N O. 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 (TomBrown, Inc., et al.) Craig 

### D. Martinson; Veeder & Broeder, Billings, Montana (MaguireOil Co.) Gregory Paul Johnson, Billings, Montana (Benjamin Minerals) Kemp Wilson; Crowley Law Firm, Billings, MOIItana

(TennecoOil 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, 1992Justice

### R. C. McDonough delivered the Opinion of the Court.
Montana Department of StateLands appeals from an order of the SeventhJudicial 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,theMontana 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. JudgeObert found that the State's claim of ownership 2to 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 themigration of theMissouri River to be avulsion and not accretion, and that the two tracts of land claimed by the Statewere 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, 245Mont. 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 'clearlyerroneous'when, although there is evidence to support it, a review of the record leaves the courtwith thedefinite and firm conviction that amistake has been P.2d committed. Interstate 

### v. DeSaye (1991), Mont

## . -, 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 occurswhen a stream suddenly changes its channel and forms a new one. If avulsion moves a stream away from a landowner'sproperty, 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
3distinct 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 asMontana'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 thismigration '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), 205Mont. 200, 667 P.2d 406. Thisprocess is

4distinguished 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 formationswere 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 tractswithin 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 islandsarising from the riverbed can also be enlarged by accretion and such accreted lands attach to the island. Jacksonv. BurlingtonNorthern, Inc. (1983),205Mont. 200, 204, 667 P.2d 406, 408.

5Both 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. "Accretionsbelong 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 theMissouri,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 ParcelsA 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 formationsconnecting to the shore. According to expert testimony presented by the State, the land formations in question developed permanent characteristicsand became islands. According to Dr. Breuninger, the formation of the island in themiddle of the river in theNorth half of theNorthwest Quarter, occurred between 1940 and 1949. The southern channel of the river

6in 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 waterwas 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 itwas formed by a build

-up of sand from thebottom of the river. The channelbetween this island and the east bank is still active but has filled in from right to left, narrowing the channel. Ray Womack testifiedasan expert onbehalf 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 theNorthwest 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

7the land formwas firmly joined to thebank. However, the question is whether a land form gains permanence prior to attaching to the riparian shore. As the Iowa Supreme Court said; "Titlehowever, 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 determiningwhether a claim of accretion can be supported, the Iowa Court said: An island 

### is traditionallydefined 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 somepermanence of its own 

## .

# . . all the surrounding circumstances under which accretion occurred shouldbe taken into account

# - the extent of the accretion itself,thegrowth of treesandvegetation, the nature of thewaterwhich surroundsthebody 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
8surrounded 

### by river channels at low water. We conclude that the District Court erred in finding that the two tractswere not owned 

### by the State and we conclude such tracts
were discernible islandsprior 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 CERTIFICATEOFSERVICE 

### Iherebycertifythat thefollowingorderwas 

### sentbyUnited Statesmail,prepaid, to the followingnamed:
TOMMY

### H.BUTLER SpecialAssistantAttorneyGeneral MontanaDept.ofStateLands 1625EleventhAvenue Helena,MT 59620
W.H.Bellingham MOULTON,BELLINGHAM,LONG0&

### MATHER,P.C. Suite1900,SheratonPlaza P.O. Box2559 Billings, MT 59103

-2559 GREGORYPAUL

### JOHNSON Attorneyat

### Law PetroleumBldg., Suite510 Billings, MT 59101 KempWilson CROWLEYLAWFIRM P.O. Box2529 Billings, MT 59101

-2529 KennethR.Neil LARSEN&

### NEILL P.O. Box 1692 GreatFalls,MT59403

-1692 CraigD.Martinson VEEDER &

### BROEDER,P.C. 805

### First BankBuilding Billings, 

### MT 59101 (TennecoOil

### Co.)

### Loren

### J.0'Toole OToole&

### Hunt P.O.

### Box529 Plentywood,MT 59254 EDSMITH CLERK

### OFTHESUPREMECOURT STATE

### OFMONTANA