This litigation involves a dispute between the State of Oregon
and an Oregon corporation over the ownership of two portions of
land underlying the Willamette River, which is navigable but not an
interstate boundary. The first portion has been within the riverbed
since Oregon's admission into the Union, while the second portion
is in an area that was not part of the riverbed at the time of
Oregon's admission, but later became part of the riverbed because
of changes in the river's course. In an ejectment action brought by
Oregon against the corporation, which had been digging in the
disputed part of the riverbed for 40 to 50 years without a lease
from the State, the trial court awarded the first portion to the
State on the ground that it had acquired sovereign title thereto
upon admission into the Union and had not conveyed it, but with
respect to the second portion found that avulsion, rather than
accretion, had caused the changes in the river channel, and that
therefore the title to the land remained in the corporation, its
original owner before it became riverbed. The Oregon Court of
Appeals affirmed, taking the view that it was bound to apply
federal common law to the resolution of the dispute by Bonelli
Cattle Co. v. Arizona, 414 U. S. 313
accordingly holding that the trial court's award of the second
portion to the corporation was correct either under the theory of
avulsion or under an exception to the accretion rule, and that
preservation of the State's interest in navigation, fishing, and
other related goals did not require that it acquire ownership of
the new riverbed. The Oregon Supreme Court affirmed, with certain
modifications dealing only with a factual question regarding the
length of the second portion.
The disputed ownership of the riverbed lands
should be decided solely as a matter of Oregon law, and not by
federal common law, since application of federal common law is
required neither by the equal-footing doctrine nor by any other
principle of federal law. If the lands at issue did pass under the
equal-footing doctrine, state title is not subject to defeasance
and state law governs subsequent
Page 429 U. S. 364
dispositions. A similar result obtains in the case of riparian
lands which did not pass under that doctrine; state law governs
issues relating to such property, like other real property, unless
some other principle of federal law requires a different result.
Bonelli Cattle Co., supra,
was wrong in treating the
equal-footing doctrine as a source of federal common law after the
doctrine had vested title to the riverbed in question in that case
in the State of Arizona as of the time of its admission into the
Union, and, accordingly, that case's application of federal common
law to cases such as the instant one is overruled. Pp. 429 U. S.
272 Ore. 545, 536 P.2d
; 272 Ore. 550, 538 P.2d
, vacated and remanded.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, BLACKMUN, POWELL, and STEVENS, JJ.,
joined. BRENNAN, J., filed a dissenting statement, post,
p. 429 U.S. 382
J., filed a dissenting opinion, in which WHITE, J., joined,
p. 429 U.S.
Page 429 U. S. 365
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
This lawsuit began when the State of Oregon sued Corvallis Sand
& Gravel Co., an Oregon corporation, to settle the ownership of
certain lands underlying the Willamette River. The Willamette is a
navigable river, and this land is located near Corvallis, Oregon.
The river is not an interstate boundary.
Corvallis Sand had been digging in the disputed part of the
riverbed for 40 to 50 years without a lease from the State. The
State brought an ejectment action against Corvallis Sand, seeking
to recover 11 separate parcels of riverbed, as well as damages for
the use of the parcels. The State's complaint alleged that, by
virtue of its sovereignty, it was the owner in fee simple of the
disputed portions of the riverbed, and that it was entitled to
immediate possession and damages. Corvallis Sand denied the State's
ownership of the bed.
Page 429 U. S. 366
Each party was partially successful in the Oregon courts,
] and we granted
cross petitions for certiorari. 423 U.S. 1048. Those courts
understandably felt that our recent decision in Bonelli Cattle
Co. v. Arizona, 414 U. S. 313
(1973), required that they ascertain and apply principles of
federal common law to the controversy. Twenty-six States have
joined in three amicus
briefs urging that we reconsider
because of what they assert is its
significant departure from long-established precedent in this
The nature of the litigation and the contentions of the parties
may be briefly stated. Title to two distinct portions of land has
been at issue throughout. The first of these portions has
apparently been within the bed of the Willamette River since
region's admission into the Union.
The other portion of the land underlies the river in an area
known as Fischer Cut, which was not a part of the riverbed at the
time Oregon was admitted to the Union. The trial court found that
prior to a flood which occurred in November, 1909, the Willamette
flowed around a peninsula-like formation known as Fischer Island,
but that, by 1890, a clearly discernible overflow channel across
the neck of the peninsula had developed. Before 1909 this channel
Page 429 U. S. 367
the flow of the river only at its intermediate or high stages,
and the main channel of the river continued to flow around Fischer
Island. But in November, 1909, a major flood, in the words of the
Oregon trial court, "suddenly and with great force and violence
converted Fischer Cut into the main channel of the river."
The trial court, sitting without a jury, awarded all parcels in
dispute, except for the Fischer Cut lands, to the State. T hat
court found that the State had acquired sovereign title to those
lands upon admission into the Union, and that it had not conveyed
that title. The State was also awarded damages to recompense it for
Corvallis Sand's use of the lands.
With respect to the Fischer Cut lands, the trial court found
that avulsion, rather than accretion, had caused the change in the
channel of the river, and therefore the title to the lands remained
in Corvallis Sand, the original owner of the land before it became
The Oregon Court of Appeals affirmed. That court felt bound,
to apply federal common law to the
resolution of this property dispute. In so doing, the court found
that the trial court's award of Fischer Cut to Corvallis Sand was
correct either under the theory of avulsion or under the so-called
exception to the accretion rule, announced in Commissioners v.
270 F. 110 (CA8 1920). [Footnote 2
] The court, finding that preservation of the
Page 429 U. S. 368
interest in navigation, fishing, and other related goals did not
require that it acquire ownership of the new bed, rejected the
argument that the State's sovereign title to a riverbed follows the
course of the river as it moves.
In this Court, Oregon urges that we either modify
or expound "federal common law" in such a way that
its title to all the land in question will be established.
Corvallis Sand urges that we interpret "federal common law" in such
a manner that it will prevail. Amici,
as previously noted,
urge that we reexamine Bonelli
because, in their view,
that case represented a sharp break with well established previous
decisions of the Court. [Footnote
The dispute in Bonelli
was over the ownership of the
former bed of the Colorado River, a bed which the river had
abandoned because of a federal rechanneling project. The Bonelli
land was not part of the actual riverbed, however, either at the
time Arizona was admitted to the Union or at the time of suit.
Before Arizona had been admitted as a
Page 429 U. S. 369
State, Bonelli's predecessor in title had received a United
States patent to the land. Over a period of years, the Colorado
River had migrated gradually eastward, eroding its east bank and
depositing alluvion on its west bank in the process. In the course
of this movement of the river, the Bonelli land, which had, at the
time of patent, been on the east bank, was submerged, and, until
the rechanneling project, most of it was under water. After the
completion of the rechanneling project the bed of the Colorado
River was substantially narrowed, and the Bonelli land
The Supreme Court of Arizona held that Arizona owned the title
to the beds of navigable rivers within its borders, and that
Arizona therefore acquired title to the Bonelli land when it became
part of the riverbed as a result of the eastward migration of the
Colorado. That court went on to hold that, under state law, the
reemergence of the land was an avulsive change, which did not
divest the State of its title to the exposed land. This Court
granted certiorari and reversed the Supreme Court of Arizona.
We phrased the critical inquiry in Bonelli
"he issue before us is not what rights the State has accorded
private [land] owners in lands which the State holds as sovereign,
but, rather, how far
the State's sovereign right extends
under the equal-footing doctrine and the Submerged Lands Act --
whether the State retains title to the lands formerly
beneath the stream of the Colorado River or whether that title
is defeasible by the withdrawal of those waters.
414 U.S. at 414 U. S.
-320. (Emphasis added.)
We held that federal common law should govern in deciding
whether a State retained title to lands which had reemerged from
the bed of a navigable stream, relying in part on Borax, Ltd.
v. Los Angeles, 296 U. S. 10
(1935). That case held that the extent and validity of a federal
grant was a question to be resolved by federal law, and, in
Page 429 U. S. 370
we decided that the nature of the title conferred by the
equal-footing doctrine set forth in Pollard's
Lessee v. Hagan,
3 How. 212 (1845), should likewise
be governed by federal common law. Under the equal-footing doctrine
"the new States since admitted have the same rights, sovereignty
and jurisdiction . . . as the original States possess within their
respective borders." Mumford v.
6 Wall. 423, 73 U. S. 436
(1867). Pollard's Lessee
held that, under the
equal-footing doctrine, new States, upon their admission to the
Union, acquire title to the lands underlying navigable waters
within their boundaries.
We went on to discuss the nature of the sovereign's interest in
the riverbed, which we found to lie in the protection of
navigation, fisheries, and similar purposes. We held that, under
federal common law, as we construed it in that case, Arizona's
sovereign interest in the reemerged land was not sufficient to
enable it to retain title. We found the principle governing title
to lands which have been formed by accretion, rather than that
which governs title where there has been an avulsive change in the
channel of the river, to be applicable. We chose the former because
it would both ensure the riparian owner access to the water's edge
and prevent the State from receiving a windfall. We therefore
decided that Bonelli, as riparian owner, was entitled to the land
Our analysis today leads us to conclude that our decision to
apply federal common law in Bonelli
was incorrect. We
first summarize the basis for this conclusion, and then elaborate
in greater detail in Parts III and IV, infra.
The title to the land underlying the Colorado River at the time
Arizona was admitted to the Union vested in the State as of that
date under the rule of Pollard's Lessee v. Hagan, supra.
Although federal law may fix the initial boundary line between fast
lands and the riverbeds at the time of a State's admission to the
Union, the State's title
Page 429 U. S. 371
to the riverbed vests absolutely as of the time of its
admission, and is not subject to later defeasance by operation of
any doctrine of federal common law. Wilcox v.
13 Pet. 498 (1839); Weber v.
18 Wall. 7 (1873).
thesis that the equal-footing doctrine would
require the effect of a movement of the river upon title to the
riverbed to be resolved under federal common law was in error. Once
the equal-footing doctrine had vested title to the riverbed in
Arizona as of the time of its admission to the Union, the force of
that doctrine was spent; it did not operate after that date to
determine what effect on titles the movement of the river might
have. Our error, as we now see it, was to view the equal-footing
doctrine enunciated in Pollard's Lessee v. Hagan
basis upon which federal common law could supersede state law in
the determination of land titles. Precisely the contrary is true;
in Pollard's Lessee
itself, the equal-footing doctrine
resulted in the State's acquisition of title notwithstanding the
efforts of the Federal Government to dispose of the lands in
question in another way.
The equal-footing doctrine did not, therefore, provide a basis
for federal law to supersede the State's application of its own law
in deciding title to the Bonelli land, and state law should have
been applied unless there were present some other principle of
federal law requiring state law to be displaced. The only other
basis [Footnote 4
] for a
Page 429 U. S. 372
of federal right in Bonelli
was that the Bonelli land
had originally been patented to its predecessor by the United
States, just as had most other land in the Western States. But that
land had long been in private ownership and, hence, under the great
weight of precedent from this Court, subject to the general body of
state property law. Wilcox v. Jackson, supra
38 U. S. 517
Since the application of federal common law is required neither by
the equal-footing doctrine nor by any other claim of federal right,
we now believe that title to the Bonelli land should have been
governed by Arizona law, and that the disputed ownership of the
lands in the bed of the Willamette River in this case should be
decided solely as a matter of Oregon law.
Pollard's Lessee v. Hagan, supra,
holds that the State
receives absolute title to the beds of navigable waterways within
its boundaries upon admission to the Union, and contains not the
slightest suggestion that such title is "defeasible" in the
technical sense of that term. The issue there was whether a federal
patent, issued after the admission of Alabama to the Union, could
validly convey lands that had underlain navigable waters upon
Alabama's admission. The Court had before it the following jury
charge, given in the ejectment action below:
"[T]hat if [the jury] believed the premises sued for were below
usual high water-mark, at the time
Page 429 U. S. 373
Alabama was admitted into the union, then the act of Congress,
and the patent in pursuance thereof, could give the plaintiffs no
title, whether the waters had receded by the labour of man only, or
by alluvion. . . ."
3 How. at 44 U. S. 220
The Court regarded the case as one of signal importance, and it
observed that the decision was approached "with a just sense of its
great importance to all the states of the union, and particularly
to the new ones." Ibid.
Mr. Justice Catron, in his
dissenting opinion, commented that he deemed the case
"the most important controversy ever brought before this court,
either as it respects the amount of property involved or the
principles on which the present judgment proceeds. . . ."
at 44 U. S. 235
The Court gave careful consideration to the role of the United
States in holding the lands in question in trust for the new
States, and to the recognition that the new States would be
admitted "upon an equal footing, in all respects whatever . . . "
with the original States. Id.
at 44 U. S. 224
Citing Martin v.
16 Pet. 367, 41 U. S. 410
(1842), the Court noted that the original States held the
"'absolute right to all their navigable waters, and the soils
under them for their own common use, subject only to the rights
since surrendered by the Constitution.'"
3 How. at 44 U. S. 229
The Court then concluded:
"First, The shores of navigable waters, and the soils under
them, were not granted by the Constitution to the United States,
but were reserved to the states respectively. Secondly, The new
states have the same rights, sovereignty, and jurisdiction over
this subject as the original states. Thirdly, The right of the
United States to the public lands, and the power of Congress to
make all needful rules and regulations for the sale and disposition
thereof, conferred no power to grant to the plaintiffs the land in
controversy. . . ."
at 44 U. S.
Page 429 U. S. 374
In so holding, the Court established the absolute title of the
States to the beds of navigable waters, a title which neither a
provision in the Act admitting the State to the Union [Footnote 5
] nor a grant from Congress
to a third party was capable of defeating.
Thus, under Pollard's Lessee,
the State's title to
lands underlying navigable waters within its boundaries is
conferred not by Congress, but by the Constitution itself. The rule
laid down in Pollard's Lessee
has been followed in an
unbroken line of cases which make it clear that the title thus
acquired by the State is absolute so far as any federal principle
of land titles is concerned. For example, in Weber v. Harbor
18 Wall. at 85 U. S. 66
Court reaffirmed the doctrine of Pollard's Lessee:
"Upon the admission of California into the Union upon equal
footing with the original States, absolute property in, and
dominion and sovereignty over, all soils under the tidewaters
within her limits passed to the State, with the consequent right to
dispose of the title to any part of said soils in such manner as
she might deem proper,
subject only to the paramount right of
navigation over the waters. . . ."
(Emphasis added.) In Barney v. Keokuk, 94 U. S.
, 94 U. S. 338
(1877), the Court extended the doctrine to waters which were
nontidal but nonetheless navigable, consistent with its earlier
extension of admiralty jurisdiction to such waters in
Page 429 U. S. 375
Genesee Chief v. Fitzhugh,
12 How. 443 (1852). And in
Shively v. Bowlby, 152 U. S. 1
the Court recounted in extenso
the many cases which had
followed the doctrine of Pollard's Lessee.
its holding, 152 U.S. at 152 U. S. 57
the Court stated:
"The new States admitted into the Union since the adoption of
the Constitution have the same rights as the original States in the
tidewaters, and in the lands under them, within their respective
jurisdictions. The title and rights of riparian or littoral
proprietors in the soil below [the] high water mark therefore are
governed by the laws of the several States, subject to the rights
granted to the United States by the Constitution."
At the time of our decision in Bonelli,
this line of
authority stood side by side with, and was wholly consistent with,
other cases requiring the application of federal law to questions
of land titles or boundaries. Where Mexico had patented tidal lands
to a private owner before ceding to the United States the territory
which ultimately became the State of California, California did not
succeed to the ownership of such lands upon her admission to the
Union. Knight v. United States Land Assn., 142 U.
(1891). If a navigable stream is an interstate
boundary, this Court, in the exercise of its original jurisdiction
over suits between States, has necessarily developed a body of
federal common law to determine the effect of a change in the bed
of the stream on the boundary. See, e.g., Nebraska v.
Iowa, 143 U. S. 359
(1892); Arkansas v. Tennessee, 246 U.
(1918). Congress possesses, by virtue of its
commerce power, a "navigational servitude" with respect to
"All navigable waters are under the control of the United States
for the purpose of regulating and improving navigation, and
although the title to the shore and submerged soil is in the
various States and individual
Page 429 U. S. 376
owners under them, it is always subject to the servitude in
respect of navigation created in favor of the Federal government by
Gibson v. United States, 166 U.
, 166 U. S.
In Borax, Ltd. v. Los Angeles, 296 U. S.
(1935), this Court also found a basis to apply
federal law, but its rationale does not dictate a different result
in this case. In Borax,
the city of Los Angeles brought
suit to quiet title in certain land in Los Angeles Harbor. Los
Angeles claimed the land under a grant from the State of
California, whereas Borax, Ltd., claimed the land as a successor in
interest to a federal patentee. The federal patent had purported to
convey a specified quantity of land, 18.88 acres, according to a
survey by the General Land Office. This Court recognized that, if
the patent purported to convey lands which were part of the
tidelands, the patent would be invalid to that extent, since the
Federal Government has no power to convey lands which are
rightfully the State's under the equal-footing doctrine.
at 296 U. S. 17
The Court affirmed the decision of the Court of Appeals to remand
for a new trial to allow the city to attempt to prove that some
portion of the lands described in the federal patent was in fact
The Court went on to hold that the boundary between the upland
and tideland was to be determined by federal law. Id.
296 U. S. 22
This same principle would require that determination of the initial
boundary between a riverbed, which the State acquired under the
equal-footing doctrine, and riparian fast lands likewise be decided
as a matter of federal law, rather than state law. But that
determination is solely for the purpose of fixing the boundaries of
the riverbed acquired by the State at the time of its admission to
the Union; thereafter, the role of the equal-footing doctrine is
ended, and the land is subject to the laws of the State. The
expressions in Bonelli
suggesting a more expansive
Page 429 U. S. 377
role for the equal-footing doctrine are contrary to the line of
cases following Pollard's Lessee.
For example, this Court has held that subsequent changes in the
contour of the land, as well as subsequent transfers of the land,
are governed by the state law. Joy v. St. Louis,
201 U. S. 332
201 U. S. 343
(1906). Indeed, the rule that lands once having passed from the
Federal Government are subject to the laws of the State in which
they lie antedates Pollard's Lessee.
As long ago as 1839,
the Court said:
"We hold the true principle to be this, that whenever the
question in any Court, state or federal, is whether
title to land which had once been the property of the United States
has passed, that question must be resolved by the laws of the
United States; but that, whenever,
according to those
laws, the title shall have passed,
then that property,
like all other property in the state, is subject to state
so far as that legislation is consistent with the
admission that the title passed and vested according to the laws of
the United States."
Wilcox v. Jackson,
13 Pet. at 38 U. S. 517
Page 429 U. S. 378
The contrary approach would result in a perverse application of
the equal-footing doctrine. An original State would be free to
choose its own legal principles to resolve property disputes
relating to land under its riverbeds; a subsequently admitted State
would be constrained by the equal-footing doctrine to apply the
federal common law rule, which may result in property law
determinations antithetical to the desires of that State. See
414 U.S. at 414 U. S.
-333 (STEWART, J.J dissenting).
Thus, if the lands at issue did pass under the equal-footing
doctrine, state title is not subject to defeasance, and state law
governs subsequent dispositions. [Footnote 7
A similar result obtains in the case of riparian lands which did
not pass under the equal-footing doctrine. This Court has
consistently held that state law governs issues relating to this
property, like other real property, unless some other principle of
federal law requires a different result.
Under our federal system, property ownership is not governed by
a general federal law, but rather by the laws of the several
"The great body of law in this country which controls
acquisition, transmission, and transfer of property, and defines
the rights of its owners in relation to the state or to private
parties, is found in the statutes and decisions of the state."
Daves Warehouse Co. v. Bowles, 321 U.
, 321 U. S. 155
(1944). This is particularly true with respect
Page 429 U. S. 379
to real property, or even when federal common law was in its
heyday under the teachings of Swift v. Tyson,
16 Pet. 1 (1842), an exception was carved out for the local law of
real property. Id.
at 41 U. S. 18
See United States v. Little Lake Misere Land Co.,
412 U. S. 580
412 U. S. 591
This principle applies to the banks and shores of waterways, and
we have consistently so held. Barney v. Keokuk,
94 U. S. 324
(1877), involved an ejectment action by the plaintiff against the
city involving certain land along the banks of the Mississippi
River. After noting that the early state doctrines regarding the
ownership of the soil of nontidal waters were based upon the
then-discarded English view that nontidal waters were presumed
nonnavigable, the Court clearly articulated the rule that the
States could formulate, and modify, rules of riparian ownership as
they saw fit:
"Whether, as rules of property, it would now be safe to change
these doctrines [arising out of the confusion of the original
classification of nontidal waters as nonnavigable] where they have
been applied, as before remarked, is for the several States
themselves to determine. If they choose to resign to the riparian
proprietor rights which properly belong to them in their sovereign
capacity, it is not for others to raise objections. In our view of
the subject, the correct principles were laid down in
16 Pet. 367, Pollard's Lessee v.
3 How. 212, and Goodtitle v. Kibbe,
9 id. 44 U. S. 471
. These cases
related to tide-water, it is true, but they enunciate principles
which are equally applicable to all navigable waters."
at 94 U. S.
In Shively v. Bowlby,
the Court canvassed its previous
decisions and emphasized that state law controls riparian
ownership. The Court concluded that grants by Congress of land
bordering navigable waters
"leave the question of the use of the shores by the owners of
uplands to the sovereign control of each State, subject only to the
Page 429 U. S. 380
vested by the Constitution in the United States."
152 U.S. at 152 U. S. 58
the Court again emphasized in Packer v. Bird, 137 U.
, 137 U. S. 669
"[W]hatever incidents or rights attach to the ownership of
property conveyed by the government will be determined by the
States, subject to the condition that their rules do not impair the
efficacy of the grants or the use and enjoyment of the property by
This doctrine was squarely applied to the case of a riparian
proprietor in Joy v. St. Louis, 201 U.
(1906). The land at issue had originally been
granted to the patentee's predecessor by Spain, and Congress had
confirmed the grant and issued letters patent. This Court held that
the fact that a plaintiff claimed accretions to land patented to
his predecessor by the Federal Government did not confer federal
question jurisdiction, and implicitly rejected any notion that
"federal common law" [Footnote
] had any application to the resolution. Central to this
result was the holding:
"As this land in controversy is not the land described
Page 429 U. S. 381
in the letters patent or the [A]cts of Congress, but, as is
stated in the petition, is formed by accretions or gradual deposits
from the river, whether such land belongs to the plaintiff is,
under the cases just cited, a matter of local or state law, and not
one arising under the laws of the United States."
at 201 U. S.
Upon full reconsideration of our decision in Bonelli,
we conclude that it was wrong in treating the equal-footing
doctrine as a source of federal common law after that doctrine had
vested title to the riverbed in the State of Arizona as of the time
of its admission to the Union. We also think there was no other
basis in that case, nor is there any in this case, to support the
application of federal common law to override state real property
law. There are obviously institutional considerations which we must
face in deciding whether for that reason to overrule
or to adhere to it, and those considerations cut
both ways. Substantive rules governing the law of real property are
peculiarly subject to the principle of stare decisis.
See United States v. Title Ins. Co., 265 U.
Here, however, we are not dealing with substantive property law
as such, but rather with an issue substantially related to the
constitutional sovereignty of the States. In cases such as this,
considerations of stare decisis
play a less important role
than they do in cases involving substantive property law. Cf.
48 U. S.
Page 429 U. S. 382
48 U. S. 470
(1849) (Taney, C.J., dissenting); Burnet v. Coronado Oil &
Gas Co., 285 U. S. 393
285 U. S.
-411 (1932) (Brandeis, J., dissenting); Smith v.
Allwright, 321 U. S. 649
(1944). Even if we were to focus on the effect of our decision upon
rules of substantive property law, our concern for unsettling
titles would lead us to overrule Bonelli,
rather than to
retain it. See Minnesota Co. v. National
3 Wall. 332, 70 U. S. 334
(1866). Since one system of resolution of property disputes has
been adhered to from 1845 until 1973, and the other only for the
past three years, a return to the former would more closely conform
to the expectations of property owners than would adherence to the
latter. We are also persuaded that, in large part because of the
positions taken in the briefs presented to the Court in
decision was not a
deliberate repudiation of all the cases which had gone before. We
there proceeded on the view, which we now think to have been
mistaken, that Borax, supra,
should be read so expansively
as to in effect overrule sub silentio
the line of cases
following Pollard's Lessee.
For all of these reasons, we have now decided that
application of federal common law to cases such
as this must be overruled.
The judgment under review is vacated, and the case remanded to
the Supreme Court of Oregon for further proceedings not
inconsistent with this opinion.
It is so ordered.
* Together with No. 75-577, Corvallis Sand & Gravel Co.
v. Oregon ex rel. State Land Board,
also on certiorari to the
The case was brought and tried in the Circuit Court of Benton
County, Ore. Both parties appealed from the judgment rendered by
that court to the Oregon Court of Appeals. Subsequent to that
judgment, our decision in Bonelli Cattle Co. v. Arizona,
414 U. S. 313
(1973), had come down and the Court of Appeals employed the
reasoning of Bonelli
in deciding the appeal. Both parties
then sought review in the Supreme Court of Oregon, which granted
discretionary review limited to the factual question of the length
of a channel known as Fischer Cut, modified the Court of Appeals'
decision in this respect, and, without discussion, affirmed the
decision "[i]n all other respects." Because of this procedural
history, we shall, as a matter of convenience, refer in the course
of this opinion to rulings and findings of the "Oregon courts."
The court quoted the following language from Commissioners in
support of that rule:
"'[The accretion rule] is applicable to and governs cases where
the boundary line, the thread of the stream, by the slow and
gradual processes of erosion and accretion creeps across the
intervening space between its old and its new location. To this
rule, however, there is a well established and rational exception.
It is that, where a river changes its main channel not by
excavating, passing over, and then filling the intervening place
between its old and its new main channel, but by flowing around
this intervening land, which never becomes, in the meantime, its
main channel, and the change from the old to the new main channel
is wrought during many years by the gradual or occasional increase
from year to year of the proportion of the waters of the river
passing over the course which eventually becomes the new main
channel, and the decrease from year to year of the proportion of
its waters passing through the old main channel until the greater
part of its waters flow through the new main channel, the boundary
line between the estates remains in the old channel subject to such
changes in that channel as are wrought by erosion or accretion
while the water in it remains a running stream. . . .'"
18 Ore.App. 524, 539-540, 526 P.2d 409, 477 (1974).
The dissenting opinion is correct in stating that neither party
in its brief requested that Bonelli
be overruled. That
question was elaborately briefed by amici,
counsel were questioned about it during oral argument. Counsel for
urged that Bonelli
be overruled. Counsel
for the State agreed that a reexamination of Bonelli
be appropriate, and that, upon such reexamination, issues such as
those in this case should be left to state law. Tr. of Oral Arg.
Arizona, in its brief, also relied upon the Submerged Lands Act
of 1953, 43 U.S.C. § 1301. However, as discussed in
the Submerged Lands Act did not alter the scope
or effect of the equal-footing doctrine, nor did it alter state
property law regarding riparian ownership. The effect of the Act
was merely to confirm the States' title to the beds of navigable
waters within their boundaries as against any claim of the United
States Government. As merely a declaration of the States'
preexisting rights in the riverbeds, nothing in the Act in any way
mandates, or even indicates, that federal common law should be used
to resolve ownership of lands which, by the very terms of the Act,
reside in the States. We recognized as much in Bonelli,
414 U.S. at 414 U. S. 318
and our references to the Act in Bonelli
in no way
indicate that it was the Act, rather than the scope of the
equal-footing doctrine, which resulted in our application of
federal common law:
"Since the Act does not extend to the States any interest beyond
those afforded by the equal-footing doctrine, the State can no more
base its claim to lands unnecessary to a navigational purpose on
the Submerged Lands Act than on that doctrine."
at 414 U. S.
The compact entered into when Alabama was admitted to the Union
contained the following language:
"'[A]ll navigable waters within the said state shall for ever
remain public highways, free to the citizens of said state, and of
the United States, without any tax, duty, impost, or toll therefor,
imposed by the said state.'. . ."
3 How. at 44 U. S. 229
The Court found that this language merely enunciated Congress'
right to regulate commerce upon the navigable waters, similarly
reserved to it with respect to the original States, and thus the
language did not detract from the State's absolute title in the
at 44 U. S.
Utah and New Mexico also urge us to reconsider
our decision in Hughes v. Washington, 389 U.
(1967). They advance the same reasons for such
reconsideration as they do with respect to Bonelli.
was not cited by the Oregon courts below, and, in
we expressly declined to rely upon it as a basis
for our decision there, see
414 U.S. at 414 U. S. 321
n. 11. We therefore have no occasion to address the issue. We are
aware of the fact that Hughes
gave to Borax
same sort of expansive construction as did Bonelli,
are likewise aware that Hughes
dealt with oceanfront
property, a fact which the Court thought sufficiently different
from the usual situation so as to justify a "federal common law"
rule of riparian proprietorship:
"The rule deals with waters that lap both the lands of the State
and the boundaries of the international sea. This relationship, at
this particular point of the marginal sea, is too close to the
vital interest of the Nation in its own boundaries to allow it to
be governed by any law but the 'supreme Law of the Land.'"
389 U.S. at 389 U. S.
We are fortified in our conclusion that Bonelli's
equal-footing analysis was unsound by the fact that its author has
likewise rejected it. The dissenting opinion of our Brother
, would sustain the result reached in
but on a ground explicitly avoided in the
opinion. The "mystery" or "puzzle" to which our
Brother refers, post
at 429 U. S. 384
turns out to be nonexistent; in rejecting Bonelli's
equal-footing analysis, we are simply refusing to be more Roman
than the Romans. The dissent's own abandonment of Bonelli's
is anything but a ringing endorsement of the
rule of stare decisis.
We think that the insistence of our dissenting Brethren that
"federal common law" should be applied to a determination of title
in this case, albeit not for the same reason expounded in
misapprehends the meaning and significance of the
term "common law" as it is used in several of our old cases.
In the generic sense of the term, the "common law" has been
"'the body of those principles and rules of action, relating to
the government and security of persons and property, which derive
their authority solely from usages and customs of immemorial
antiquity, or from the judgments and decrees of the courts
recognizing, affirming and enforcing such usages and customs; and,
in this sense, particularly the ancient unwritten law of
Western Union Telegraph Co. v. Call Pub. Co.,
181 U. S. 92
181 U. S. 102
(1901) (citing Black's Law Dictionary).
It is in this descriptive sense that the term is used in the two
principal quotations relied upon in the dissenting opinion,
New Orleans v. United
10 Pet. 662, 35 U. S. 717
(1836), and County of St. Clair v.
23 Wall. 46, 90 U. S. 68
(1874). In the passage from New Orleans,
the Court simply
summarized the accepted British common law doctrine of accretion.
the Court affirmed the judgment of the
Supreme Court of Illinois which had rested upon the proper rule of
common law, without any indication that this rule was not the law
of Illinois. In light of the treatment of the subject in such later
cases as Barney v. Keokuk, Packer v. Bird, Shively v.
and Joy v. St. Louis,
all discussed in the
text, no "rule" requiring the application of "federal common law"
to questions of riparian ownership may be deduced from New
and Lovingston. See post
429 U. S.
MR. JUSTICE BRENNAN, dissenting.
I would not overrule Bonelli Cattle Co. v. Arizona,
414 U. S. 313
(1973), and would therefore affirm the judgment of the Oregon
MR. JUSTICE MARSHALL, with whom MR. JUSTICE WHITE joins,
The Court today overrules a three-year-old decision, Bonelli
Cattle Co. v. Arizona, 414 U. S. 313
(1973), in which
Page 429 U. S. 383
seven of the eight participating Justices joined. In addition,
as the Court is certain to announce when the occasion arises,
today's holding also overrules Hughes v. Washington,
389 U. S. 290
(1967), a nine-year-old decision also joined by all but one of the
participating Justices. [Footnote
] It is surprising, to say the least, to find these nearly
unanimous recent decisions swept away in the name of stare
decisis. See ante
at 429 U. S.
The public, especially holders of riparian or littoral
Page 429 U. S. 384
whose titles derive from the United States, deserve some
explanation for the Court's change of course. Yet today's majority
does not contend either that circumstances have changed since 1973
or that experience has shown Hughes
to be unworkable. Nor does the majority attempt to explain why a
result it finds so clearly commanded by our earlier cases was
almost unanimously rejected by this Court twice in the last decade.
We are left, then, with a mystery.
I respectfully suggest that the solution to this puzzle is not
hard to find. In contrast to the Bonelli
Courts, the Court today decides a question the
parties did not present, [Footnote
] brief, [Footnote 2/3
argue. [Footnote 2/4
] By so doing,
the Court rules
Page 429 U. S. 385
without the benefit of
"that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of
difficult constitutional questions."
Baker v. Carr, 369 U. S. 186
369 U. S. 204
(1962). The lack of illumination has caused the Court to choose the
The question the Court elects to decide in this case is whether
a grant of riparian [Footnote 2/5
land by the Federal Government is to be interpreted according to
federal or state law. The Court holds that federal law governs only
the determination of the initial boundaries of the grant; all other
questions are to be determined under state law. This conclusion
Page 429 U. S. 386
depends on an unjustifiably limited interpretation of the
meaning of a riparian grant.
It is undisputed that "the quality of being riparian" is perhaps
"the land's most valuable feature,' and is part and parcel of
the ownership of the land itself." Bonelli Cattle Co. v.
Arizona, 414 U.S. at 414 U. S. 326,
quoting Hughes v. Washington, 389 U.S. at 389 U. S. 293.
Cf. 35 U. S. United
States, 10 Pet. 662, 35 U. S. 717
(1836). In the natural course, however, a riparian boundary tends
to move, a fact reflected in the common law doctrines of accretion,
avulsion, erosion, and reliction. Prior to today's ruling, federal
grantees of riparian land, and holders under them, correctly
understood that their titles incorporated boundaries whose precise
location would depend on the movements of the water and on the
federal common law.
There can be no doubt that the federal grantee's expectation
that his grant would be interpreted according to federal law and
his belief that federal law would recognize boundary shifts
occasioned by changes in the course of the water bordering his land
were well founded. One hundred forty years ago, this Court found it
obvious that whoever had title to the land bordering water would
have title to new land formed by alluvial deposits on the existing
"The question is well settled at common law that the person
whose land is bounded by a stream of water, which changes its
course gradually by alluvial formations, shall still hold by
the same boundary,
including the accumulated soil. No other
rule can be applied on just principles. Every proprietor whose land
is thus bounded is subject to loss by the same means which may add
to his territory, and as he is without remedy for his loss in this
way, he cannot be held accountable for his gain."
(emphasis added). This statement of the law was
quoted by the Court in County of St. Clair v.
23 Wall. 46, 90 U. S. 68
Page 429 U. S. 387
The Court in County of St. Clair
went on to note: "The
riparian right to future alluvion is a vested right. It is an
inherent and essential attribute of the original property.
(emphasis added). Similarly, in Shively v.
Bowlby, 152 U. S. 1
] the Court said:
"The rule, everywhere admitted, that, where the land encroaches
upon the water by gradual and imperceptible degrees, the accretion
or alluvion belongs to the owner of the land, is equally applicable
to lands bounding on tide waters or on fresh waters, and to the
King or the State as to private persons, and is independent of
the law governing the title in the soil covered by the
at 152 U. S. 35
Thus, the right to such additions [Footnote 2/7
] was part of the title which passed with
the federal grant, cf.
3 American Law of Property § 15.27,
p. 859 (A. J. Casner ed.1952), and was protected by federal law. By
holding that state law now governs the impact of changes in the
course of the bordering water on a federal riparian grant, the
Court denies that "a question which concerns the validity and
effect of an act done by the United States" is "necessarily a
federal question." Borax, Ltd. v. Los Angeles,
296 U. S. 10
296 U. S. 22
(1935). As far as federal law is concerned, a federal riparian
Page 429 U. S. 388
is now understood to have incorporated a fixed, rather than
ambulatory, boundary. Ante
at 429 U. S. 376
The rule of New Orleans v. United States, supra,
County of St. Clair v. Lovingston, supra,
along with Bonelli
The cases the Court concludes compel this dramatic shift do not
even support it. Wilcox v.
13 Pet. 498 (1839), [Footnote 2/8
] was an action of ejectment brought against
the commander of a United States military post to recover part of
the post. The plaintiff claimed under a state registration
certificate. As the majority notes, the Court rejected that
argument with the following language:
"We hold the true principle to be this, that whenever the
question in any Court, state or federal, is whether a title to land
which had once been the property of the United States has passed,
that question must be resolved by the laws of the United States;
but that whenever, according to those laws, the title shall have
passed, then that property, like all other property in the state,
is subject to state legislation so far as that legislation is
consistent with the admission that the title passed and vested
according to the laws of the United States.
at 38 U. S. 517
(emphasis added). The italicized language, on which the majority
opinion makes no comment, explains why state law cannot control
this case. Denial of the riparian holder's federal common law
rights to a changing boundary is not "consistent with the admission
that the title . . . vested according to the laws of the United
In Packer v. Bird, 137 U. S. 661
(1891), [Footnote 2/9
] the Court
held that it would construe federal grants of lands bordering
navigable but nontidal waters as reaching only to the edge
Page 429 U. S. 389
of the stream. As it did in Wilcox,
the Court in
noted that state law governs property once it has
passed from the hands of the Federal Government. But the
Court, like its predecessor, also noted that the
influence of state law is
"subject to the condition that [state] rules do not impair the
efficacy of the [federal] grants or the use and enjoyment of the
property by the grantee."
137 U.S. at 137 U. S. 669
Today's holding, which allows States to divest federally granted
lands of their valuable quality of being riparian simply by
refusing to recognize the titleholders' common law rights,
obviously removes this fundamental limitation on state power.
The Court also attempts to draw support from cases which affirm
the proposition that the riparian title passed by a federal grant
conveys title only to the water's edge, not to the middle of the
stream. Barney v. Keokuk, 94 U. S.
] was a controversy over the ownership of land created when
the city of Keokuk filled in land below the ordinary high-water
mark. The plaintiff claimed title to the new land by virtue of his
asserted ownership of the adjacent upland. The Court noted that
"[i]t is generally conceded that the riparian title attaches to
subsequent accretions to the land effected by the gradual and
imperceptible operation of natural causes."
at 94 U. S. 337
Whether the same rule applied to land created out of the bed of the
river, however, the Court considered a question of state law. The
reason for this, as the Court explained, is that the riparian
rights granted by the Federal Government extended only to the
water's edge; if the States wish to grant the riparian owner rights
beyond that point, they may do so at their own discretion. See
at 94 U. S. 338
The Court transforms this conclusion that the States may, if they
wish, enlarge the title granted by the Federal Government into
support for the proposition that the States
Page 429 U. S. 390
may also restrict that title. The transformation is impressive,
but it is not logical.
The issue before the Court in Shively y. Bowlby, supra,
was the title to land below the high-water mark of the Columbia
River in Oregon. Shively claimed under a pre-statehood grant from
the United States, while Bowlby based his title on a subsequent
grant from the State of Oregon. The Court held for Bowlby, finding
that, although Congress could have granted Shively title to the
land he claimed, [Footnote 2/11
it had not done so, nor had the State. 152 U.S. at 152 U. S.
As the majority indicates, the Shively
Court engaged in
a thorough review of earlier cases. It summarized its conclusions,
in part, as follows:
"The title and rights of riparian or littoral proprietors in the
soil below [the] high water mark, therefore, are governed by the
laws of the several States, subject to the rights granted to the
United States by the Constitution."
at 152 U. S.
But the Shively
Court, unlike today's majority,
realized that this proposition does not affect the rights of
riparian holders to the benefits of the common law doctrines
governing boundary changes. [Footnote
] Those rights are "independent of
Page 429 U. S. 391
the law governing the title in the soil covered by the water."
at 152 U. S. 35
at 152 U. S. 36
Thus, the cases refute the majority's contention that the
results in Hughes
from prior law. Today's holding cannot, therefore, be based on
interpretation of the meaning of the pre-statehood riparian grants
under which Corvallis Sand & Gravel holds title, since the
right to an ambulatory boundary was assumed to be part of the
rights of a riparian grantee at the time the grants were made.
Moreover, the cases also demonstrate that there is no
constitutional basis for today's holding. The only constitutional
question discussed in the majority opinion is the law governing the
States' title to land beneath navigable waters, and the rights of
the riparian holder are independent of that law.
Since today's ruling cannot be a matter either of constitutional
law or of interpretation of the meaning of federal grants, it must
be a choice of law decision. In deciding whether to formulate and
apply a federal common law rule,
"normally the guiding principle is that a significant
Page 429 U. S. 392
conflict between some federal policy or interest and the use of
state law in the premises must first be specifically shown."
Wallis v. Pan American Petroleum Corp., 384 U. S.
, 384 U. S. 68
(1966). See generally
P. Bator, p. Mishkin, D. Shapiro,
& H. Wechsler, Hart & Wechsler's The Federal Courts and the
Federal System 756-832 (2d ed.1973). In order to assure an informed
presentation of federal policies and interests when faced with a
choice between federal and state law, this Court in the past has
invited the Solicitor General to file a brief amicus
expressing the views of the United States. [Footnote 2/14
] See, e.g., Wallis v.
Pan American Petroleum Corp.,
382 U.S. 810 (1965);
Yiatchos v. Yiatchos,
372 U.S. 905 (1963). We followed
this practice in both Bonelli,
409 U.S. 1022 (1972), and
385 U.S. 807 (1966), and the Solicitor General
participated as an amicus
in both cases.
Today's majority has made no similar effort to inform itself
about the impact of its ruling on the Federal Government. Indeed,
the majority opinion does not even consider that issue, although it
is normally central to a choice of law decision. As the opinion and
result show, the only views the Court has received are those of the
States, whose interests here are hostile to those of
the United States.
I cannot, of course, know what the Solicitor General would have
said had the Court indicated that it was considering a choice of
law question and invited him to present the views of the
Government. In both Bonelli
the submissions for the United States a amicus curiae
strongly urged the Court to hold that federal, rather
Page 429 U. S. 393
than state law governed the case. In Bonelli,
Government noted that its quiet enjoyment of the more than 200
miles of Colorado River shoreline it owned in Arizona had been
threatened by some interpretations of the state court's decision.
Memorandum for the United States as Amicus Curiae
filed Sept. 20, 1973, in Bonelli Cattle Co. v. Arizona,
O.T. 1973, No. 72-397. The Government urged that the state court
opinion be given a narrow interpretation and affirmed as consistent
with the applicable federal law. Id.
the Government urged that the decision of
the State Supreme Court be reversed. The Solicitor General
explained that the Government considered that decision a serious
"The decision is of broad consequence. It trenches on a
significant element of title to realty acquired from the United
States in the past, and it materially curtails the nature of the
title that the United States may convey in the future. . . .
Equally important, it affects the powers of the United States with
respect to more than 200 miles of Washington's coastline owned
today by the federal government. Moreover, the principle of a fixed
tideland boundary may readily be brought to bear on the property of
the United States and its patentees in other coastal States. . . .
Nor is there any apparent reason why, in Washington or elsewhere,
the principle should be limited to tidelands; it can be applied
with consistency of logic to the shifting banks of rivers and lakes
owned by a State. . . . An inducement for the adoption and
expansion of this principle is not lacking, since it tends
inevitably to bring land into State ownership, and the sale of land
thus acquired has been recognized as an attractive source of State
revenue. . . . "
"To be sure, the court below stated that it did not 'question
the federal government's right over its own
Page 429 U. S. 394
property.' . . . [But] the court below failed to recognize that
'the federal government's right over its own property' embraces the
right effectively to dispose of such property."
Memorandum for United States as Amicus Curiae
Hughes v. Washington,
O.T. 19137, No. 15. The Solicitor
General explained that the decision in Hughes
the Government's ability to carry out congressional policy toward
Indians, since the Government would no longer have been able to
convey rights to a boundary adjacent to the sea if it turned over
trust lands to the Indian beneficiaries. Id.
at 6; cf.
United States v. Washington,
294 F.2d 830 (CA9 1961),
369 U.S. 817 (1962). But the problem with
the Indian trust lands was merely "exemplary" because the state
decision in Hughes
"restrains the government from disposing of the full measure of
its title in connection with any program or policy which it may
wish to pursue in the future. In sum, we do not believe that it can
be said here, as it could in Wallis v. Pan American Petroleum
Corp., 384 U. S. 63
, 384 U. S.
, that there is 'no significant threat to any
identifiable federal policy or interest.'"
Memorandum for United States as Amicus Curiae
Hughes v. Washington, supra.
Today's decision necessarily has an even greater impact on
federal interests, since it casts doubt on the Government's
continued ownership "of the full measure of its title."
One final word. Stare decisis
should be more than a
fine-sounding phrase. This is especially true for us, because,
"unless we respect the . . . decisions of this Court, we can hardly
expect that others will do so." Mitchell v. W. T. Grant
Co., 416 U. S. 600
416 U. S. 629
416 U. S. 634
(1974) (STEWART, J., dissenting). Accordingly,
"[a] substantial departure from precedent can
Page 429 U. S. 395
only be justified . . . in the light of experience with the
application of the rule to be abandoned or in the light of an
altered historic environment."
at 416 U. S.
-635. Such admonitions are even more salient where
land titles are concerned. Yet the majority has advanced neither
experience nor changed circumstances to justify its interment of a
7-1 decision of this Court issued barely three years ago.
I am convinced that, if the Court had considered the cases on
which it relies in the light of an adversary presentation and had
invited the Government to explain its interest in the application
of federal law, the result today would be different. I therefore
Although the Court rejects the reasoning on which
is based, it refrains from formally overruling
on the ground that that case was not relied on in
and not cited by the Oregon courts below.
at 429 U. S. 377
n. 6. In Bonelli,
the Solicitor General urged the Court to
find federal law controlling because riparian lands patented by the
United States were involved and, under Hughes,
common law therefore controlled the riparian rights of the
landowner. Memorandum for United States as Amicus Curiae
3-4, filed Jan. 2, 1973; and Memorandum for United States as
2-3, filed Sept. 20, 1973, in Bonelli
Cattle Co. v. Arizona,
O.T. 1973, No. 72-397. The petitioner
took the same position. Brief for Petitioners 31-34 in Bonelli
Cattle Co. v. Arizona, supra.
not reach this contention, noting that there was some doubt that
the land in question was riparian at the time of the federal
patent. 414 U.S. at 414 U. S. 321
n. 11. In its eagerness to do away with Bonelli's
as well as its approach, however, today's opinion explicitly
concludes that had Bonelli
relied on the theory advocated
by the petitioner there and the Solicitor General, it would now be
429 U. S. 371
-372, 429 U. S.
