Montana Attorney General Opinion 15-445

Opinion No. 445. Islands-State Lands-Navigable Waters-Non-Navigable Waters. HELD: General rules for determin- ing the ownership of islands in navi- gable and non-navigable waters within the state are set forth. February 7, 1934. You request an opinion from this of- fice on the following matter: "Will you kindly give me your opinion as to the ownership of islands formed in navigable and unnavigable streams for our future guidance in this office. This matter is continually coming up and we would like to establish a course of action with reference to such islands. Further, does the date of survey of the adjacent sections to such streams de- termine the ownership of such islands. Chapter 12, Part IV, of the Civil Codes touches upon the ownership of islands, but the sections therein contained do not seem to explain the matter sufficiently for our purpose." "The State is the owner of all land below the water of a naYigable lake or stream; * * *" Sec. 6674, R. C. M., 1921. This ownership arises as a right of sovereignty and not by conveyance. Upon admission to the Union, the state, by virtue of its sovereiguty, be- comes the owner of all lands under navigable waters within the state. ~fartin v. Busch, 112 So. 274, (Fla.); Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 225; Hardin v. Jordan, 140 U. S. 371, 35 L. Ed. 428; Knight v. U. S. Land Asso., 142 U. S. 161. 35 L. Ed. 974; 'Shively v. Bowlby, 152 U. S. 1, 38 L. Ed. 331; Lowndes v. Town of Hunt- ington, 153 U. S. 1, 38 L. Ed. 615; Mor- ris v. United States, 174 U. S. 196, 43 L. FAl. 946; Scranton v. Wheeler, 179 U. S. 141, 45 L. Ed. 126; United States v. Mission Rock po., 189 U. S. 391, 47 L. Ed. 865; Hardin v. Shedd, 190 U. S. 508, 47 L. Ed. 1156; Economy Light & P. Co. v. United States, 256 U. S. 113, 65 L. Ed. 847. Montana acquires no rights to lands under the Swamp Land Act. (Section 17 Enabling Act.) Such ownership, however, is subject to the control of Congress in the in- terest of interstate and foreign com- merce, and the general public. Scott v. Lattig, 227 U. S. 229, 57 L. Ed. 490; 44 L. R. A. (N. S.) 107. "The words 'all land' in Section 6674 evidently refer to that below the low-water mark, for in Section 6771 it is provided that 'except where the grant under which the land is held indicates a different intent, the own- er of the land, when it borders upon a na"igable lake or stream, takes to the edge of the lake or stream at low- water mark; when it horders upon any other water, the owner takes to the middle of the lake or stream.' (And see Gibson Y. Kelley, 15 Mont. 417, 39 Pac. 517.)" Herrin Y. Sutherland, 74 Mont. 587, 595; 42 A. L. R. 937. "6822. Islands, in navigable streams. I slands and accumulations of land, formed in the beds of streams which are navigable, belong to the state, if OPI~IO~S OJj~ THE A'M'OR~EY GE~ERAL 300 there is no title or prescription to thc contrary." :\Iodified by Scott v. Lilt- tig. supra. and other deCisions. "6823. In unnavigable streams. An island, or accumulation of land, formed in a stream which is not navigable, be- longs to the owner of the shore on that side where the island or accumulation is formed; or, if not formed on one side only, to the owners of the shore on the two sides, dhided by an imag- inary line drawn through the middle of the river." "6824. Islands formed by division of stream. If a stream, navigable or not navigable, in forming itself a new arm, divides itself and surrounds land helonging to the owner of the shore. and thereby forms an island, the island helongs to such owner." "Patents to lots of lanel abutting on a ri,er do not include actual islands of fast elr~' land of stable foundation ly- ing between the lots anel the thread of the stream." Bode Y. Rollwitz et aI, GO Mont. 481. Errors of the government surveyor in failing to extend the survey over an island in a navigable stream does not make it any the less a part of the pub- lic domain. Scott v. Lattig (Idaho) RS U. S. Ct. 242, 227 U. S. 229, 57 L. 1<Jd. 400, 44 L. R. A. (N. S.) 107 (1913) ; Moss v. Ramey (Idaho) (1916) 36 S. Ct. 183, 2S9 U. S. 538, 60 L. Ed. 425; State v. Nolegs (1914) 139 P. 943, 40 Okl. 479. A government surveyor is not in- \'ested with authority to determine the character of land surveyed or left un- liuneyed, or to classify it as within or without the operation of particular laws, and his error in failing to