                                               No.     87-221

                  I N THE SUPREME COURT O F THE STATE O F MONTANA

                                                     1987




ERNEST F I L L E R AND I R E N E F I L L E R ,
husband a n d w i f e ,

                     P l a i n t i f f s and A p p e l l a n t s ,
          -VS-

JERRY McDANIEL and MARJORIE A.
McDANIEL, husband and w i f e ,

                     D e f e n d a n t s and R e s p o n d e n t s .




APPEAL FROM:        D i s t r i c t C o u r t of t h e S i x t e e n t h J u d i c i a l D i s t r i c t ,
                    I n and f o r t h e C o u n t y of R o s e b u d ,
                    T h e H o n o r a b l e A l f r e d R . C o a t e , Judge p r e s i d i n g .

COUNSEL OF RECORD:

          For Appellant:

                     C h r i s t i n e Cooke-Dosen          a r g u e d , H a r d i n , Montana

          F o r Respondent:

                    R y a n W i l l e t t argued, B i l l i n g s ,      Montana




                                                     Submitted:            December 8 ,         1987

                                                        Decided:           December 31,           1987


Filed:        DEc 31 1487
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

     The plaintiff-appellants, Ernest and Irene Filler,
appeal a District Court judgment from the Sixteenth Judicial
~istrict,County of Rosebud.    The judgment determined that
defendant-appellants, Jerry and Marjorie McDaniel are the
proper owners of a parcel of real property located in Rosebud
County, Montana. We reverse and remand.
     On December 16, 1983 Ernest and Irene Filler purchased
140 acres of real property from defendant-appellants William
and Charlotte Bell.    The convevance described the land as
follows:
           The East Half of the East Half (E; Ei) of
           Section Eleven (11), Township Six ( 6 )
           North, of Range Thirty-nine (39) East,
           M.P.M.    [Minus twenty acres previously
           sold by the Bells which is not relevant
           to this action.]
The property in dispute lies to the south of the above
described property and constitutes 16.008 acres.     The land
was formed due to a gradual change in the course of the
Yellowstone River and the Fillers contend they took title to
the land when they purchased the 140 acres from the Bells.
     The roots of this dispute were first formed with a
United States Government survey in 1879. That survey shows
that in 1879 the land south of that purchased by the Fillers
was covered by the Yellowstone River.     At that particular
time, the north waterline of the Yellowstone also extended to
a small portion of the southeast corner of the land purchased
by the Fillers--the East Half of the East Half of Section 11.
Due to the natural forces of nature, the north waterline of
the Yellowstone is now much further to the south. The result
is that additional dryland now appears to the north of the
Yellowstone.
     The Bells purchased a significant amount of land in 1980
which included the land involved in this dispute. The notice
of purchaser's interest described the property as follows:
           Township 6 North, Range 39 East, MPM,
           Rosebud Countv. MT
           Sec. 11: Lot 1, NEiSEi, EtNEi
           Sec. 12: Lot 2, 3, & 4, That part of
                     NINWa lying southerly of
                 Milwauke[e] Railroad right-of-way,
                     StNWi, That part of SEiSW$ and
                     SW$SE$ lying southerly of
                     river channel.
           Sec. 13: Lots 2, 3, 4, 6, 7, 8, & 9
           Sec. 14: Lot 1
           Together with all   accreted   lands   and
           riparian rights.
The description specifically addresses accreted lands and the
property is described in terms of "Lots." Lot 1 of section
11 is surveyed in the 1879 survey so as to include the north
bank of the Yellowstone as its south boundary line.       The
Bells received rights to accreted land by the above
conveyance.   However, at trial the defendant's son, Conrad
Bell, testified the Bell family believed the land south of
Section 11 belonged to the Bureau of Land Management.
     When the Fillers purchased land from the Bells in
December of 1983, the parcel was described as the East Half
of the East Half of Section 11, Township Six (6) North, of
Range Thirty-nine (39) East, M.P.M.     (minus 20 acres not
involved in this case).    The description does not address
accreted lands and the description makes no reference to a
"Lot 1" which would have the southern boundary as the
Yellowstone.    Although the description is set out as a
particular portion of land with all four boundaries
ascertainable by section lines, the land as described would
include all of Lot 1 as surveyed in 1879.
     In June of 1984, the Bells sold a tract of land to the
east of the Fillers' property to defendants Jerry and
Marjorie McDaniel.   Subsequently, a dispute arose as to the
ownership of the land directly south of the Fillers' property
and the Fillers attempted to fence the property. The fence
allegedly strayed somewhat to the east and was removed by the
McDaniels.   A survey was conducted in September 1984 which
concluded that due to the change in the course of the
Yellowstone River, an additional 16.008 acres appeared
between the north waterline of the Yellowstone and the south
boundary of the Fillers1 property. The Bells concluded that
the accreted land belonged to them because they conveyed only
a specific portion of land to the Fillers. The Bells then
sold the 16.008 acres to the McDaniels.
     The Fillers alleged their purchase included any accreted
lands to the south and filed a quiet title action March 25,
1985.   A bench trial was held February 19, 1987.   The
District Court concluded the Bells had not conveyed the
accreted land to the Fillers and the McDaniels were the
proper owners of the accreted land by virtue of their
purchase from the Bells.    Additionally, the District Court
awarded defendants attorney's fees. The Fillers appeal and
present two issues for review:
     (1) Did the District Court commit error in determining
that the McDaniels owned the parcel of property created by a
shift in the course of the Yellowstone River?
     (2) Did the District Court correctly award defendants
a.ttorney1 fees?
         s
      Defendants contend that the Fillers were specifically
conveyed only the land within the East Half of the East Half
of Section 11, Township Six (6) North, or Range Thirty-nine
 (39) East, M.P.M. (minus twenty acres not involved in this
case), and all boundaries of the land are readily
determinable by     section lines and according to this
description.      The conveyance to the Fillers made no
description in terms of "Lots" or by using the river as a
boundary. Defendants conclude that the Fillers only acquired
an ownership interest on the land described in the conveyance
and the 16.008 acres of additional land is not in that
description.
      The Fillers contend they are the proper owners of the
land and that the District Court decision must be reversed
according to the law of accretion.       "Accreted lands" are
"additions to the area of real estate from the gradual
deposit, by water, of solid material, whether mud, sand, or
sediment, producing dry land which before was covered by
water ...    " Bode v. Rollwitz (1921), 60 Mont. 481, 491,
199 P. 688, 691. See also, 78 Am.Jur.2d Waters S 406 (1975).
Expert testimony at trial indicated the property in dispute
was created by accretion, and the District Court found that
the land accreted to Lot 1.       Additionally, neither party
challenges the proposition that the land was created by
accretion. Therefore, we conclude that the disputed property
was created by the accretion process and that the law of
accretion applies.
      The Fillers explain that the evidence indicates that the
16.008 acres accreted to Lot 1 of Section 11 and that the
District Court agreed with this in finding of fact number VI.
Although they were not conveyed property described as "Lot
1," they were conveyed property which entirely encompassed
Lot 1. Stated differently, the 140 acres purchased includes
the entire parcel of land designated as Lot 1 in the 1879
survey. When the property description includes a designation
of Lot 1 it implies that the southern border to the land
constitutes the north waterline of the Yellowstone because
that is the boundary structure of the 1879 survey.
     The Fillers state that the general rule regarding
accreted land is that " [ulnless excepted or reserved,
accretions or the right thereto pass to a purchaser or a
patentee although not described in the deed or other
instrument of conveyance, if the conveyance describes the
adjoining riparian land." Smith v. Whitney (1937), 105 Mont.
523, 528, 74 P.2d 450, 453.     Since the conveyance did not
reserve accretions to the Bells and the described property
completely encompasses what was described as "Lot 1," the
Fillers conclude they purchased the accreted land along with
their purchase of 140 acres.       Therefore, the subsequent
conveyance to the McDaniels is void because the Bells ha-d
already conveyed the property to the Fillers.     The Fillers
emphasize that the Bells made no reservation of accreted
lands in the conveyance and that the Bells were not aware
that the accretion process had created additional dryland.
     The Fillers have correctly stated the general rule as
set forth in the Smith case. A conveyance of riparian upland
property includes all accreted lands unless excepted or
reserved by the conveyance.      This is and has been the
applicable law regarding accretion in Montana. This rule is
also addressed in 5 70-18-201, MCA, which states:
           Where from natural causes land forms by
           imperceptible degrees upon the bank of a
           river or    stream, navigable or not
           navigable, either by accumulation of
           material or by the recession of the
           stream, such land belongs to the owner of
           the bank,    subject to     any   existing
           right-of-way over the bank.

