McGee v. Matthews, PB 62-C-13.

• Decision Date: 12 May 1965
• Docket Number: No. PB 62-C-13.,PB 62-C-13.
• Parties: George McGEE, Plaintiff, v. Albert MATTHEWS and A. L. Nuckols, Defendants and Third-Party Plaintiffs, CHICAGO MILL & LUMBER COMPANY, Third-Party Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

241 F. Supp. 300

George McGEE, Plaintiff, v. Albert MATTHEWS and A. L. Nuckols, Defendants and Third-Party Plaintiffs, CHICAGO MILL & LUMBER COMPANY, Third-Party Defendant.

No. PB 62-C-13.

United States District Court E. D. Arkansas, Pine Bluff Division.

May 12, 1965.

Daggett & Daggett, by W. H. Daggett, Marianna, Ark., for plaintiff.

John Harris Jones, Pine Bluff, Ark., Osro Cobb, A. L. Barber, of Barber, Henry, Thurman & McCaskill, Little Rock, Ark., for defendants.

GORDON E. YOUNG, District Judge.

This is a diversity of citizenship action between the plaintiff George McGee, a citizen of the State of Mississippi, and the defendants A. L. Nuckols, Albert Matthews and Geraldine Matthews,¹ his wife, citizens of Arkansas. The matter in controversy is the ownership of lands on the concave side of an oxbow lake formed by a cutoff in the Arkansas River. The oxbow lake is sometimes referred to as "Bicker's Bend" and sometimes as "Taylor's Old Lake." The lands in issue are referred to as Diamond Point.

The area of land known as Diamond Point on the Arkansas River occupies approximately eight hundred acres in the geographical site that was originally occupied by Section 34 and parts of Sections 33 and 35, Township 7 South, Range 4 West, and parts of Sections 2, 3 and 4 of Township 8 South, Range 4 West as surveyed by the United States Government in 1829. Prior to 1943 the area was bounded on the west, south and east by an oxbow bend on the Arkansas River, but in that year a cutoff occurred which created the oxbow lake that is now known as "Taylor's Old River" or "Bicker's Bend."

The plaintiff George McGee deraigns title to a portion of Sections 7, 17 and 18, T 7 S, R 4 W, Jefferson County, Arkansas, and contends that the lands in issue formed as accretions to those sections. Plaintiff had also paid taxes in Jefferson County on these lands continuously since 1938 to date and since 1949 with particular reference to a survey and plat thereof recorded in Plat Book 4, page 164, of the Jefferson County records.

The defendants Albert Matthews, et ux, deraign title from a State tax deed,² dated July 27, 1949, conveying the Frl NW-ž of Section 34, T 7 S, R 4 W, Lincoln County, Arkansas, and contend that all of the other lands on Diamond Point are accretions to said Frl NW-ž. The pleadings acknowledge that the claim of Matthews, et ux., is subject to the rights of the co-defendant A. L. Nuckols.

The defendant A. L. Nuckols claims title to the Frl NE-ž and S-? SE-ž of Section 33, and SW-ž of Section 34, T 7 S, R 4 W, Lincoln County, Arkansas, by virtue of a State tax deed³ dated June 22, 1953. Defendant Nuckols also claims title by virtue of a deed from M. P. Price and wife to the Frl NE-ž of Section 33 and the Frl S-? of Section 34, which title he traces back to the United States Government. Nuckols claims all of the remainder of the lands on Diamond Point as accretions to those calls, but acknowledges that said claim is subject to the rights of co-defendants Albert Matthews, et ux.

Since the plaintiff claims under a chain of title originating in Jefferson County, Arkansas, and the defendants claim under a chain of title originating in Lincoln County, Arkansas, the Court, to resolve the issues of ownership, needs to determine the location of the boundaries between Jefferson and Lincoln Counties. However, since the parties agree:

(1) That the middle of the main channel of the Arkansas River was the boundary between Jefferson and Lincoln Counties in 1871 when Lincoln County was formed;⁴ and

(2) That boundaries between counties, like the boundaries between individual landowners, move with those gradual changes of the main channel which come about by accretion but not where the change comes about suddenly by avulsion; Deloney v. State, 88 Ark. 311, 115 S.W. 138; Nix v. Pfeifer, 73 Ark. 199, 83 S.W. 951;

it follows that the real issue between the parties is whether Diamond Point was formed by a change of the River resulting in the excavating, passing over, and then filling the intervening space between its old and new channels, which would be an accretion process; or whether the change was brought about by a sudden avulsion which left intact the land between the old and new channels.

All parties agree that when the original government surveys⁵ were made the Arkansas River ran to the north of the area in question, that a bend in the River developed, and that the River migrated southward until a cutoff occurred in 1943 at the neck of the bend which resulted in the formation of the oxbow lake known as "Bicker's Bend."

The plaintiff, to support his contention that the southward migration of the River was by accretion, relies upon the testimony of L. C. White and Austin Smith.

Mr. L. C. White, a graduate forester and manager of Chicago Mill and Lumber Company, testified that Chicago Mill and Lumber Company had just recently (1963) cut the timber on Diamond Point and that the cutting records⁶ showed that the timber removed therefrom was as follows:

                  Box Elder         1 Log
                  Cottonwood    5,932 Logs
                  Soft Elm          2 Logs
                  Sycamore         99 Logs
                  Willow          329 Logs
                

He had counted the rings of the trees to determine the age of the trees cut, and 99% were from 32 to 40 years of age. The oldest tree that he could find was 42 years of age. He did not observe any indication of trees having been cut in 1941 or 1942 â which would have been evidenced by stump holes. Nearly all the timber cut was cottonwood and willow, which are primary species of timber; that if all of the timber had been cut off in 1941, the secondary species such as hackberry and elm would have been the predominant growth in 1963.

Mr. White pointed out that according to the ecology of the forest, timber does not spring up haphazardly on newly formed lands, but follows a rather definite pattern of appearance, growth, maturity, death, and succession. The types of trees which first appear and establish themselves are known as "primary species," those which follow are referred to as "secondary species," and these in turn are followed by the "climax species" which will make up the permanent forest on the land as long as the climate remains unchanged.

He also said that when accretions are formed in the alluvial river bottoms they are at first simply mud, but as times goes on vegetation appears. The first species of trees to occur are willow and cottonwood, which are tolerant of water, and which receive in such locations supplies of sunlight adequate to their needs; while willow and cottonwood are tolerant of water, they are intolerant of shade and will not establish successive stands in the same location. As the willow and cottonwood grow to maturity the secondary species such as hackberry, elm and ash, which are more tolerant of shade, spring up beneath the willow and cottonwood; and as the willow and cottonwood disappear, the secondary species take over, to in turn give way to the climax species, usually oak, hickory or gum, the seedlings of which grow readily in the shade of their parent tree.

Based upon the ecology of the forest, the cutting records of Chicago Mill and Lumber Company, and his familiarity with the area, it was Mr. White's opinion that all of the lands on Diamond Point were newly formed lands.

With respect to the large cottonwood tree shown in the picture presented by defendants, it was Mr. White's testimony that due to its increased exposure to sunlight an open growing forked cottonwood tree, up to the point of the fork, would grow as much as two inches in diameter per year.

Mr. Austin Smith, a potamologist, introduced twelve exhibits showing government surveys made of the area in 1819, 1829, 1846, 1884, 1917, 1931, 1937 and 1943. He showed that riparian fractional Section 17, T 7 S, R 4 W, north of Arkansas River, was surveyed in 1819; that riparian fractional Section 18, T 7 S, R 4 W, north of Arkansas River was surveyed in 1846; and that in the 27 years between the 1819 and 1846 surveys, the Arkansas River had built 200 feet of bank height accretions to the north bank of the Arkansas River at west line of riparian fractional Section 17. On the 1884 survey, which is sometimes called the "Taber Survey," Mr. Smith superimposed the approximate locations of riparian fractional Sections 17 and 18, north of Arkansas River. He also pointed out that the 1885 Annual Report of Chief Engineers stated that the 1884 survey of the Arkansas River itself was more accurately surveyed by triangulation, whereas the overbank areas and topography were obtained by less accurate compass lines. Mr. Smith found the Arkansas River conditions in 1884 favorable for the River to continue its southward migration in the Diamond Point area.⁷ The 1917 survey shows that the Arkansas River had migrated southward until only a portion of the southeast corner of Section 33 remained on the south side of the Arkansas River, and that in fact the River had eroded into Sections 3 and 4, T 8 S, R 4 W. On this survey is the notation that the "Douglas Cut-off" occurred "May 30, 1909." On this survey of the area in question timber is indicated by symbols, and the word "willow" is written inside of the usual timber symbols. Also, the topographical lines show a high steep bank on the western or upstream side of Diamond Point and a sloping accretion-type bank on the southern and eastern sides. The 1931, 1937 and 1943 surveys show the subsequent enlargement of the southern part of the bend and the closure and subsequent cutoff at the neck which resulted in the forming of the oxbow lake.

Based upon the history available, his interpretation of the government surveys, and his knowledge of the Arkansas River,⁸ it was...