Greenfield v. Powell

• Decision Date: 18 October 1928
• Docket Number: 5 Div. 990
• Parties: GREENFIELD et al. v. POWELL.
• Court: Alabama Supreme Court

118 So. 556

218 Ala. 397

GREENFIELD et al. v. POWELL.

5 Div. 990

Supreme Court of Alabama

October 18, 1928

Rehearing Denied Nov. 22, 1928

Appeal from Circuit Court, Macon County; E.H. Glenn, Judge.

Denson & Denson, of Opelika, for appellants.

C.A deBardeleben, of Tuskegee, and Ball & Ball, of Montgomery for appellee.

BOULDIN J.

Plaintiff recovered upon count A, statutory ejectment, and count C, for conversion of sand and gravel from the lands.

The subject-matter of the suit was a parcel of some seven acres of land lying in the bend of Euphaupee Creek. Roughly, it is a segment of a circle, lying in section 2, with the north and south section line between sections 1 and 2 as the sector.

Plaintiff's lands are described in his muniment of title thus:

"All that portion of the east 1/2 of section 2 in township 17 and range 23, lying north of Euphaupee Creek and containing 218 acres, more or less."

Defendants' lands are described in conveyances as follows:

"Thirty five acres, more or less, in the southwest quarter of section 1, T. 17, R. 23, south of Euphaupee Creek and north of the Western Railway of Alabama, being all of the said S.W. 1/4 that is situated between said Euphaupee Creek and the Western Railway of Alabama; also one hundred acres more or less, in the east half of section 2, T. 17, R. 23, being all of said E. 1/2 of section 2, T. 17, R. 23, lying and being between said Western Railway of Alabama and said Euphaupee Creek. It being my intention to hereby sell and convey to said S.L. Brewer all of my interest in and to the lands known as our Chehaw place, and containing one hundred and thirty five acres, more or less."

It seems conceded that the land in suit, chiefly a bed of sand and gravel, was on plaintiff's side of the creek when he acquired his lands in 1905, but that by shifting of the bed of the creek, it now lies on the other side of the thread of the stream. Defendants claim it by accretion.

Briefly the law is that adjoining proprietors of lands having a non-navigable stream as a boundary line between them take each to the middle or thread of the stream. Tallassee Falls Mfg. Co. v. State, 194 Ala. 554, 69 So. 589.

"Where, by a sudden and violent or artificial change, the channel or shore on which riparian or littoral lands are bounded is shifted, the boundaries of such lands are unaffected, and remain in their original position; but where the change is gradual and imperceptible, whether caused by accretion, reliction, or encroachment, the boundaries shift with the shifting of the channel or shore. If the land of the riparian proprietor is increased he is not accountable for the gain, and if it is diminished he has no recourse for the loss. *** It is only when the change in the stream is sudden, violent, or visible that the title remains the same. It is not enough that the change may be discerned by comparison at two distinct points of time. It must be perceptible when it takes place. The test as to what is gradual and imperceptible in the sense of the rule is that, although the witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on." 9 C.J. p. 195, § 82.

Pippen v. Carpenter, 208 Ala. 1, 93 So. 878; 1 Fornham's Waters, page 329 (2d Ed.) page 1562 et seq.; Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570.

Appellee insists this doctrine is inapplicable to the case in hand.

Euphaupee Creek takes a very winding tortuous course through sections 1 and 2. A blueprint map found in the record, known as the Pickett map, is copied in the report of the case to clarify the question now discussed.

It will be observed the disputed parcel indicated on the map by the red line lies in a loup or bend, the creek crossing the section line into section 2, there curving south and east, cutting again into section 1, and then turning west across east half of section 2.

The "Old Run" shown on the map indicates the run of the creek in section 1 at the time of the government survey some 90 years ago. While the record is not quite clear as to the exact run of the creek when plaintiff purchased, the map shows substantially plaintiff's contention by dotted lines about the section line, but of somewhat different bearing.

Now appellee insists that the lands deeded to defendants adjoining...