Cunningham v. Prevow

• Court: Tennessee Court of Appeals
• Writing for the Court: ANDERSON, Presiding Judge.
• Citation: Cunningham v. Prevow, 192 S.W.2d 338, 28 Tenn.App. 643 (Tenn. App. 1945)
• Decision Date: 23 July 1945
• Parties: CUNNINGHAM v. PREVOW et al.

192 S.W.2d 338

28 Tenn.App. 643

CUNNINGHAM v. PREVOW et al.

Court of Appeals of Tennessee, Western Section.

July 23, 1945

Certiorari Denied by Supreme Court Jan. 11, 1946.

Appeal from Chancery Court, Lake County; W. W. Herron, Chancellor.

Ejectment suit by Mrs. Lucile Cunningham against F. H. Prevow and others. From a decree for the complainant, the defendants appeal.

Reversed and bill dismissed.

J. L. Fry, of Union City, for complainant.

Burnett & Donaldson, of Tiptonville, and W. R. Landrum, of Trenton for defendants.

ANDERSON Presiding Judge.

This is an ejectment suit. The subject matter is a tract of land lying in Lake County on the east bank of the Mississippi River, which was formed by the process of accretion. The chancellor held for the complainant and the defendants appealed. The latter contend that the locus in quo was formed by accretion to riparian land owned by them and their predecessors in title, and hence belongs to them under the law of accretions. The complainant contends that the land re-formed in an area formerly occupied by land owned by her predecessors in title which in part disappeared as a result or erosion over a period of many years; that she is the holder of the legal title to the entire tract as it originally stood, and as such entitled to the land which re-formed within the bounds of her muniments of title even though the new formation was the result of accretion to the shore of land owned by the defendants and their predecessors in title.

The basis of the complainant's claim is the asserted proposition that land formed by the process of accretion in the place of land lost by the process of erosion is regained to him who owns the title to the land that was washed away. Upon the other hand, the defendants contend that if it be assumed that the complainant and her predecessors in title owned the land as it originally stood, the title was destroyed to so much of it as was lost by erosion; that since the land in controversy re-formed as an accretion to their shore, it belongs to them under the law of accretion. The basis of their contention is the asserted proposition that the title to riparian land is lost by the gradual and imperceptible process of erosion and that if by this process land originally nonriparian is made riparian the owner is entitled to alluvion even though it extend across a fixed division line which was submerged as a result of the erosion and occupy an area formerly occupied by the land of another which was washed away.

These broadly speaking, are the contentions of the respective parties and present the determinative question in the case. It has been briefed and argued with ability and has proven to be most interesting.

In connection with their presentation, counsel for the defendants thoughtfully submitted a map prepared from the exhibits and testimony, the accuracy of which is not questioned in so far as is concerned the purpose for which it was intended. We reproduce it on a reduced scale by way of facilitating the necessary statement of facts. As reduced, the map appears in the following form:

(Image Omitted)

Complainant is one of several children of J. J. C. Bondurant, deceased, under whom she claims. On August 4, 1902, Mr. Bondurant acquired title to a 130-acre tract of land lying on the east bank of the Mississippi River which then, or just prior thereto, lay in the area enclosed in the lines ABCD on the map. At that time the defendants' predecessors in title owned the land immediately adjacent thereto on the east, which is represented on the map as being bounded by the lines ABEF and designated 'Prevow tract (Jones-Boshears) 101 acres'. As is apparent, the Mississippi River was then the western boundary of the former tract and the latter was at that time nonriparian. About 1898 the slow and imperceptible process of erosion began, resulting in a gradual change eastward in the channel of the river. This continued until about 1917. The result was that when the maximum change had been accomplished, the bed of the river was approximately at the point indicated on the map by the line running from J to H and the extensions thereof designated 'High Bank' and 'Old Shore Line'. As a consequence, all of the 130-acre tract owned by the complainant's predecessors in title was washed away except a triangular remnant of about 7 acres lying in the southeast corner in the area represented on the map as being bounded by the lines AJG. The northwest corner of the tract now owned by the defendants and indicated on the map by the lines GBH was also washed away in the process. The area which thus disappeared is shown on the map by the portions shaded in blue, pink and yellow, and designated respectively 'Prevow Ac', 'Accretions in litigation', and 'Cunningham accretions'.

