Anderson-Tully Co. v. Murphree

• Decision Date: 16 January 1946
• Docket Number: No. 13120.,13120.
• Citation: 153 F.2d 874
• Parties: ANDERSON-TULLY CO. v. MURPHREE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

153 F.2d 874 (1946)

ANDERSON-TULLY CO. v. MURPHREE et al.

No. 13120.

Circuit Court of Appeals, Eighth Circuit.

January 16, 1946.

COPYRIGHT MATERIAL OMITTED

Lamar Williamson, of Monticello, Ark. (Williamson & Williamson, of Monticello, Ark., on the brief), for appellant.

George K. Cracraft, of Helena, Ark., for appellees.

Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.

WOODROUGH, Circuit Judge.

This is an appeal from a judgment for plaintiffs, Dennis Murphree and others, in an action to quiet title to land and to cancel a deed executed by the State Land Commissioner of the State of Arkansas to defendant Anderson-Tully Company, in so far as it purports to convey the land in controversy. The area involved in this action is described as "All that part of Section 9, Township 17 South, Range 1 East, of the Fifth Principal Meridian, which lies on Big Lakeport Towhead Island as shown on the plat of Mr. St. George Richardson, dated December 20, 1943, filed with Claude A. Rankin as Commissioner of the State Lands for the State of Arkansas."

The parties are in substantial agreement as to the facts but for complete understanding it becomes necessary to epitomize the controlling facts in this opinion.

The original government survey was made in 1834 and at that time fractional Section 9 was surveyed as containing 598.81 acres, 41.19 acres of what would have been the Northwest corner of the section then being in the bed of the Mississippi River. The section was part of a peninsula known as "Belle Point", and was located on what was known as Belle Point Plantation. From 1834 until 1858 the river eroded Southeasterly, gnawing into the neck of the peninsula, and immediately prior to an avulsion which occurred in 1858 Section 9, or at least all of that portion involved herein, had been completely destroyed by erosion and most of it was in the bed of the Mississippi. The 1858 avulsion, which was known as the American Cut-Off, severed the narrow neck of the peninsula and that part of the peninsula which lay East of the new 1858 channel was thereafter called Belle Island. Since 1858 Belle Island has been bounded on the Southwest by the new channel of the river and on other sides by the old channel which is now known as Lake Lee.

Following the avulsion the river proceeded to straighten out above the location of the avulsion. It then moved west for some time and then back to the east again, which resulted in various erosions on one side and accretions on the other. Since 1879 the river has continued to erode Eastwardly. In the late 1890's there appeared in the Mississippi River an island known as Lake Port Towhead, now designated as Big Lakeport Towhead Island. A portion of this island is within the same geographical location as was the original Section 9, Township 17 South, Range 1 East.

The plaintiffs claim title to the land in controversy through record title and by adverse possession through payment of taxes for more than 15 years under Act No. 199 of 1929, Pope's Digest, § 8921. It is unnecessary for the purpose of this opinion to set forth the entire record of plaintiffs' chain of title. Original Section 9 was transferred by the United States by patents to private ownership at a time when the tract was land in place, before it disappeared by erosion prior to the American Cut-off of 1858. There is no record of any conveyance from the original patentees but Section 9 or fractional Section 9 appears in plaintiffs' chain of title in conveyances shown prior to 1880. Reference to Section 9 was discontinued after the deeds of 1880. The land in controversy is located west of what is now Belle Island and the present channel of the Mississippi River runs between Belle Island and Big Lakeport Towhead Island. No part of the land in controversy has ever been in the actual possession of any person, and has always been wild, unenclosed and unoccupied.

The stipulation discloses that no tax records are available prior to 1869 and that taxes were paid for 1869 and succeeding years as follows:

"For 1869 by Street & Carlton on `All frl. 9, 618.81 acres.'

"For 1870 by Street & Carlton on `All frl. 9, 618.81 acres.'

"For 1871 by J. T. Dowdall on `All 9, 618.81 acres.'

"For the years 1872 to 1932, both inclusive, the taxes were paid on `All 9, 510 acres,' by predecessors in plaintiffs' chain of title.

"For 1933 to 1935, both inclusive, taxes were paid on `all on Island, Sec. 9, 510 acres.' By Plaintiffs' predecessors.

"For 1936 to 1943, both inclusive, plaintiffs and their predecessors in title paid taxes on `All on Belle Island, Sec. 9, 510 acres.'"

