Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW BOGUE, District Judge. The above-entitled actions, consolidated for purposes of trial, as to title to lands within the Barrett Survey Area of the area known as Blackbird Bend, came on for trial in the United States District Court at Sioux City, Iowa, on the 1st day of November, 1976. From the evidence submitted by the respective parties, and upon the entire record, the Court now makes the following: FINDINGS OF FACT I. Nature of the Action and the Parties 1. These consolidated actions are lawsuits commenced by the United States of America and the Omaha Indian Tribe seeking injunctive relief and a judgment quieting title to land situated in the State of Iowa, Monona County, east of and adjacent to the Missouri River. The defendants are various entities, and individuals, who also claim title to the land in dispute and seek to quiet title in their names. The basic issue, as tried to this Court, involves how the river moved over the span of a century from the mid-1800s to about the mid-1900s, and whether the land herein involved was added to Iowa riparian land by accretion or, whether the river moved by avulsion leaving the original identifiable land in place. 2. United States of America, plaintiff in Civil No. C75-4024, derives its interest in this litigation as a Trustee for the Omaha Indian Tribe and their reservation lands reserved to the Tribe pursuant to the Treaty of 1854. 3. The Omaha Indian Tribe, plaintiff in Civil Nos. C75-4026 and C75-4067, is a duly organized body corporate, established pursuant to its Constitution and Bylaws having been approved by the Secretary of the Interior as provided by law. Pursuant to its Treaty dated the 16th day of March, 1854 (10 Stat. 1043) with the United States of America, there was established the Omaha Indian Reservation in the then territory of Nebraska. 4. In 1867 the said reservation boundary was surveyed for the General Land Office of the United States Government by T. H. Barrett, Surveyor. Barrett meandered the Nebraska, or right bank of the Missouri River where it adjoins the Omaha Indian Reservation in the course of conducting his survey. The Reservation boundary, as originally established, was the thalweg of the Missouri River. Thus the Barrett Survey lines were not actually the boundary of the Omaha Reservation where it adjoins the River. See Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 35 L.Ed. 428 (1891). The said 1867 General Land Office Survey shows that Blackbird Bend of the Missouri River flowing east, south and west on the north, east and south sides of a meander lobe or peninsula sticking out like a thumb pointing east from Nebraska into Iowa. The area east of the Iowa-Nebraska 1943 Compact Lines bounded by the said Barrett meander line will be referred to herein as the Barrett Survey. The area including the Barrett Survey Peninsula but extending to the Iowa high bank, north, east and south of the Barrett Survey, will sometimes be referred to as the Blackbird Bend area. These findings and conclusions pertain only to the Barrett Survey Area. 5. Of the numerous defendants in all three lawsuits, the only defendants involved in this trial are those claiming an interest in the approximately 2900 acres within the 1867 Barrett Survey. These defendants are Roy Tibbals Wilson, landowner, RGP Inc., landowner, Otis Peterson, tenant of RGP Inc., Harold Sorenson, landowner, State of Iowa, landowner, and Travelers Insurance Company, mortgagee of RGP Inc. The 1867 Barrett Survey and the location of the defendants’ land within that boundary, are set forth in Exhibit T 78. 6. The Tribe’s pleadings acknowledge that these landowner defendants, or their predecessors in title, have had possession of the disputed real estate for at least 40 years. During this period of time, a substantial portion of the land was cleared of trees, leveled, fenced, drained, roads built, and cultivated. It is now a valuable and productive tract of farm ground, as evidenced by the purchase of 2180 acres by defendant Wilson in 1972 by Warranty Deed for a consideration valued at $1,685,-000, approximately 1780 acres of which is within the Barrett Survey and the subject of this trial. 7. On April 2, 1975 the Omaha Indian Tribe seized possession of the land within the Barrett Survey before institution of this litigation, and up until June 5, 1975 maintained said possession without the approval or consent of any of the defendants herein. On June 5,1975, Judge McManus granted a preliminary injunction to the Tribe and Government permitting the plaintiff Tribe to continue its occupancy of the land within the Barrett Survey during the pendency of this action and subject to certain accounting requirements pertaining to the crops. Numerous issues and problems relative to this temporary occupancy, the crops, and access rights developed but are not dealt with directly herein and many are hereby rendered moot. II. Subject Matter of This Trial 8. By the Order of Judge McManus dated April 5, 1976, a portion of the issues and land involved in all three lawsuits was consolidated for this trial. Approximately 8000 acres of land claimed by the Omaha Indian Tribe in C75-4067 and all issues of damages were severed. The severance of the Barrett Survey Area from the other claims of the Omaha Indian Tribe was necessary because the Barrett Survey line is the only clearly ascertainable line of demarcation, and was the boundary of the area of which the Tribe received possession by virtue of a preliminary injunction entered June 5,1975. Thus as to the Barrett Survey Area the action was construed as an equitable quiet title action, and the demands of various defendants for a jury trial were denied as to that area. As to lands claimed by the Tribe outside the Barrett Survey Area, the action was treated as a legal action for ejectment, in which defendant’s demands for a jury trial may be sustainable. This left the 2900 acres within the Barrett Survey as the subject matter of this trial since the dispute over that land is common to all three lawsuits. 9. By the Treaty of March 16, 1854, the Omaha Tribe of Indians ceded to the United States all their lands west of the Missouri River, except for certain lands reserved to the Tribe. Pursuant to this Treaty, the Tribe selected a tract of land known as Blackbird Hills to be the Omaha Indian Reservation, which includes the present day Omaha and Winnebago Reservations. The Reservation was thereby established in May of 1855. The thalweg of the Missouri River was constituted the common boundary between the Omaha Indian Reservation and the State of Iowa. III. Claims of the Parties and the Issues 10. The Government in C75 — 4024 alleges that it holds title in trust for the Omaha Indian Tribe to all those lands now lying within the Barrett Survey, approximately 2900 acres, and extending to the center of the main channel of the Missouri River as it existed when the Reservation was created. From this 2900 acres, however, the Government’s Complaint excepts any claim for certain lands allotted to individual members of the Tribe and sold to non-members amounting to approximately 400 acres. The Government seeks a preliminary injunction maintaining the Omaha Tribe and its members in possession of these lands until the case is decided; a judgment quieting title in the United States as Trustee for the Tribe; and, a permanent injunction against the prosecution of state actions by the defendants relating to these lands. 11. The Government’s theory is that the land within the Barrett Survey in 1867 was cut off from the rest of the Reservation through avulsions caused by floods on the Missouri River; the avulsive changes which cut through the ox bow bend began shortly after the Barrett Survey in 1867 and occurred at numerous times thereafter up until the 1940s when the river was stabilized; and, that each such major move to the west was a sudden shift, which constituted an avulsive change as distinguished from the slow eating away of the banks through erosion. 12. The Tribe in C75-4026 alleges that it is in peaceful possession of the land within the Barrett Survey; that the United States holds the subject lands in trust for them under the Treaty of 1854; and seeks a stay of certain state district court orders pertaining to the occupancy of the land and a preliminary and permanent injunction maintaining the Tribe in possession. In C75-4067, the Tribe filed suit against numerous defendants claiming title to the entire Blackbird Bend area, some 6000 acres of land, and also claiming two bends in the river to the north containing approximately 5000 additional acres. The Tribe alleges that it holds title to the subject land pursuant to the Treaty of 1854; that the adverse claims of the defendants, who have illegally and wilfully trespassed upon the land for approximately 40 years thereby prevented the Tribe’s occupancy, are null and void; and seek essentially a judgment quieting title to all the land in the Tribe, the restoration of possession to it, and damages for $50,000,000 for illegal trespasses. 13. The Tribe’s theory is that between the time the Treaty was signed in 1854 and 1867, when Barrett made his survey, the river moved eastward by erosion and added to the size of the meander lobe by accretion. After 1867, the Tribe contends this migration, eastward continued until 1875 when the easterly high bank, which is apparent on the land today, was created representing the farthest eastward progression of the river in the Blackbird Bend area. Then, the Tribe further claims that sometime between 1875 and 1879, the river suddenly and perceptibly by avulsion, departed the main channel of 1875 to the 1879 channel to the west permanently severing a substantial acreage of the Reservation from the right or west bank of the Missouri River including a portion of the land within the Barrett Survey, and thereafter the Missouri River flowed within the boundaries of the Reservation. After the claimed avulsion between 1875 and 1879 the Tribe contends the river moved north from the 1867 Barrett Survey line eroding as it proceeded and increasing the size of the Reservation by accretion just as the river did in its easterly movement. The Tribe next asserts between 1908 and 1912, the river reached the northerly high bank, which is also visible on the land today, and sometime thereafter departed by avulsive movement to the south like the claimed avulsion from the easterly high bank. The Tribe, therefore, concludes that these avulsions left Omaha Indian Reservation land in place. 14. The defendants in their Answers deny that the lands involved in these suits are a part of the Omaha Indian Reservation but claim title and the right to possession is theirs and seek a judgment quieting title in their names, along with other injunctive relief, by way of counterclaim. Affirmative defenses are also raised in their Answers based upon the statute of limitations, adverse possession, laches, estoppel, abandonment and acquiescence, and general equitable considerations. The Tribe, however, sought and obtained a summary judgment by Judge McManus on these affirmative defenses before trial and while the defendants still assert their applicability they are, therefore, not in issue at this stage of the proceedings. 15. Defendants’ theory is that the land within the Barrett Survey was washed down the river and replaced by new land which accreted to the east or Iowa bank. They contend that the eastern approximately one-half of the Barrett Survey peninsula was a low sandy point in 1867 subject to frequent inundation and easily erodable. After 1852, the meander loop of the River moved eastward until, sometime prior to 1875, it reached its limiting width, and its easternmost position in the locality here in issue. Thereafter, the meander loop commenced a gradual migration to the west and south until, by 1879, it had eroded away almost all of the “low sandy point,” and had commenced a process of accretion to the eastern and northern Iowa bank in the areas it had occupied sometime prior to 1875. Accretions were gradually added to the left or Iowa bank of the river and by 1890 a stable land mass had been created and added to the Iowa riparian land. In 1890, the river in the Blackbird Bend area was relatively straight, but the river again started to work itself into a meander bend to the north, which bend then began to migrate downstream in the classic manner through the Blackbird Bend area and the land then situated within the Barrett Survey, until by 1927 the bend had migrated entirely through the area formerly occupied by the 1867 peninsula washing away all the land in its way on the Nebraska or right bank and depositing new land on the Iowa or left bank. Between 1927 to 1943 the river moved westerly to the Iowa-Nebraska 1943 compact line completing the accretions to the Iowa bank which form the subject matter of this lawsuit. 16. The question before this Court for resolution is, therefore, how the river moved between the middle 1800s to the middle 1900s, and specifically whether the land now within the Barrett Survey line was formed as the result of accretions to Iowa riparian land or, alternative, whether it is Omaha Indian Reservation land presently identifiable as being left in place by an avulsion or avulsions. IV. Discussion of Evidence and Resulting Findings of Fact on the Merits To aid in the task of making Findings of Fact, the Court makes the following discussion of the evidence: A. INTRODUCTION It is appropriate at this point to identify the nature of the river with which this case deals. During the period from 1854 until at least the early 1940s the Missouri River can best be described as in a wild and uncontrolled state. As described by Major C. R. Suter in APPENDIX S, of the annual report of the chief of engineers for 1881 (Exhibit T65; W-XX) on page 1650: “ . . . Its most salient and striking features are the remarkable impetuosity of its current, and its slope, which is considerable for so large a stream. The rapidity of the current and the general instability of the banks and bed give rise to the excessive turbidity of its waters, which have earned for it the title of the ‘Big Muddy.’ ” And on page 1651: “ . . . .The April rise is generally the most destructive, for it shows, for a time at least, a tendency to follow the channels developed during the low water season preceding, and, as a consequence, the banks are attacked with extreme violence. When the June rise comes the bed is. in a measure shaped for its reception by the preceding flood, and the water passes off with somewhat less destructive results. Both, however, have sufficient power to produce tremendous effects and bring about the most astonishing changes.” And finally on page 1652: “ . . . Bank erosion to the extent of 2,000 feet per annum, over long distances, has been noted, and to a greater or less extent it is constantly going on, even during low stages. The enormous amount of material thus precipitated into the river, together with that scoured from the bed, causes the formation of innumerable bars, which, even at high water, obstruct navigation. These bars are constantly in motion, their position and shape changing from day to day. The channels through them ' are also changing both in depth and location, rendering navigation correspondingly uncertain. Owing to the incessant bank erosion the river is steadily increasing the width between high banks, as the bars which are formed opposite caving shores take time to build up to the general level and are meanwhile liable to be themselves attacked and swept away. The erosion which usually occurs on the upper sides of points causes these points to move bodily downstream. Where the erosion is more rapid than the bar growth below, the point disappears and the river’s course is detrimentally straightened .” (Emphasis supplied.) The Missouri River was in this period an alluvial river. This means that flow of the river itself makes the geometry of the channel (2902:4-16). During this period it carried large sediment loads because of the runoff from relatively barren lands adjacent to its boundaries (2903:1-11). These large sediment loads created tremendous erosive power (1498:20). Therefore, the flow itself makes its boundaries and the character of the flow is in turn influenced by the nature of its boundaries (2929-2931). It was a river that can best be described as in a state of constant change and movement except during periods of relatively low flow. Because of the high quantity of sediment transported by the Missouri River during the period in question, the channel tended to meander or become sinuous, rather than flowing in a straight course (2915:1-12). It is generally accepted as a fact by all of the witnesses that the sinuousity or meanders of the river likewise tended to migrate downstream during the course of various periods in time (900:5; 2076:17; 2574:18-2575:11). Therefore the channel of the river was constantly moving and changing its primary or principal course (1538:14). This resulted in erosion of certain land by the movement of the main channel of the river and deposition of sediment being carried by the waters which usually took place opposite where the erosion occurred (311:23; 839:20; 900:5; 1479:11; 2027:9; 2974:11-2948:4). This oftentimes left certain landforms remaining such as sloughs, bayous, lakes, dunes, sandbars and other topographical irregularities which can be geologically identified. (Exhibits G154 and Exhibit W-8.) Of additional significance is the nature of the soils which can be presently identified today, these soils consisting primarily of medium to fine sands, silts and clay which are not cohesive and easily erodible (2586:25-2587:16). These are the soils which would be typically found in an alluvial floodplain as being deposited during the course of river migrations. B. DEFINITION OF TERMS: This Court has prepared and filed a memorandum opinion which analyzes and discusses the difficult choice of law questions presented in this case, as well as the definition of the terms accretion and avulsion. Reference to that memorandum opinion should be made for complete definitions which this Court has applied in arriving at these findings. However, it may generally be said that the various jurisdictions apply definitions of the processes of accretion and avulsion which are substantially similar. For purposes of clarity in these findings, this Court will apply the following general definitions: (1) “Accretion” results from a gradual and imperceptible addition to the shoreline by action of the water to which the land is contiguous. The action of the water deposits silt and sediment which becomes accretion land. It may occur slowly or rapidly from the action of the river, but it is additional land which cannot be identified as having existed in its present location prior to a change in the location and course of the river which it abuts. When a river moves its course and location through the process of accretion, it has eroded away one of its banks and made depositions of silt and sediment against the opposite bank. The process of erosion destroys land on the bank opposite the accretion deposits by washing it away. The accretion deposits are at least partly composed of land which has been eroded away upstream, and carried downstream by the river in the form of silt until it is deposited against one of the riverbanks. (2) “Avulsion” is the sudden shifting of the channel of the river and a body of land must be cut off so that after the shift it remains identifiable as land which existed before the change of the channel and which never became a part of the river bed. It is a sudden and rapid change in the channel of a stream where the old bed is abandoned and a new bed is formed in such a manner as to not destroy the integrity and identity of the land between the old and the new channels. Thus a primary distinction between accretion and avulsion is that avulsion does not erode away and replace by deposits of silt the land between the old and new channels. (3) “The high bank” is a presently existing identifiable land feature of a higher elevation than the remainder of the floodplain in Blackbird Bend and represents the most northerly, easterly and southerly erosion by the Missouri River during the period in question in this case. (4) “The right bank” is the Nebraska or most westerly bank of the river at any given point in time during the period in question. (5) “The left bank” is the Iowa or most easterly bank of the river at any given point in time during the period in question. (6) “The thalweg” is the center of the navigable channel of the river at any given time. It is not necessarily the “thread” of the river which is considered to be the line midway between the banks at the ordinary state of the water without regard to the location of the thalweg. The dispute in this case is almost entirely factual and, to a large extent involves the interpretation of documentary evidence, i. e. maps and supporting documents between the period of 1852 until 1940, inasmuch as most of the witnesses living during that time have died. Only a few witnesses were still alive who observed the river in the early 1900s. Therefore, it becomes necessary to detail the evidence available during certain periods of time in order to resolve the conflicts as between the claims of the plaintiffs and those of the defendants. C. THE MISSOURI RIVER BETWEEN 1852 AND 1879 1. 1852-1867. This period of time in history is of limited significance to the Court. The information that can be gleaned from the surveys and maps made during that period is somewhat limited. Since the instant case involves only title to land within the 1867 Barrett Survey, the actions and locations of the Missouri River within the period 1852 and 1867 have not created or caused a boundary dispute. Thus a discussion of the information between 1852 and 1867 is useful for purposes of background only. The first known survey was a left bank survey in 1852 by Deputy Surveyor Anderson of the General Land Office (Exhibit T22a-g). In 1855, following the treaty with the Omaha Tribe, Deputy Surveyor Barnum, General Land Office, surveyed the boundary of the Omaha Indian Reservation (Exhibit T8 and T8a). Neither Anderson nor Barnum surveyed the river or the opposite bank of the river in 1852 or 1855. In 1855 and 1856 a reconnaissance map of the river was prepared by Lieutenant G. K. Warren (Exhibit T23). In 1857 and 1858 a “tie” survey as between Iowa and Nebraska was performed by General Land Office Deputy Surveyors Hopkins and Haddock (Exhibits T25 and T25a-c and Exhibit W-E3). In 1867 General Land Office Deputy Surveyor Barrett surveyed the right bank of the river (Exhibit T26, T26a, W-G3, H3 and 13). Once again this survey provides no information as to the left bank at that time or the width of the channel of the river at the time that survey was made. The Barrett Survey was conducted during the months of April and May. In the area in question the Barrett line is only a meander line following the outline of the bank of the river as it existed during April and May of 1867. As noted above, it did not purport to establish the boundary of the Reservation in the area in question, since the boundary was the thalweg of the river. See Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 35 L.Ed. 428 (1891). Nevertheless, the location of the Barrett meander line can be established, and thus the line provides the only clearly marked line which can be used by a fact-finder as a basis to adjudicate boundary disputes. In fact, the Barrett line was used by the Court to limit and define the area of which the Tribe was granted possession in the preliminary injunction of June 5, 1975. For these reasons, and the procedural dilemma created by the fact of the Tribe’s possession of the Barrett Survey Area discussed above, the trial of this case was limited to the Barrett Survey Area, and these findings and conclusions are also so limited. During that same year and after the Barrett survey, a map of the Missouri River was made by Colonel J. N. Macomb. (Exhibit T27). The Macomb map was compiled from sketches by Captain C. W. Howell of the Corps of Engineers and by Missouri River pilots and others. Exhibit T95 is a composite map showing the Barrett Survey of 1867 and the Macomb map readjusted by the witness Clark to fit the survey by Barrett. Plaintiffs concede by their testimony that the measurements are not accurate as far as distances on the Macomb map are concerned (210:23) and therefore the reliability of the composite Exhibit 95 is subject to some question. The defendants take these same maps and by the use of mylar overlays superimpose them upon a base map of the Blackbird Bend area (Exhibits W-P7, R7, S7, T7, U7, and V7). The obvious differences between the adjustments made by the plaintiffs on Exhibit 95 and the defendants’ mylars makes it impossible for the Court to reconcile the correctness of the interpretation of either side. Since this case is only concerned with the Barrett Survey Area, and since there is no dispute that the river was east of the Barrett line, disputes over the precise .location of the Missouri River channel and thalweg as of 1867 have little significance in this case. The admitted distance inaccuracies on the Macomb map by the plaintiffs likewise makes their composite Exhibit 95 somewhat suspect in the mind of the Court. Therefore, the only real conclusion that the Court can make about the movement of the river between 1852 and 1867 is that there has been an eastward migration of the right bank meander lobe during this period of time with the river eroding against the left bank and accretion taking place on the easterly tip of the meander lobe as surveyed by Barrett. This is evident from the “low sandy point” as shown on the Barrett Survey which encompasses about the eastern mile or more of the meander lobe. Barrett’s field notes (Exhibit T26E) indicates this is an area which is very low and sandy and subject to frequent inundation. It is significant to note at this juncture that the expert witnesses produced in the trial of this case almost unanimously agreed that accretion land will form originally as point or middle bars; these bars are low and sandy, unstable, vegetation free and when subject to inundation are easily erodible (824:13; 844:7; 2586:25-2686:16; 2017:17). That the easterly end of the Barrett meander lobe as surveyed was accretion is not seriously disputed by anyone. The maps and the evidence likewise reflect that during the period from 1852 until 1867 there was some southerly migration by the river which, under normal circumstances, would result in formation of some accretion on the opposite or northerly side of the river which would be accretion to the left bank (311:23; 839:20; 900:5; 1479:11; 974:14). 2. 1867-1875. In the nine-year period between 1867 and 1875 there are no maps or surveys introduced in evidence which show the location or movement of the river during that period. However, from the Onawa Iowa Public Library there was introduced in evidence an historical atlas printed by A. T. Andreas in 1875 which purports to show the left bank of the river at or about that time (Exhibits T28 and W-L13). The reliability of the date and the accuracy of the atlas are questionable in view of the lack of information as to the source from which the atlas was made and the date of said source. It is apparent that during the period between 1852 and 1875 the river did move easterly, eroding the Iowa or left bank as it moved. Because this case is limited to the Barrett Survey Area, this Court will make no effort to pinpoint the location of the river during this period, and makes only a general finding that the river had moved to some point east of the Barrett line during the years 1852 to 1875 by the process of erosion and accretion. 3. 1875 — 1879. This then sets the stage for the first area of principal dispute as between the parties. In 1879 the Missouri River Commission (forerunner to the U. S. Corps of Engineers) surveyed the Missouri River in the Blackbird Bend area (Exhibits T29, W-M3 and W-N3). Careful examination of the original survey maps shows the river width within the Barrett Survey at that time to be about 10,000 feet in width when measured from east-west. The 1879 map shows a crescent shaped bar immediately west of the easterly high bank which has been labeled on some of the exhibits as bar “A”. (Exhibit W-N3) Westerly thereof is another crescent shaped bar which has been labeled as bar “B”. The map makers have indicated by a common map making symbol that there is some willow vegetation on bar “A” but bar “B” appears on the map as simply a vegetation-free sandbar. Immediately west of bar “B” is a small “tear-shaped” bar which has been labeled as bar “C” — the map shows this bar has willows growing thereon. North and west of bars “b” and “C” is a series of sandbars which have been variously described by witnesses as having the appearance of a “fishbone”— these bars, like bar “B” are likewise vegetation-free. It is the claim of the plaintiffs that between 1875 and 1879 the river was flowing against the easterly high bank and that between 1875 and 1879 an avulsion or avulsions took place and that the river abandoned its 1875 bed and by one, or two or more avulsions (291:17-Clark); or by one avulsion, probably in 1879 before June, 1879 (1161:9-14-Robinson); or by several major jumps (1502:8-McQuivey), and established its bed in the 1879 position. The defendants on the other hand claim that the river moved after 1867 to its 1879 position by gradual erosion south and westward against the meander lobe as surveyed by Barrett in 1867 with deposition occurring on the opposite side of the erosion resulting in the formation of bar “A” as an accretion bar joined to the Iowa riparian land in Section 29, Township 84 North, Range 46 West and becoming later attached to the Iowa riparian land in Sections 28 and 34, in Township 84 North, Range 46 West (2603:13-2604:23; 2939:4-2944:5). The defendants point to certain facts to support their claims which the Court believes are relevant and logical: (a) The vegetation on bar “A” as shown by the exhibits is willows. Willows are the first vegetation to appear as sandbars are formed because they will grow on sandbars that are subject to frequent inundation whereas cottonwoods need higher and drier land before growth is established. Willows will start to grow within one to two years after the bar surfaces (1390:20). This indicates therefore that bar “A” was of fairly recent origin and was not land in place left as the result of a sudden avulsive movement by the river. No witness for the plaintiff claims that any part of bar “A” is presently identifiable as land which was left in place following an avulsion (1660:20-1661:20; 1020:12-1022:10). (b) Plaintiffs theorize that in 1875 the river was flowing against its easternmost bank, and was at that time a channel more than 800 feet wide. Omaha Indian Tribe’s Proposed Findings of Fact and Conclusions of Law, 38, Finding No. 19. They further theorize that, in 1875, the river abandoned this 800 foot wide channel in an avulsion. Id at 39, Finding No. 22, et seq. Yet Tribe’s Exhibit 99 locates bar “A” at a distance of much less than 800 feet from the easterly bank depicted there. This inconsistency supports this Court’s finding that bar “A” is not “land-in-place” which was, prior to the 1879 river change, a part of the Blackbird peninsula on the Nebraska side of the river. Bar “A” as mapped in 1879 by the Missouri River Commission appears to be entirely composed of sand and willows. A remnant chute channel is shown on the exhibits as existing between bar “A” and the easterly high bank. The plaintiffs acknowledge that the width of that channel remnant is too narrow to be the width of the 1875 Missouri River channel. It is a common phenomenon, as described by the witnesses, that when a river moves away from its previous channel by the process of erosion of a point bar that it will close up the old previously existing channel at the upper end leaving a remnant chute (2179:8), (known locally as the “Iowa Chute”) such as that found adjacent to bar “A” on the east. (c) Bar “B” is not identifiable land in place because it is barren of vegetation and therefore is obviously a middle sand bar which has recently formed during the westerly movement of the river between 1867 and 1879. (d) ■ Like bar “A”, bar “C” has willow vegetation growing on it. Willows are the first vegetation to grow as waters recede (1390:20). Thus the mere existence of willows on bar “C” does not, standing alone, support a finding that bar “C” was left in place through an avulsion. The only other evidence that bar “C” is land-in-place is the fact that the 1879 maps locate bar “C” in the northeast corner of Section 19, Range 11 east, Township 24 north. This location is within the Barrett survey line and was on the Nebraska side of the river. From its review of the evidence, however, this Court finds that the land which had been located in the northeast corner of Section 19, Range 11 east, Township 84 north had been eroded away at some time prior to the 1879 Missouri River Commission map, and further finds that bar “C” is a middle bar which formed on that location as the river migrated west. Bar “C” had, by 1879, existed long enough to support willow growth. In this connection, it should be noted that, by 1890, the area in the northeast corner of Section 19, Range 11 east, Township 84 north, bears no vegetation which is described on maps as being different from vegetation on other areas in the surrounding land mass which had formed by 1890. (See Tribe’s Exhibit 101.) If bar “C” were land-in-place which had existed prior to 1879, it would have supported the growth of cottonwoods or other vegetation more substantial than willows by 1890. (e) Bar “D” cannot be identified as being land in place which existed at the time the meander lobe was surveyed by Barrett because those bars are likewise middle sandbars only and being barren of vegetation are therefore forming behind the southerly and westerly migration of the river as it moves to the southwest depositing accretion material on the opposite side of the channel during the course of its movement (2587:17-2589:13; 2948:5-2949:12). (f) The shape, location, position and condition of bars “A”, “B”, “C” and “D” are consistent with the gradual southwesterly movement of the river away from an easterly high bank; a movement of that sort would erode away the meander lobe as surveyed by Barrett in 1867; such a movement would likewise deposit accretion on the side of the river opposite the erosion which is exactly what is seen in bars “A”, “B”, “C” and “D”. (g) Of remarkable similarity, are the experiments of Captain Friedkin (Exhibit ZZ) which show the process by which accretion to the riparian land is formed by the meandering of alluvial rivers such as the Missouri. (h) Between 1867 and 1879 the meander lobe was low and at times entirely under the surface of the moving river. The Friedkin experiments and the hydrologic experience shows that during high water flows, the river will flow and erode against the upper side of the point bar as revealed by Major Suter (Exhibit XX, P. 1652). Therefore the main channel begins to move against the lobe eroding the same (2934:21-2937:7). As the lobe erodes, the channel migrates to the south and west. As the channel moves over the area where the lobe had existed, it removes remaining portions of the lobe by scouring itself a new channel. In other words, this shift in the course of the river is a consequence of progressive scour and deposition (the scour occurring against the meander lobe and the deposition occurring on the opposite side of the channel from where the scour occurs). The logical result of this deposition is the formation of bar “A” as shown on Exhibit W-N3. FINDINGS BY THE COURT — 1852-1879 The plaintiffs base their case on the testimony of Mr. Clark, Dr. Robinson and Dr. McQuivey as to the movement of the river between 1875 and 1879. Their testimony in this regard is very vague and oftentimes uncertain. Mr. Clark simply recites that it is his opinion that between 1875 and 1879 the river by series of movements changed its channel from the 1875 position against the easterly high bank to its 1879 position as shown by the Missouri River Commission mapping (291:17). Although he doesn’t know when. (612:17-23) Dr. Robinson is inconsistent with Mr. Clark in this regard inasmuch as Dr. Robinson thinks that the sudden avulsive movement as he described it occurred in 1879, before June (1161:9-14). Dr. McQuivey contradicts this by concluding that there were “several major jumps” (1502:8). A careful examination of the testimony and the mapping done in 1879 leaves little doubt in the mind of the Court but what Dr. Robinson is in error in his conclusions. If the avulsion had occurred in 1879 as Dr. Robinson opines, then it would be impossible for willows to be growing on bar “A”, because the willows are growing at a place where the channel would have to have been flowing (1152:20). Obviously those willows growing along the easterly end of bar “A” would have been in the 1879 channel prior to the avulsion. Therefore for the willows to be growing at that place as mapped by the 1879 Missouri River Commission would be an impossibility as even willows don’t grow that fast. The testimony of Mr. Clark is likewise inconclusive. Elmer Clark is a surveyor with considerable experience, but he is neither a geologist nor a hydrologist (747:22). On the other hand the testimony of Doctors Hallberg and Kennedy is extremely persuasive (2939:4-2944:18; 2567:18-2568:10; 2571:12-2576:13). Both are highly qualified, both educationally and by experience in their field and with the Missouri River. Their testimony is more clear and convincing to the Court and the most probable in the light of reason, common experience and the other evidence in the case. Their testimony is adequately supported by the testimony of Raymond Huber whose practical knowledge and expertise was gained by 37 years during which he traveled, studied and engineered the control of the wild and untamed Missouri River. It is therefore the Finding By The Court that between 1852 and 1879 the Missouri River moved to its eastern-most position at a point east of and outside of the Barrett Survey Area. Having reached that most easterly location, the river, by a gradual progression during periods of high flow commenced a southerly and westerly migration away from the easterly high bank (2606:6-25). This caused the old channel against the easterly high bank to close at its upstream end by the process of deposition and siltation leaving a remnant of the old channel against the easterly high bank such as has been described by Judge Prichard (see footnote 7, supra). As the river moved in a gradual progression to the south and west it was eroding against the meander lobe as surveyed by Barrett in 1867 destroying and entirely washing the land surveyed by Barrett down the river (2955:17-2956:19). Deposition of silt, sands, and gravels (described by plaintiffs’ counsel as “alluvion”) was occurring during this process. This resulted in additions of new land to the left bank which new land was beyond the power of identification. It was in fact accretion to the Iowa riparian landowners in Sections 29, 28, 34, 33 and 32 in Township 84 North, Range 46 West (2951:3-2952:15). As a consequence by 1879 the action of the Missouri River had completely obliterated and washed away the meander lobe as surveyed by Barrett to almost the westerly edge of Iowa Sections 29 and 32 in Township 84 North, Range 46 West, as well as the lands surveyed by Barrett which fall within Iowa Sections 28 and 33 of Township 84 North, Range 46 West. As a consequence the Court finds that the claims by the plaintiffs that any lands within Iowa Sections 28, 29, 32 and 33, township 84 North, Range 46 West as being identifiable land in place as the result of an avulsion between 1875 and 1879 are not substantiated by the greater weight of the evidence. The Court finds by a preponderance of the evidence, that in 1879 any lands lying within Iowa Sections 28, 29, 32, and 33, Township 84 North, Range 46 West as surveyed by Barrett were new lands added by the process of erosion and accretion to the shoreline and were not identifiable as land which remained in place through the river movements and were accretion land to the Iowa riparian owners. D. THE MISSOURI RIVER BETWEEN 1879 AND 1890 1. 1881. It is conceded by all of the witnesses that in 1881 a flood occurred on the Missouri River which recorded the highest flood waters of any time since reliable records have been kept. (Exhibit T97 and T104; Exhibit G124) In fact, Exhibit T97 reveals that the 1881 flood waters were ten feet higher than the June 16-20,1879 water level (606:1-7). However, no maps were made of the Missouri River in the Blackbird Bend area between 1879 and 1890. Therefore, the effect upon the landscape in the Blackbird Bend area by virtue of the tremendous force of the 1881 flood is factually unknown. There is testimony, however, that during periods of high water flows, the river channel tends to straighten which will modify the channel configuration (1507:22; 2951:13-17). Following a flood of this magnitude the channel then begins to seek a new equilibrium and to consolidate its course (2959:8-15). Changes in the channel upstream from the Blackbird Bend area likewise are of considerable significance during this period of time (1508:10). In 1890 the Missouri River Commission again mapped the channel as shown by Exhibits W-P3, T32 and T101. The mylar overlay, Exhibit W-Y7 when overlaid on W-X7 shows that the course of the river after 1879 and by 1890 has in fact straightened somewhat and has moved by migration somewhat to the north and to the east of its 1879 position. All parties agree that this northeasterly movement would be by erosion against the left bank with some accretion deposition occurring on the right bank. There is however a very significant feature on the 1890 Missouri River Commission map which must not, at this point, be overlooked. The map clearly shows that lands located within Sections 28, 29, 32 and 33 in Township 84 North, Range 46 West, which had previously been within lands surveyed by Barrett in 1867 are now solidified and vegetated accretion land to the left bank Iowa riparian owners (Exhibit W-P3). This simply shows the normal and logical progression of the accretion which was shown to be forming in 1879 when the river was then mapped by the Missouri River Commission. A thorough examination of Exhibit W-P3 which is a scale copy of the 1890 Missouri River Commission map with the Barrett survey line superimposed thereon shows a material change in the upstream channel from Blackbird Bend (McQuivey 1508:10 & 1538:20). It shows the formation of a bend upstream which is similar in shape to the Barrett survey meander but not nearly as large in size. A long westerly oxbow on the approach to Blackbird Bend indicates erosion against the right bank and deposition in the form of a point bar on the left bank. Two other land features are shown which have been identified as being left as the result of the avulsive action of the river (2589:2-13). These are Blue Lake shown to the east of the Blackbird Bend and which was formed before 1852 (2827:17) and an old riverbed “cutoff 1875” which lies southerly of Blackbird Bend and which has been referred to in the evidence as Lake Quinnebaugh. The significance of these two features bears discussion (2593:18-2594:6). Recall the plaintiffs’ claim that between 1875 and 1879 an avulsion occurred when the river allegedly left the easterly high bank and moved to its 1879 position as shown by the Missouri River Commission map. However, an examination of the land .features in Blackbird Bend reveals that the land features are strikingly dissimilar to Blue Lake and Lake Quinnebaugh (2594:7-10; 2595:8-19). Those features indicate that when an avulsion occurred in the areas of Blue Lake and Lake Quinnebaugh it left the then river channel in substantially its then width, depth, shape and position. This formed an oxbow lake of significant size and depth. Had such an occurrence taken place between 1875 and 1879, as alleged by the plaintiffs, it is the Court’s opinion that a similar land feature should have likewise remained and would have been so mapped in 1879. The absence of such a land feature is substantial evidence in the mind of the court that an avulsion did not take place between 1875 and 1879 in Blackbird Bend as alleged by the plaintiffs. Likewise the condition of the land in 1890 in Sections 28, 29, 32, and 33, Township 84 North, Range 46 West shows it to be covered with vegetation and trees and has by that time become all accretion to the Iowa riparian owners in Iowa Sections 28, 29, 32, 33, and 34, Township 84 North, Range 46 West. E. MISSOURI RIVER BETWEEN 1890 AND 1912 The evidence is somewhat uncertain as to the movement of the river between 1890 and 1912. There is an 1894 Monona County Survey of the left bank which is of some assistance as to the left bank of the river (Exhibit U-3). This does show a continued northeasterly migration of the left bank of the river which is consistent with the position of the river in 1890. The 1894 county survey shows the left bank in approximately the same location as shown by the Missouri River Commission in 1890, but an accretion bar has formed which is strikingly similar to bar “A”, as shown on the 1879 map. There is a 1900 plat of accretions made by Monona County Surveyor R. S. Fessenden which is received in evidence (Exhibit Z-3). The 1900 Monona County surveyor shows accretions to government lots in Sections 28 and 33, Township 84 North, Range 46 West in Monona County, Iowa, and is recorded on January 23, 1901 in the office of the Monona County Recorder. Exhibit U-8 is an overlay of the 1900 Fessenden survey, Exhibit Z-3, showing the continued westerly movement of the accretions lands as shown by the 1890 survey. An atlas map, published by the George A. Ogle Company in 1906, is received in evidence as Exhibit D-4, and the Tribe composite made from that map has been received in evidence as Exhibit T-102. This indicates some additional north and east migration of the left bank of the river but is of little assistance to the court as to the location of the right bank during this period. These are the only maps between 1890 and 1912. However, the general course of the river during this time indicates the development of a pattern which is somewhat similar to the easterly migration of the river during the period between 1852 and 1867. The river is meandering further north than it had in 1867, but not as far to the east (2639-2640). There is some erosion into the accretion which had previously formed adjacent to the Iowa left bank riparian owners (2642:22-2643:12). F. THE MISSOURI RIVER BETWEEN 1912 — 1923 In 1912 a left bank survey was accomplished by surveyors Fairchild and Oliver. This original survey has been received in evidence as Exhibit Q-8. Payment for this survey was authorized by the Monona County Board of Supervisors on March 5, 1912 as evidenced by Exhibit H-4. It was a survey of the Monona County west boundary, or as described by the minutes of the County Board of Supervisors, the “Missouri River Line”. An examination of the exhibit leads to the obvious conclusion that it is the original survey map as made by surveyors Fairchild and Oliver upon which have been superimposed some Lewis and Clark camp sites by historian Mitchell Vincent (See, Exhibits T71 and T72). The significance of the Fairchild survey (as it is referred to in the evidence) is two-fold. First, it shows the 1912 water line on the Iowa side of the river as surveyed by Mr. Fairchild. Secondly, in partial Section 24 and 25 of Township 84 North, Range 47 West and in partial Sections 19 and 30 of Township 84 North, Range 46 West it shows the development of a sandbar of rather substantial size which is obviously a point bar that has begun to develop by virtue of a change in the course of the upstream channel of the river (2650:6-2652:13). Because of the angle of the river channel upstream from the area where the Fairchild Survey map locates the Sandbar (See Tribe’s Exhibits 102,103), the river would have been eroding the right or Nebraska bank at a point upstream from the sandbar. This erosion would, according to the expert testimony, be very likely to deposit sand in the area depicted as sandbar in the Fairchild map. The formation of this bar began to occur sometime after 1894 and before the time of the 1912 Fairchild survey. The authenticity of the sandbar as shown on the Fairchild survey is challenged by the plaintiffs. They imply that the bar was mapped by someone other than Fair-child (perhaps Mitchell Vincent) or that the map was in some' manner “doctored” either by the defendants or someone on their behalf (3143:12). A careful examination of the exhibit, together with other evidence and expert testimony as to the behavior of the Missouri River, leads the court to the conclusion that this exhibit is authentic and of assistance to the court. The defendants introduce in evidence Exhibits A through P. These exhibits are a series of letters from the Omaha Indian Reservation Agency Superintendent to the Commissioner of Indian Affairs during the period from 1907 and continuing until 1922. Thus, while they were not written by hydrologists they are accounts of the river’s behavior which were prepared at a time when few reliable maps of an official nature are available, and are based on actual observation. They deal with the request by certain Indians of the Omaha Tribe or their heirs requesting that their allotments which had previously been granted to them of lands within the Omaha Indian Reservation be exchanged for new allotments. The reasons stated for the exchange requests were that the land originally allotted to the allottees was or had been washed away by the Missouri River. To better understand the relationship of these allotments and the relationship of the allotment exchange letters previously referred to, the court has examined Exhibit T80. The area in orange shown on Exhibit T80 is land which has never been allotted to any member of the Omaha Tribe and has never been patented by the United States Government to anyone; the area in green represents allotments which have been relinquished and are directly related to Exhibits A through P; the cross-hatched areas are lands which have been sold or otherwise left their trust status after the 1854 Treaty. The plaintiffs disregard and disavow any significance to the allotment exchange letters (Exhibits A through P) (1135:18-1136:14) and assert that the verbiage used in the allotment exchange letters describing the action of the Missouri River as “washing away” the allotment lands is only the description of a nonprofessional person, unfamiliar with the action of the river. They conclude that the land was not “washed away” as described in the letters, but rather simply inundated by high water flows during stages when the river was in flood. The defendants on the other hand relate the allotment exchange letters to the formation of the sandbar as shown by Fairchild in his 1912 survey. Exhibit F-4 was prepared by witness Huber, from the information contained in Exhibits A through P, S and T19. Mr. Huber then reconstructs what he believed to be the location of the right bank of the river in 1912 (2054:22-2059:7) in order that the right bank position might be compared with the location and position of the sandbar as shown by Fairchild. This reveals that the right bank, as reconstructed by Huber is consistent with the Fairchild sandbar. In support thereof, defendants, also introduce a sketch of the 1907 and 1908 river by one Thomas R. Ashley and a letter from the Superintendent of the Omaha Agency to the Commissioner of Indian Affairs enclosing a copy thereof which is dated October 23, 1908 (Exhibit R). The Ashley sketch and the letter to which it is attached describes the action of the Missouri River during that period as it relates to lands which are now located in Sections 24, 25, and 36 of Township 83 North, Range 47 West. The sketch of Mr. Ashley indicates that the river during that period is migrating in a southerly direction eroding against the right bank of the river washing away Indian allotment land and producing deposition on the left bank which is accretion to the Iowa riparian owners. Of some significance in this regard is also an Omaha Reservation Plat made by Reservation Farmer Corney O. Preston which is dated in May, 1914 and received in evidence as Exhibits 1-4 and J-4. The witness Huber then prepared Exhibit L-4 which is a composite map showing the Fairchild survey as shown in Exhibit Q with the right bank line from the Preston plat (Exhibit 1-4) and a reconstruction of a plat showing the allotted lands reportedly eroded away from the letters Exhibits A through P, as shown by Exhibit F-4. (2063:2-2064:7) The end result of all this tends to show the authenticity and reliability of the allotment exchange letters as they relate to the action of the Missouri River during this period in time. In the light of the Indian allotment exchange letters, the Preston map and the Ashley sketches, the sandbar shown on the Fairchild 1912 survey becomes increasingly significant. It is the position of the plaintiffs in this case that the river was against the northerly high bank in about 1912. The witness Clark is of the opinion that the river left the northerly high bank in a sudden noticeable movement by one or more avulsions to reach its position in 1923 (455:7 and 524:19), however, he doesn’t know how many (639:11) and he^ could find no records (779:20). He comes to this opinion because of the fact that there are sloughs running next to the northerly high bank which are the remains of the 1912 main channel. The sloughs to which Mr. Clark makes reference are primarily in Sections 19, 20, 28 and 33 in Township 84 North, Range 46 West. The remnants of these sloughs are evident on the ground today. The witness Dr. Robinson is of the opinion that between 1908 and 1916 there were several high water times which produced a change in the river to the south and it moved over toward the Nebraska bluffs and inundated the Barrett survey area and reached its 1923 position. It is his opinion that this occurred suddenly during one high water period (1067:13-1068:16). Without commenting on the inconsistencies between the opinions of the witnesses Clark and Dr. Robinson, the Court believes that the following evidence contradicts those opinions: (a) The slough areas found in Sections 19, 20, 28, 29 and 33 of Township 84 North, Range 46 West are more representative of the so called “Iowa Chute” than they are evidence of avulsions. As earlier indicated, an avulsion normally leaves a prominent landform remnant such as Blue Lake, which is shown on the 1946-47 Corps of Engineers Sheet # 72. (Exhibit U-8); or Badger Lake (Exhibit N-7A) or Lake Quinnebaugh (Exhibit P-3) (2593:18-2594:6). These lakes, formed by avulsive cutoffs, are sufficiently wide to indicate that they lie in an intact abandoned channel, rather than a remnant of a channel. ' The Court believes that if an avulsion had occurred between 1912 and 1923 a landform remnant should have remained against the northerly high bank which would bear a reasonable resemblance to the lakes above referred to. The sloughs which remain are considerably more narrow and of less depth than would be evidenced by a sudden channel change which would leave the old river channel in place (2827:13-2828:17). (b) Exhibit P-8 is an aerial photo mosaic of aerial photographs taken by the Corps of Engineers in 1925. Dr. McQuivey, a river hydrologist testified on behalf of one of the plaintiffs. It was his opinion that this aerial photograph showed evidences of many old channels which developed as the river progressed from the northerly high bank to its 1923 position. It was his opinion that these were main channels at one time. He marked on said exhibit in red the outlines of the old channels as he saw them (1683:23). His testimony is consistent with that of the witnesses of the defendants who state that after the river moved to the northerly high bank it then began to erode to the south during periods of high water depositing accretion materials to the left or Iowa riparian land as the progression took place (2679:10-2682:11; 2134:24-2139:2; 2967:1 — 2968:9). This is consistent with the sketch of Mr. Ashley, the Indian allotment exchange letters indicating erosion against the right bank with resultant deposition against the left bank, with the formation of the sandbar as shown by the 1912 Fairchild survey and with the testimony of Judge Prichard who was on the land in 1919 and described it as being all “bar” land with scattered sloughs, lakes, small willows no higher than a horse and a few scattered cottonwood trees (2432:4; 2423:12; 2435:9). It is also consistent with the angle of approach by the upstream channel as is shown by the Fairchild survey (Exhibit Q-8) (2650:6-2652:13). (c) Plaintiff’s witnesses acknowledge that there was an extremely wet cycle from at least 1910 to 1917 or 1918, as shown by the hydrograph prepared by the Witness Clark, as Exhibit T-112 (505:11). Mr. Clark likewise admitted that his Exhibit T-104 shows high water periods substantially above the elevation of 1045 feet in years 1905, 1906, 1912, 1913, 1915, 1916 and 1920. (578:17; 580:10-17). To like effect is the testimony of plaintiff’s witness Dr. Robinson. (1052:15; 1062:1) The witness Ross Willey, then age 13, observed the river during the June rise in 1916. He marked on Exhibit M-5 the position along the northerly high bank where he rode on horseback and observed the river. (2008:8). He could see out across the main channel and could see the town of Decatur, and between where he sat on horseback and the town, he could see some bayous, water at different spots, weeds, small brush and bare spots where sand blows. (2402:7) In 1920 he became aware that Joe Kirk was trying to grow some sweet clover and alfalfa on some of the bare land that was just a little south and west of the present-day buildings; there were still a lot of sloughs and standing water areas and Kirk was doing a little clearing. (2404:23) Kirk continued in possession from 1920 until he sold out to the Petersons and was there every year farming and clearing. (2413:25) In 1919, Judge Prichard then a young lawyer, age 25, went on the bar with Joe Kirk in August or September. He marked on Exhibit J-5 the point where he and Kirk crossed the Iowa Chute with saddle horses (2423:3). He describes the area as “new bar land,” with lots of small willows, sand dunes and small cottonwoods as big as maybe an inch and a half (2424:5). He saw no indication of any land that could be called land in place, other than the bar land, and no trees except new growth. (2424:23) He and Joe Kirk rode over the entire bar looking at the river, and just generally looking over the land. There was water standing in low places (2430:9) He describes the area to the north and west of where they entered the Kirk property as “just sandbar” with little willows and sand dunes and once in a while a patch of cottonwoods that they could ride through without any trouble. (2432:4) During this ride with Joe Kirk, he did not see any indication of any trees or lan