dissenting.
I respectfully dissent.
I regret that I am unable to join in the majority opinion. It is due to the lack of jurisdiction plus the lack of merit.
I.
The Problem of Jurisdiction
It is of utmost importance to take note of, the fact that federal jurisdiction in this case is wholly dependent on full compliance with 28 U.S.C. § 2409a which applies to civil actions against the United States to quiet title to real property. Jurisdiction is granted under certain conditions set forth in the statute. Generally the United States, as sovereign, is immune from suit except to the extent that it has given express consent.
Subsection (c) imposes the first condition. It requires that the complaint filed pursuant to the jurisdiction here granted shall set forth with particularity the nature of the right, title or interest which the plaintiff claims in the real property, the circumstances under which it was acquired, and the right, title or interest claimed by the United States.
Subsection (f) of § 2409a provides:
Any civil action under this section shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should *710have known of the claim of the United States.
Thus an action which accrued more than twelve years before filing of the action is barred and the accrual is when plaintiff or his predecessor in interest knew or should have known of the interest of the United States.
This statute is the only source of jurisdiction for plaintiffs’ cause of action since the case arises under state law. Therefore, plaintiffs’ ability to sue the United States stands or falls on their ability to comply with the statute.
The United States has indeed consented to be sued in quiet title actions against it but it has expressly limited its consent to suits filed within twelve years of the date of accrual of the plaintiff’s cause of action. Any waiver of sovereign immunity by the United States must be limited to the conditions set forth in that statute. See Munro v. United States, 303 U.S. 36, 58 S.Ct. 421, 82 L.Ed. 633 (1938).
The legislative history of § 2409a(f) clearly recognizes that the section was enacted with the purpose of eliminating stale claims. See e. g., 1972 U.S.Code Cong. & Adm.News, 4547, 4550, 4552-53. Set forth in the legislative history, starting at page 4552, is a letter from the Deputy Attorney General addressed to the Chairman of the Sub-Committee No. 2, Committee on the Judiciary, House of Representatives. In that letter to Congress the position of the Department of Justice with regard to the statute of limitations is expressed. The letter suggested that the statute of limitations be extended from six to twelve years for quiet title actions. The Deputy Attorney General said that this extension of time would give claimants to lands in which the United States also claimed an interest ample time in which to bring suit, without necessitating the United States having to defend against stale claims. The Deputy Attorney General then addressed the question of the time when the action accrues. On this he said:
As to the question of time an action accrues for purposes of the running of the statute of limitations, we would suggest that the action be deemed to have accrued on the date the plaintiff, or his predecessor in interest, knew or should have known of the claim of the United States. We believe that this is a reasonable approach to the question of how to determine the time an action accrues. A plaintiff would merely have to state that he did not learn of the claim of the United States and had no reason to know of the claim more than twelve years prior to the filing of his claim. If the United States wished to assert that the statute of limitations had run, it would then have the burden of establishing this fact.
In the case at bar the plaintiffs have not made an effort to comply with the jurisdictional suggestions set forth in the legislative history. They have not alleged that neither the plaintiffs nor their predecessors did not learn of the claim of the United States and had no reason to know of the claim more than twelve years prior to the filing of the claim.
The United States did assert in its answer that the statute of limitations had run. However, the United States had no opportunity to pursue this in court for the reason that no trial was had. The “trial” consisted of legal argument which was an exchange of views between the court and counsel. Counsel for the government said little and did not mention the jurisdiction matter.
In view of the way that the matter was handled, it is clear that the jurisdiction problem was ignored. The statute provides in plain terms that the date of accrual of the action for statute of limitations purposes is the date that the plaintiffs, or the plaintiffs’- predecessors, either knew or should have known of the interest of the United States in the land; not on the date that this legislation was passed. If twelve years has passed from the time of plaintiffs’ discovery of (or the time that plaintiffs should have discovered) the interest of the United States, the plaintiffs is out of court. Since this is a jurisdictional statute of limitations, this issue can be raised by the Court of Appeals. Grosz v. Andrus, 556 F.2d 972 *711(9th Cir. 1977). It cannot be said that the United States is barred from raising this defense because of some procedural deficiency. A jurisdictional impediment cannot be waived, and it cannot be avoided by ignoring the question of jurisdiction.