Some 1,100 acres of land in Kentucky lying immediately north and northeast of that here involved were also washed away.

In 1917 or thereabout, the mighty stream again decided upon a change in its channel, this time in the opposite direction toward the Missouri shore. In 1925 or thereabout deposits of soil began to appear above the state line in Kentucky adjacent to the eastern shore line, gradually spreading outward from the bank and southwesterly. This accretive process continued until 1940 when the channel of the river was established at the line designated on the map as 'Shore Line 1940'. The result of this process of accretion was the appearance of new land substantially in the shape and location of that which had been lost by the gradual and imperceptible process of erosion. In other words, the 130-acre tract owned by the complainant's predecessors in title was re-established substantially as it was before the erosive process began in 1898, as was the corner of defendants' land that had been washed away.

Incidentally it appears that the erosive process has begun again so that the channel of the river has now moved eastward again to the point designated on the map as 'Shore Line 1942'. But this is beside any question involved in the present litigation.

As indicated on the map, the area in controversy is that shaded in pink and enclosed in the lines GICB. The defendants claim this area under the law of accretion by reason of its being a mere extension of the accretions to their land represented by the area on the map shaded in blue and enclosed in the lines GBH. They make no claim to the area shaded in yellow and enclosed in the lines ABID, conceding that this area represents accretions to the 7-acre triangular remnant bounded by the lines AJG, being that part of the original 130-acre tract owned by the complainant's predecessors in title which was not washed away.

The sole contention of the complainant in this court is, as already indicated, that the loss of a large portion of the original 130-acre tract by the process of erosion did not affect the legal title to the whole and that when restored it was regained to her as the owner of that title irrespective of whether the re-formed land was an accretion to the land of the defendants.

The issue involves a vital distinction between the effect upon title to land of an avulsion and its consequences, and of erosion. Upon the question presented by the facts of this particular case, the authorities are in conflict and somewhat confused. As has been said, the conflict seems to be due in large part to the confusion of the common law rule as to the title to submerged land on its reappearance, with the rule as to the right of a riparian owner to accretions. Note 8 A.L.R. 640, 644. In the generalizations to be found in some of the cases, it seems to us, the courts have failed to keep alive the distinction between the rule applicable to the consequences of avulsion and that applicable to erosion. The important and determinative character of this distinction requires an examination of the authorities.

The law in cases of alluvion is of ancient origin and well settled. As far back as the Institutes of Justinian, it was laid down that 'the alluvial soil added by the river to your land becomes yours by the law of nations. Alluvion is an imperceptible increase and that is added by alluvion which is added so gradually that no one can say how much is added at any one moment of time.'

The Code Napoleon and the English common law as laid down by Blackstone and recognized in this county are to the same effect. St. Clair Co. v. Lovinsgston, 23 Wallace 46, 23 L.Ed. 59, 63.

The term 'alluvion' is applied to the deposit itself, while 'accretion' denotes the act. However, the terms are frequently used synonymously. Katz v. Patterson, 135 Or. 449, 256 P. 54, 55; St. Louis I. M. & S. R. Co. v. Ramsey, 53 Ark. 314, 13 S.W. 931, 8 L.R.A. 559, 22 Am.St.Rep. 195. This right to alluvion is said to be 'an inherent and essential attribute of the original property. The title to the increment rests in the law of nature. It is the same as that of an owner of a tree to its fruits, and with the owner of flocks and herds to their natural increase. The right is a natural, not a civil one. The maxim 'qui sentit onus debet sentire commodum' lies as its foundation. The owner takes the chances of injury and of benefit arising from the situation of the property. If there be a gradual loss, he must bear it; if a gradual gain, it is his.' St. Clair v. Lovingston, supra [23 Wallace 68, 23 L.Ed. 59].

In this state it has long been established that grants of land lying upon navigable streams extend to the ordinary low water mark only, and that the title to the bed of such streams remains in the state. Martin v. Nance, 40 Tenn. 649; Posey v. James, 75 Tenn. 98; Goodwin v. Thompson, 83 Tenn. 209, 54 Am.Rep. 410; Holbert v. Edens, 73 Tenn. 204, 40 Am.Rep. 26.

If a water course...