Fort Smith & Van Buren Bridge District v. Scott

• Decision Date: 16 February 1914
• Parties: FORT SMITH & VAN BUREN BRIDGE DISTRICT v. SCOTT
• Court: Arkansas Supreme Court

163 S.W. 1137

111 Ark. 449

FORT SMITH & VAN BUREN BRIDGE DISTRICT v. SCOTT

Supreme Court of Arkansas

February 16, 1914

Appeal from Logan Circuit Court, Northern District; Jeptha H. Evans Judge; affirmed.

Judgment affirmed.

Sam R Chew and Hill, Brizzolara & Fitzhugh, for appellant.

1. The evidence fails to show that Thompson and Drennan or their successors in title owned the land in question at any time in this, that it fails to show that it was at any time land as distinguished from river bed. The statute relied on by appellees, Kirby's Dig., § 4918, is therefore not applicable.

It appears clear from the testimony that there could have been no land above ordinary high water mark at the point of the reserve in question from 1877 back to the time the patent was issued by the Government, and such being the case, any formation coming within the original boundaries would not accrue to the owner of the reserve because the original north boundary of it was always under high water mark on the Arkansas River. 53 Ark. 314; 13 Howard 381; 47 Ia. 370.

2. The undisputed evidence shows that the "hogback" was formed from the river, and not from the land. 73 Ark. 199; 76 Ark. 529.

3. The map introduced by appellee is strong, if not conclusive, evidence, that the reserve was dedicated to the public. Aside from that there is sufficient testimony in the record to establish the fact of such dedication. 54 Ark. 509; 6 Peters 431; 10 Peters 662; 77 Ark. 221.

E. L. Matlock, Mehaffy, Reid & Mehaffy, and Carmichael, Brooks, Powers & Rector, for appellees.

1. The land marked "reserved" on the plat was never dedicated to public use. It has been under the direct supervision and control, and in the possession of, appellees and their predecessors in title since the town was laid off. They have exercised such acts of ownership over it as usually accompany the ownership of such property, and it has never been used by the city for any purpose except under consent of the owners. A dedication is never presumed, but must be clearly shown. 54 Ark. 509; 91 Ark. 351; 59 Ark. 26; 63 Ark. 5; 238 Ill. 305; 87 N.E. 320; 23 L. R. A. (N. S.) 809; 74 P.670; 51 N.W. 1163.

The Lake Village case, Davies v. Epstein, 77 Ark. 221, relied on by appellant, presents a materially different state of facts from the facts in this case. There the street abutted directly upon the water front, there was no division line between the street and the shore line, and no indication that the owner intended to cut off the public from the water front. But here the boundary line of the street was clearly indicated upon the plat, and a comparatively broad strip of land distinctly marked "reserved" intervened between the street and water front.

The word "reserved" is frequently made use of in the dedication of tracts of land for public uses, and has universally been held to mean "excepted," "withheld," or "withdrawn." 69 P.237; 7 So. 639; 90 Ala. 109.

The question whether or not the strip of land involved was dedicated to the public use, was one of fact to be determined from the evidence, and the finding of the trial judge on the evidence is as binding as the verdict of a jury. 86 Ark. 504; 82 Ark. 260; 84 Ark. 359; 92 Ark. 41; 90 Ark. 494; Id. 512; 88 Ark. 587.

2. The proof is overwhelming, we think, that the land was formed by accretion commencing at the bank and gradually extending out into the river. But this likewise is a question of fact, where the finding of the court will be treated as binding.

3. This court has recognized the doctrine of avulsion. 61 Ark. 420. In this case, if the surface above the rip-rap built by the railway company went off in one overflow and then filled back on top of the rip-rap, it belongs to the original owner. There is nothing in the record to show that the top of the rip-rap was not above ordinary high water mark, but on the contrary, the presumption is that the company built the rip-rap to preserve the bank in the same condition, as nearly as possible, as when the track was laid, and that it was above high water mark. 38 L. R. A. 849; 143 U.S. 359, 36 L.Ed. 186.

4. The amount of the verdict is certainly not excessive; but appellant is in no position to urge this objection, because it did not raise it in the motion for new trial. 55 Ark. 383.

OPINION

HART, J.

Appellant prosecutes this appeal to reverse a judgment against it in favor of appellee in a condemnation proceeding. The facts are as follows:

The predecessors in title of appellees originally owned the land upon which the town of Van Buren is now situated. In 1844, they laid out and platted the land into blocks and streets, and caused a map thereof to be made. The town thereon built was called "Van Buren." The town was laid out on the north bank of the Arkansas River. Parallel with the river, and running east and west, was a street, designated as "Water Street." Its north and south boundary lines were marked out on the map, and its width was designated to be sixty feet. The meander lines of the river were also marked out on the map, and between the south boundary line of Water Street and the meander lines of the river, extending the whole length of Water Street, was an irregular strip of land which was marked on the map as "Reserve." This irregular piece of ground, as shown on the map, varies in width, being very much wider at the west than at the east end thereof. Main, Jefferson and other streets run in a general direction north and south, and are at right angles to Water Street. A bridge was built across the Arkansas River, and the north end thereof abutted on Jefferson Street. A portion of this piece of ground marked as "Reserve" on the map was appropriated by the bridge district for the purpose of making abutments to the bridge, and the strip of land so taken by it forms the subject matter of this suit. Evidence was adduced by appellees tending to show the following state of facts:

The predecessors in title of appellees reserved the irregular strip of ground in question when the town of Van Buren was platted and laid out for the purpose of using the same as a ferry landing, and for the purpose of preventing other persons from using the same for that purpose. A wharf was built on the reserve at a point where it would lead into Main Street, about two blocks west of Jefferson Street, where the abutments of the bridge are placed. They used this piece of ground from the time the town was first platted and laid out until the bridge was built across the river, as a landing for their ferry boat, and also collected wharfage from such steamboats as landed there. Appellees and their predecessors in title have always claimed the lands to be their own, and have exercised such acts of ownership over it as the necessities of the occasion required. In 1876, the reserve at the point opposite Jefferson Street was about seventy-five feet wide. That is to say, it was about seventy-five feet from the south boundary line of Water Street at that point to the bank of the river. About that time the railroad company had a track which lay partly on Water Street and partly on the reserve. The track was laid on the reserve by the permission of appellee's predecessors in title. The river bank began to cave, and the railroad company secured permission from the owners of the reserve to rip-rap the bank of the river. When this was done, it caused the river to stop caving and land to be formed thereto by accretion. The process of accretion continued until it formed the land which is the subject of controversy in this action. After the land began to fill in toward the river bank, willow and cottonwood trees grew up thereon. The testimony on the part of appellant tends to show that the land marked "Reserve" opposite Jefferson Street caved into the river, and that steamboats landed at that point while the channel of the river was next to the bank; that subsequently the channel of the river changed toward the south side thereof, and that some distance from the bank of the river a hog-back or island, began to form out in the river; that this high ridge in the river gradually extended toward the bank, but that there is now a well-marked depression between this formation in the river and the bank of the river. In other words, appellant introduced a number of witnesses who testified that the land in controversy did not form as an accretion to the irregular piece of ground marked "Reserve" on the plat,...