To add to the mental suffering, this court has actually recognized that the twelve year statute of limitations set forth in § 2409a(f) is to be strictly construed in favor of the government. Stubbs v. United States, 620 F.2d 775 (10th Cir. 1980); Knapp v. United States, 636 F.2d 279 (10th Cir. 1980), (Judge Seymour). Thus, in Stubbs and Knapp, this court has held that even where the government’s interest in a plaintiff’s property was based on a null deed, such governmental interest, even without legal title, constituted a cloud on plaintiff’s title sufficient to render the notice provision of § 2409a(f) satisfied. This court stated in Knapp that:
The test for accrual under section 2409a(f) is when ‘the plaintiff or his predecessor in interest knew or should have known of the claim of the United States. 28 U.S.C. § 2409a(f). Knowledge of the claim’s full contours is not required. All that is necessary is a reasonable awareness that the Government claims some interest adverse to the plaintiff’s. Cf. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (medical malpractice claim against Government accrues when plaintiff becomes aware of existence of his injury and its probable cause, not when he later learns of its legal significance).
636 F.2d at 283.
In Knapp and Stubbs the plaintiffs had been given actual notice that the United States was asserting an interest in the land in question, although that interest was legally invalid. However, in Amoco Production Co. v. United States, 619 F.2d 1383 (10th Cir. 1980), (Judge McKay), this court stated that if state law unambiguously provided that constructive notice of a claim under local recording statutes would be imputed to a plaintiff, such constructive notice would satisfy the notice requirement of § 2409a(f), and plaintiffs’ claim against the United States would be barred under that statute. In Amoco, this court stated that while under federal law a “stray deed” (that is, one which is recorded outside of a purchaser’s grantor-grantee chain of title) imports no constructive notice to subsequent takers, the court should look to state law for the applicable legal doctrine. Utah law on the stray deed issue was ambiguous; therefore this court declined to impute constructive knowledge of the deed to plaintiffs. This court, did indicate that unambiguous state law (if there had been such) to the contrary would have been followed, and that constructive notice, where applicable, would satisfy the notice requirement of § 2409a(f). This court stated that the operative words of the statute, “should have known,” “import a test of reasonableness.” 619 F.2d at 1388. The question reduces, therefore, to whether it would have been reasonable for plaintiffs or their predecessors in interest to have discovered the United States’ interest in the property in question.
Whether the court has jurisdiction to hear a claim which has been brought pursuant to § 2409a is of itself a question of law to be determined after consideration and interpretation of relevant factual matters. The question whether § (f) of 2409a is invoked because a patentee or his successor in interest knew or should have known of the claim of an interest by the United States in the property is, of course, a mixed question of law and fact. Kinscherff v. United States, 586 F.2d 159 (10th Cir. 1978).
In Brown v. United States, 496 F.Supp. 903, 907 (D.N.J.1980) the district court noted that “the date on which the claim of the United States of an interest in the land became known, or should have become known, is an issue of fact .... ” These factual matters must be determined by the trial court after a hearing in which both parties have had an opportunity to present all relevant factors to the attention of the court. Kinscherff, supra.
On this appeal the government argues that the United States is the owner of the *712bed of the Red River in question, what is left of it, because at the time of the original conveyance of the land to plaintiffs’ predecessors in interest, the land conveyed was not riparian. It also argued that there was no intention on the part of the government that this land in the bed of the former River was to be conveyed to plaintiffs’ predecessors. This issue was not raised before the trial court, however, but we have already noted that the case was not tried.
Our repetition does not detract from the proposition that the first issue to be considered and determined in the event of remand would be that of jurisdiction. There can be no short circuit as to this. Moreover, jurisdiction is not conferred by stipulation, consent, waiver or any other means short of adjudication.