ex- tend his survey over islanels in a river did not make them less a part of the government domain and the govern- ment was not thereby divested of title. Bode v. Rollwitz (1921) 100 P. 688, 60 Mont. 481; Note 21 Sec. 751, p. 56. Title 43, U. S. C. A. ~'he title to islands formed in navi- ;..;a ble streams since the admission of Kansas into the Union is held by the i<tate for the benefit of all the peoplc. Winters ,'. Myers (1914) 140 P. 10S3, 92 Kan. 414; Steckel Y. Vancil (1n14) 141 P. 550, 92 Kan. 501. Islands in the Arkansas river not surveyed or claimed by the government belong to the state. Hurst v. Dana (1911) 122 P. 1041, 8G Kan. 947. A large unsurveyed island on the Idaho side of the Snake ri\·er. a navigable stream, being in existence when Idaho became a State, did not pass to the state on admission, but re- mained the property of the United States. Scott v. Lattig, supra, revers- ing (1910) 107 P. 47, 17 Ida. 506; Moss v. Ramey, supra; Callahan v. Price (1915) 146 P. 732, 26 Idaho 745. The State in its proprietary right owns an island existing in public waters locat- ed within a school section which has been ceded by the federal gO"emment to the state. Roberts Y. Taylor (1921) 181 N. W. 622, 47 N. D. 146. Where, according to the local law, the patentee's title extends to the mid- dle of the stream and includes an un- sUrYeyed island "ithin those limits, the United States cannot divest such title to the island by subsequent sur- vey and patent thereof to another, in the absence of a showing that it was left unsurveyed by fraud or mistake. Grand Rapids & I. R. CO. Y. Butler (Mich. 18(5) 15 S. Ct. 991, 992, 159 U. S. 87, 40 L. Ed. 85; Whitaker Y. Mc- Bride (Neb. 1005) 25 S. Ct. 530, 531, 197 U. S. 510, 49 L. Ed. 857; Johnson Y. Johnson (1908) 95 P. 499, 14 Idaho 561; Moss v. Ramey, (Idaho) supra, holdings modified, (1913) 136 P. 608, 25 Idaho 1, which was affirmed, (1916) 36 S. Ct. 183, 239 U. S. 538, 60 L. Ed. 425; Butler Y. Grand Rapids & 1. R. Co. (1891) 85 Mich. 246, 48 N. W. 569, 24 Am. St. Rep. 84, affirmed (1805) abo,-e; Chandos Y. Mach, (1890) 77 Wisc. 573, 4G N. W. 803, 20 Am. St. Rep. 139, 10 L. R. A. 207; Farris v. Bentley, (1910) 124 N. W. 1003, 141 Wis. 671. No title can be acquired (to lands of the United States) by adverse pos- session. 2 C. J. Sec. 440, p. 213; King v. Thomas, 6 Mont. 409, 12 P. 865; See also, Casey Y. Anderson, 17 Mont. 167, 42 P. 761. "The owner of an island is entitled to land added thereto by accretion to the same extent as the owner of land on the shore of the mainland." 45 C. .T. Sec. 197, p. 528. "Where the gO"ernment cOll\'eys land on the bank of a navigable stream without reservation, all unsurveyed islands between the middle line of the stream and the bank pass by the grant, in a state where a ripal;an proprietor has title to the middle or center of the 310 OPINIONS OF THE ATTORNEY GENERAL stream, and t.he riparian owner can not be divested of title by a subsequent sur- vey and grant of the islands, in the absence of a showing that they wel-e left unsurveyed by fra,ud or mistake; but. where an island is surveyed and plated as such, a patent to land on the bank does not include the island, espe- cially where the mainland and the island are purchased by different parties as distinct tracts; and a large unsurYeyed island of stable formation is not em- braced in patents describing lots or fractional lots on the bank of a stream. "A state will be held to have parted with the title to certain land where, although such land is not an island, it was at the time of a prior public grant a part of the mainland and within the terms and description of the grant; hut it is held that a deed by the state to "all of" a certain section through which a navigable river runs covers only the lands shown by the goyern- ment survey, and an unsurYeyed isl- and." 45 C. J. Sec. 267, p. 570. 40 Cyc. 620 gives the same rule as is set forth in Section 6823, R. C. M., 1921, in regard to islands in non-nayi- gable streams and elaborates it to cov- er cases where there are two or more adjacent owners. "The ownership of an island general- ly follows the ownership of the bed of the water, so that if the state or crown owns the land under water it also owns the island, while if the riparian owner has title to the bed the island belongs to him up to the line of his ownership of the bed, and if the riparian owner is not the owner of the bed of the stream, he is not the owner of the island, un- less it has been granted to him." 45 C. J. Sec. 256, p. 563. "Title to islands in a navigable stream cannot be acquired by actual settlement and improvement except where the statutes so provide." 