stantially greater area (p. 301). The court awarded to the island the land accreting to it to the west across a channel of some 200 yards to the point where it met accretion from the mainland. It also held that the island gained by accretion eastward, the direction of the major accretion, all of a bend measuring one and a half miles that lay directly east of it. The island on survey contained 48.62 acres while the bend formed by accretion covered 1100 acres, a substantial portion of which went to the island.5

In a recent case a Federal district court applied the North Dakota law to an identical factual situation and held that where an island has been completely eroded and washed away and later land is formed by accretion to riparian lots on the river bank to such an extent that land appears again in the physical location formerly occupied by the island the title to the land goes to the owner of the riparian lot and not to the owner of the island. United States v. 2,134.46 Acres of Land, etc., 257 F. Supp. 723 (D.C. N.D. 1966).

If we treat the situation then as one in which accretion to one bank of a river advances across the original river bed until land appears within the physical site of land formerly on the opposite bank of the river, we must conclude that the United States has no title to any of the accretion based solely on its ownership of the former island.

The doctrine of reappearance is, we believe, not helpful here. In a recent case, the Ninth Circuit dealt with the issue of accretion and the doctrine of reappearance. Beaver v. United States, supra. The facts show that the Colorado River, which in the area in question flows generally from east to west, had in the course of some forty years moved several thousand feet to the south so that a tract of land formerly on the south shore of the river was now on the north. The United States claimed this tract as accretion to land it owned which was originally riparian land on the north shore. After holding that the land was formed by accretion, the court held that the case was governed by the ordinary rules of accretion and that the doctrine of "re-emergence" was not pertinent. The court said:

As an alternative theory of recovery, appellants raised a title claim under the doctrine of re-emergence. That doctrine rests upon "easy identification" of riparian land "lost" and "found" again by re-emergence from the stream bed. These elements are not here present.

We agree with the government:

"That doctrine has been applied by some state courts as an exception to the doctrine of accretion, but not in a factual situation such as is present in this case. In order for the doctrine to be applied in those states that recognize it, two things must occur: First, the water-course must move across and submerge riparian land so that land formerly nonriparian is made riparian; then the

While there is no discussion of the point in the case, it seems as though the land accreting to the island and adjacent mainland must have extended to the eastward sufficiently to invade the position of land formerly on the east bank of the river.

December 28, 1967

watercourse must return to or near its original bed so that the riparian land that had been submerged is uncovered, or re-emerges.

*

"The United States' land to which the tract has accreted was riparian originally and one of the reasons for the doctrine of accretion is to allow that land to remain riparian. Philadelphia Co. v. Stimson, 223 U.S. 605, 624 [32 S.Ct. 340, 56 L.Ed. 570] (1912). Appellants here seek to apply the "re-emergence" doctrine to render nonriparian land that was originally riparian. This is directly contrary to the purposes of the exception.

"Stone v. McFarlin, 249 F. 2d 54, 55-57 (C.A. 10, 1957), cert. den., 355 U.S. 955 [78 S.Ct. 540, 2 L.Ed. 2d 531] *** Anderson-Tully Co. v. Tingle, 166 F. 2d 224 (C.A. 5, 1948), cert. den., 335 U.S. 816 [69 S.Ct. 36, 93 L.Ed. 371], where the court stated (pp. 228-29): 'Where a river is a boundary and there is no avulsion, a land-owner can never cross the river to claim an accretion on the other side'" (Appellee's Brief, pp. 15-17.). 350 F. 2d at 11.

There is nothing in the Mississippi cases indicating that the regular rule of accretion would not apply to unusually large increments of land to one bank of a river. In several cases the court apparently assumed the regular rule to be controlling although the accreted area attained a depth of a mile. United States Gypsum Co. v. Reynolds, 18 So. 2d 448 (Sup.Ct. Miss. 1944); Sharp v. Learned, 14 So. 2d 218 (S.Ct. Miss. 1943).

So here we must conclude that the doctrine of "reappearance" or "re-emergence" cannot apply to cut off the rights of a riparian owner to accretion attaching to his land in favor of a riparian owner on an opposite bank whether it be the land of the other shore or of an island.

Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (210 DM 2.2A (4) (a); 24 F.R. 1348), it is concluded that upon the basis of the facts presented in this appeal, the United States has no basis for a claim to title to the land here in dispute, the decision of November 14, 1966, is reversed, and the case is remanded for further proceedings consistent herewith.