The defense of the statute of limitations is jurisdictional in its nature when a suit is against the United States. Munro v. United States, supra; Knapp v. United States, supra. Accordingly, the failure to satisfy the requirements of 28 U.S.C. § 2409a(f) is not waived. The jurisdiction issue may be raised at any time and may be raised sua sponte by the court. See Grosz v. Andrus, supra.
When this court is presented with a factual question which goes to the heart of the court’s jurisdiction to hear the case, it is certainly incumbent upon us to consider that issue even though it was not raised and even though it was not tried below. The question whether the land was riparian at the time the patent was issued must be considered as it relates to the jurisdictional issue.
In summary we are saying that not only is there an issue as to jurisdiction, we are also saying that presumptively there isn’t any jurisdiction whatsoever at this time, since there has not been a statement by the plaintiffs such as that required by the statute and the legislative history, namely a statement concerning the nature of the government’s interest and a statement as to the plaintiffs’ knowledge or lack of knowledge of the interest of the government.
II.
The Merits of the Government’s Position
Some of the additional questions which would have to be considered and determined upon retrial are:
(1) Was the land riparian at the time that it was originally conveyed to plaintiffs’ predecessors in interest? If not, would this fact reasonably suffice to put the original patentees on notice that they had no claim to the riverbed and that the United States claimed it?
(2) Was the river bordering the land in question completely dry, partly dry or not dry at all at the time (1923) the land was originally patented to plaintiffs’ predecessors in interest? If the river was dry, the question to be asked is, “would this fact have been sufficient to put the original patentees on notice that the law of riparian rights did not apply to him and thus that he had no rights to the river bed and that the United States, the original owner, probably claimed ownership?”
There are other possible evidentiary inquiries that might affect the outcome of the jurisdictional dispute:
Did the limited area conveyed serve to communicate notice to plaintiffs’ predecessors that no intent existed by the United States to convey anything except that particular property described?
Did the plaintiffs ever pay taxes on this riverbed?
Did the plaintiffs or their predecessors ever make claim to ownership in this property?
Jurisdiction is, of course, essential to a case in federal court, and ordinarily that is the first item that is addressed. Consent will not create jurisdiction. It would appear that the plaintiffs were not desirous of dealing with the facts or law surrounding this issue. They sought a decree that they were the owners of the land without establishing that the court had jurisdiction to try it.
There are other issues of fact which should be the subject of inquiry at a trial. *713The time lag between the issuance of the original patents and the formal claim in the present suit is not only great, it is unexplained. The original patents bordering on the river bed were issued between 54 and 74 years prior to the time this suit was filed, and any number of incidences could have led to circumstances reasonably likely to give plaintiffs or their predecessors notice of the United States interest in the river bed. Timeliness is a jurisdictional prerequisite to suit under § 2409a, Knapp v. United States, supra.
At the time of the grants to Bradford and the Johnson predecessors the United States owned all of the land in the area. Thus no mental strain is required to believe that the United States did not will the bed of the river to the homesteaders. For these reasons the cause must be remanded for the purpose of having a trial on the questions of jurisdiction.
III.
The Riparian Question
We must point out at the threshold that the tract which was granted in 1925 by the United States to the predecessors of the Johnsons, was very small. It was roughly 109 acres. The tract which in this case has been decreed to the Johnson defendants extends to the south bank of this river bed, a distance of a mile to a mile and one-half. Thus the acreage given is enormous and out of proportion to the small amount of acreage which was originally granted. A number of Supreme Court decisions are more or less contemporary to the original grant. One of these is Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771. There the Court said in passing “when United States owns the bed of a non-navigable stream in the upland on one or both sides it is free, when disposing of the upland, to retain all or any part of the river bed.” The Court continued that “whether it is done in any particular instance, it is essentially a question of what it intended” and further said that:
“if by treaty or statute or the terms of the patent, it has shown it intended to restrict the conveyance to the upland, or to that and a part only of the river bed, that intention will be controlling and if its intention be not otherwise shown, it will be taken to have assented that its conveyance should be construed and given effect in this particular according to the law of the state in which the land lies.”