     We considered a similar issue in Jackson v. State
(1979), 181 Mont. 257, 593 P.2d 432. Jackson addressed the
question of whether a contract for deed effectively conveyed
accreted land when the deed described the conveyed property
by sections.      Although the deed description included
accretions within the section line description, it did not
contain any reference to additional accreted land outside the
boundaries described. The deed did not reserve or except any
additionally accreted lands.    Appellants in Jackson argued
that the accreted lands outside the section lines were not
conveyed by the deed.    This Court refused the appellants'
argument and affirmed the holding in Smith by stating
"accreted lands pass with the riparian upland property unless
excepted or reserved." Smith, 181 Mont. at 266, 593 P.2d at

     We find that the Jackson case controls the current
dispute. The conveyance from Mr. Bell to the Fillers did not
except or reserve any accreted land. Therefore, title to any
land which has accreted to that purchased by the Fillers
passes to the Fillers. The subsequent sale from the Bells to
the McDaniels is void.
     The Fillers also appeal the award of attorney's fees to
the defendants, the McDaniels and the Bells.      Defendants
based their claim for attorney's fees on a provision in the
contract for deed between the Fillers and the Bells. That
provision states that if "any litigation is necessary to
enforce any provisions of this contract, then the successful
party shall be entitled to all costs of suit and reasonable
attorney's fees."    Since the first issue is reversed, the
award   of   attorney's   fees  must   also   be   reversed.
Additionally, we note the McDaniels were not parties to the
contract for deed and that a claim for attorney's fees by the
McDaniels could not be based on that contract.
     For the foregoing reasons, we reverse and remand to the
District Court for entry of judgment in accordance with this
opinion.




We concur:
