Montana Attorney General Opinion 15-519

Opinion No. 519 Waters and Water Rights-Navigable Rivers--Dry Bed-Islands -Avulsions. HELD: The lied of a na\'igable stream is owned by the State and not br the riplll'ian owner or by the United States. A sudden change of the course of a stream is called an a yulsion and the law differs from the ordinal' v law of accretion. ., In case of avulsion the State of IIIon- tana has title to the abandoned river bed. The same rule might apply to the increase of an island caused by an avulsion (as distinguished from accre- tion) . April 27, 1934. You inquire as to the right of tbe State of Montana to the abandoned beu of the ~lissouri River which is now (Iry and lies west of the lands of George Nichol in Lot 8, Section 22 and Lots 2, 5, and 8, Section 27, Township 26 ""orth, Range 41 East, Montana :\Ieridian, and also certain lands which ha ve been added to the eastern portion of the island owned by Mr. Nichol by reason of the change in the stream. You submit with your letter a plat and letter furnished II~' ~Iajor T. B. Larkin. The general rules for determining the ownership of islands in navigable and non-navigable waters within this state are set forth in opinion No. 4-15, date!l February 7, 1934. From the papers submitted it appears that one George ""ichol was the oWlier of a certain island in the Missouri RiYer. If we take the position that the Missouri RiYer is and was a nayigahle stream, the bed of the stream is o\yned by the State of :\Iontana and not 'hy the riva rian owner or the Unit£'d States. (ShiYely Y. Bowlby, 152 U. S. 1, 58: Scott v. Lattig. 2:27 U. S. 2:2!).) 'l'hi>; rulellppears to be fully settled lIy these and other cases. decisions of the Supreme Court of the United Stlltes. When we consider the question' of who becomes the owner of the dry bc(l of a navigable I;\'er which sud~leJll~' changes its course. ho,veyer, the author- ities are not so cleal·. The followin!-: authorities held that the abandolle(l riYer bed hecomes the property of the State: Rees Y. McDaniel, 115 Mo. 145, 21 S. W. 913; Kothstine Y. Feldmann, 298 Mo. 365, 250 K W. 58!); Cooley Y. Golden, 117 Mo. 33. 23 S. W. 100. 21 L. R. A. 300; Stockley Y. Cissana, 'l1!) Tenn. 135, 104 S. W. 792: State Y. ~Itlllice Pulp Co., 119 Tenn. 47, HM S. W. 437. This change suddenly made in the course of a "trellm is called an anll- sion and the law differs from the ordi- nary law of accretion. In two cascs, Kinkead v. Turgeon, 74 Nell. 573, 10-1 N. W. 1061, 109 K W. 744, 1 L. R A. C~. S.) 762, 7 L. R. A. (N. -S.) 316, 121 Am. St. Rep. 740, 742, 13 Ann. Cas. 43, and Manry Y. Robison, 56 S. W. (2d) 438, a case decided in Texas in 1932. the conclusion is reached that the abandoned riYer bed belongs to th£' riparian owner instead of to the State. In the first case the absencc of a stat- ute is one of the important grounds on which the decision is based. In the second of these cases the proYisions of the civil law and special Texas stat- utes are applied. In this latter case the subject is very fully discussed but slime can not be considered entirely an authority for the reason that the ch'il law and peculiar statutes are applied. Section 6674, He\'ised Codes of Mon- OPli\IO~S OJ!' THE A'l'TOR~EY GB)lERAL 355 tuna, 1921, provides: ''The state is the owner of all land below the water of a navigable lake or stream." Section G822. Revised Codes of :\Iontana. 1921, provides: "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." These statutory pro- visions would tend to constitute an II doption of the rule as adopted in the states of Tennessee and :\iissouri. From the decisions by the supreme courts of those states. and the statutes, we would conclude that the state might have title to the abandoned river bed. On the que:5tion of prescription or 10:5:5 of title h~- adl-erse possession, ,;amc woultl depend upon facts not fuJJ~- submi tted. As to that portion of the island formed on -the east thereof, if same wus an avulsion. l"H ther than lin accre- tion, the same principles might apply a nd govern. In writing this opinion, we ha I-e not sought to discuss the rights of parties other than the State of Mon- tana.