80 P.2d 268 (Okla. 1938), 27335, Goins v. Merryman

Docket Nº:27335.
Citation:80 P.2d 268, 183 Okla. 155, 1938 OK 10
Opinion Judge:HURST, Justice.
Party Name:GOINS et al. v. MERRYMAN et al.
Attorney:Varner & Varner of Poteau, for plaintiff Edwin T. Watkins, of Spiro, for plaintiffs in error B. G. and T. F. Perrymore. A. E. White, of Poteau, for plaintiffs in error Robert H. Russell, Laura B. McClain, Mrs. D. S. Ainsworth, J. T. McClain, Mrs. Lon Evans, Mrs. Albert Tobler, Mrs. J. H. Tibbitts...
Judge Panel:OSBORN, C.J., BAYLESS, V. C.J., and CORN, J., absent.
Case Date:January 11, 1938
Court:Supreme Court of Oklahoma
 
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Page 268

80 P.2d 268 (Okla. 1938)

183 Okla. 155, 1938 OK 10

GOINS et al.

v.

MERRYMAN et al.

No. 27335.

Supreme Court of Oklahoma

January 11, 1938

Rehearing Denied May 10, 1938.

Application for Leave to File Second Petition for Rehearing Denied June 21, 1938.

Syllabus by the Court.

1. If the bed of a river changes by accretion, the boundary line bordering upon the river changes with it, but if the change is by avulsion, the boundary line remains as it was originally.

2. In determining if a change in the course of a river is by accretion or avulsion, the test is not whether the witnesses may see from time to time that progress has been made, but whether they could perceive the change while it was going on.

3. Where an accretion was begun by a deposit against the shores of the mainland, the subsequent existence of an intermediate stream between the mainland and the accretion does not prevent the accretion from belonging to the owner of the mainland.

4. Where land has been formed by accretion against the separate property of several persons, the rule for the division of the land thus formed is as follows: (1) Measure the whole extent of the ancient line of the river, and compute how many rods, yards, or feet each riparian proprietor owned on the old river line; (2) divide the newly formed river line into parts equal to the total number of rods, yards, or feet thus found, and give to each proprietor the same number of parts on the new river line as he owned rods, yards, or feet on the old river line; (3) then to complete the division, draw lines from the points at which the property of the owners bounded each other on the old river line to the points thus determined as the points of division on the newly formed shore. This rule may require modification in the event deep indentations or sharp projections in the river line result in an unfair apportionment of the land formed by accretion, and in such case the general frontage line, rather than the actual length, ought to be taken.

Appeal from District Court, Leflore County; R. W. Higgins, Judge.

Action by Ellen Merryman against Frank Goins and others to recover land. From the judgment, some of defendants appeal.

Reversed, with directions.

Rehearing denied; CORN, J., dissenting.

Varner & Varner of Poteau, for plaintiff in error Frank Goins.

Edwin T. Watkins, of Spiro, for plaintiffs in error B. G. and T. F. Perrymore.

A. E. White, of Poteau, for plaintiffs in error Robert H. Russell, Laura B. McClain, Mrs. D. S. Ainsworth, J. T. McClain, Mrs. Lon Evans, Mrs. Albert Tobler, Mrs. J. H. Tibbitts, Mrs. H. A. Brady, and John Q. McClain.

James L. Hale, of Poteau, for defendants in error Ellen Merryman, J. S. Bailey Merryman, and James Henry Merryman.

Babb & Babb, of Poteau, for defendants in error Grace Babcock and Sallie E. Shockley.

HURST, Justice.

This action involves the ownership and right to possession of approximately 500 acres of land along the Arkansas river where it forms the boundary between Leflore county on the south and Sequoyah county on the north. At the point in controversy, the river, in its flow generally from west to east, turned south for about a section and then east for about another section and back north, thereby making an oxbow or U bend to the south. The land to the north of the river within the U bend was in Sequoyah county and was originally allotted to Cherokee Indians and freedmen. The river formed the southern boundary of these allotments. The land to the south was in Leflore county and was originally allotted to Choctaw Indians. The river was the northern boundary of their allotments.

By 1927 the river had changed its course, migrating to the north and east so as to practically eliminate the lower part of the U bend.

The plaintiff, Ellen Merryman, who owned a tract of land lying to the west and on the outside of the bend in Leflore county, brought this action to recover possession of all that land left by the receding of the river on the theory of accretion. She joined as defendants the two owners of the land within the U bend in Sequoyah county, and also other owners of property along the outside of the U bend in Leflore county. The defendants J. S. Bailey Merryman and James Henry Merryman jointly owned the tract adjoining the land of plaintiff to the north on the outside of the U bend. The defendants Sallie E. Shockley, Grace Babcock, Robert H. Russell, Laura McClain, and those persons referred to as the McClain heirs were the owners of property around the south and up the east side on the outside of the U bend. The defendant Goins was the owner

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of a tract of land within the U bend, which land was originally opposite the property of plaintiff across the river to the northeast, but which, by 1927, had been completely passed over by the river and was located on the southwest side. The defendants T. F. Perrymore and B. G. Perrymore were the...

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