severin was by trespass and willful or malicious, the 

State, as true owner has a cause of action against severin 

for treble damages. section 70-16-107, MCA. The State is 

the only real party in interest as to damages arising out of 

the taking of timber. We therefore reverse the award of 

$27,500 for the value of the timber. 

In summary, we affirm the damages of $25,875 resulting 

from severin's denying Edwards and his successors access, and 

we reverse the $27,500 award for trespass for taking timber. 

Affirmed in part and reversed in part. Each party bears 

his own costs on appeal. r..