The taxes from 1869 to 1943 inclusive were based on the following assessed valuations: For 1869, $6188; for 1870, $3400; 1871, $4760, 1872 and 1873, $3060; 1874 and 1875, $1250; 1876 to 1879, inclusive, $1550; 1880 to 1898, inclusive, $510.00; 1899 to 1916, $1020; 1917, $2550; 1918, $1275; 1919 to 1920, $1020; 1921 to 1924, inclusive, $150; 1925 to 1932, inclusive, $1000; 1933 to 1943, inclusive, $1020.

On June 22, 1943, the Arkansas Commissioner of State Lands, pursuant to proper statutory authority, commissioned Mr. St. George Richardson as state surveyor to survey Lakeport Towhead Island and to report all information which would enable the Commissioner to determine whether the area was in fact an island owned by the State and subject to sale under Act March 21, 1917, p. 1468, Pope's Digest, Sections 8739-8745. Section 8739 provides: "All islands formed or which may form in the navigable rivers or streams of this State, subsequent to the admission of the State of Arkansas into the Union, are hereby declared to be the property of the State and subject to sale and disposition in the manner and form hereinafter provided."

Pursuant to the commission, Richardson made a complete study and survey of the area and as a result thereof, and the oral testimony given before the State Land Commissioner, it was determined that the area was an island and was owned by the State. No evidence was presented or consideration given by the Commissioner concerning the applicability of the Act of April 26, 1901 (See Pope's Digest, Sec. 8709), which reads as follows:

"Whereas, Owners of land along navigable rivers often suffer by having such land washed away; and,

"Whereas, Under existing laws if such land re-forms as an island in a navigable stream though within the original boundary of the former owner, it belongs not to him but to the state; therefore,

"Be it enacted by the General Assembly of the State of Arkansas:

"Section 1. That all lands land which has formed or may hereafter form, in the navigable waters of this state and within the original boundaries of a former owner of land upon such stream, shall belong to and the title thereto shall vest in such former owner, his heirs or assigns, or in whoever may have lawfully succeeded to the right of such former owner therein.

"Section 2. Provided that nothing herein shall be construed to affect the rights or interests of third parties in any such land acquired before the passage of this act."

The defendant owns Sections 5 and 6 and the north half of Sections 7 and 8, Township 17 South, Range 1 East, located on the west side of the Mississippi River. The North part of Big Lakeport Towhead Island lies between this land and the present channel of the river. Defendant purchased this mainland area 33 years before the present suit was filed, and paid taxes on the land for each of the 33 years. Defendant originally considered land on Big Lakeport Towhead Island, including that in controversy herein, as an accretion to its tract on the mainland, but was finally advised by its attorney and surveyors that the area was owned by the State of Arkansas. Defendant thereupon purchased the land from the State, and on December 20, 1943, received from the State Land Commissioner an Island deed to Big Lakeport Towhead Island, and it is under this deed that defendant claims title to the land.

After the defendant's deed was recorded there was assessed for taxes for 1944, at defendant's request and without notice at the time to the plaintiffs, the following area, among others: "In Township 16 South, Range 1 East: * * * In Section 9, all of section 9 which is a part of Big Lakeport Towhead Island......226.35 acres." After this change was made at defendant's request no other part of Section 9 has appeared on the assessment or tax books.

The question for determination is whether under the facts and the Arkansas law, the District court reached a permissible conclusion in determining that the land in suit belongs to plaintiffs. See Russell v. Turner, 8 Cir., 148 F.2d 562, and cases cited.

The plaintiffs admit, as indeed they must, that they can recover only on the strength of their own title and that they will gain nothing by proving a defect in the title asserted by defendant. Knight v. Rogers, 202 Ark. 590, 151 S.W.2d 669; Baxter v. McGee, 8 Cir., 82 F.2d 695.

The plaintiffs' record title to the area in controversy is defective. In the first place there is no record of a conveyance of this section by the original patentees. Furthermore, Section 9 appears in no entry in plaintiffs' title chain from 1880 until a so-called "quiet title" decree of July 1, 1940, and plaintiffs' deed of July 5, 1940. The deeds to plaintiffs' immediate predecessors in title conveyed only the tract known as Belle Island which was described as being bounded on the west by the Mississippi River. Under Arkansas law a riparian owner of land bounded by a navigable river takes only to the highwater mark and not to the middle of the river, the title to the river bed being in the State. St. Louis, I. M. & S. Ry. Co. v. Ramsey, 53 Ark. 314, 13 S.W. 931, 8 L.R.A. 559, 22 Am.St.Rep. 195; McGahhey v. McCollum, Adm'r, 207 Ark. 180, 179 S.W.2d 661. Plaintiffs could acquire only the rights of their grantors, Citizens Investment Co. v. Armer, 179 Ark. 376, 16 S.W.2d 15, and their grantors did not...