Little v. Williams

• Decision Date: 22 June 1908
• Citation: 113 S.W. 340,88 Ark. 37
• Parties: LITTLE v. WILLIAMS
• Court: Arkansas Supreme Court

113 S.W. 340

88 Ark. 37

LITTLE v. WILLIAMS

Supreme Court of Arkansas

June 22, 1908

Appeal from Mississippi Chancery Court, Chickasawba District; Edward D. Robertson, Chancellor; affirmed.

STATEMENT BY THE COURT.

This case involves a controversy concerning the title to a large body of unsurveyed and unoccupied land containing 1,000 or 1,200 acres of land within the meandered lines of what is known as Walker's Lake according to the survey made in 1847 by the United States government.

The plaintiff, Johanna Little, claiming to be in actual possession of the lands in controversy, instituted this suit in chancery against the defendants, J. J. Williams and others, to quiet her alleged title.

The plaintiff claims title to the land through the following chain:

First--United States to State of Arkansas, act of Congress, dated September 28, 1850, donating swamp and overflowed land.

Second--State of Arkansas to Board of Directors of St. Francis Levee District, act of General Assembly, dated March 29, 1893 donating all lands in the district owned by the State.

Third--Board of Directors of St. Francis Levee District to plaintiff, deed dated March 11, 1903.

The defendants are the owners by mesne conveyances, running back to the State of Arkansas and the United States, of the fractional sections, according to government survey, of land bordering on the meandered line of Walker's Lake, and claim title to the lands in controversy by virtue of their alleged riparian rights as such owners.

Walker's Lake is, and at the time of the government survey was, a shallow, non-navigable lake. The testimony is conflicting as to the true boundaries of the lake and the character of the territory now in controversy--whether it was water or swamp land--at the time of the government survey. Testimony introduced by the plaintiff tends to establish the fact that the territory was swamp land at that time; and the testimony of defendants' witnesses tends to show that at that time the waters of the lake extended up to the meandered lines of the survey, but have since then receded so as to leave the land dry.

The parties, in addition to introducing the plats and field notes of the government survey and depositions of witnesses entered into the following written agreement as to facts which writing was a part of the record:

"In order to avoid labor and expense in taking testimony, it is agreed by counsel representing defendants that all of the surveyed lands in the vicinity and locality of what would be south 1/2 of section 25, the whole of section 36, township 16, range 12 east, and northwest 1/4 and south 1/2 of section 31, township 16, range 13 east, Mississippi County, Arkansas if same were surveyed, were in September, 1850, swamp and overflowed lands, and passed to the State of Arkansas under the grant of the United States of date September 28, 1850 and that the townships including Walker's Lake, as meandered on the map, were included by the Secretary of the Interior of the United States government in the list of lands prepared by him and forwarded by him to the Governor of Arkansas, showing the lands which passed to the State under the grant of 1850, and that said lands embraced in said list were subsequently covered by patents from the government of the United States.

"And it is further agreed that the State of Arkansas never undertook to convey the said lands embraced within the meandered lines of Walker's Lake, except as same might have passed by operation of law to the defendants as riparian owners, prior to the land grant made by the State to the St. Francis Levee Board in 1893."

The chancellor, after hearing the evidence, dismissed the complaint for want of equity, and plaintiff appealed.

Decree affirmed.

Henry Craft, for appellant.

1. The title of a riparian owner of land bordering upon a pond or shallow lake extends only to the water's edge. 25 Ark. 120; 9 N.H. 461; 13 Wis. 692; 42 Wis. 248; 28 Vt. 257; 13 Me. 201; 48 N.J.Eq. 42; Angell on Watercourses, 41; 44 S.E. 286. The United States Supreme Court holds that it is for the States themselves to say what waters and to what extent this prerogative of the State over lands under the water shall be exercised. 140 U.S. 371, 35 L.Ed. 428. And this State in the case first above cited has allied itself with those States which hold a riparian owner limited by the edge of the water which bounds his land.

2. Appellees' contention that the Government survey and plat showing their fractional sections abutting upon the meandered line of Walker's Lake is conclusive evidence that the lake was there when the survey was made, and fixes their rights as riparian owners, is not supported by the authorities. 185 U.S. 47, 46 Law. Ed., 800.

3. In fact, the lake was not within a mile of the eastern meandered line as shown by the survey. The land was never the bed of a lake, but was swamp and overflowed land. The record shows that it was swamp and overflowed land from 1850 to the building of the levee along the Mississippi river, and stipulations of counsel agree that it was swamp and overflowed land in 1850 when the act of Congress was passed, and as such passed to the State. The proof shows that it was never the bed of a lake, and that Walker's Lake as meandered upon the Government map never existed. If in 1850 the land was covered by water and was the bed of a shallow lake, nevertheless it was swamp and overflowed land, came within the operation of the Government grant, title was vested in the State, and the land was never subject to the law of accretion and reliction applying to real lakes and navigable waters. 109 La.Ann. 625. The evidence clearly establishes the fact that the Government surveyors made a mistake in meandering the lake, but the Government was not bound by the mistake. 140 U.S. 406. The effect of the mistake was to leave the land between the water line and the meandered line owned by the Government. 175 U.S. 300, 44 Law. Ed. 171; 4 Neb. 245; 75 Ia. 20; 78 Wis. 240. When the water is controlled by artificial means, the land which is reclaimed is not subject to the law of riparian ownership, the elements of gradual, "imperceptible and insensible" recession being lacking. 25 Ark. 120. See, also, 138 U.S. 584, 34 Law. Ed. 1063. The questions involved in this case have already been passed upon by this court. See 77 Ark. 338.

4. It is shown by agreement that the lands in question were selected by the Secretary of the Interior "as swamp and overflowed lands," and by him conveyed as such to the State in 1850. This determines the nature of the lands at that time, and the burden of proving that the nature of the lands changed was upon the alleged riparian owners. The presumption is that they continued to be swamp and overflowed land until reclaimed by the building of the levee. Such land "is to be treated as land." 175 U.S. 308.

N. W. Norton, amicus curiae, for appellant.

1. The pertinent fact in the agreement is that the townships including Walker's Lake were selected and patented to the State as swamp and overflowed lands. Since the lands were selected and patented by townships, it follows that all land in the townships passed, whether included in sections or not, and whether submerged or not. 190 U.S. 452; 23 S.Ct. 651. Lands are not the less lands for being covered by water. 7 Ad. & El. 671. The Swamp Land Act was a grant in praesenti to the State of all swamp and overflowed lands within its boundaries. 24 Ark. 431. The State's title does not depend alone upon the deed from the United States, but upon the grant contained in the act. 76 Ark. 464. The fact that the land was meandered and platted as a lake does not make it other than swamp and overflowed land. 11 F. 389; 77 Ark. 338; 27 S.Ct. 679. If the entire area platted by the surveyors as Walker's Lake had been an open lake, it would nevertheless have passed to the State as swamp land, under the patent for the township. 138 U.S. 584.

2. The title of the State passed to the Board of Directors of the St. Francis Levee District. Acts 1893, p. 172; 76 Ark. 442.

3. A swamp land deed will pass title to no more land than is described in it. 7 N.E. 379. It does not follow that if the State obtained title to the lake bed from the Government, the purchasers of abutting fractional sections from the State got the bed of the lake also. It was said with reference to navigable waters: "If they (the States) choose to resign to the riparian proprietors rights which properly belong to them in their sovereign capacity, it is not for others to raise objections." 94 U.S. 324. And this rule was extended to non-navigable lakes. 190 U.S. 508, 23 S.Ct. 685. What passes from the State to its vendee is, therefore, purely a question of local law.

4. As to title under the doctrine of accretion or reliction, the burden of proof is on appellees to establish the fact of accretion or reliction. Therein they have failed, but on the contrary have proved conditions practically the same as in Chapman & Dewey v. Bigelow, 77 Ark. 338.

S. S. Semmes and Will J. Driver, for appellees.

1. The burden of proof is upon appellant to show title in herself. If she recover at all, it must be upon the strength of her own title, not upon the weakness of her adversary's. 77 Ark. 338; 82 Ark. 301.

2. Appellees are owners of the lands in controversy by virtue of being the grantees of the original surveyed lands riparian to Walker's Lake, which is a shallow, nonnavigable lake. These lands at the time of the Government survey, and of the act of Congress of 1850, were the bottom or bed of that lake and have since become uncovered and dry. The legal effect of the grant of 1850 was to convey to the State the right, title, and interest of the United States to the bed of the...