A.G. Wineman & Sons v. Reeves

• Decision Date: 04 October 1917
• Docket Number: 2904.
• Parties: A. G. WINEMAN & SONS v. REEVES et al.
• Court: U.S. Court of Appeals — Fifth Circuit

245 F. 254

A. G. WINEMAN & SONS v. REEVES et al.

No. 2904.

Circuit Court, of Appeals. Fifth Circuit.

October 4, 1917

Gerald Fitz Gerald, of Clarksdale, Miss. (George F. Maynard, of Clarksdale, Miss., and Hugh C. Watson, of Greenville, Miss on the brief), for appellant.

D. A Scott, of Clarksdale, Miss., F. A. Montgomery, of Tunica Miss., and J. B. Daggett, of Marianna, Ark., for appellees.

Before PARDEE and WALKER, Circuit Judges, and FOSTER, District Judge.

WALKER Circuit Judge.

The appellants, A. G. Wineman & Sons, brought two suits, one of them in the chancery court of Tunica county, Miss., against W. D. Reeves, J. D. Asher, John P. Moore, and A. C. Sexton the bill in which averred that the complainants are the true and lawful owners of described lands, including accretions thereto, alleged to be in said Tunica county, that the defendants falsely claim to own part of said lands and timber growing on parts thereof, and under said claims have been entering upon said lands and cutting and removing timber therefrom, and, unless restrained, will continue so to do; and the bill prayed that the claims of title asserted by the defendants be declared void and held for naught, and that the title of the complainants to said land, including accretions and standing timber, be in all things confirmed. The other suit was one in replevin, brought against the appellee J. D. Asher in the circuit court of the same county for the recovery of logs cut from land described in the bill in the first-mentioned suit. Each of the suits was removed to the United States District Court for the Northern District of Mississippi. In that court, by agreement of the parties, the two suits were consolidated and tried as one; the agreement providing that the decision in the consolidated suit should be binding and conclusive on all the parties to both suits. The result of such trial was a decree dismissing the appellants' bill of complaint; that decree reciting that, the court 'being satisfied that none of the lands in controversy, as described in the pleadings, are now, or were at the commencement of this suit, located and situated in the state of Mississippi; that said lands were formed by changes in the channel of the Mississippi river, caused by gradual erosion of the Mississippi shore, and were not formed by avulsion, and are accretions to the original lands on the Arkansas shore, and all of said lands are located and situated in the state of Arkansas; and that the plaintiffs are not owners of the land in controversy, and are not entitled to the relief prayed for, or to any other relief whatsoever. ' The appeal is from this decree.

The main channel of the Mississippi river as it was in 1824, when the Arkansas shore opposite Tunica county, Miss., was surveyed and platted, and in 1836, when the Mississippi shore, including that of Tunica county, was surveyed and platted, and as it remained for many years afterwards, except for slight changes, due to accretions to one shore and erosions from the other, went, in the direction of the flow of the water, around a bend, called Walnut Bend, turning from the westerly direction it had before the bend was reached to a northwesterly direction, and then turning again and going in a southerly direction. The result was that the land within the bend was a peninsula, extending from the Mississippi mainland in a northerly direction, except that there were two chutes, the northerly one called Whisky Chute, and the one farther south called Bordeaux Chute, through which there was, except when the river was quite low, some flow of water from the part of the river in the upper reach of the bend to the part in the lower reach of the bend. The island made by what was cut off by the first-mentioned chute was called Whisky Island, and another island, which was larger and farther south, and was bounded on the northwest by Whisky Chute and on the southwest by Bordeaux Chute, was called Bordeaux Island. Many years ago, about 1869, or a little, though not much, later, but exactly when was not satisfactorily proved by the evidence, the main channel of the river ceased to be around Walnut Bend. When this change first occurred, the new route of the main channel was through Bordeaux Chute. A result of the greater volume of the water of the river forcing its way through that chute was that the river overflowed the part of the peninsula which was east of that chute and washed away much of its surface. This process continued for several years, while the main channel was working its way farther south. Many years before the two suits mentioned were brought in 1914 the main channel of the river had shifted so far to the south that not only all of Whisky Island and the greater part of Bordeaux Island, but also five fractional sections of land which formerly constituted a part of the mainland of Tunica county, were north of the northern shore of the river; whereas, formerly both of the islands and all the land within the boundaries of the subdivisions mentioned were on the other side of the river. What the plaintiffs claim to be the owners of is a large part of this land, with the accretions thereto, which is now north of the river, much of which was covered by the river before it reached its present channel. It gradually emerged again as the channel shifted farther south; new deposits being made where the force of the current in the main channel had scoured off the surface. It was admitted that the plaintiffs have a chain of deeds straight from the United States to all of this land as originally surveyed by the United States government in the year 1836, or thereabouts, and shown by the maps and plats of said survey to have been included in the state of Mississippi.

From the averments of the bill it is to be inferred that the plaintiffs understood that the contested claims set up by the defendants included only land which had emerged between the shore line of the subdivisions owned by the plaintiffs as it existed before the channel of the river deserted Walnut Bend and went through Bordeaux Chute, and where the middle of the old channel was before that change occurred, and a longtime right to cut timber on the remainder of such new land. The answers of the defendants so delineated the boundaries of the land claimed by them as accretions to subdivisions of land in Arkansas which they owned as to make their claims cover, not only land which had emerged in the space covered by the water of the river when it went around Walnut Bend, but also land south of the old Mississippi shore line of the subdivisions patented to the plaintiffs' predecessors in title, which had been submerged by the river and emerged again as the channel shifted farther to the south.

It was...