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December 28, 1967 island formation. This land area extends over the geographical area of Middle Palmyra Island as shown on the 1834 plat and continues westward beyond the island a considerable distance to the present water line of Palmyra Lake.

The land status records of this Department show that section 30, Middle Palmyra Island, has never been patented or title to it otherwise relinquished by the United States, but that it was withdrawn by Public Land Order No. 2709, June 20, 1962, for the Davis Island National Wildlife Refuge. The resurvey was ordered upon the request of the Bureau of Sport Fisheries and Wildlife to determine the public lands in the refuge. Sections 9 and 10 shown on the 1834 plat as uplands on Davis Island opposite Middle Palmyra Island have been patented by the United States.

The dependent resurvey and extension survey was conducted from June 24, 1963, to July 6, 1965, and the plat of this survey was accepted for the Director on August 24, 1966. The field notes of this resurvey indicate that subsequent to the survey conducted in 1830, Middle Palmyra Island was washed away and ceased to exist as an island in place, that thereafter gradual accretions to sections 9 and 10 extending westward occupied the geographic position of the island and extended beyond to the present southeast bank of Palmyra Lake, and that title to the surveyed island as public land was reinstated upon its reappearance. The field notes and the plat show that the original meander line along the side of the island opposite sections 9 and 10 was reestablished as a fixed and limiting boundary separating the public land of the reestablished island from the lands accreted to patented sections 9 and 10. After establishing northern and southern meander points for the island's record position, the survey was extended to include the area accreted to the west of the island from lines normal to the present bank of Palmyra Lake. The total acreage for the resurveyed and extended area is given as 399.77 acres. All of this area is claimed by the appellants as lands accreted to sections 9 and 10 and other adjoining sections.

There is no disagreement as to the essential facts in this case, i.e., that Middle Palmyra Island had gradually eroded away sometime prior to 1862, and that land had accreted to the uplands on the east bank of the river extending westward to and over the record position of the island and beyond westerly to the present bank of Palmyra Lake. The difference between the Bureau's position and that of the appellants has been in interpreting the law applicable to this factual situation. In reaching the legal conclusion that upon formation of the new land within the area of the original survey of Middle Palmyra Island, title to the land belonged to the United States, the Chief, Division of Engineering, in his letter of February 18, 1965, to appellants, relied on an opinion, dated February 4, 1965, by the Associate Solicitor for Public Lands. This opinion based its conclusion on cases discussing the so-called rule of “submergence and reappearance of land” to the effect that where land once riparian has been completely eroded away but by subsequent action of the river it is restored or reappears by accretion or reliction, title of the former owner reattaches to the land thus reappearing, citing Towl et al. v. Kelly and Blankenship, 54 I.D. 455 (1931); Herron v. Choctaw and Chickasaw Nations, 228 F. 2d 830 (10th Cir. 1956); Elliot v. Atlantic City, 149 Fed. 849, 853 (C.C. D. N.J. 1907); Stockley v. Cissna, 119 Fed. 812, 831 (6th Cir. 1902); Widdicombe v. Rosemiller, 118 Fed. 295, 299-300 (C.C. W.D. Mo. 1902).

3 The status records also show that an oil and gas lease, Bureau of Land Management 046411, for section 30 was issued effective May 1, 1958, and extended to April 30, 1968.

• The records show a patent for section 9, dated September 4, 1824, and a patent dated June 28, 1831, for section 10.

In their appeal appellants dispute this legal conclusion. Briefly, their contentions may be summarized as follows: First, they contend that the survey is contrary to the facts which show that the island was completely eroded away and the land extending over the former boundaries formed as accretions from the mainland. Second, they contend that the survey is contrary to the law for several reasons. They suggest, first of all, that the doctrine of reappearance of submerged land is not applicable here because under the old common law ruling as discussed by the Supreme Court in Arkansas v. T'ennessee, 246 U.S. 158, 174 (1918), there must be reasonable marks to continue notice of the lands or if the marks be removed land must be identifiable. They contend that neither of these criteria is applicable here since the island completely disappeared by erosion and it is not capable of identification as the character of the land has been changed from an island formation to land accreted to the upland. Appellants also contend that State law controls here rather than Federal law in determining the title to lands lost by erosion and title to accretions. They assert that the “law of accretions” governs here to the effect that riparian owners lose land by erosion and gain title to land by accretion and that this rule is followed without dissent in this country. They state that it is the law of the State of Mississippi that the title to the bed of the Mississippi River belongs to the riparian proprietor to the thread of the stream unless restricted by the grant, and that the riparian proprietor is entitled to the accretions of his riparian lands. Appellants also suggest that the court cases cited by the Bureau, mentioned above, are distinguishable and involve the application of the doctrine of submergence and reappearance of land where there is avulsive action of the waters, rather than erosion and accretion, as is the case here, and that December 28, 1967 they also involved jurisdictions which hold that private ownership of lands extends only to the high water mark, or to the ordinary high water mark, or to the space between the high water and low water marks, or to the space between the ordinary high water and low water marks, and not to the thread (or thalweg or center) of the navigable river.

Finally, appellants contend that, even if the survey is not contrary to the facts and law, it is in error in that it encroaches upon the riparian rights of the owners of sections 8, 9, 10 and 11 of T. 14 N., R. 1 E. They request that this Department either withdraw the claim to the land (i.e., the survey), or file a suit to have title to the land judicially determined.

The real question posed by this appeal is whether or not the law is so clear with respect to the facts of this case that the United States should refrain from asserting any claim of title to the lands in dispute. The position of the appellants basically is that the United States lost title once the island was submerged and never regained title to any land reappearing within the former boundaries of the island as such land belongs to them as accretions to their lands. The position of the Bureau is that the United States did regain title to the lands once they reappeared.

