Arkansas Land & Cattle Co. v. Anderson-Tully Co., ANDERSON-TULLY

• Citation: 248 Ark. 495,452 S.W.2d 632
• Decision Date: 13 April 1970
• Docket Number: No. 5--4896,ANDERSON-TULLY,5--4896
• Parties: ARKANSAS LAND & CATTLE COMPANY, Appellant, v.COMPANY, et al., Appellees.
• Court: Arkansas Supreme Court

Page 632

452 S.W.2d 632

248 Ark. 495

ARKANSAS LAND & CATTLE COMPANY, Appellant, v. ANDERSON-TULLY COMPANY, et al., Appellees.

No. 5--4896.

Supreme Court of Arkansas.

April 13, 1970.

Drew & Holloway, Lake Village, for appellant.

Arnold, Hamilton & Streetman, Crossett, Dent, Ward, Martin & Terry, Vicksburg, Miss., for appellees.

FOGLEMAN, Justice.

Both appellant and appellee Anderson-Tully Company claim to be the owners of a tract of land usually referred to as Luna Bar. Appellant is the owner of Sections 9 and 16 in T 15 S, R 1 W and accretions in Chicot County, Arkansas. It claims that Luna Bar is within the boundaries of the tract owned by it, even though separated from appellant's other lands by a chute of the Mississippi River. It is appellant's contention that Luna Bar was separated from the Arkansas mainland by an avulsion, so that this land remained within the boundaries of the State of Arkansas, and, with any accretions thereto, the property of appellant. On the other hand, Anderson-Tully Company claims ownership of these lands as accretions to its lands in Washington County, Mississippi, known as Carter Point or Woodstock, acquired by deed from C. W. Hunter Company in October 1962. It is the contention of appellees that portions of the lands within the original boundaries of appellant's lands were eroded away by the action of the Mississippi River so that the boundary between the States of Arkansas and Mississippi and appellant's boundaries shifted with the erosion. They also contended that Luna Bar actually consists of accretions to Carter Point in Mississippi.

Appellant instituted this action seeking to quiet its title and to enjoin appellees ¹ from interference with appellant in the use and enjoyment of this land. Appellees moved to dismiss the complaint for want of jurisdiction over the lands, contending that they were in the State of Mississippi. The chancery court proceeded with extensive hearings upon the question of jurisdiction. This appeal was taken from the chancery court's dismissal of appellant's action for want of jurisdiction. ²

We agree with the chancellor that the burden lay upon appellees to show want of jurisdiction over the lands by a preponderance of the evidence. The allegations of the complaint indicate that the land was in Chicot County, Arkansas, and that the court had jurisdiction. Where, as here, a motion to dismiss depends upon the introduction of testimony, the burden of producing evidence to show the lack of jurisdiction is upon the moving party. Running v. Southwest Freight Lines, Inc., 227 Ark. 839, 303 S.W.2d 578.

In order to meet their burden, it was incumbent upon appellees to show that the lands were formed as ascertions to Carter Point. We do not agree that appellees met this burden.

The chancellor studiously recorded his findings in detail. These findings included the following:

1. The area occupied by Luna Bar was within the boundaries of Sections 9 and 16 owned by appellant when the United States Government Survey dated January 13, 1825, and certified June 18, 1823, was made.

2. Luna Bar appeared in the river sometime between the year 1862 and the years 1872--1874.

3. The thalweg, or sailing channel, of the Mississippi River lay west of Luna Bar for more than 40 years prior to 1961.

4. That the proof is insufficient to show that the Mississippi River 'land jumped' and left Luna Bar isolated from appellant's lands remaining in Sections 9 and 16 on the mainland.

5. That the thalweg or sailing channel west of Luna Bar existing from 1872/74--1935 came into existence by reason of erosion and accretion.

Appellant raises four points for reversal. Three of them have to do with the burden of proof and the conclusions to be drawn from the evidence. The first point is based upon the contention that the testimony of Austin B. Smith, an expert called by appellees, was erroneously admitted. It is argued that the witness lacked the necessary education, training and other qualifications to make his opinion evidence on the issues in the case admissible. Determination whether an expert witness is sufficiently qualified lies within the sound judicial discretion of the trial judge. Ratton v. Busby, 230 Ark. 667, 326 S.W.2d 889. This court will only reverse the decision of a trial judge on this determination in extreme cases where there is manifest error or a clear abuse of this discretion. Keeton v. Bozark, 232 Ark. 588, 339 S.W.2d 123; Arkansas-Louisiana Gas Co. v. Maxey, 245 Ark. 15, 430 S.W.2d 866. We find no such abuse of discretion here.

