Goins v. Merryman

• Decision Date: 11 January 1938
• Docket Number: Case Number: 27335
• Citation: 1938 OK 10,80 P.2d 268,183 Okla. 155
• Parties: GOINS et al. v. MERRYMAN et al.
• Court: Oklahoma Supreme Court

1938 OK 10

80 P.2d 268

183 Okla. 155

GOINS et al. v. MERRYMAN et al.

Case Number: 27335

Supreme Court of Oklahoma

Decided: January 11, 1938

Syllabus

¶0 1. WATERS AND WATER COURSES - Boundaries -Effect of Changes in River Bed on Boundary Line.

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. SAME - Test as to Whether Change in Course of River Is by Accretion or Avulsion.

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. SAME - Effect of Subsequent Existence of Intermediate Stream Between Mainland and Accretion.

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. SAME - Rule for Division of Land Formed by Accretion Against Separate Tracts of Several Persons.

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, Le Fiore County, R. W. Higgins, Assigned Judge.

Action by Ellen Merryman against Frank Goins and others. From judgment for plaintiff and certain defendants, Goins and certain other defendants appeal. Reversed, with directions.

Varner & Varner, for plaintiff in error Frank Goins.

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

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

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

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

HURST, J.

¶1 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 Le Flore 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 flip 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 Le Flore county and was originally allotted to Choctaw Indians. The river was the northern boundary of their allotments.

¶2 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.

¶3 Plaintiff, Ellen Merryman, who owned a tract of land lying to the west and on the outside of the bend in Le Flore 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 Le Flore 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 to the east side on the outside of the U bend. The defendant Going was the owner 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 owners of other property within the U bend, and by 1927 the south bank of the river ran diagonally across their property toward the south and east, where it joined the old river bed near the southeast part of the U bend. The river had thus passed over more than half of the Perrymore land.

¶4 In 1927 the river made a sudden change cutting across the top of the U bend, but for the purposes of this opinion this change is immaterial.

¶5 The land of defendant Shockley is located on the southwest bend outside of the U, and originally a small stream known as Cache creek flowed through her property and entered the river at approximately the northeast corner of her property. The general direction of the flow of this creek was to the east. Because of the recession of the river, the mouth of Cache creek moved to the east, the creek running almost due east across the north end of Shockley's property and entering the old river bed and flowing along it until it joined the Arkansas river at the southeast corner of the U bend, Thus this creek running to the north of the property of the defendants Shockley, Babcock, Russell, Laura McClain, and the McClain heirs separated their property from that within the U bend.

¶6 Plaintiff claimed the land in question on the theory that the river had receded gradually and imperceptibly, forming the land in controversy by accretion to her property. All of the defendants except Goins and the Perrymores made the same contention; the only dispute between them was whether this alleged accretion to the property of those defendants on the south side of the U bend was cut off and terminated by Cache creek, or whether it extended on past the creek to the south bank of the Arkansas river as it was in 1927. On the other hand the defendants Goins and Perrymores claimed that the change in the course of the river was not by the process of accretion, but was a sudden change by the process of avulsion. The trial court found that the land from the south side of the old river bed to the south bank of the river as it was located in 1927 was formed by the process of accretion rather than avulsion. The trial court further found that the accretion to the owners south of the U terminated at Cache creek and did not extend beyond. Judgment was then rendered giving plaintiff possession of all the property lying east of her original property up to the bank of the river as it was in 1927. The court gave the defendants J. S. Bailey Merryman and James Henry Merryman all land lying east of their property up to this river bank. The court gave to defendant Shockley the small strip of land between Cache creek and the southern boundary of that land given to the plaintiff. The court gave to the defendants Babcock, Russell, McClain heirs, and Laura McClain only the accretion south and east of Cache creek.

1. The defendants Goins and Perrymores have appealed to this court and raised the first question for our determination: Was the land involved in this action formed by accretion or avulsion? The law regarding this question is clearly established and prescribed in this state by statutes, which are declaratory of the common law. Section 11731, O. S. 1931, provides:

"Where from natural causes land forms by imperceptible degrees upon the bank of a river or stream, navigable or not able, 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 land."

¶7 Section 11732, O. S. 1931, provides:

"If a river or stream carries away, by sudden violence, a considerable and distinguishable part of a bank, and bears it to the opposite bank, or to another part of the same bank, the owner of the part carried away may reclaim it within a year after the owner of the land to which it has been united takes possession thereof."

¶8 The former section defines what is commonly known as accretion, and the latter section defines what is commonly known as avulsion. It is also clearly established that the test for determining if the change in the river is gradual and imperceptible is that "though the witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on." 9 C. J. 195; County of St. Clair v. Lovington, 23 Wall 46 23 L Ed 59; Jefferis v. Land Co., 134 U. S. 178, 10 S. Ct. 518, 33 L. Ed. 872; State of Nebraska v. State of Iowa, 143 U. S. 359, 12 S. Ct. 396, 36 L. Ed. 186. Thus, in order to constitute accretion it is not necessary that the change be imperceptible between two distinct points of time. Yutterman v. Grier (1914, Ark.) 166 S. W. 749.

¶9 It has been held that in order to constitute avulsion there must be a detachment of earth from one side of the river and a deposit of the same earth on the other side of the river in such a manner that it can be identified as the land of the other...