NO. 91-337 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

THE MONTANA DEPARTMENT OF STATE LANDS, 

Plaintiff and Appellant, 

-vsJERRY D. AFMSTRONG, et al., 

Defendants, Respondents and Cross-Appellants. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Richland, 

The Honorable LeRoy L. McKinnon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Tommy H. Butler, Dept. of State Lands, Helena, 

Montana 

For Respondent: 

W. H. Bellingham; Moulton, Bellingham, Long0 & 

Mather, Billings, Montana (Tom Brown, Inc., et al.) 

Craig D. Martinson; Veeder & Broeder, Billings, 

Montana (Maguire Oil Co.) 

Gregory Paul Johnson, Billings, Montana (Benjamin 

Minerals) 

Kemp Wilson; Crowley Law Firm, Billings, MOIItana 

(Tenneco Oil Co.) 

Kenneth R. Neill; Larsen & Neill, Great Falls, 

Montana 

Loren J. O'Toole; O'Toole & Hufit, Plentywood, 

Montana 

Filed: 

Submitted on Briefs: November 8, 1991 

Decided: January 7, 1992 
Justice R. C. McDonough delivered the Opinion of the Court. 

Montana Department of State Lands appeals from an order of the 

Seventh Judicial District, Richland County, in favor of defendants 

Jerry D. Armstrong, et al. We reverse. 

We frame the issues on appeal as: 

1. Whether the District Court erred in finding the Missouri 

River's migration into the West half of Section 9, Township 26 

North, Range 59 East, was caused by avulsion. 

2. Whether the District Court erred in finding two tracts 

within the West half of Section 9, Township 26 North, Range 59 

East, were not owned by the State of Montana. 

On June 11, 1986, the Montana Department of State Lands filed 

a quiet title action to two parcels of land in the West half of 

Section 9 in Richland County, Montana. One parcel is located in 

the Northwest Quarter of Section 9 (Parcel A). The other is 

located in the Southwest Quarter of Section 9 (Parcel D). On 

December 15 and 16, 1988, the District Court heard oral testimony 

presented by both sides after filing of cross-motions for summary 

judgment. The Honorable H.R. Obert issued findings of fact and 

conclusions of law on January 30, 1990, in favor of defendants. 

This Court suspended Judge Obert for reasons not involved here. 

The Honorable Leroy McKinnon subsequently assumed jurisdiction. 

On April 4, 1991, the parties stipulated to Judge Obert's 

findings of fact and conclusions of law. Thereafter, Judge 

McKinnon issued a judgment upon Judge Obert's findings and 

conclusions. Judge Obert found that the State's claim of ownership 

2 
to the parcels was invalid and groundless. He further quieted 

title to the surface and to the oil, gas and other minerals in and 

under the parcels to defendant's, the present record owners. 

Specifically, Judge Obert found the migration of the Missouri 

River to be avulsion and not accretion, and that the two tracts of 

land claimed by the State were sand bars and not islands. For the 

following reasons we reverse the District Court. 

The standard of review as to the court's findings of fact is 

clearly erroneous. Steer, Inc. v. Department of Revenue, 245 Mont. 

470, 474, 803 P.2d 601, 603. If substantial evidence exists and 

the effect of the evidence has not been misapprehended, the Court 

may still find that a finding is 'clearly erroneous' when, although 

there is evidence to support it, a review of the record leaves the 

court with the definite and firm conviction that a mistake has been 

committed. Interstate v. DeSaye (1991), Mont . P. 2d 

-, 48 st.Rep. 986. 

_I ~ 

Whether the District Court erred in finding the Missouri 

River's migration into the West half of Section 9, Township 26 

North, Range 59 East, was caused by avulsion. 

Avulsion occurs when a stream suddenly changes its channel and 

forms a new one. If avulsion moves a stream away from a 

landowner's property, the property boundary line remains where it 

had previously been. McCafferty v. Young (1964), 144 Mont. 385, 

391, 397 P.2d 96, 99. The landowner's property remains 

identifiable. Evidence presented to Judge Obert did not show a 

3 
distinct new channel where the old land could be distinctly 

identified. Nor was there evidence presented that a flood or ice 

jam caused the sudden formation of a new channel in the Missouri 

River. 

