Anderson-Tully Company v. Walls, GC659.

• Decision Date: 31 March 1967
• Docket Number: No. GC659.,GC659.
• Citation: 266 F. Supp. 804
• Parties: ANDERSON-TULLY COMPANY, Plaintiff, v. Dr. J. M. WALLS et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

266 F. Supp. 804

ANDERSON-TULLY COMPANY, Plaintiff, v. Dr. J. M. WALLS et al., Defendants.

No. GC659.

United States District Court N. D. Mississippi, Greenville Division.

March 31, 1967.

M. E. Ward, Dent, Ward, Martin & Terry, Vicksburg, Miss., for plaintiff.

William H. Drew, Lake Village, Ark., Philip Mansour, Greenville, Miss., for defendants.

OPINION

CLAYTON, District Judge.

The plaintiff, Anderson-Tully Company, a Michigan corporation, filed its complaint alleging that it is the owner of the land in litigation generally known as Luna Bar, which was a part of a larger tract of land known as Carter Point,¹ which the plaintiff acquired from the C. W. Hunter Company. A deraignment of plaintiff's title, which shows an unbroken paper chain of title to the riparian Sections 1, 2, 3 and 4 of Township 18 North, Range 9 West, and Section 19, Township 18 North, Range 10 West was attached to the complaint as an exhibit. The defendants admitted the correctness of the deraignment of title, but did not admit that a part of Luna Bar was included in the deraignment. They claimed rather that Luna Bar was not located in the State of Mississippi.

The complaint further alleged that defendants were making some sort of claim of title to this land and that three of them had filed a suit in the Chancery Court of Chicot County, Arkansas, and had obtained an injunction against one J. C. Smith, enjoining him from going on a portion of the lands which are in controversy here.

Basically, the complaint is cast as a quiet title action and asks that the court decree the plaintiff to be the owner of the property in question, Luna Bar, as well as the remainder of Carter Point and that the claim of defendants be quieted and removed and that defendants be enjoined from proceeding further with the aforementioned Arkansas suit and from filing, in the State of Arkansas, other suits against the plaintiff, its agents, servants or lessees based upon any claim of title to said land and from interfering in any way with the use, possession and enjoyment of said lands by plaintiff.

Defendants' answer denied that Luna Bar was located in the State of Mississippi and denied plaintiff's title thereto. By counterclaim defendants allege that they are the owners of Section 5, Township 15 South, Range 1 West in Chicot County, Arkansas, and claimed additional lands which they unsuccessfully attempted to describe.

Defendants claim that Dr. Walls and his wife are the owners of the plantation known as "Panther Forest Plantation" and they allege title to be vested in third parties to the North half of Section 9 and the South half of Section 9, but none of these alleged owners were ever made parties to this suit.

Defendants ask that the complaint be dismissed, that their title be confirmed, that a restraining order of this court² be dissolved and that plaintiff be enjoined from interfering with defendants' use and enjoyment of the land in question.

It may be well to note that there is no description of any kind in any of the pleadings of defendants which would fit at all the land generally referred to as Luna Bar.

Plaintiff answered the counterclaim,³ admitting that there appeared of record in Arkansas a deed from Roy H. Sheffield, Sr. and his wife to Dr. and Mrs. Walls. The description of the land so conveyed was inserted in the answer and this apparently is the same land to which the defendants Walls claim title as shown by the deraignment of title filed by them in this cause. Plaintiff's answer also averred that the description of any lands contained in defendants' pleadings did not describe any lands located on Luna Bar and denied that the defendants' pleadings or deraignment of title described or applied to any lands lying south and east of the abandoned Spanish Moss Bend. This answer also denied title of the defendants to any part of the lands here in litigation.

The case was tried to the court without a jury and has been submitted on briefs. Resolution of the issues tendered by the pleadings and developed by the evidence requires this court to establish the genesis of Luna Bar, to determine how Luna Bar was formed and to decide the location of the thalweg of the Mississippi River at the time of and after an evulsion afterward to be mentioned which resulted from the opening of a new channel which is known as Tarpley Cutoff.

I.

