City of Little Rock v. Jeuryens

• Decision Date: 25 February 1918
• Docket Number: 185
• Parties: CITY OF LITTLE ROCK v. JEURYENS
• Court: Arkansas Supreme Court

202 S.W. 45

133 Ark. 126

CITY OF LITTLE ROCK v. JEURYENS

No. 185

Supreme Court of Arkansas

February 25, 1918

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed.

Decree reversed and cause remanded.

James W. Mehaffy and John W. Newman, for appellant, City of Little Rock.

1. Under the decision in 68 Ark. 39-63, the title to all land north of the Statehouse square is in the city of Little Rock Fed. Cases No. 12153, Hempstead, 704; 13 Wall. 92.

2. Neither the statute of limitation nor laches can be pleaded against the city. The possession was not adverse. Kirby's Digest, § 5648; 88 Ark. 533; 2 C. J., § 547, p 249; 72 Ark. 498; 42 Id. 118; 78 Id. 71; 2 C. J. 264; 1 R. C. L. 730; 14 How. 377. Neither the State nor Jeuryens has title by adverse possession. The city is not estopped. 42 Ark. 118. Jeuryens was a mere trespasser and acquired nothing except naked possession. 97 Ark. 43; 68 Id. 154; 89 Id. 19; 10 Am. St. 307-10.

2. The city is shown to hold the legal title. 36 Ark. 456; 98 Id. 33. No legal or equitable title is shown in the State or Jeuryens.

3. Jeuryens is not entitled to rents and profits. 47 Ark. 62; 101 Id. 9; 93 Id. 103; 59 Id. 144; 89 Id. 41; 72 Id. 610; 98 Id. 320. Nor for improvements cases, supra. See also 101 Ark. 9.

John D Arbuckle, Attorney General; Hal L. Norwood and George Vaughan, for the State of Arkansas.

1. Jeuryens' adverse possession of the river bed can not ripen into title. U. S. Rev. St., § 5251; 228 U.S. 243, 708; Ann. Cas. 1913-E, 710; 3 How. 212; 12 Id. 443; 94 U.S. 334; 16 Pet. 367; 9 How. 471; 137 U.S. 661; 140 Id. 371; 162 Id. 1; 168 Id. 349; 227 Id. 229.

The made ground is a purpresture. 152 U.S. 1; 177 Ill. 468. See also 31 Cal. 118; 28 N.Y. 396; 109 Wis. 532; 43 Minn. 104; 44 N.W. 1144; 7 L. R. A. 725; 31 Minn. 301; 48 L. R. A. (N. S.) 1025, 1031; 78 Am. St. 275; 125 N.W. 770; 97 Am. St. 292.

2. The statute of limitations does not run against the State. 85 Ark. 584; 44 Id. 452; 76 Am. St. 474.

3. The plea of laches can not prevail. 70 Ark. 371; 25 Cyc. 1006. But the State has the right to plead limitation as title. 2 C. J. 228, notes 74-5, 1008-b; 198 Mass. 91; 38 Ark. 181; 34 Id. 547. There was no occasion for the State to move until Jeuryens placed buildings on the ground. 80 C. C. A. 373; 150 F. 571; 15 L. R. A. (N. S.), 1178, and note; 10 Id. 401, § 148; 1 Id. 734; 90 Am. St. 187-8. As to laches, see 40 Ark. 251, 260; 62 Id. 316; 67 Id. 320.

4. The State is not estopped by the unauthorized acts of its agents or officers. 39 Ark. 580; 40 Id. 251; 42 Id. 118; 66 Id. 48; 70 Id. 568; 91 Id. 527; 93 Id. 490.

5. The State's record title is conclusive. 41 Ark. 45; 58 Id. 151; 84 Id. 52; 85 Id. 520; 73 Id. 106; 76 Id. 48; 112 Id. 467. No plea of limitation is availing. The State's title by adverse possession has ripened. 88 Ark. 533.

6. Actual possession of part extends to the whole. 20 Ark. 508; 38 Id. 181; 73 Id. 344; 71 Id. 390; 66 Id. 163; 67 Id. 411; 84 Id. 52.

7. 68 Ark. 39 supports our position. The State's claim is twofold--by deed and by adverse possession. 68 Ark. 71.

8. As to Jeuryens' claim for improvements and taxes, see Kirby's Digest, § 2754; 47 Ark. 62, 528-31; 57 Id. 474; 9 R. C. L. 949; § 126; Kirby's Digest, § 4819. He is barred from any claim.

Roscoe R. Lynn and Riddick & Dobyns, for appellees.

1. The city is barred by laches. 50 Ark. 141. The city's title, if any, is only equitable. Ib.; 68 Ark. 89. As to laches, see 121 Ark. 613; 114 Id. 369; 110 Id. 24; 103 Id. 259; 112 Id. 467.