Although the migration of the Missouri between 1902 and 1987 

was very dynamic, the river movement cannot be characterized by 

avulsion. Avulsion is a sudden change in a river channel, 

resulting in an identifiable piece of land. The land formations 

here are not identifiable with the sedimentary layers on 

respondent's land. 

We have previously discussed avulsion in McCaffertv at 385, 

397 P.2d at 96. Defendants rely on McCaffertv as Montana's law on 

avulsion. We said: "In less than 100 years the river here has 

moved approximately a quarter of a mile from the SW+ of Section 8 

into the NE% of Section 18. This is substantial movement and is 

perceptible over the period of just one generation. Even without 

the clear evidence of a sudden flood we would be inclined to label 

this migration 'perceptible' and, therefore, avulsive." McCafferty 

at 393, 397 P.2d at 100. This language is dicta and should not be 

cited as Montana's law on avulsion. The facts presented to the 

District Court do not support a finding that avulsion occurred but 

instead fall under the doctrine of accretion. 

Accretion occurs when a stream gradually and imperceptibly 

changes its course over a period of time, resulting in sedimentary 

deposits on one bank along the water line. Jackson v. Burlington 

Northern Inc. (1983), 205 Mont. 200, 667 P.2d 406. This process is 

4 
distinguished from avulsion in that the property boundary line 

shifts with the water line. The riparian owner, absent exception 

or reservation, who owns land along the bank, retains land rights 

as long as the stream remains adjacent to the land. A riparian 

owner can conversely lose title to land when erosion causes the 

gradual washing away of land bordering a river. Jackson at 202, 

667 P.2d at 407. 

We conclude the District Court erred in its finding that the 

migration of the Missouri River into Section 9 was a result of 

avulsion. The processes described above indicate the land 

formations were a result of accretion, not avulsion. The District 

Court misapprehended the effects of the evidence in its 

determination that an avulsive process occurred. 

I1 

Whether the District Court erred in finding two tracts within 

the West half of Section 9, Township 26 North, Range 59 East, were 

not owned by the State of Montana. 

It is not disputed that the State of Montana owns the land 

under the navigable rivers within the State to the low water mark. 

Section 70-1-202, MCA (1991). It is further true that accreted 

lands pass with riparian property unless excepted or reserved. 

Jackson v. State (1979), 181 Mont. 257, 266, 593 P.2d 432, 436. 

Lands or islands arising from the river bed can also be enlarged by 

accretion and such accreted lands attach to the island. Jackson v. 

Burlington Northern, Inc. (1983), 205 Mont. 200, 204, 667 P.2d 406, 

408. 

5 
Both parties presented extensive expert testimony along with 

numerous photographs and maps. The parties agreed that the land 

formations in question arose out of the bed of the Missouri, but 

disagreed on which body was entitled to the accretions. 

"Accretions belong to the land from which they began." Nielsen v. 

Statbucker (Iowa 1982), 325 N.W. 2d 391, 394. 

As the Iowa Supreme Court noted, prior to determining which 

body is entitled to accretion it is important to determine whether 

or not the land in question is an island. "One matter to be 

determined is whether an island existed to which accretion can be 

claimed . . . Not every body of land which protrudes above the 

surface of the water is an island. This is particularly true with 

an undisciplined river such as the Missouri, where, as the evidence 

shows, sand bars might come and go on a day-to-day basis." Mather 

v. State (Iowa 1972), 200 N.W.2d 498, 501. 

Dr. Ray Breuninger, a sedimentologist, testified on behalf of 

the State that both Parcels A and D originated from the bed of the 

Missouri by deposits and build up of loose sediment. Testimony 

presented at the hearing, and the photographs bear out that the 

channels in question surrounding both parcels were still active 

prior to the land formations connecting to the shore. According to 

expert testimony presented by the State, the land formations in 

question developed permanent characteristics and became islands. 

According to Dr. Breuninger, the formation of the island in 

the middle of the river in the North half of the Northwest Quarter, 

occurred between 1940 and 1949. The southern channel of the river 

6 
in this area remained open and free flowing. After 1956, the south 

channel of the river narrowed through accretion and build up of 

sediment, which are gradually blocking off the flow. Although 

water was still flowing in the southern channel, in 1967 the island 

attached to the shore at low water and continued to build. 

