Horne v. Howe Lumber Co.

• Decision Date: 29 October 1945
• Docket Number: 4-7571
• Parties: Horne v. Howe Lumber Company
• Court: Arkansas Supreme Court

190 S.W.2d 7

209 Ark. 202

Horne v. Howe Lumber Company

No. 4-7571

Supreme Court of Arkansas

October 29, 1945

Appeal from Jefferson Chancery Court; Harry T. Wooldridge Chancellor.

Affirmed.

Robert A. Zebold and E. W. Brockman, for appellant.

Rowell Rowell & Dickey, for interveners.

Daggett & Daggett, for appellee.

OPINION

Smith J.

Appellant commenced this suit by filing a petition for an order restraining appellee, Howe Lumber Company, hereinafter referred to as Lumber Company, from cutting the timber on northwest quarter, northwest quarter; southeast quarter, southwest quarter, and southwest quarter, northwest quarter, section 14, township 7 south, range 5 west, Jefferson county, Arkansas. In response to a motion that the petition be made more specific, it was alleged that appellant had title to the timber on these lands under a timber deed executed to him by Mrs. Dora Dean, who had obtained a deed from the State Land Commissioner for these lands, based upon a forfeiture and sale thereof to the State for the nonpayment of the general taxes due thereon for the years 1925 and 1927. In the final decree, from which is this appeal, this tax sale was adjudged to be void for the reason that excessive costs had been charged, and that finding appears to be fully sustained.

Appellant says, however, that appellee should not be permitted to question the validity of the Land Commissioner's deed, for the reason that appellee claims no interest in the lands which the deed describes, and he quotes the provisions of § 13874, Pope's Digest, to sustain that contention. This section provides that, "But no person shall be permitted to question the title acquired by a deed of the clerk of the county court, without first showing that he, or the person under whom he claims title to the property, had title thereto at the time of the sale, or that title was obtained from the United States or this State after the sale, and that all taxes due upon the property have been paid by such person, or the person under whom he claims title as aforesaid."

It was held, however, in the case of St. Louis Refrigerator Co. v. Thornton, 74 Ark. 383, 86 S.W. 852, that this statute was limited in its operation to deeds made by the county clerk, and does not embrace deeds made by the Commissioner of State Lands to lands forfeited for taxes, and that the legislature had not seen fit to protect the deeds of the Land Commissioner in the manner it had protected the deeds of the county clerks.

This ruling did not dispose of the litigation, however, for the reason that the lumber company filed an answer and cross-complaint in which it was alleged that the timber in question had not been cut from lands in section 14, township 7 south, range 5 west, but had, in fact, been cut from accretions to fractional section 30, township 7 south, range 4 west. This fractional section 30 is also referred to by the witnesses as Island No. 30 and as Billings Island.

It very clearly appears that the timber was cut from accreted land, and the controlling question in the case is the one of fact, to what land did the accretions form? The court found the fact to be "that the land in controversy is not, as a matter of fact, section 14, township 7 south, range 5 west, north of the Arkansas River in Jefferson county, Arkansas, but, to the contrary, is accretions to section 30, township 7 south, range 4 west, Lincoln county, Arkansas; section 14, township 7 south, range 5 west, Jefferson county, Arkansas, having been washed away and destroyed by a gradual change in the Arkansas River sometime subsequent to the year 1825."

The date 1825 is the time when the government survey was made and the land was divided into sections by that survey. The map or plat of the original survey of 1825 shows Billings Island to be a small carrot-shaped tract lying in the Arkansas River, and surveyed as fractional section 30, township 7 south, range 4 west, 49.30 acres, plus 1.62 acres on its western tip in section 25, township 7 south, range 5 west, and .68 acres in section 31, township 7 south, range 4 west. It shows the main channel of the river north of the island, with the southern chute of the river nearly blocked by a bar or tow-head. This is especially important as the next map of the survey of this area, made in 1886, shows the chute to have been completely filled up, and Billings Island to have become completely attached to section 31, and is a part of the south bank of the Arkansas River.

The record is very voluminous. Four surveyors testified in the case, and maps of these surveys are in the record, together with maps of the geodetic survey made by the federal government. In addition numerous lay witnesses testified. The trial judge summarized the testimony with a statement that, "While the testimony is in a state of hopeless irreconcilability, I am convinced that the preponderance thereof shows this land, the land in litigation, and from which the timber was cut, to be accretions formed to section 30, township 7 south, range 4 west, Lincoln county, Arkansas, by a gradual change in the Arkansas River, beginning sometime subsequent to the year 1825. I am strongly persuaded that this opinion is correct by reason of the government plats that have been introduced in the record as exhibits to the testimony of various witnesses who testified."

It is difficult to understand the testimony in this case even with the aid of the numerous maps, with reference to which the witnesses testified, and impossible to follow without their use. It is said in Holy Writ, "That the wind bloweth where it listeth," and it may also be said that the Arkansas River, in the locus in quo, runs in the same direction. In the more than a century since the original government survey, the river has changed its course many times, and in addition to many accretions there have also been several avulsions.

We repeat that it is difficult to understand the testimony and find it impossible to reconcile it, as much of it relates to the vagaries of the river at times beyond the memory of living witnesses. There is, however, certain testimony which largely influences our conclusion that the finding of the court is not contrary to the preponderance of the evidence. First, the plat of the original survey made by the federal government in 1825. Also certain geodetic surveys made by corps of engineers of the War Department. These government surveys were objected to upon the ground that they were not properly authenticated, and are at best only hearsay evidence.

We do not agree. These surveys were prepared by the War Department and were admissible in testimony without other proof of their accuracy. It was held in the case of City of Los Angeles v. Duncan, 130 Cal.App. 11, 19 P.2d 289, that: "Such maps are prima facie evidence of the facts shown thereon, but the weight and effect to be given thereto is a question of fact for the court."

In the case of Bost v. United States, 103 F.2d 717 a headnote reads as follows: "Printed maps prepared by the United States Department of Agriculture Forest Service and United States Geological Survey were admissible to show nonexistence of topographic features alleged by defendant to exist, under exception to hearsay rule applicable in cases of necessity and circumstantial guaranty of trustworthiness."

The case of United States v. Romaine, 255 F 253, recites that the trial court said of certain hydrographic maps made by the United States Coast and Geodetic Survey, "I do not think that the hydrographic maps are of any weight in this testimony in contradiction to the evidence that is presented." It was said by the court of appeals, Ninth Circuit, on the appeal of that...