Mehlburger v. Norwood, 5--4244

Decision Date06 November 1967
Docket NumberNo. 5--4244,5--4244
Citation420 S.W.2d 81,243 Ark. 383
PartiesMax MEHLBURGER et ux., Appellants, v. Charles W. NORWOOD et al., Appellees.
CourtArkansas Supreme Court

Smith, Williams, Friday & Bowen, Little Rock, for appellants.

Wright, Lindsey & Jennings, by Isaac A. Scott, Jr., Little Rock, for appellees.

GEORGE ROSE SMITH, Justice.

This litigation began as a suit brought by the Mehlburgers to enjoin their downstream neighbor, Charles W. Norwood, from cutting timber upon a 100-acre tract of riparian land that was concededly formed by the Arkansas River as an accretion. Norwood, and later on his downstream neighbor, Mc-Aninch, contested the Mehlburgers' assertion of exclusive ownership of the disputed tract, their contention being that the tract in controversy came into existence as an accretion to all three riparian ownerships. The trial court upheld the defendants' position and divided the accretion among the three sets of litigants in accordance with the rules governing the apportionment of such lands. As we view the case, the basic question for the chancellor was a narrow issue of fact. We affirm his decision.

The record is voluminous, but we may avoid a wealth of needless detail and put the fundamental issue in focus by comparing the shoreline as it existed immediately after the disastrous Arkansas River flood of 1927 with the shoreline as it existed when this suit was filed in 1963.

The 1927 deluge swept away a substantial amount of soil and left on the west bank of the Arkansas River, as riparian land, the tracts later acquired by the Mehlburgers, the Norwoods, and the McAninches. The Mehlburger tract was upstream, to the north, the Norwood tract was in the middle, and the McAninch tract was downstream, to the south. The boundary between the Mehlburger tract and the Norwood tract was the Maumelle River (or Creek), which emptied into the Arkansas at that point. All three tracts, as we have indicated, were bounded on the east by the Arkansas River.

In 1963 (and for some years earlier) the Mehlburger tract was the only one of the three that still touched the Arkansas River. A long narrow peninsula--the land now in dispute--had formed by accretion and extended downstream from the Mehlburger tract for a distance of a mile or more along the Arkansas River. That peninsula was separated from the Norwood and McAninch lands by the Maumelle River, which now ran southward in front of the Norwood-McAninch tracts and emptied into the Arkansas at a point far downstream from what had been its mouth in 1927.

The pivotal issue below was...

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