As to the island in the East half of the Southwest Quarter of 

Section 9, Dr. Breuninger testified it was formed by a build-up of 

sand from the bottom of the river. The channel between this island 

and the east bank is still active but has filled in from right to 

left, narrowing the channel. 

Ray Womack testified as an expert on behalf of the defendants. 

He holds a masters in geology, specializing in fluvial 

geomorphology. He testified that since 1937 when Fort Peck was 

constructed, the size of the annual peak was reduced, resulting in 

smaller floods on a yearly basis. Further, between 1940 and the 

late 1950's, the river widened its bed tremendously, causing 

multiple channels and sand bars. As a result, erosion occurred 

inside the bends of the river instead of outside, with soil 

deposition on the outside rather than the inside. Womack testified 

that the result of this process is that the accretion goes to the 

riparian owner. He further testified that, the land forms which 

resulted from the migration of the Missouri were transitory in 

nature and were not islands. 

Womack testified that the channel in the Northwest Quarter of 

Section 9 has stopped flowing. As to the Southwest Quarter of 

Section 9, by 1988 very little trace of the channel was left and 

7 
the land form was firmly joined to the bank. However, the question 

is whether a land form gains permanence prior to attaching to the 

riparian shore. As the Iowa Supreme Court said; "Title however, 

does not leap frog from the State to the riparian owner merely 

because a sandbar arising above the high water mark is also 

eventually attached to the riparian shore." Nielsen v. Statbucker 

(Iowa 1982), 325 N.W. 2d at 395. 

In determining whether a claim of accretion can be supported, 

the Iowa Court said: 

An island is traditionally defined as a body of land 

completely surrounded by water. However, before an 

island can support a claim of ownership by accretion it 

must be able to show some permanence of its own . . . all 

the surrounding circumstances under which accretion 

occurred should be taken into account - the extent of the 

accretion itself, the growth of trees and vegetation, the 

nature of the water which surrounds the body of land, the 

topography of the land, and the testimony of the 

witnesses concerning its appearance, identification and 

permanency. 

Mather v. State (Iowa 1972), 200 N.W. 2d at 501, 502. (Citations 

omitted). 

Testimony presented by the State's experts show that Parcel A 

had trees and vegetation growing on it. The aerial photographs 

substantiated this testimony as to Parcel A. Parcel D had grass 

and willows growing on it. Thus the parcels had an economic value 

for grazing. Additionally, Dr. Breuninger visited Section 9 in 

1987 and testified to willows growing on Parcel D that were above 

his head. Further testimony presented by the State indicated that 

both parcels were resistent to erosion. This evidence of 

permanence was discernible prior to the islands ceasing to be 

8 
surrounded by river channels at low water. 

We conclude that the District Court erred in finding that the 

two tracts were not owned by the State and we conclude such tracts 

were discernible islands prior to attaching to the adjoining lands 

and such islands and all accretions thereto are owned by the State 

of Montana. 

For the foregoing reasons we reverse the judgment of the 

District Court and remand for entry of judgment quieting title to 

the property at issue in the State. 

9 
January I, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

TOMMY H. BUTLER 

Special Assistant Attorney General 

Montana Dept. of State Lands 

1625 Eleventh Avenue 

Helena, MT 59620 

W. H. Bellingham 

MOULTON, BELLINGHAM, LONG0 & MATHER, P.C. 

Suite 1900, Sheraton Plaza 

P.O. Box 2559 

Billings, MT 59103-2559 

GREGORY PAUL JOHNSON 

Attorney at Law 

Petroleum Bldg., Suite 510 

Billings, MT 59101 

Kemp Wilson 

CROWLEY LAW FIRM 

P.O. Box 2529 

Billings, MT 59101-2529 

Kenneth R. Neil 

LARSEN & NEILL 

P.O. Box 1692 

Great Falls, MT 59403-1692 

Craig D. Martinson 

VEEDER & BROEDER, P.C. 

805 First Bank Building 

Billings, MT 59101 

(Tenneco Oil Co.) 
Loren J. 0' Toole 

OToole & Hunt 

P.O. Box 529 

Plentywood, MT 59254 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA