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Show LANDS UNDERLYING NAVIGABLE WATERS 131 or stream. The State of Montana is declared by its legislature to be the owner of all land below the water of a navigable lake or stream.144 By its con- stitution, the State of Washington asserts ownership of the beds and shores of all navigable waters in the State up to and including the line of ordinary high tide in waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes.145 Some points involved in litigation in a few of the Western States that follow this rule may be noted, thus: In Kansas, the owner of land riparian to a navigable watercourse owns only to the bank of the stream, and ice formed on the stream opposite his land is not his property but may be appropriated by the first person who takes possession of it.146 The sand on the streambed is the property of the State.147 But the accumulation of water above a dam built by a riparian owner in a navigable stream is, in a sense, a reducing of personal property to possession.148 Therefore, it was held in this case that the grant of a right to use water thereby created need not be made by deed, but may be made by parol. In North Dakota, title to the lands below low watermark of a navigable stream is coextensive with the streambed as it may exist from time to time-a necessary corollary to the rule that the owner of lands riparian to a navigable stream owns title to the low watermark.149 The legislature may not adopt a retroactive definition of navigability that would destroy a private title already vested under a Federal grant; and the State may not now successfully assert title, on the ground of navigability, to lands beneath navigable waters of streams or lakes unless they were in fact navigable at the time of statehood, absent subsequent conveyances to the State.150 If the bed of a nonnavigable river has passed to private ownership by Federal grant at the time a State is admitted to the Union, the State cannot 144Cal.Civ.Code § 670 (West 1954);Mont. Rev. Codes Ann. § 67-302 (1970). See also Cal. Civ. Code § 830 (West 1954) which specifies the low watermark of nontidal navigable lakes and streams. In United States v. Gossett, 277 Fed. Supp. 11, 13 (C. D. Cal. 1967), the Federal District Court said "Since the enactment of California Civil Code § 830, it has been the law in California that the state's title to the lands under navigable streams extends only to low watermark___" citing Crews v. Johnson, 202 Cal. App. (2d) 256, 21 Cal. Rptr. 37 (1962); Gty of Los Angeles v. Aitken, 10 Cal. App. (2d) 460, 52 Pac. (2d) 585 (1935), which dealt with a lake. The court added that "California is not the only state to limit its title to low-water mark. United States v. Eldredge (D. C. Montana), 33 F. Supp. 337 (1940)." 145Wash. Const., art. XVII, § 1. See Narrows Realty Co. v. State, 52 Wash. (2d) 843, 846-847, 329 Pac. (2d) 836 (1958). 146 Wood v. Fowler, 26 Kans. 682, 689-690 (1882). ^Dreyer v. Siler, 180 Kans. 765, 308 Pac. (2d) 127 (1957). 148 Johnston v. Bowersock, 62 Kans. 148,161-162, 61 Pac. 740 (1900). l49Hogue v. Bourgois, 71 N. W. (2d) 47, 52 (N. Dak. 1955). i50State v. Brace, 76 N. Dak. 314, 317-318, 36 N. W. (2d) 330 (1949). |