(concurring specially).
I concur in the opinion and in the result. I feel a little further explanation of the reasons therefor is apropos.
The beds of navigable streams were held in trust by the United States for the “ultimate benefit of future States.” Pollard v. Hagan, 3 How. (U.S.) 212, 11 L.Ed. 565; United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465.
When sovereignty was conferred upon the State of North Dakota, it gained title to the lands under navigable waters as an incident of sovereignty. No specific conveyance of such title was necessary. State v. Loy, 74 N.D. 182, 20 N.W.2d 668.
In Scott v. Lattig, 227 U.S. 229, 33 S.Ct. 242, 57 L.Ed. 490, 44 L.R.A., N.S., 107, it was said:
“ * * * it was settled long ago by this court, upon a consideration of the relative rights and powers of the Federal and state governments under the Constitution, that lands underlying navigable waters within the several states belong to the respective states in virtue of their sovereignty, and may be used and disposed of as they may direct, subject always to the rights of the public in such waters and to the paramount power of Congress to control their navigation so far as may be necessary for the regulation of commerce among the states and with foreign nations, and that each new state, upon its admission to the Union, becomes endowed with the same rights and powers in this regard as the older ones.”
See also United States v. Holt State Bank, supra; United States v. State of Oregon, 295 U.S. 1, 55 S.Ct. 610, 79 L.Ed. 1267; United States v. State of Utah, 283 U.S. 64, 51 S.Ct. 438, 75 L.Ed. 844.
When North Dakota became a State, it adopted several territorial statutes which are still in force providing for methods of disposition of the beds of navigable streams. These statutes provide that where a navi*900gable stream forms a new course abandoning its ancient bed, the owners of the land newly occupied take by way of indemnity the ancient bed abandoned, each in proportion to the land of which he has been deprived (Section 47-06-07, N.D.C.C.) ; that islands and accumulations of land formed in the beds of streams which are navigable belong to the State, if there is no title or prescription to the contrary (Section 47-06-08, N.D.C.C.); that where from natural causes land forms by imperceptible degrees upon the bank of a river or stream, either by accumulation of material or by the recession of the stream, such land belongs to the owner of the bank, subject to any existing right of way over the bank (Section 47-06-05, N.D.C.C.) ; and that except when the grant under which the land is held indicates a different intent, the owner of the upland, when it borders on a navigable lake or stream, takes to the edge of the lake or stream at low watermark, provided, however, that all navigable rivers shall remain and be deemed public highways (Section 47-01-15, N.D.C.C.). In recognition of the Federal reservation, our statutes provide that the ownership of land below ordinary high watermark and of land below the water of a navigable lake or stream is regulated by the laws of the United States, or by such laws as under authority thereof the legislative assembly may enact (Section 47-01-14).
This court has held in several cases that the meander line is not a boundary line but that tracts of land abutting upon a stream run to the shore line. Heald v. Yumisko, 7 N.D. 422, 75 N.W. 806; Gardner v. Green, 67 N.D. 268, 271 N.W. 775; Oberly v. Carpenter, 67 N.D. 495, 274 N.W. 509.
The title of the State to lands below the low watermark of a navigable stream is coextensive with the bed of the stream as it existed when North Dakota was admitted to the Union as a State in 1889, and such changes therein as may since have occurred within the lots bordering thereon at the time of the original survey. This is so because the boundary of such lots was fixed as the shore line of the stream.
In other words, fractional lots bordering on a navigable stream extend to the low watermark where it is not otherwise designated and the stream constitutes a variable boundary dependent upon the vagaries-of the stream.
The laws of the United States provided the following rules for ascertaining the boundaries of public lands that had been surveyed by the surveyor general. These rules existed at the time of the survey in. this case.
“The boundaries and contents of the several sections, half-sections, and' quarter-sections of the public lands, shall be ascertained in conformity with the following principles:
“First. All the corners marked in the surveys, returned by the surveyor-general, shall be established as the-proper corners of sections, or subdivisions of sections, which they were intended to designate; and the corners-of half and quarter sections, not marked on the surveys, shall be placed as nearly as possible equidistant from two corners which stand on the same line.
“Second. The boundary-lines, actually run and marked in the surveys returned by the surveyor-general, shall be established as the proper boundary-lines of the sections, or subdivisions, for which they were intended, and the length of such lines, as returned, shall be held and considered as the true length thereof. And the boundary-lines which have not been actually run and marked shall be ascertained, by running straight lines from the established corners to the opposite corresponding corners; but in those portions of the fractional townships where no such opposite corresponding corners have been or can be fixed, the boundary-lines shall be ascertained by running from the established corners due *901north and south or east and west lines, as the case may he, to the water-course, Indian boundary-line, or other external boundary of such fractional township.” 2 Stat. at L. 313, Chap. 14, Rev.Stat. § 2396. 43 U.S.C.A. § 752.
It is a well-settled rule of statutory construction that a statute must be construed with reference to other statutes concerning the same subject matter or a part of the same general system of legislation, and the courts may take judicial notice of the history of the times when they were enacted. Village of North Fargo v. City of Fargo, 49 N.D. 597, 192 N.W. 977.
The statutes to which I have referred in this concurrence were first enacted by the territorial legislature. When North Dakota became a State, these statutes were adopted without change in meaning by the State. Considering the history of the statutes on the subject matter and also considering the Federal statute on surveys quoted above, as well as the Federal decisions cited herein, it is clear to this writer that the statutes were adopted upon the principle of natural justice that one who sustains the burden of losses and of repairs imposed by the contiguity of water ought to receive whatever benefits they may bring by accretion. The legislative intent of the territorial legislature is further clarified when I consider the Organic Law — Act of March 2, 1861, Chapter 86, 12 Statutes at Large 239. Section 1851 provided:
“The legislative power of every Territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States. But no law shall be passed interfering with the primary disposal of the soil; * * *.”
Section 1925 provided:
“In addition to the restrictions upon the legislative power of the Territories, contained in the preceding chapter, section eighteen hundred and fifty-one, the legislative assemblies of Colorado, Dakota, and Wyoming shall not pass any law impairing the rights of private property, * *
It would be incongruous to reason that the territorial legislature enacted the law on accretion on the premise that governmental subdivisions bounded by governmental survey lines on all four sides, whether owned by the United States or patented and privately owned, could be lost to the territory by the encroachment thereon by a navigable river.
It is also significant that no statute, either territorial or State, was enacted providing that erosion of the banks of a navigable stream conveys the title to the soil remaining below the surface of the water in eroded areas to the sovereign. The only basis upon which the theory that the submerged lands below the low watermark passes by operation of law to the State, when the banks are eroded and washed away by action of the water, is the Federal law on surveys cited herein that the boundary line of fractional lots shall be ascertained by running them from established corners to the watercourse. This is a rule of property and we cannot by judicial fiat establish another rule which would violate the supreme law of the land.
Thus it is clear to this writer that Section 47-06-05, N.D.C.C., which provides that where from natural causes land forms by imperceptible degrees upon the bank of a river or stream, either by accumulation of material or by the recession of the stream, such land belongs to the owner of the bank, was enacted by way of indemnity to the fractional lot owner bordering upon a stream for losses which he might suffer by action of the stream; and that Section 47-06-06, N.D.C.C., provides the fractional lot owner an opportunity for indemnity in the event a portion of his land should be lost as a result of avulsion occurring where the land taken by the stream is identifiable. Where, however, subdivisions are bounded on all four sides by government subdivision lines and are remote lands, the statute, *902Section 47-06-05, supra, is not applicable. The owner of such a governmental subdivision continues to own the land below the water where the stream, either by erosion or avulsion, comes upon his land, subject however to the Federal reservation of control and use for the purpose of commerce. Therefore, when the stream changes its course, the easement follows the geographical area occupied by the streams but when the lands are built up again as the stream changes its course back to the original bed, the governmental easement over the geographical area temporarily occupied is lost because the easement follows the course of the stream. In other words, when lands are taken by a navigable stream which were not riparian at the time of the original survey but were remote and identifiable by governmental subdivision lines on all four sides thereof, the owner of such lands is owner in fee and has a right to the surface and to everything pei'manently situated beneath or above it (Section 47-01-12, N.D.C.C.), and when the navigable stream moves over onto such lands, he still owns it but it becomes subject to the Federal government’s easement to the use and control of the waters for commerce and navigation. He does not lose title or ownership to the bed within the governmental subdivision occupied by the stream but the submerged land is subject to the easement. When the stream again changes its course and the lands are restored, the burden of easement is relieved and he does not acquire the restored lands beyond the governmental subdivision line as establish by the survey, whether it be restored by accretion or otherwise.
This reasoning is in harmony with former cases decided by this court. The land and geographical area involved in Oberly v. Carpenter, supra, cited in the majority opinion, involved only fractional subdivisions which bordered upon the stream at the time of the original survey and the admission of the State into the Union. In Hogue v. Bourgois, N.D., 71 N.W.2d 47, the lands were also fractional lots bordering upon the stream and Syllabus No. 3 of such case which reads :
“As patented lands riparian to a navigable stream are eroded and washed away by the action of the water and become submerged below low water mark the title to such submerged lands passes by operation of law to the State of North Dakota.”
is applicable, as it was applied in that case, only to the fractional lots bounded on one side by the stream. The accretion to the island and the rights thereto were commensurate and equal with those of the riparian owner because both owners were riparian and, therefore, Section 47-06-05, N.D.C.C., applied. See Waldner v. Blachnik, 65 S.D. 449, 274 N.W. 837.
The title to the lands under navigable waters received by the State as an incident of sovereignty can be disposed of by the State, subject however to the rights of the public in such waters and to the paramount power of Congress to control navigation as far as may be necessary for the regulation of commerce. Our State has elected, by the enactment of the statutes on accretion and avulsion referred to above, to permit the disposal of such title in the interests of natural justice, subject however to the rights of the public in the waters and the power of Congress to control navigation so far as may be necessary.
STRUTZ, J., concurs.