Nix v. Pfeifer

• Decision Date: 03 December 1904
• Citation: 83 S.W. 951,73 Ark. 199
• Parties: NIX v. PFEIFER
• Court: Arkansas Supreme Court

83 S.W. 951

73 Ark. 199

NIX v. PFEIFER

Supreme Court of Arkansas

December 3, 1904

Appeal from Pulaski Chancery Court, THOMAS B. MARTIN, Judge.

Affirmed.

Decree affirmed.

W. E Atkinson and J. W. & M. House, for appellant.

Argued the facts at length, and that the evidence does not sustain the decree. The land in controversy is an island, and not an accretion to appellee's property. A riparian owner upon a navigable stream, deriving title from the United States takes only to the high-water mark and not to the middle of the stream. the title and the bed being in the State. 53 Ark 314. As to meaning of "high water" see: 53 Ark 322; 61 Ark. 435; 143 U.S. 359. Upon the title to accretions and appellant's right to the alleged accretion, see: 23 S.W. 100, 105; 36 S.W. 614; Ib. 235; 33 S.W. 780, 781; 56 S.W. 497; 84 N.W. 951; 90 N.W. 705; 47 Ia. 370; 103 Ia. 211; 72 N.W. 507; 112 Ia. 714; s. c. 84 N.W. 950; 86 Mo. 211; 21 S.W. 589; 31 S.W. 592, 61 Mo. 345; Houck, Rivers, 267; 74 N.W. 705; 85 Ia. 161; 29 S.W. 681. The appellant was entitled to the alleged accretion, and did not lose the land when it was swept away from his tract. 86 Mo. 209; 138 U.S. 266; 32 So. 30.

Ratcliffe & Fletcher, for appellee.

Appellee was the owner of the northwest fractional quarter section 13 as a part of his accretion. 61 Ark. 429. The property in controversy is an accretion and not an island. 7 Lea, 104; 33 S.W. 780; 36 S.W. 234; 5 Wheat. 378. Sloughs and swales are not to be regarded as water-courses, as to waters escaped from natural channels of flowing streams and flowing over the country; and in this case the rights of the riparian owner are not destroyed by the water intervening between his lands and the alleged accretion. 18 Mo.App. 251; 78 Mo. 514; 27 Wis. 661; 30 Mo.App. 620; 37 Am. Rep. 247; 9 Cush. 171; 3 Gr. Ch. 235; 39 Am. Rep. 247; 9 Am. Rep. 476; 13 Nev. 261; 114 Mo. 233, s. c. 21 S.W. 589; 27 S.W. 747; 124 Ill. 542; 55 S.W. 1033. Appellee's property line expanded as the water receded. 100 N.Y. 426; 71 F. 649; Gould, Wat. § 162; 22 L. R. A. 591, s. c. 24 S.W. 174; 53 N.W. 1139; 21 L. R. A. 776; 134 U.S. 178, s. c. 33 L.Ed. 872; s. c. 40 F. 386; 64 S.W. 183; 138 U.S. 226; 118 F. 297; 25 Ark. 123; 61 Ark. 431.

MCCULLOCH J. WOOD, J., not participating.

OPINION

MCCULLOCH, J.

This controversy involves the title to a tract of land in Pulaski County lying north of the present channel of the Arkansas River and said to be formed by accretion. Pfeifer has the title to the fractional part of section 12, township 1 north, range 11 west, abutting on the north bank of the Arkansas River, according to the Government's plats of the official survey in 1818, and brought suit against Nix in the chancery court, claiming title to the land in controversy as accretion to the tract in section 12, and prayed that the boundaries thereof be declared, and that Nix be restrained from trespassing thereon. Nix has title to a part of section 13 abutting on the south bank of the river according to the plat of said original survey, and, denying that the land in controversy is an accretion to Pfeifer's land, now claims that it falls to him under the act of April 26, 1902, being within the lines of his original tract. From a decree in favor of plaintiff, the defendant appealed.

An attack is made on Nix's title to the original tract, but we may dispose of that by a statement of the established doctrine that the plaintiff must recover, in an action of this kind, upon the strength of his own title, and not upon the weakness of the title of his adversary. Dawson v. Parham, 47 Ark. 215, 1 S.W. 72; Buse v. Russell, 86 Mo. 209; Apel v. Kelsey, 47 Ark. 413, 2 S.W. 102; Cox v. Arnold, 129 Mo. 337, 31 S.W. 592; Victoria v. Schott, 9 Tex. Civ. App. 332, 29 S.W. 681.

The lands of Gen. Churchill adjoin the Pfeifer land on the west, and in front of the Churchill property there is a tract called Owen's Island. It is shown on the Government plats as an island, and there is such a distinct tradition concerning its formation that it still retains its designation as an island though it is now, and has been as far back as the memory of living witnesses extends, completely connected with the main shore on the north or Churchill side of the river, and there remains only a slight trace of the old water line between mainland and island. The east end of this so-called island is about at the line between Churchill and Pfeifer, and is a part of the Churchill farm. The tract in controversy is a body of land formed between the Pfeifer land, according to the old Government survey, and the north bank of the river, as it was located in 1877, when the river by a sudden avulsion left its channel bed and turned southeasterly, forming what is known as the "Maumelle Cutoff," and leaving a large body of land between the new and the old channels known as "Jones' Island." Prior to 1877, perhaps 40 or 50 years, the river began wearing to the south, by gradual erosion cutting away the south bank, thence deflecting northward to about the east line of the Pfeifer place, thence running east and again south, leaving what remained of section 13 as a peninsular extending north to a point opposite Pfeifer. In 1877 the river cut through the neck of this peninsular, thus forming Jones' Island. Pfeifer's claim is based upon the theory that the land had been made by gradual and imperceptible accretion, forming to and out from his original tract, whilst Nix claims that the land first began forming out in the stream, and gradually made toward and joined to the north shore. Both concede that it is what is commonly called "made land," but differ mainly as to the initial point of formation, whether from shore to stream or from mid-stream to shore.

The law governing the case is clearly established and entirely free from difficulty, and we need search no further than the decisions of this court to determine the rights of riparian landowners so far as the questions involved in this suit are concerned.

Land formed by gradual and imperceptible accretion, or by gradual recession of the water, belongs to the owner of the contiguous land to which the addition is made. The river line is a natural boundary, and its gradual advance or retreat carries the owner's line with it, except in case of an avulsion, or sudden and perceptible change of the watercourse, in which latter case the line remains at the old water line, and becomes fixed by it, not subject to further change by the caprice of the river. St. Louis, I. M. & S. Ry. Co. v. Ramsey, 53 Ark. 314, 13 S.W. 931; Wallace v. Driver, 61 Ark. 429, 33 S.W. 641; St. Louis v. Rutz, 138 U.S. 226, 34 L.Ed. 941, 11 S.Ct. 337; Nebraska v. Iowa, 143 U.S. 359, 36 L.Ed. 186, 12 S.Ct. 396.

In St. Louis, I. M. & S. Ry. Co. v. Ramsey, supra, the court held that the riparian owner takes only to high water mark, and the high water mark "is to be found by examining the bed and banks, and ascertaining where the presence and action of water are so common and usual and so long continued in ordinary years as to mark upon the soil of the bed a character distinct from that of the bank in respect to vegetation and the nature of the soil itself."

When the formation begins with a bar or an island detached and away from the shore, and by gradual filling in by deposit, or by gradual recession of the water, the space between bar or island and mainland is joined together, it is not an accretion to the mainland in a legal sense, and does not thereby become the property of the owner of the mainland. Holman v. Hodges, 112 Iowa 714, 84 N.W. 950, s. c. 84 N.W. 950; Perkins v. Adams, 132 Mo. 131, 33 S.W. 778; Victoria v. Schott, 9 Tex. Civ. App. 332, 29 S.W. 681; People v. Warner, 116 Mich. 228, 74 N.W. 705; Cooley v. Golden, 117 Mo. 33, 23 S.W. 100; Buse v. Russell, 86 Mo. 209.

So guided by these settled principles, we have only to determine from the evidence how the formation began, and how it became joined to...