258 U.S. 594-595, 42 S.Ct. 414.
The Supreme Court was dealing with a conveyance connected with the Red River bed and it specifically said that the United States had the option when granting these tracts, homesteads which are on a river bed of a non-navigable stream, that the United States is free to dispose of the upland or to retain all or any part of the river bed. The Court added that whether in any particular instance it has done so — that an intent to convey it had to be shown and, if it is shown, that it intended to restrict the conveyance of the upland or to that and a part only of the river bed — that intention is controlling. If its intent be not otherwise shown it will be taken to assent that this conveyance will be construed and given effect in this particular according to the law of the state in which the land lies.
It cannot be said that the particular patent here in question was shown to have been made with intent to grant the entire river bed from the north to the south bank. For one thing the description of the tract granted was specific and there was no indication of intent to transfer the remainder of the land. Surely if it had intended to give the river bed, which was mineral land and known to be so at the time, it would have said so. It is also worthy of mention that a statute, 43 U.S.C. § 1131 provides that persons qualified under the homestead laws of the United States and who were bona fide occupants of land in the territory established as Greer County, Oklahoma, were entitled to continue occupation of such lands with improvements thereon, not exceeding one hundred and sixty acres, and shall be allowed until January 1, 1898, the preference right, within which to initiate the claim thereto. This one hundred and *714sixty acre limitation applied to the land that was here granted.
The Johnson defendants and the trial court relied to a large extent on the Choctaw and Chickasaw Nations v. Seay, 235 F.2d 30 (10th Cir.), cert. denied, 352 U.S. 917, 77 S.Ct. 216, 1 L.Ed.2d 123 (1956), decision of this court. That case did not take up the issue of whether or not there was any stream that provided a basis to claim riparian rights. This was a dispute with the Indian tribes which involved a derivation of intent from the treaties with the Indians; also a great deal of history. Needless to say, though, the Choctaw and Chickasaw Nations decision does not throw any light on the intention to give away the bed of the river to the Johnson defendants.
The trial court was impressed with the fact that the patent failed to expressly set forth an intent to retain the Red River bed. From that fact the court concluded that conveyance of the entire Red River bed all the way to the south bank was intended. The reason for this was that there was no intention which could be inferred that the United States intended to retain the property in dispute.
There is an intent to be inferred from the fact that there was a small grant on the bank of the river bed, and from the fact that there was a dearth of water and hence no riparian rights. It is extremely difficult to accept the proposition that an inference is to be drawn that several hundred acres of mineral land is transferred to a homesteader notwithstanding that there was an express limitation in the grant in terms of metes and bounds and area transferred.
Silence regarding the river bed does not show any positive intent to grant it. The law is opposite; it holds that when the United States conveys land, particularly mineral land, the patent is construed favorably to the government. Only that which is clearly conveyed passes.
In United States v. Union Pacific Railroad Company, 353 U.S. 112, 77 S.Ct. 685, 1 L.Ed.2d 693 (1956), the Supreme Court construed a grant of land to the Union Pacific which reserved mineral resources. Thus it was somewhat different on its facts from our case. But it did express a principle that is entitled to some weight here. A right-of-way had been granted to the railroad company. The Court said:
we would have to forget history and read legislation with a jaundiced eye to hold that when Congress granted only a right-of-way and reserved all ‘mineral lands’ it nonetheless endowed the railroad with the untold riches underlying the right-of-way. Such a construction would run counter to the established rule that land grants are construed favorably to the government, that nothing passes except what is conveyed with clear language, and that if there are doubts they are resolved for the government, not against it. Caldwell v. United States, 250 U.S. 14, 20-21 [39 S.Ct. 397, 398, 63 L.Ed. 816],
