Davis v. Anderson-Tully Co.

• Decision Date: 02 September 1918
• Docket Number: 5086.
• Citation: 252 F. 681
• Parties: DAVIS et al. v. ANDERSON-TULLY CO.
• Court: U.S. Court of Appeals — Eighth Circuit

252 F. 681

DAVIS et al. v. ANDERSON-TULLY CO.

No. 5086.

United States Court of Appeals, Eighth Circuit.

September 2, 1918

G. J McSpadden, of Memphis, Tenn., and John I. Moore, of Helena Ark., for plaintiffs in error.

R. G Brown, of Memphis, Tenn. (H. B. Anderson, of Memphis, Tenn on the brief), for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and MUNGER, District judge.

SANBORN Circuit Judge.

W. L. Davis and Sudan Plantations Company, a corporation, hereafter called the 'plaintiffs,' complain of the judgment of the court below, which dismissed their actions in ejectment for the recovery of the possession of lands, for damages for their detention, and for the taking of timber therefrom by the Anderson-Tully Company, a corporation, henceforth called the 'defendant.' In their complaint the plaintiffs alleged that the lands were situated in the state of Arkansas; that they own them, and are entitled to the possession of them; that the defendant unlawfully detained them and has cut and removed timber from them to the damage of the plaintiffs. They also averred that these lands were in and appurtenant to the east half of section 11 and the east half of section 14, township 2 north, range 5 east. The defendant denied the material allegations of this complaint and alleged that the lands of the plaintiffs in these sections were bounded on the east by a lake 800 feet wide and 8 to 12 feet deep; that the defendant owned and was in possession of that portion of the lands described in the plaintiff's complaint which were east of the lake; and that it was from this portion of the lands that the defendant had cut wood and timber; but that these lands which the defendant owned and detained were not in the state of Arkansas and that the District Court of the District of Arkansas had no jurisdiction of the subject-matter in controversy in these actions. A jury was waived, the case was tried by the court, the court made special findings of the facts, and among them that the plaintiffs had failed to prove that the lands in controversy were within the state of Arkansas. It accordingly dismissed the plaintiff's actions for want of jurisdiction without adjudging any other issue.

The first question which the case suggests is whether the jurisdiction to review this judgment is in the Supreme Court or in this court. It falls under the literal terms of the first rule stated in U.S. v. Jahn, 155 U.S. 109, 114, 15 Sup.Ct. 39, 41 (39 L.Ed. 87):

'That if the jurisdiction of the Circuit Court is in issue and decided in favor of the defendant, as that disposes of the case, the plaintiff should have the question certified and take his appeal or writ of error' to the Supreme Court.

But, since the objection to the jurisdiction of the District Court which prevailed below, that the lands which are the subject of the action are not within its territorial jurisdiction is an objection common to all judicial tribunals and is not an objection to the jurisdiction of the District Court as a federal court, this court has jurisdiction to review the judgment which sustains that objection. Courtney v. Pradt, 196 U.S. 89, 91, 92, 25 Sup.Ct. 208, 49 L.Ed. 398; Louisville Trust Co. v. Knott, 191 U.S. 225, 233, 24 Sup.Ct. 119, 48 L.Ed. 159; Mexican Central Ry. Co. v. Ekman, 187 U.S. 429, 432, 23 Sup.Ct. 211, 47 L.Ed. 245; Blythe v. Hinckley, 173 U.S. 501, 507, 19 Sup.Ct. 497, 43 L.Ed. 783; Bache v. Hunt, 193 U.S. 523, 525, 24 Sup.Ct. 547, 48 L.Ed. 774; Merriam v. Saalfield, 241 U.S. 22, 26; ^[1] Smith v. McKay, 161 U.S. 355, 16 Sup.Ct. 490, 40 L.Ed. 731; Blythe Co. v. Blythe, 172 U.S. 644, 19 Sup.Ct. 873, 43 L.Ed. 1183.

Counsel for the defendant invoke the rule that where a jury is waived, the case is tried by the court, and the court makes special findings of fact, the only issues that can be reviewed in a federal appellate court are the sufficiency of the facts found to sustain the judgment, and the rulings of the court in the progress of the trial, if excepted to at the time and duly presented by a bill of exceptions. That rule undoubtedly governs the review of the trial of the merits of a case by a court which makes special findings. But where a review of the decision of the jurisdiction of the trial court is invoked, while the presumption is indulged that the decision of the lower court is correct, the duty nevertheless is imposed upon the appellate court to examine the evidence of the facts and to reverse the decision if it finds that the findings of fact were clearly wrong. Commercial Mutual Accident Co. v. Davis, 213 U.S. 245, 250, 256, 29 Sup.Ct. 445, 53 L.Ed. 782.

The controlling issue for consideration and decision therefore is: Does the evidence in this case fairly prove that the finding of the court below that the lands in controversy were not in the state of Arkansas was erroneous? The principal facts in this case are either admitted or established beyond controversy, and among them these: The lands in dispute are claimed by the plaintiffs by virtue of their title to the east half of sections 11 and 14, in township 2 north, range 5 east, according to the United States government survey. According to the original United States government surveys made on the Arkansas side in 1823 and on the Mississippi side in 1835 and 1836, these half sections were riparian lands on the west or Arkansas bank of the Mississippi river as it flowed southerly around Walnut Bend. At the times of these surveys and until about the year 1873, the river coming at that place from the southeast first flowed in a northwesterly direction until it reached the most northerly part of Walnut Bend, then southerly and southeasterly past the eastern parts of sections 11 and 14, and, on its return towards the southeast, it left a peninsula on the Mississippi side containing several thousand acres of land. The defendant claims the lands in dispute under titles to a part of this peninsula and accretions thereto, and insists that it is on the Mississippi side of the river. At the time of the original surveys Whisky Chute and Bordeau Chute extended through this peninsula within the bend, and in high water some of the waters of the river flowed through these chutes from the northeast to the southwest. Whisky Chute was northwest of Bordeau Chute, and the head of the peninsula was northwest of Whisky Chute and was called Whisky Island, while the portion of the peninsula between the two chutes was called Bordeau Island. Some time between 1871 and 1875, and probably about 1873, the main channel of navigation of the river and the larger volume of its water changed its course from its bed around the bend to Bordeau Chute or cut-off, and they have never returned to Walnut Bend, although water flowed and packet boats passed around through that bend for at least ten years thereafter, and perhaps longer, and there still remains in the old river alongside its Arkansas bank, as that bank stood at the time the cut-off was made, on and along the east half of sections 11 and 14 a lake several miles long, 600 or 800 feet wide, and from 6 to 12 feet deep. Since 1874 a large part of the river bed as it was when the cut-off took place has been filled by sediment, and trees have grown on parts of it; but the Arkansas bank and its location as...