Dowdle v. Wheeler

• Decision Date: 14 October 1905
• Citation: 89 S.W. 1002,76 Ark. 529
• Parties: DOWDLE v. WHEELER
• Court: Arkansas Supreme Court

89 S.W. 1002

76 Ark. 529

DOWDLE v. WHEELER

Supreme Court of Arkansas

October 14, 1905

Appeal from Conway Circuit Court in Chancery WILLIAM L. MOOSE Judge.

Affirmed.

Ratcliffe & Fletcher, for appellants.

The land is an accretion to the land of appellants. 84 Mo. 373; 16 Abb. N. C. 176; 37 Hun, 537; 69 N.W. 992; 55 N.W. 770; Gould on Waters (1883 Ed.), § 148; 146 U.S. 445; 61 Ark 435; 134 Mo. 633, 36 S.W. 612; 64 S.W. 183, 187; 58 L. R. A 193; 21 P. 536; 63 Tex. 332-3; 73 Ark. 199. The action is barred by the statute of limitation. 75 Cal. 584; 17 P. 705; 51 N.Y.S. 937; 47 S.W. 821; 5 Cowen (N. Y.) 216; 136 F. 159; 74 Cal. 11; 47 S.W. 821; 56 P. 513. Appellee is estopped by the description in her deeds. 18 How. 150; 10 Pick. 249; 15 Johns. 451.

A. F Vandeventer, C. C. Reid and Sellers & Sellers, for appellee.

Appellee's right to accretion is not cut off by the creek running over it. 25 Ark. 122; 44 La.Ann. 1044; 53 Am. Rep. 212; 55 S.W. 1031. The acts of possession were not such as to create title by limitation. 82 S.W. 834; 1 Cyc. p. 1037; 105 Mo. 255; 3 Humph. 447; 29 Ga. 152; 12 Tex. 219; 74 Ia. 172; 64 S.W. 58; 40 S.W. 928; 45 S.W. 156; 5 Cowen (N. Y.), 216; 27 S.E. 255; 77 Am. Dec. 586; 65 Ark. 422; 26 Am. Dec. 95; 59 Am. Dec. 115; 71 Am. Dec. 198; 94 Am. Dec. 350; 42 Ark. 118; 30 Ark. 640; 33 Ark. 154; 65 Ark. 422; 40 S.W. 893; 35 S.W. 776; 42 S.W. 232; 49 Ark. 266; 68 Ark. 551; 69 Ark. 424.

Ratcliffe & Fletcher, for appellants in reply.

The same proof of possession is required in claims under or without color of title. 30 Ark. 655; 40 Ark. 237.

OPINION

MCCULLOCH, J.

This was an action in ejectment brought by Mrs. G. M. Wheeler against R. A. and M. A. Dowdle to recover part of an accretion, which she claims had been formed to the original land of which she held title.

The Dowdles filed an answer, denying that the land was an accretion to Mrs. Wheeler's land and alleging that it was an accretion to their lands, and also pleaded the seven years statute of limitation. The case was transferred to equity on motion of the defendants. A decree was rendered in Mrs. Wheeler's favor, and the Dowdles appealed.

There is no question that Mrs. Wheeler owns the original land to which she claims the land in controversy is an accretion, and that it was at one time upon the north bank of the Arkansas River. The same is true as to the title of the Dowdles to the original land to which they claim the land is an accretion. The plats of the original Unted States surveys show that the original land owned by the Dowdles is situated south of the Point Remove Creek, which at that time emptied into the Arkansas River at the terminus of the Old Cherokee line -- the land of the Dowdles coming to the creek immediately opposite this point or a little south thereof -- and that the original land of Mrs. Wheeler bordered upon the Arkansas River some distance, perhaps sixty-three rods, below the mouth of the creek, and down the stream of the Arkansas River. Point Remove Creek flows in an easterly direction, and the Arkansas River from the mouth of the creek, at the time of the original survey, flowed in an easterly direction. The old Cherokee line, commencing on the old bank of the river at or near the mouth of Point Remove Creek, runs north, 53 degrees east, thus forming, with the old channel of the river, an acute angle with the apex at the mouth of the creek. It is shown that the accretion began to form up stream, and gradually extended down stream until the land in controversy was formed in front of the original land owned by Mrs. Wheeler. In front of the original land of the Dowdles accretion was formed which is in their possession, and their right thereto is not controverted. As the accretion gradually extended down stream, the mouth of Point Remove Creek extended itself eastward along the old channel of the river until it passed the original land of Mrs. Wheeler, and is now some distance below (east) of her east boundary. Its bed, east of the old mouth, is now along the old channel of the river. It is three chains wide at low water, and four and one-half to five chains wide at high water, and has at all times separated the accretion in controversy from Mrs. Wheeler's original land.

It is the contention of appellants that the land in controversy is not accretion to Mrs. Wheeler's land, and that the formation began as an accretion to the Dowdles' land; and as it gradually continued down stream, the extension of Point Remove Creek kept pace with its progress, thus preventing any contact with or accretion to Mrs. Wheeler's land. They say that the land in controversy belongs to them; that, the formation having commenced as an accretion to their land, their title followed its progress down stream; or that the title to this land is in the State. At any rate, they contend that it is not an accretion to Mrs. Wheeler's land, and does not belong to her.

The burden is upon Mrs. Wheeler to prove that it is an accretion to her land. Appellants may rely upon the weakness of the title of their adversary. Nix v. Pfeifer, 73 Ark. 199, 83 S.W. 951, and cases cited.

A careful consideration of the evidence convinces us that the chancellor was correct in his conclusion that the land in controversy was an accretion to the original tract of Mrs. Wheeler. There is much plausibility in the contention of appellant, but it ignores certain facts clearly established by the evidence. They contend that the channel of Point Remove Creek runs with the old bank of the river, but it is established by the proof that there is a narrow margin of accretion between the old shore line of the river and the bank of the creek. This goes to show that there was a deposit against the shore line before the waters of the river receded, that this process continued until the bed of the river rose to the level of the creek's bed, and that then, as the waters of the river receded, the flow from the creek prevented further deposits in its extended channel, and established a permanent channel along the old bed of the river. This theory is, we think, far more consistent with the physical facts existing now, and within the recollection of witnesses, than the theory advanced by appellants that the flow from the creek followed the recession of the waters of the river before there could be a deposit against the old shore line, and that the deposit began at the extended south bank of the creek. If the deposit formed in the manner which we have stated, it is, in a legal sense, an accretion to the lands of appellee, and became her property, notwithstanding the conceded fact that the flow of water from the creek separated it from the original tract.

We held in Nix v. Pfeifer, supra, that "when the formation begins with a bar or an island detached and away from the shore, and by gradual filling in by deposit, or by gradual recession of the water, the place between bar or island and mainshore is joined together, it is not an accretion to the mainland in a legal sense, and does not thereby become the property of the owner of the mainland." So, if it were proved that there was no deposit against the old shore line, and no recession of the waters therefrom, the formation out from the mainshore would be a bar or island, and would in no sense...