Nevertheless, the majority suggests that Hughes
still control oceanfront property. Ante
at 429 U. S. 377
n. 6. It is difficult to take seriously the suggestion that the
national interest in international relations justifies applying a
different rule to oceanfront land grants than to other grants by
the Federal Government. It is clear that the States have complete
title to the lands below the line of mean high tide. See Borax,
Ltd. v. Los Angeles, 296 U. S. 10
(1935); 43 U.S.C. §§ 1301(a)(2), 1311. These lands, of course, are
the only place where the waters "lap both the lands of the
State and the boundaries of the international sea.'" Ante
at 429 U. S. 377
n. 6, quoting Hughes v. Washington, 389 U.S. at
389 U. S. 293.
There are no international relations implications in the ownership
of land above the line of mean high tide. See Note, The
Federal Rule of Accretion and California Coastal Protection, 48 S.
Cal.L.Rev. 1457, 1472 (1975).
The cross-petitions for certiorari did not raise the question
whether federal law governed the outcome; they were concerned only
with whether the Oregon courts properly interpreted the governing
federal common law.
The State's petition for certiorari in No. 76-567 stated the
question presented as:
"In a typical situation of a navigable river flowing through two
channels, where the smaller of the two channels after 20 years of
erosive flooding 'suddenly' becomes the main channel, and the other
channel eventually becomes unusable, does federal law deprive the
public of title to the beds of both channels?"
In No. 75-577, Corvallis Sand & Gravel Co. raised two
questions in its petition for certiorari:
"1. Does plaintiff, State of Oregon, have sufficient ownership
to maintain statutory ejectment to recover possession of the bed of
a navigable fresh water stream where its claim of ownership is
based on sovereignty, rather than grant, and where there is no
allegation pleaded and no proof that the public rights of
navigation, fishery and related uses are being impaired or
interfered with by defendant Corvallis Sand and Gravel Company
"2 Does plaintiff, State of Oregon, have sufficient ownership to
maintain statutory ejectment to recover damages for the removal of
sand and gravel from the bed of a navigable fresh water stream
where its claim of ownership is based on sovereignty, rather than
grant, and where there is no pleaded allegation or proof that the
public rights of navigation, fishery and related use are being
impaired or interfered with by the defendant Corvallis Sand and
The parties' briefs faithfully mirrored their perceptions of the
issues as presented in the petitions for certiorari. Thus, in No.
75-567, the State argued that the public interest requires
recognition that the sovereign title in a riverbed is "full and
complete," and that protecting that title requires that federal
common law apply avulsion principles against a State only in very
rare cases. Alternatively, the State argued that, if classic
avulsion principles applied, it still should receive title to the
contested land. Corvallis Sand & Gravel responded by
challenging the State's right to ownership of the riverbed under
common law, and by maintaining that the factfindings of the lower
courts were both correct and not subject to review in this Court.
In No. 76-577, the parties disputed Corvallis' contention that the
State's title is limited to protection of navigation, fishery, and
related uses and cannot be the basis for an ejectment action when
those uses are not affected. Both parties assumed that federal
common law governed the case.
Counsel for the State of California, representing the
States, argued that Bonelli
overruled. Neither party addressed that issue except in response to
questions from the Court. In response to those questions, counsel
for both parties stated that federal common law should govern this
case. Tr. of Oral Arg. 14, 28, 33.
For convenience, I will use "riparian" in place of "riparian or
littoral" for the remainder of this opinion.
at 429 U.S.
, 429 U. S.
the question was ownership of relicted
land, which is land exposed by the subsidence of the water. The law
of reliction is identical to the law of accretion. 3 American Law
of Property § 15.26 (A. J. Casner ed.1952). In the present case,
the State claims title to land by virtue of the doctrine of
erosion, the converse of accretion. Corvallis Sand & Gravel
resists by arguing that the change in the river's course was not
gradual, as erosion and accretion require, but sudden. A sudden, or
avulsive, change does not effect a shift in boundaries. These
doctrines form a coherent system. It would make no sense to hold
that the federal doctrine of accretion must be applied to the
benefit of a federal riparian grantee, but that the federal
doctrine of avulsion need not be applied.
at 429 U. S. 371
429 U. S. 372
429 U. S.
at 429 U. S.
at 429 U. S. 374
429 U. S.
The language in Pollard's Lessee v.
3 How. 212 (1845), on which the majority
heavily relies to prove that Congress had no such power, see
at 429 U. S.
-374, was dismissed as dictum by the Shively
152 U.S. at 152 U. S. 28
The majority also quotes the Shively
that federal grants "leave the question of the use of the
shores by the owners of uplands to the sovereign control of each
State.'" Ante at 429 U. S. 379,
quoting 152 U.S. at 152 U. S. 58. It
is clear from the context that, by "shores," the Shively
Court meant the land below the high-water mark. The State, as owner
of that land, controls it. The Court did not suggest that the State
was free to diminish the title of the upland owner by denying his
right to an ambulatory boundary if the "shores" recede or the
The majority's assertion that the rule of New
Orleans v. United States,
10 Pet. 662 (1836), and
County of St. Clair v.
23 Wall. 46 (1874), is merely a
description of the English common law, ante
429 U. S.
-381, n. 8, is belied by the Shively
affirmation of the independence of the riparian holder's rights
from the law governing the lands beneath the water. The majority
chooses not to discuss this aspect of Shively.
Joy v. St. Louis, 201 U. S. 332
201 U. S. 342
343 (1906), cited ante
at 429 U. S. 377
429 U. S. 380
does contain language which supports the conclusions reached by the
majority. That case, however, did not involve lands in which a
grantee of the United States held or claimed title. The land in
that case was granted by Spain. Congress confirmed the grant, but,
by so doing, it added nothing to the title conferred by Spain.
See Joy v. St Louis,
122 F. 524 (ED Mo.1903),
aff'd, 201 U. S. 332
(1906); United State v. Washington,
294 F.2d 830, 833 (CA9
1961), cert. denied,
369 U.S. 817 (1962).
When the papers before the Court indicate that a choice of law
question will be presented, the Solicitor General sometimes
prepares an amicus
brief on his own motion. See,
Memorandum for United States as Amicus Curiae
and Brief for United States as Amicus Curiae
O.T. 1961, No. 205. In the present case, of course,
the Solicitor General had no notice from the petitions for
certiorari that the issue decided today would be raised.
fn2/2|>n. 2, supra.