2. The city is estopped, whether, the title is legal or equitable. 18 Ch. Div. 560; 51 N.H. 287; 69 Md. 572; 100 U.S. 578; Pom. Eq. Jur., § 802; 59 P. 214; Dillon on Mun. Corp. (5 ed.), §§ 1187-94; 10 R. C. L. 713; 74 N.E. 437; 34 Am. St. 752; 89 Wis. 449; 61 N.W. 1108; 75 N.E. 544; 108 P. 910; 94 Ill. 67; 36 Col. 13; 133 P. 829; 97 Iowa 599; 40 P. 237; 82 N.E. 296; 7 L. R. A. (N. S.) 243.

3. Defendant is entitled to compensation for improvements, independent of the Betterment Act, in equity. 15 Cyc. 219; 38 Id. 1234; 3 A. K. Marshall, 1073; 55 Ark. 85; 102 Id. 191; 92 Id. 189.

4. The State has no title. 53 Ark. 314; 191 F. 257; 152 Id. 25; 69 Id. 116; 3 Brown, Ch. 639; 11 F. 389.

OPINION

SMITH, J.

In 1893 Charles H. Jeuryens took possession of the land which forms the subject-matter of this litigation. The nature and extent of the land so occupied is highly important for reasons which are stated later. From descriptions furnished by Jeuryens a drawing of the land as it existed when he entered upon it was prepared and filed as an exhibit to his deposition. This land is separated from the old State Capitol square by Water street in the city of Little Rock, or, more properly speaking, as we think the testimony shows, it was a portion of Water street, which street lies between the old Capitol square and the Arkansas River. The river is north of the Capitol square. There is here a high bluff from which a commanding view of the Arkansas River is had, and it appears, from the testimony in the record, that the beauty of its location was one of the deciding factors in its selection as the site for the erection of the capital of the Territory of Arkansas. Jeuryens testified that a line drawn from the top of the bluff to the water's edge would be at an angle of about forty-five degrees, although part of the bluff was perpendicular and other portions comparatively level. At this point there stood out in the river a large rock known as the old Blue Rock, which for many years had been used by swimmers bathing in the river, and adjacent to this rock, and connecting it with the main shore or bluff, was a small strip of land. Jeuryens says the land, at the time, was low and flat and was covered with a lot of willows and bushes. That there were, at the time, several big cottonwood trees and a lot of willows along the edge of the bank and "a lot of little scrub willows," together with some cockleburs and the ordinary weeds and grass and a few bushes. The annual overflows covered the land when the river reached a stage of eighteen or twenty feet on the gauge. Jeuryens bought a houseboat, which he used until 1898, when, after the overflow of that year, he beached it behind a large cottonwood tree, the overflow of that year having floated the boat within two feet of this tree. Two subsequent overflows attained a sufficient height to get in the boat after it was beached. He bought a fish dock and caught and sold fish. He also built boats and rented them out. The first structure erected by him on the land was a tool house ten by fourteen feet. At this time the sewer from the Statehouse ran across the land and emptied into the river. The city sewer down Ashley street also ran across the land and emptied into the river. At first Jeuryens anchored his boat behind the old Blue Rock, where there was an eddy. Later he drove piling around the rock and leveled up the banks and commenced the processes of filling in this land. Posts and piling were driven around the water's edge, and pickets were attached to confine the earth which washed down from the bluff and the deposits of silt from the annual overflows, together with the earth which was hauled and dumped from time to time, all of which was leveled up until the land had been built up safely above any overflow. During the third year of his occupancy Jeuryens commenced removing sand from the river at this point and leveled up a road up Ashley street over which he could haul as much as a yard of sand at a time with a team of mules which he had provided for that purpose.

In 1901 Jeuryens had the land surveyed and had a plat thereof made. He applied to enter the land at the United States Land Office, but was there told that the United States did not own any land on the river front. He then made application to purchase the land from the State, but was told by the Commissioner of State Lands that there was no record showing ownership in the State. He applied to the mayor of the city, but was told by that officer that the city did not own the land. Thereupon Jeuryens proceeded to make certain improvements of a more permanent nature. He caused the land to be placed upon the tax books and paid the taxes thereon continuously to and including the year 1914. He allowed the land to forfeit and sell for the nonpayment of the 1915 taxes on account of the controversy which had then arisen over the title.

The city brought ejectment for this land against Jeuryens, and so did the State. The causes were transferred to equity and consolidated and tried together, and a decree was rendered in favor of the defendant Jeuryens.

Much of the interesting history contained in the record in this case is recited in the opinion of this court in the case of Beebe v. Little Rock, 68 Ark. 39, 56 S.W 791. So far as that history is relevant here, the facts may be summarized as follows: On February 2, 1822, William Russell and others, who were known as the original proprietors of Little Rock, filed a plat and bill of assurance of the town of Little Rock, which was duly recorded in the records provided for such purposes, according to which Water street extended to the water's edge. This is the street which runs between the old Capitol square and the Arkansas River. It transpired that the parties who filed this plat and bill of assurance did not have the title to the streets there dedicated and the property there subdivided into blocks and lots. Later a patent from the United States was issued to Roswell Beebe, which included all the land described in the plat and bill of assurance filed by Russell and others. This patent issued upon the condition precedent, however, that Beebe would execute and record a covenant agreeing to quitclaim to the city of...