353 U.S. at 116, 77 S.Ct. at 687.
Also in Caldwell v. United States, 250 U.S. 14, 39 S.Ct. 397, 63 L.Ed. 816, the Supreme Court had to construe a grant of timber to a railroad company of the right to take from the public lands adjacent to its line timber necessary for the construction of its railroad. The court said that this had to be strictly construed and that it did not permit that portion of trees remaining after extraction of ties to be appropriated as a means of business profit or to compensate the agents employed by the railroad to do the tie cutting. “A grant for purposes of railroad construction is not a grant of trees.” In disposing of the matter it was further said:
The contention of appellants encounters the rule as statutes granting privileges or relinquishing rights are to be strictly construed; or, to express the rule more directly, that such grants must be construed favorably to the government and nothing passes but what is conveyed in clear and explicit language — inferences being resolved not against but for the government. Wisconsin Central Railroad Co. v. United States, 164 U.S. 190 [17 S.Ct. 45, 41 L.Ed. 399]; United States v. Oregon and California Railroad Com*715pany, 164 U.S. 526 [17 S.Ct. 165, 41 L.Ed. 541].
250 U.S. at 20, 39 S.Ct. at 398.
The error of the trial court is compounded by the majority in inferring an intent to convey all of this river bed to the Johnson defendants as part of a grant of the bank property along the river bed. The failure to receive any evidence or conduct an inquiry resulted in resolution of all doubts in favor of the grantee, the predecessor of the Johnsons. This result is also in conflict with the proposition that intent is a question of fact which is not to be determined without the taking of evidence and fairly weighing of it in a quest for the truth. On the record that is now presented it would be more in keeping with the evidence to find that there was indeed an intent to reserve it; otherwise it would not have been in the form of a conveyance by numbered lots. Such a description fails to show an intent to convey over a mile plus river bed which had minerals. Such an intent on the part of President Coolidge, who was named as a grantor in the deed, was particularly inconceivable.
IY.
Are there riparian rights in this case?
Does a river bed which is dry, except when there is a flood, give rise to riparian rights? I submit that it does not. The definition of riparian lands is contained in Restatement of Torts, Section 843 as follows:
[R]iparian land is a term of common usage applied to land that has certain physical relations to water courses and lakes; it signifies that persons in possession of such lands have peculiar rights and privileges ordinarily called riparian rights, in respect to the use of such waters which other persons do not have or do not have to the same extent. Outstanding among these rights and privileges, as the term signifies, the authors continue, are privileges of taking water and of obstructing the flow of the stream for certain purposes and rights to object to unprivileged taking and obstruction by others. Persons who do not possess such lands may have some rights and privileges with respect to a water course or lake but their rights and privileges are not so extensive as those of the possessors of such land. Thus the possessor of a non-riparian land may have the right to object to the pollution of a water course or lake which unduly harms him in the use or enjoyment of his lands even though he may have no legally protected interest in the use of the water itself.
It is fundamental that riparian land is that which has certain physical relations to water courses and lakes. On that account it gives rise to certain rights and privileges ordinarily to use the waters called riparian rights with respect to the use of such waters which other persons do not have or do not have to the same extent. But water is the essence of the right and the presence of water and the rights with respect thereto is essential to riparian rights. It is the right to make use of the water that adjoins the land. Such a right is contrary to the concept adopted by the majority which gives not water but dry land.
Therefore, the assumption is that the riparian owner has access to water and is bounded by water and it certainly does not contemplate a great stream bed that has been abandoned by the water. In this case, for example, the north area of the river has long since lost its water. Whatever channels are flowing are narrow, ribbon-like and are on the south side.
Thus there are grave doubts as to the existence of riparian rights in connection with the Johnson lots which, although assumed to be riparian, are not shown to have any relationship to substantial or any water or water course. Existence of the rights depends on the assumption that they are riparian. It is questionable here whether any such rights to the bed of the stream can actually exist. Certainly before these lands are finally awarded to these oil companies and to the Johnson defendants, there should be an inquiry as to the nature and character of the river bed.
* * * * * *
*716Another problem which is here present and which should be the subject of inquiry is the high and great disproportion between the little piece of land that the Johnsons’ predecessors obtained from the government in 1925 and the tremendous acquisition which the judgment of the district court would give to them.
