Montana Department of State Lands v. Armstrong

NO. 91-337

IN THE SUPREME COURT OF THE STATE OF MONTANA
1992

THE MONTANA DEPARTMENT OF STATE LANDS,
Plaintiff and Appellant,
-vs-
JERRY 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

Submitted on Briefs: November 8, 1991

Decided: January 7, 1992
Filed:
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 . _ I ~
P.2d
-, 48 st.Rep. 986.

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 (Tenneco Oil Co.)

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
Loren J. 0' Toole
OToole & Hunt
P.O. Box 529
Plentywood, MT 59254

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA