Kimble v. Willey

• Decision Date: 22 June 1951
• Docket Number: Civ. No. 353.
• Citation: 98 F. Supp. 730
• Parties: KIMBLE v. WILLEY.
• Court: U.S. District Court — Eastern District of Arkansas

98 F. Supp. 730

KIMBLE v. WILLEY.

Civ. No. 353.

United States District Court E. D. Arkansas, E. D.

June 22, 1951.

Cracraft & Cracraft (George K. Cracraft), Helena, Ark., Bailey & Warren (Bruce T. Bullion), Little Rock, Ark., for plaintiff.

Moncrief & Moncrief (John W. Moncrief), Stuttgart, Ark., for defendant.

LEMLEY, District Judge.

This cause having been submitted to the Court upon the pleadings filed herein, the stipulations of the parties, the depositions of witnesses and exhibits thereto, and written briefs; and the Court being well and fully advised, doth make the following Findings of Fact, Conclusions of Law, and Comment thereon:

I. Findings of Fact

1.

Plaintiff is a citizen of Mississippi; defendant is a citizen of Tennessee; the amount in controversy, exclusive of interest and costs, exceeds the sum of $3,000. The action is local in nature and is brought to quiet title to certain lands located in Desha County, Arkansas in the Eastern Division of this District. In addition to the land embraced within the "area in controversy", there is involved in this lawsuit the sum of $5,048.37 representing the value of certain timber which has been cut and removed from the area in controversy, which sum is now on deposit in the registry of this Court.

2.

Certain facts have been stipulated by the parties and the Court finds such facts to be as stipulated.

3.

The area in controversy consists of 380.5 acres of land known as Cook's Point, which is presently located on the left descending bank of the Arkansas River in the vicinity of Arkansas Post, and which lies within the prongs of a crescent shaped lake known as "Moody's Old River". Said area in controversy is described by metes and bounds in the plaintiff's complaint and in his muniments of title. Prior to 1926, Cook's Point was located on the right descending bank of the Arkansas River and was firmly attached to the right riparian shore of said river; in the fall of 1926, an avulsion occurred, as a result of which the river abandoned its old channel running around Cook's Point and cut across the narrow neck of the Point, adopting this neck as its new channel. The effect of this avulsion was to place Cook's Point on the left descending side of the river and to leave the old channel as an "ox-bow lake", which, as stated, has become known as "Moody's Old River".

4.

At the time of the original government survey of Section 8, Township 8 South, Range 3 West (South of the Arkansas River), in 1839, the East half of the Northeast Quarter and the Southeast Quarter of Section 8, Township 8 South, Range 3 West, SAR, were riparian to the right descending bank of the Arkansas River, said Section 8 being at that time in Arkansas County; in 1871, by statute, this land was transferred to Lincoln County, and thereafter in 1879 to Desha County where it has remained to this date.

5.

The left descending bank of the Arkansas River in the vicinity of Arkansas Post and of the area in controversy was originally surveyed in 1819; laid off in this survey was a fractional section of land designated as Section 1, Township 8 South, Range 4 West, which was North of the Arkansas River and the west half of which was riparian to the Arkansas River. This fractional section of land was approximately across the river from Section 8 referred to in Finding No. 4, supra.

6.

Plaintiff deraigns title to the area in controversy from the late Governor Frank O. Lowden of Illinois who, prior to 1926, held record title to the following portions of Section 8, Township 8 South, Range 3 West: the Southeast Quarter, the East half of the Northeast Quarter, and the South half of the Southwest Quarter. Taxes on these lands had been paid for many years by Governor Lowden prior to 1926 in Desha County, and were paid by him in said County subsequent to 1926 and up to 1944, and by the plaintiff from 1944 to 1948 inclusive.

7.

Defendant deraigns title to the area in controversy through certain tax deeds describing Frl. Section 1, Township 8 South, Range 4 West; these deeds were based upon tax sales conducted by the taxing authorities of Arkansas County. He further deraigns title by virtue of a deed from one T. P. Bass, as guardian of T. P. Bass, Jr., dated October 20, 1930, which described Frl. Section 1, Township 8 South, Range 4 West. He further claims title by virtue of actual adverse possession for the statutory periods of time. Defendant also relies upon various decrees of the Chancery Court of Arkansas County in various proceedings, which decrees, he contends, are res judicata of all issues in this case and serve to vest title to the area in controversy in him as against all claims of the plaintiff. We do not reach the question of the effect of these decrees upon the issues in this case.

The defendant, W. H. Willey, is the successor in title to his deceased brother, Charles F. Willey, who acquired tax titles to Frl. Section 1 and who also acquired the above mentioned deed from T. P. Bass. Defendant and his predecessor have paid taxes in Arkansas County on Frl. Section 1, Township 8 South, Range 4 West for more than 20 years.

8.

Plaintiff contends that the area in controversy was formed as accretions to the parts of Section 8 on the right descending bank of the river, owned by Governor Lowden, between the years 1839 and 1926, and that it consists of these accretions together with such portions of original Section 8, if any, as survived the avulsion of 1926, the effect of which was to sever the area from the right descending bank of the river and place it upon the left descending bank. Defendant, on the other hand, contends that the area in controversy did not form as accretions to Section 8 but formed as an independent island formation in the river, and that accretions formed on this island and extended eastward into all or part of the geographical area formerly occupied by Frl. Section 1 which had been subjected to continuous erosion for many years.

9.

We find from a preponderance of the evidence that the area in controversy represents true accretions to Section 8, Township 8 South, Range 3 West, SAR, together with such portions, if any, of original Section 8 as survived the 1926 avulsion; the area in controversy is located in Desha County, said avulsion having effected no change in county boundary lines. This area was formed by the actions of the Arkansas River in changing its channel between the years 1839 and 1926; as the area in controversy was formed by accretion to the right descending bank, corresponding erosion occurred on the left descending bank and Frl. Section 1, Township 8 South, Range 4 West, as originally surveyed, was completely eroded away, and completely lost its identity. Since sometime prior to 1917 and at the time the present suit was filed no such legal description as Frl. Section 1, Township 8 South, Range 4 West, NAR, has been in existence, and such a description has not since before 1917 described or identified any land in place. That description had been destroyed by the River's erosion, and since before 1917 it ceased to identify any land in place. The area in controversy did not originate as an island.

10.

The area in controversy occupies a large portion of the geographical area formerly occupied by Frl. Section 1, and likewise occupies a portion of certain Spanish Grants which were originally surveyed on the left descending bank of the river. There is land in existence to the North of Moody's Old River, which is not in controversy here, which occupies the geographical area originally occupied by a portion of Section 1, but this land is not original land; it is land which has re-appeared as a result of channel changes of the river between 1884 and 1917. As heretofore stated, at one time or another between 1839 and 1917 all of Frl. Section 1 was washed away and completely destroyed.

11.

As the area in controversy is located in Desha County, the tax forfeiture proceedings in Arkansas County upon which the defendant relies were void for want of power to sell, nor have the tax payments made by the defendant and his predecessor in Arkansas County upon Frl. Section 1 been efficacious to divest record title to the area out of the plaintiff. Record title to the area in controversy is in the plaintiff, and if the defendant is to prevail, he must do so on the strength of adverse possession for the statutory period.

12.

In June of 1926 the tax collector of Arkansas County undertook to sell for delinquent taxes for 1925 the Frl. NW¼ of Section 1, Township 8 South, Range 4 West, and likewise All of Frl. Section 1, Township 8 South, Range 4 West, except the Frl. NW¼ thereof, which two descriptions purported to embrace all of Frl. Section 1; that at this sale said lands were purchased by T. P. Bass, Jr., a minor; that on June 18, 1928, said lands remaining unredeemed on the tax books of Arkansas County, the Clerk issued two tax deeds to T. P. Bass, Jr., conveying said lands to him. That these deeds were duly filed for record and recorded in Arkansas County.

13.

That sometime prior to October 20, 1930 (the Court is unable to ascertain the exact date from the evidence) T. P. Bass entered into the actual possession of the area in controversy under and by virtue of the two tax deeds above mentioned and on behalf of his said minor son, T. P. Bass, Jr., and by constructing a fence and utilizing natural barriers completely enclosed the same and began to utilize it for the grazing of cattle; that this possession commenced sometime prior to October 20, 1930, and continued until that date, and that it was actual, open, notorious, hostile, peaceable, adverse, and with the intent to acquire title thereto in opposition to the real owner thereof.

That when T. P. Bass first went into possession of the area in controversy he constructed a fence running from the north prong of Moody's Old River to the south prong thereof, which fence at that time was sufficient to hold his...