Source materials relevant to the history of this reach of the river consisting of documents, surveys, plats, maps, aerial photographs, controlled mosaics and the like were introduced and have been carefully considered by the court. Apparently, they are exhaustive. These and the testimony of an eminently qualified engineer who has spent most of his professional life working with the river and who was a witness for plaintiff make it clear that from at least 1821 until about 1872 there was no bar formation of any kind opposite Carter Point, which is a horseshoe-type land formation or point lying in a generally northeast-southwest position which originally had a narrow neck as its northeast part and which was originally surrounded (except for the narrow neck) by a horseshoe bend in the Mississippi River. The first indication of any such bar formation is shown by the maps of the Chicot County levees prepared by E. A. Douglas, engineer in charge, in 1872. These show that the river had by then eaten away a considerable portion of the Arkansas mainland and had broached the then existing levees on the Arkansas side. They also show a long, narrow, dry bar forming in the river adjacent to Carter Point, Mississippi, in the upper part of Spanish Moss Bend.

Suter's 1874 Reconnaissance Survey shows that steamboat navigation then followed closely along the right (Arkansas) side of the river throughout Spanish Moss Bend.⁴ This map, according to plaintiff's said witness, provides the first official river survey record of a long, narrow, dry bar being formed by the river on the Mississippi side of the channel thalweg and navigation course. This map shows that the sand bar was dry at the time of the 1874 survey and was low, recently formed, and was not then supporting any type of vegetation.

The first controlled survey of the Mississippi River in this vicinity is shown by Chart 39 of the 1882, October 23-25 Mississippi River Commission Hydrographic-Topographic Survey of the Mississippi River. The soundings and locations of navigation lights as shown on this map show that the channel thalweg and navigation course continued deep in Spanish Moss Bend, close along the right (Arkansas) descending bank and to the west of the bar. Luna Bar at that time had a crest elevation of 120 feet, whereas the adjacent overbank elevations range from 135 to 140 feet. Luna Bar at this stage of its development was a low, dry sandbar, void of vegetation.

At the time of the 1882 survey, the deepest water between this developing bar and Carter Point was about six feet, and, apparently, in 1881, 1883, 1886, 1887, 1888, 1889 and 1891 there would have been a dry connection between Luna Bar and Carter Point over which one could have walked across on dry land. At the same time, the thalweg was holding to the right (Arkansas) bank of Spanish Moss Bend and navigation was close against the Arkansas side.

An 1892 Caving Bank Survey of Spanish Moss Bend showed that navigation lights were along the right bank. The 1894 Hydrographic Survey of the Mississippi River shows the same lights and the thalweg and navigation course was deep in Spanish Moss Bend. And, a comparison of the 1882 and 1894 maps shows that approximately 700 feet of the Arkansas bank had caved away in the deepest part or bight of this bend, and the elevation of Luna Bar had increased some 10 to 12 feet.

Charts 38 and 39 of the 1913 Hydrographic Survey show that the navigation lights remained along the right bank and that the thalweg continued deep in Spanish Moss Bend and west of Luna Bar. At that time Luna Bar was still a dry sandbar, devoid of vegetation.

The 1925 Hydrographic Survey shows that the lighted navigation course and channel thalweg remained close to the right bank and west of Luna Bar in Spanish Moss Bend. The controlling crossing depth from Carter Point to the Arkansas shore in Spanish Moss Bend was 20 feet, while the deepest channel between Luna Bar and Carter Point was 13-14 feet, along a narrow, crooked path. This survey also shows the first recorded existence of any vegetation. This is shown by the legend "small willow" and "willow" on the lower east side of Luna Bar.

The 1933 Hydrographic Survey shows the lighted navigation course and channel thalweg remained deep in Spanish Moss Bend and west of Luna Bar. It is significant that between 1925 and 1933 about 1,000 feet on the east side of Luna Bar had eroded away, including the crest area at the foot of the bar which was shown on the 1925 survey and had formerly been a host to some willow growth. The willow growth shown in 1933 was located west of the area of willow growth as shown in 1925. In 1925 the main channel against the Arkansas bank was some 37 feet deeper than the opening between Luna Bar and Carter Point. In 1935 the main channel against the Arkansas bank was 33 feet deeper than the channel between Luna Bar and Carter Point.

In sum, the overwhelming weight of the engineering evidence shows that at all times before the avulsion of 1935, afterward to be mentioned, the navigation channel and the thalweg were against the right (Arkansas) bank in Spanish Moss Bend and that the sometimes channel between Luna Bar and Carter Point could be used for navigation only during periods when the water was high.

On the 21st day of April, 1935, Tarpley Neck Cutoff, which was constructed across the aforementioned narrow neck which joined Carter Point to the mainland, was opened to the flow of the Mississippi River and thereafter the river rapidly enlarged and adopted this new channel and soon abandoned the older channel which was by...