EDWARD WEINBERG,

287-973-68— -3

Deputy Solicitor.

INDEX-DIGEST

Note-See front of this volume for tables

ACCRETION

1. Where, subsequent to survey, lands have formed by accretion in
front of lots which are part of an area withdrawn from entry
under the public land laws and placed under the administrative
jurisdiction of an agency of the Federal Government, the adminis-
tering agency acquires jurisdiction over the accreted lands, and
the lands become subject to the same restricted usage as the lands
to which they are accreted-------

2. Where an island which was once public land owned by the United
States is gradually eroded away in its entirety by the force of the
river in which it lay and then fast land is formed on the site
formerly occupied by the island by the process of accretion to a
bank of the river which is privately owned, the United States
can not assert title to such land as public land..

ACT OF MARCH 3, 1933

1. All territories and possessions, including Guam, are considered loca-
tions of domestic sources of supply under the Buy American Act;
but Guam is not limited to domestic sources in its purchases for
use on Guam because under the rule of statutory construction
expressio unius est exclusio alterius, it may be concluded that
Congress intended to exclude Guam from the enumerated entities
whose purchases for use or for construction within their bound-
aries would be limited to domestic sources_

ACT OF NOVEMBER 8, 1965

1. Guam does not fall within the term "executive agency" as used in
the Federal Property and Administrative Services Act and the
implementing Federal Procurement Regulations_-_-

Page

142

417

365

365

ALASKA

TRADE AND MANUFACTURING SITES

1. The use of a site for the purpose of growing in greenhouses and hot-
houses and selling shrubs, small trees, vegetables and other plants
contemplates only a horticultural or agricultural pursuit which is
not considered as a trade, manufacture, or other productive indus-
try within the meaning of section 10 of the act of May 14, 1898,
authorizing the purchase of land possessed and used for such
purposes__

11

427

COAL LEASES AND PERMITS

LEASES

1. The failure of a high bidder at a sealed bid auction to submit with
his bid a statement of his citizenship and interests in other hold-
ings required by regulation and the invitation to bid may be
waived where the default has given him no advantage over the
other bidder_____

CLASSIFICATION OF MULTIPLE USE ACT LANDS

1. The Classification and Multiple Use Act of Sept. 19, 1964 (78 Stat.
986; 43 U.S.C. secs. 1411-18) authorizes, under certain circum-
stances, the segregation of public land from appropriation under
the general mining laws, but it does not provide authority to
restrict or condition the mining activities authorized by the
general mining laws____.

COLOR OR CLAIM OF TITLE

GENERALLY

1. A color of title claim cannot be initiated on land withdrawn pursuant
to a statute granting land in aid of construction of a railroad;
such land is not "public land" within the meaning of the Color
of Title Act‒‒‒‒‒‒

2. The improvement or cultivation of lands other than those belonging
to the United States is not sufficient to meet the cultivation or im-
provement requirements as to Government lands for which appli-
cation is made as a class 1 claim under the Color of Title Act----
3. Where the requirements for a class 1 color of title claim have been
met as to a tract of land and the United States, on the mistaken
assumption that the tract is privately owned, takes and floods a
portion of the tract which contains all the required improvements
or cultivation, the class 1 claim is not lost as to the remaining
portion of the land which is neither improved nor cultivated_____
CULTIVATION

1. The improvement or cultivation of lands other than those belonging
to the United States is not sufficient to meet the cultivation or
improvement requirements as to Government lands for which
application is made as a class 1 claim under the Color of Title
Act

2. Where the requirements for a class 1 color of title claim have been
met as to a tract of land and the United States, on the mistaken
assumption that the tract is privately owned, takes and floods a
portion of the tract which contains all the required improvements
or cultivation, the class 1 claim is not lost as to the remaining
portion of the land which is neither improved nor cultivated____
GOOD FAITH

1. Land ceases to be held in good faith in peaceful adverse possession
under the Color of Title Act when the holder learns that he does
not have title to the land--.

IMPROVEMENTS

1. The improvement or cultivation of lands other than those belonging
to the United States is not sufficient to meet the cultivation or
improvement requirements as to Government lands for which
application is made as a class 1 claim under the Color of Title Act_

Page

209

187

125

214

214

214

214

125

214