The facts above are not dissimilar from those which were presented to this court in Smith v. United States, 593 F.2d 982 (10th Cir. 1979). There the United States had conveyed a tract of land along the Canadian River in Oklahoma. Some adjoining lands, as a result of accretion, had added some 147 acres to the original 37.08 acres contained in the two lots which had been conveyed on the bank of the river. In this instance there was a genuine river. There had been accretion and the question presented was whether the accretion had occurred prior to the time when the grantees had become the owner of the basic land. The proof was ruled insufficient to establish that the accretion took place after the conveyance of the 37.08 acres to plaintiff. In fact most of the accretion seemed to have occurred prior to the date of conveyance of the 37.08 acres. Although the court upheld the plaintiff’s contention that there was accretion, it rejected the plaintiff’s argument of entitlement to the 147.12 added acres resulting in accretion. This court, in an opinion, asked whether the grantee should take the rights to the accreted 147.12 acres and answered in this way. It said that:
The accepted rule of construction is that where land is described by lot number only, if bounded by a river ‘which is a shifting line and may gradually and imperceptibly change, [it] is just as fixed a boundary in the eye of the law as a permanent object, such as a street or wall.’ Jefferis v. East Omaha Land Company, 134 U.S. 178 [10 S.Ct. 518, 33 L.Ed. 872] (1890). The eases also recognize that boundary references to natural monuments or objects will control over references to courses and distances. These rules are founded on the ‘presumed intentions of the parties.’ Security Land & Exploration v. Burns, 193 U.S. 167 [24 S.Ct. 425, 48 L.Ed. 662] (1904).
593 F.2d at 986.
This court concluded the controversy by holding that the description in the patent was binding and that the accreted land was not that of the grantee. It cited Walton v. United States, 415 F.2d 121 (10th Cir. 1969); Snake River Ranch v. United States, 542 F.2d 555 (10th Cir. 1976) and quoted from the latter case: “In a public grant nothing passes by implication and, unless the grant is clear and explicit regarding the property conveyed, a construction will be adopted which favors the sovereign rather than the grantee.” 593 F.2d at 988.
Thus the court in Smith took a position contrary to that which was taken by the majority in the case at bar. The rationale for the Smith court’s decision was that inasmuch as most of the accretion occurred prior to the date of the conveyance, it was unreasonable to assume that a purchaser could have thought he was receiving 184 plus acres when the government bid form listed only 37.08 acres. It said:
We ought not hold a conveyance described as 37.08 acres and priced on that basis conveyed nearly four times that amount of additional land, unless there is a compelling reason. Since most of the accretion occurred prior to the date of the conveyance, it does not seem reasonable to assume the purchaser could have thought he was receiving 184 plus acres when the government bid form listed only 37.08 acres. This does not appear to be a situation where having the waterfront was important in the bidding and purchase. We are concerned that frequent title disputes could arise if relatively small accretions are held not to pass to one in Stephenson’s position.
593 F.2d at 988.
We cite the Smith case because it is entirely parallel to this case from the standpoint of being a grant of public lands and the effect of a specific description. There are several cases which are cited in Smith which support this same proposition. See Security Land & Exploration Co. v. Burns, 193 U.S. *717167, 188, 24 S.Ct. 425, 431, 48 L.Ed. 662 (1904); Gleason v. White, 199 U.S. 54 at 61-62, 25 S.Ct. 782 at 783-84, 50 L.Ed. 87 (1905).
One reason that the court in Smith did not allow the accreted area to be part of the grant was because in view of the proof, it would have amounted to unjust enrichment. Surely that same situation is present in the case at bar.
In conclusion the Justice Department has presented in this court a very different case from that which was presented to the trial court. But merely because there was a failure to present proof and to make arguments in the trial court such as the Justice Department has made here should not constitute a waiver of the government’s rights, particularly in the area of jurisdiction. The case is an extraordinary one in that the government’s presentation of the issue of jurisdiction and indeed the substantial merits was not presented at the trial level. To dispose of the case on the present record would constitute a grave injustice. It is for that reason that I would remand the case for further proceedings.