Wilson v. Watson

Decision Date16 December 1910
Citation141 Ky. 324,132 S.W. 563
PartiesWILSON v. WATSON.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Carlisle County.

Action by T. J. Wilson against Aaron Watson. Judgment for defendant and plaintiff appeals. Affirmed.

John E Kane and Robbins & Thomas, for appellant.

Jesse F. Nichols, for appellee.

CLAY C.

This is an action of ejectment, wherein appellant, T. J. Wilson seeks to recover of appellee, Aaron Watson, two tracts of land, containing 100 acres each, situated west of Island No 3 in the Mississippi river. The jury returned a verdict in favor of appellee, and from the judgment predicated thereon this appeal is prosecuted.

Island No. 3 was granted by the commonwealth of Kentucky to Price and Edrington on September 19, 1837. In the patent it was described as an island, and conveyed as an island. The commonwealth of Kentucky made a further grant with reference to Island No. 3 to William Parsons on June 15, 1872. On the same date it granted to William Parsons two towheads near the foot of Island No. 3, one containing 70 acres and the other 10 acres. Appellant acquired the title granted by the commonwealth to Island No. 3 from S. Mathis and wife on January 31, 1898, and acquired title to the two towheads from Noah Parsons on the 25th day of November, 1899. One Mrs. F. E. Johnson, after obtaining the proper orders from the Carlisle county court, procured from the commonwealth of Kentucky, on December 31, 1897, a grant to the lower 100 acres of land west of Island No. 3, and on June 20, 1900, procured a further grant from the commonwealth for the upper 100 acres. Appellee acquired by deed such title as Mrs. Johnson acquired from the state.

At the point where the two tracts of land in controversy are located there is a large bend in the Mississippi river. The main channel of the river has been for years, and is now, gradually moving west. In doing this, it has not deserted all of its old beds, but left several natural waterways. Chute No. 2 is the first of these, and separates Islands Nos. 2 and 3 from the main land. The chute connects with the river, both north and south. Large steamboats often go through it, and were doing so at the time of the trial herein. The chute is about two miles long, and varies in width from one-quarter to one-half mile. It is also of considerable depth. Going down the river, we find another chute, called "chute No. 3," which extends south and flows into chute No. 2, about one mile from the main stream of the river, and forms a waterway between Islands Nos. 2 and 3. The chute is often navigable. Further down the river is another natural waterway, which is called "Sand Cut." After going a considerable distance it divides. That part which goes to the southwest and flows into the river is called "Deep Cut"; while that part which goes southeast and flows into chute No. 2 retains the name of "Sand Cut." The southern portion of the upper 100 acres of land in controversy is separated from appellant's land by Deep Cut, while the northern portion is separated from appellant's land by Sand Cut and the lower part of the 100-acre tract owned by J. W. Turk. The lower tract of 100 acres is bounded on the east by Deep Cut, which separates it from appellant's land at all points. Some 40 or 50 years ago there was a towhead formed where appellee's land now is. By accretions this towhead gradually increased in size and approached appellant's land. At the time it formed there was a stream of water separating it from Island No. 3. Sand Cut and Deep Cut, while they have been known in times of drought to become dry in places, are still natural waterways, and when the water is reasonably high constitute a continuous stream, separating appellee's land from that of appellant.

It is not contended, nor can we say, that the finding of the jury is flagrantly against the weight of the evidence. Indeed, the evidence upon the question of accretions rather preponderates in favor of appellee. The court, in its instructions, defined an accretion, and told the jury in substance that the land in controversy was not covered by appellant's title papers, and that they should find for appellee unless they believed from the evidence that the land was an accretion to appellant's lands. There was also submitted to the jury an issue of champerty, predicated on the adverse possession by Mrs. F. E. Johnson of the lower 100 acres at the time appellant purchased his land from Mathis on January 31, 1898, and from Parsons on November 25, 1899. Appellant offered several instructions, based upon the theory that he was a riparian owner, and, as such, entitled to recover the lands in controversy because they lay between him and the thread of the main channel of the river. For the error of the court in instructing the jury that appellant's title papers did not cover the land in question, and the further error of the court in refusing to give one of the several instructions offered by him, and based upon his ownership to the thread of the main channel of the river, appellant asks a reversal of the judgment herein.

In this connection we may say that the common-law rule with reference to navigable or nonnavigable waters has been adopted in this state. By that rule only those waterways are deemed navigable in which the tide ebbs and flows, and all other waters whether navigable in fact or nonnavigable, are held to be nonnavigable. In the case of Berry v. Snyder, 3 Bush, 266, 96 Am.Dec. 219, the rule is thus stated: "The...

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8 cases
  • United States v. Cress No 84 United States v. Achilles Kelly No 718
    • United States
    • United States Supreme Court
    • March 12, 1917
    ......Dec. 219; Miller v. Hepburn, 8 Bush, 326, 331; Williamsburg Boom Co. v. Smith, 84 Ky. 372, 374, 1 S. W. 765; Wilson v. Watson, 141 Ky. 324, 327, 35 L.R.A.(N.S.) 227, 132 S. W. 563; Robinson v. Wells, 142 Ky. 800, 804, 135 S. W. 317), with incidental rights to flow ......
  • State v. Korrer
    • United States
    • Supreme Court of Minnesota (US)
    • September 11, 1914
    ......Turgeon, 74 Neb. 580, 104 N. W. 1061, 109 N. W. 744, 1 L.R.A.(N.S.) 762, 7 L.R.A.(N.S.) 316, 121 Am. St. 740, 13 Ann. Cas. 43; Wilson v. Watson, 141 Ky. 324, 132 S. W. 563, 35 L.R.A.(N.S.) 227; Johnson v. Johnson, 14 Idaho, 561, 95 Pac. 499, 24 L.R.A.(N.S.) 1240; Admrs. of Gavit v. ......
  • State v. Korrer
    • United States
    • Supreme Court of Minnesota (US)
    • September 11, 1914
    ......Turgeon, 74 Neb. 580,104 N. W. 1061,109 N. W. 744,1 L. R. A. (N. S.) 762, 7 L. R. A. (N. S.) 316, 121 Am. St. Rep. 740,13 Ann. Cas. 43;Wilson v. Watson, 141 Ky. 324, 132 S. W. 563,35 L. R. A. (N. S.) 227;Johnson v. Johnson, 14 Idaho, 561, 95 Pac. 499,24 L. R. A. (N. S.) 1240;Adm'rs of Gavit ......
  • State v. Korrer
    • United States
    • Supreme Court of Minnesota (US)
    • September 11, 1914
    ......Turgeon, 74 Neb. 580, 104 N.W. 1061, 109. N.W. 744, 1 L.R.A. (N.S.) 762, 7 L.R.A. (N.S.) 316, 121 Am. St. 740, 13 Ann. Cas. 43; Wilson v. Watson, 141 Ky. 324, 132 S.W. 563, 35 L.R.A. (N.S.) 227; Johnson v. Johnson, 14 Idaho 561, 95 P. 499, 24 L.R.A. (N.S.) 1240;. Admrs. of ......
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