45 C. J. Sec. 257, p. 565. "Islands formed before the admis- sion of a state to the Union do not pass to the state upon its admission to the Union, but remain the property of the United States and subject to disposi- tion by it, where the islands are sur- Yeyed by the United States, or, al- though unsurveyed, are large and of stable formation. On the other hand if islands are formed after the admis- sion of a state to the Union, the ques- tion whether they belong to the ripari- an owner or are the property of the state is governed by local law, they be- ing the property of the state according to the rnle obtaining in some jurisdic- tions." 45 C. J. Sec. 258, p. 565. "Islands formed in the stream before the admission of the state into the Un- ion are subject to disposal by the l!'ed- eral goyernment the same as other pub- lic lands. If they are formed after the admission of the state the question whether they belong to the riparian owner, or are the property of the state, is governed by local law." Volume I, Page 50, l!'arnham, "Water and Water Hights"; See also 45 C. J. Sec. 258, p. 565; 60 Mont. 481, supra. "If the title to the soil where the island springs up is in private owner- ship the island will belong to the own- er of the soil. Therefore, where an island arises in a stream the title to the bed of which is in the state, it does not belong to the owner of either shore. An island formed upon the portion of the bed which belongs to the riparian owner becomes his property. Islands lying in the bed of a stream may be treated independently by the state in parceling out the lands on the shore. In such case the title to them must he obtained as the state prescribes. But a grant of land which carries title to the center of the stream will carry with it all islands between the shore and the center." Volume I, pages 275, 276, 277. l!'arnham, "Water and Wa- ter Rights." "In Steinbuchel v. Lane, 59 Kan. 7, 51 Pac. 886, it is said that it is impos- sible to lay down a definite rule which will determine every case involving a question as to what passes hy the grant of land bordering on a water course. 'Vhether islands are intended to be re- served, or to pass, must be determined from their situation and extent and the action of the land department. There are certain general rules, how- ever, which will decide most cases which may arise. If the policy of the government is to part with the title to the bed of the stream, the island will he presumed to ha\'e been regarded as part of the bed, and to haye .passed by a grant of the upland, unless it was ex- pressly reserved, or there was plain im- plication .that it was not intended to pass. Therefore, where the title of the grantee extends to the middle of the stream, an island in a river which the OPIXIOXS OF THE AT'£ORNEY GEXERAL 311 government surveyor does not think of sufficient value to survey passes to a grantee of the bank. • ... " Volume III, pages 2501-2502, Farnham, "Wa- ter and Water Rights." From the various statutes and de- cisions cited above, our conclusions are as follows: 1. The title to the bed of navigable streams within the boundaries of Mon- tana is in the state, subject to the con- trol of Congress in the interest of in- terstate and foreign commerce. 2. Title to islands of dry upland in navigable streams at the time Montana became a state, whether surveyed or not, remains in the Federal Govern- ment. However, we have found no in- stance where the Federal Government has attempted to assert title to any island where the area was less than twenty aeres. 3. Title to iSlands that have been formed by accretion since Montana was admitted to the Union is in the State. 'rhis, we think, is true even though such islands have been formed on shal- low bars and lands that may have for- merly been above low water mark and inundated only during high water flow. 4. Title to islands in non-navigable waters is in the riparian owner or owners. 5. Title of riparian owners of land on navigable streams extends to the edge of the stream at low water mark, subject to use of the lands to high wa- ter mark by those engaged in com- merce, etc. on such streams.