As we have seen, the opinion on which the Chief, Division of Engineering, relied described the situation of land which has been submerged and then restored as “reappearance" and apparently considered all situations in which lands reappear to be governed by the same rules.

As we read the cases, we find that land can disappear and reappear in a variety of factual situations with the consequences varying with the facts.

The most ordinary situation is one in which land in a riparian lot is partly eroded away and then restored by accretion but the accretion does not extend beyond the former river bed. In another situation a riparian lot is eroded completely away so that adjoining land once remote from the water becomes riparian, and then by accretion the eroded lot is restored in whole or in part so that the adjoining land is again remote. In a third variation accretion builds on a riparian lot on one bank to such an extent that it reaches across the whole of the former river bed and covers the position of land which was originally on the opposite bank but which has been washed away. And, finally, for our purposes here an island may be eroded completely away and then reappear in its former position.

The generally stated and accepted rule governing the rights of riparian owners to whose land accretion attaches is that the added land belongs to the riparian owner. Jefferis v. East Omaha Land Co., 134 U.S. 178 (1890). This rule applies to our first example.

In the second variation, in which the river erodes away a riparian lot to such an extent that a remote lot becomes riparian and then accretion builds up from the formerly remote lot so that not only is it restored to its former boundary but the eroded riparian lot is also recreated in part, in whole, or even beyond its original riparian boundary, the courts are divided as to whether the accretion belongs to the owner of the remote lot in total or only to his original boundary with the rest going to the original riparian owner. Compare Perry v. Erling, 132 N.W.2d 889 (Sup. Ct. N.D. 1965); and Greeman v. Smith, 138 N.W.2d 143 (Sup. Ct. N.D. 1965); with Cunningham v. Prevow, 192 S.W. 2d 338, 350 (Ct. App. Tenn. 1945). The Department has held that in such circumstances the originally remote owner can acquire title only up to the limits of his original surveyed boundaries. T'owl et al. v. Kelly and Blankenship, supra.

The third situation has been before the Department several times in recent years. In each case it has been held that land formed by accretion to one bank of a river belongs to the owner of that bank even though the accretion is so extensive that it covers an area which was formerly fast land on the other side of the river but which was eroded away. Edwin J. Keyser, 61 I.D. 327 (1954), and cases cited in footnote 1 of that decision; Henry E. Schemmel et al., A-29906 (February 20, 1964). As the Keyser case noted, all the courts which have dealt with the problem have reached the same result. A recent case held that a tract of land measuring several thousand feet added by accretion to a lot on the north bank of the Colorado River belonged to the owner of that lot even when the accretion came to occupy land in the same physical location as land patented to another on the original south bank of the river. Beaver v. United States, 350 F. 2d 4, 11 (9th Cir. 1965), cert. denied 383 U.S. 937 (1966).

In another recent case in which the movement of the Arkansas River was quite similar to that of the Mississippi here, the north bank of the river migrated southward from sections 17 and 18, T. 7 S., R. 4 W., Arkansas, to a position in sections 2, 3, 4, and 5 in T. 8 S., R. 4 W., forming a huge bend. The river then cut across the neck of the bend leaving an ox-bow lake on the periphery of the bend. The area in dispute covered 800 acres formerly contained in sections 33, 34, and 35, T. 7. S., R. 4 W., and in sections 2, 3, and 4, T. 8 S., R. 4 W.—which had originally been on the south bank of the river. The accretion added some three miles to the lots riparian to the north bank. The court found that the river migrated southward by the process of accretion and awarded the land in dispute to the plaintiff whose claim was based on ownership of a portion of sections 7, 17, and

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December 28, 1967 18, T. 7 S., R. 4 W. Matthews v. McGee, 358 F. 2d 516 (8th Cir. 1966).

Here again the court followed accretion into the physical site of land on the opposite bank, and, despite the ease with which the former land could be identified and its boundaries restored, it recognized the right of a riparian owner to the accretions to his land, even to this great extent.

There remains the problem of the disappearing and reappearing island. While there do not appear to be any cases in which the facts were so limited, there are dicta supporting the view that the original owner regains title to a reappearing island if it reappears as an island in its original location. Widdicombe v. Rosemiller, supra; St. Louis v. Rutz, 138 U.S. 226, 249 (1891); Van Deventer v. Lott, 180 Fed. 378, 382 (2d Cir. 1910).

We are concerned, however, not with an island that arises anew as an island, but a land mass that grows by accretion from a bank opposite the island until it covers the site the island formerly held and substantially more. This is not a situation of simple accretion without an invasion of former fast land, nor is it the case of riparian land being washed away and then reappearing on its own side of the river; nor is it an island that is resurrected as an island. It is, in all pertinent factors, a case of accretion to one bank extending across a river bed until it covers land formerly within the physical location of land on the opposite bank.

The only complicating, and to some extent confusing variation, is that the physical site of the reappearing land was once an island instead of the opposite bank. But there does not seem to be any reason why accretion invading the site of a former island should be governed by a rule different from that applicable to the opposite bank of a river. An island is governed by the same rules of accretion as land bounded on one side only by water, that is, the boundaries are presumed to vary with any gradual change in the line between land and water, “or, as it is otherwise expressed, the owner of an island is entitled to land added thereto by accretion to the same extent as the owner of land on the bank or shore of the mainland." 3 Tiffany, Real Property, sec. 1228 (3d ed. 1939).

A striking example of the application of the regular rules of accretion to an island is found in Widdicombe v. Rosemiller, supra, in which after discussing the law governing a reappearing island the court found that the island had not been entirely washed away and that a body of land from 15 to 20 acres formed the nucleus to which there was built on by accretion not only an area equal to the original surveyed area but, extending laterally beyond the survey lines, a sub


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