Crow v. Roane

• Decision Date: 04 May 1908
• Parties: CROW v. ROANE
• Court: Arkansas Supreme Court

110 S.W. 801

86 Ark. 172

CROW v. ROANE

Supreme Court of Arkansas

May 4, 1908

Appeal from Miller Circuit Court; Jacob M. Carter, Judge; affirmed.

Affirmed.

John N Cook, for appellant.

The court will take judicial notice of navigable streams, county boundaries, etc. 34 Ark. 224; 68 Ark. 462.

Where a river is the dividing line between two States or counties, a cutoff, even where the river makes a new channel, will not have the effect of giving the land to the State or county on whose side it is thrown by reason of the cut off. 196 U.S 23, 49 L.Ed. 372; 143 U.S. 359, 36 L.Ed. 186; 6 L. R. A. (U S.) 162.

The acts of 1827, creating Lafayette County, of 1867, creating Little River County, and of 1874, creating Miller County, are in pari materia, and the Legislature is presumed to have passed each with reference to the others. When Little River County was formed, the land was in Lafayette County. That act, 1867, makes no mention of Lafayette County, but expressly detaches lands from Hempstead County. In speaking of Red River, the act meant the river as shown by United States surveys and maps, etc., and the act of 1874 therefore included the lands in litigation as within the boundaries of Miller County. Black on Interpretation of Laws, 204; 76 Ark. 303; Acts 1867, p. 218, § 1; Acts 1874, p. 65, § 1.

J. D. Conway, for appellee.

The acts of 1827, 1828 and 1829, Laws of Ark. Terr., 1835, pp. 142, 144 and 150, defining the boundaries of Lafayette and Miller counties, make it clear that the Legislature had in mind the Red River as it ran at the date of the passage of these acts, and, the U. S. maps, survey, etc., referred to by appellant, not having been made until in 1840 and 1841, the claim that the acts of 1827, 1867 and 1874 are in pari materia falls. Red River is not the line between Miller and Little River counties, but the center of the main channel of Red River. 34 Ark. 244; 68 Ark. 462. In creating Little River County in 1867 and Miller County in 1874, the Legislature evidently had in mind the many changes in the river, and used the language defining the boundaries advisedly, and by the last act intended to fix the center of the main channel of the river as it ran at that date, as the boundary between the counties. 130 Cal. 136.

OPINION

MCCULLOCH, J.

Appellant instituted against appellee in the circuit court of Miller County a statutory action of unlawful detainer, the subject-matter of the action being certain land alleged to be situated in Miller County. Appellant filed a supplemental pleading, which is treated as an amendment to the complaint, alleging that prior to the year 1866 the lands were situated south of Red River according to the map of the Government survey, and that during said year the river made a sudden change by cutoff or avulsion whereby the said lands were. left on the north side of the river, and that such continues to be the situation thereof to this day.

Appellee filed a special plea to the jurisdiction of the court, which was sustained, and the action was dismissed.

The court takes notice judicially of the location of county boundary lines. Cox v. State, 68 Ark. 462, 60 S.W. 27.

We know by the act of December 22, 1874, creating Miller County, the Legislature fixed the north boundary of the county at the center of the main channel of Red River. The present channel of the river remains the same now as it was in 1874, and the lands in controversy are situated now, as then, north of the channel of the river. They are therefore situated in Little River County, and the circuit court of Miller County had no jurisdiction over them as the subject-matter of the action.

The Legislature, by an act passed March 5, 1867, created Little River County, and fixed the south boundary thereof at the south bank of Red River. This was after the lands in controversy were...