Smith was a graduate in civil engineering from the University of Arkansas in 1930. He had 20 hours credit in geology. He is an employee of the United States Corps of Engineers, having been employed on a fulltime basis by the Mississippi River Commission since 1935. His duties with the river commission have been connected with navigation and construction problems on the Mississippi River and its tributaries. He was responsible for navigation of the river during World War II. His present duties are in supervision of construction of dikes, abutments, dams and locks and of dredging in controlling the flow of the river. He is a member of the American Society of Civil Engineers, Mississippi Society of Professional Engineers, International Association of Navigation, Vicksburg Engineers Club, and a registered engineer in Louisiana and Mississippi. Although he had never made a geological study for the Mississippi River Commission, he classified himself as 'one of the foremost' potamologists. He stated that he had been engaged in studying land formations along the Mississippi River and its tributaries for the purpose of examining the genesis of these lands in private employment for 30 years. He had been employed in three court cases and worked privately in twelve without litigation. His private employment included 12 or 15 matters wherein the state boundary was a factor. He claimed to have written several papers dealing with the actions of the Mississippi River and to have been concerned with about 100 accretions in boundary problems dealing with the Mississippi, Arkansas and Red Rivers. He had been concerned with this particular reach of the river on three other occasions between 1954 and 1965. As a part of his duties connected with navigation, he had experience in determining the deepest part of the river for safe navigation. Although the witness admitted that his duties in his regular employment had never included the determination of the genesis of any channel of the Mississippi River or any geological studies, we cannot say that the education, training and experience of the witness were so deficient that permitting him to testify was manifest error or an abuse of discretion. If expert testimony is required, long familiarity with the river and knowledge from observation and experience as to river action on banks and formation of islands and bars may be sufficient to qualify a witness. Mallory v. Brademyer, 76 Ark. 538, 89 S.W. 551.

We find ample testimonial support for the first two of the chancellor's findings listed above. As a matter of fact there seems to be little controversy on these points. Insofar as the other findings are concerned the critical question depends upon location of the river channel between 1861 and 1872/74 and the means by which any change of location was accomplished.

Appellees offered in addition to the testimony of Austin Smith that of Walter Guyer, chief forester for Anderson-Tully Company, J. S. McKnight, a forester with the United States Forest Service, Captain Henry C. Muirhead, a river pilot, and J. C. Smith, caretaker for C. W. Hunter Company, predecessor in title to appellee. On the other hand, appellant offered the testimony of John W. Thompson, a forester in charge of Johns Manville Mississippi Timber Lands near Natchez, Mississippi, James Spillers, a geologist and T. S. Dabney, a licensed engineer.

Appellees contend that they have clearly shown that the tract involved was formed by accretion to Carter Point. They argue that the physical location of the river and the peninsula called Carter Point in 1862 as compared with their appearance in 1841 gives rise to a presumption that the Arkansas bank gradually eroded and the land formed by accretion to the Carter Point peninsula. In the case relied upon by them, however, it is pointed out that this presumption operates only in the absence of countervailing evidence. See United States Gypsum Company v. Reynolds, 196 Miss. 644, 18 So.2d 448 (1944). It also depends upon other factors such as the relationship between the intervening time lapse and the distance of movement, and the comparative general correspondence of locations and directions of the river. Under the evidence here, we do not deem this presumption to be controlling.

Our attention is called to the decision in Anderson-Tully Company v. Dr. J. M. Walls, 266 F.Supp. 804 (N.D.Miss.1967), termed a companion case. We have not given any consideration to the decision in this case, principally because it appears obvious to us that there was considerable testimony before the Arkansas court, particularly the testimony of Spillers, that was not before the federal court.

An important element of the result reached by the trial court is its finding that until 1861 the thalweg or sailing channel of the Mississippi River was hard against the Arkansas mainland without regard to any land mass in the river. The river in the area in question is referred to as Spanish Moss Bend. An 1841 edition of the Western Pilot, containing charts of the Mississippi River with directions for navigation, described the upstream entry of Spanish Moss Bend as being just south of Island 82. The preferred sailing channel around this island was to the left or east. The navigational directions suggested an incline toward the right shore after this island was passed coming downstream. Map No. 12 depicting this area shows the...