(dissenting). I dissent. The conclusion of the majority with respect to nonjoinder of parties defendant seems to disregard the wording of the statute in question and to subvert its purpose.
Respondent, plaintiff below, is the owner of government lot 2, section 16, township 92, range 52, Clay County, South Dakota. Appellants, defendants below, are the owners of government lots 3 and 4 in the same section which lie immediately east of lot 2 and defendant Martin R. Han*290son who has not appealed is the owner of government lot 1 adjoining the premises of the plaintiff on the west.
This action was instituted May 1, 1942, to have the east and west boundary lines of the accretion to lot 2 south to -the Missouri River established and to quiet title to the accretion between such lines. The claim of absence of indispensable parties defendant was not made in the trial court. This court reverses the judgment and on its own motion remands the cause with the equivocal direction that persons indisputably shown by the record to be entitled to- share in the apportionment of the accretion land involved herein be joined as parties. A defect of parties is not in a strict sense jurisdictional, and where there is such a defect the action should ordinarily be continued in the trial court until they can be brought in as parties. A court cannot adjudicate directly upon a person’s right without him being either actually or constructively before the court.
We have a statute wherein the procedure to be followed in actions for the establishment of boundary lines and determination of adverse claims to any portion of the land involved is prescribed. SDC 1960 Supp. 37.13. With respect to parties, SDC 1960 Supp. 37.1302 specifically provides that “any owner, lienholder, or person interested in any of the tracts involved” may be made a party defendant. The general rule appears to be that it is not necessary to forde into litigation owners whose lands are not adjacent to a disputed boundary even though they may be incidentally concerned in the controversy. See Annotation in 137 A.L.R. 726. The following statement in 119 Am.St.Rep. 66, states the reason for such holding: “It may be that the establishment of the boundary may incidentally affect persons whose lands are not contiguous to the complainant’s; that is to say, the defendant, if it be established that what he claims as his line must be moved in a particular direction, may, in turn, claim that another of his boundaries should be changed correspondingly, and in changing it, that an encroachment must be made on the *291lands claimed and possessed by one who is not a party to the suit. This does not require that such third person be made a party defendant. If it did, the latter might make a similar claim respecting some other person, and the process of bringing in new parties might become interminable.”
The statutory rule above quoted authorizes the trial court to join parties “interested in any of the tracts involved” in order to avoid a multiplicity of suits and to determine the rights of all the persons who have a direct interest in the subject matter of the litigation. Upon the trial court rests the burden initially to determine who should be joined as parties. It is a matter of judgment to be exercised with reference to the facts and circumstances of each case rather than by general or arbitrary rules. The principal issue here is the determination of the east and west boundary lines of lot 2 in section 16. Consideration of the record fails to disclose that under any theory presented will the lines decreed encroach upon riparian lands belonging to third parties. The interests of owners in the accretion land mass other than present parties are at most consequential rather than direct. The majority concludes that owners of meandered lands in sections 27 and 22 are indispensable parties who together with other persons entitled to share in the apportionment of the accretion lands as I understand the court’s mandate must be brought in as defendants.
Reverting to the statute above cited, we find that courts having equity jurisdiction are given special and limited statutory jurisdiction. This is not to say that the location of a boundary may not be adjudicated in another form \ of action where for instance title to real estate may be involved. The statute unquestionably resulted from a valid exercise of legislative power. This remedy for location and determination of boundary lines was here invoked by respondent and appellants dO' not assert that the remedy is not appropriate and adequate. No claim is made that the rip-H to have an equity matter dealt with by established *292equitable methods has been infringed. The procedure outlined in the statute should in my opinion be followed and the final determination of the claims of the parties directly involved should not be unduly hampered by procedural obstacles.
Tne judgment having been reversed and cause remanded with directions to join other riparian owners as defendants, it would appear that the judgment below has in effect been vacated and that this requires a retrial of the action. We do not then reach the other contentions presented. This includes the claim of respondent that the use of section line monuments for east and west extremities in a survey ordered by the court did not detract from the validity or equity of the court’s decision. It should be observed too that original sidelines of riparian lands may be extended if it results in equity, but their direction does not necessarily determine the course of the sidelines across accretion land and may be ignored. This the trial court in its memorandum opinion recognized and sought to apply the rule in the case of Karterud v. Karterud, 47 S.D. 58, 195 N.W. 972, as a basic guide.
Counsel on reargument called our attention to the fact that certain other riparian owners have agreed upon accretion lines. This is also indicated by exhibits in evidence. It is undoubtedly competent for adjoining riparian owners to make such agreements if the dividing lines do not encroach upon accretion lands belonging to third persons.
HANSON, J., concurs.