Parker v. Moore, 5-238
| Decision Date | 21 December 1953 |
| Docket Number | No. 5-238,5-238 |
| Citation | 262 S.W.2d 891,222 Ark. 811 |
| Parties | PARKER, Com'r of Revenues, v. MOORE et al. |
| Court | Arkansas Supreme Court |
O. T. Ward, Little Rock, for appellant.
R. L. Searcy, Jr., Lewisville, Graves & Graves, Hope, for appellees.
Between 1822 and 1838 the course of Red River changed to such an extent that a body of water was isolated from the flowing stream. Its present length is 2.8 miles and the average width is 200 yards. Soundings disclose a maximum depth of about six feet in dry weather, but in shallower parts mud is encountered within a few inches of the surface.
The question for determination is whether Cutoff Lake--now called Spirit Lake--is navigable. An affirmative answer would uphold the state's right to execute oil and gas leases under provisions of Act 285 of 1943. See Act 321 of 1937. Leases were procured from the commissioner of revenues in 1950 embracing all of the lake. Owners of adjacent lands brought two suits against the state land commissioner and the commissioner of revenues alleging non-navigability of the lake. Various assignees of lease and royalty interests were brought into the case. It is stipulated that each complaint presents the same legal question and that a determination of one disposes of the other.
Through the attorney general the land commissioner demurred, contending that the proceeding was against the state. The commissioner of revenues, although named as a defendant, intervened and cross-complained, as did the land commissioner. Each asked for specific relief, hence immunity of the state under § 20 of Art. 5 of the constitution passes from consideration. 1
Claude A. Rankin, state land commissioner, testified regarding two government surveys: one made in 1822, the other in 1838. In 1822 the lake was a part of the bed of Red River; but after that time and prior to 1838 the river's course changed materially, leaving Cutoff Lake as a separate body of water. The 1838 survey included lands within the bed of the river as it existed in 1822. No conveyance of this surveyed land had been made by the state, although the leases executed in 1950 were outstanding. The lake is horseshoe in shape, with the east prong about 600 feet from the present river channel. The west prong has filled to such an extent that the area is used for farming.
It is possible that during the period of more than a century since the cutoff occurred local use of the lake to a limited extent was made, but the evidence is conclusive that during the past fifty or sixty years its navigable utility has been negligible. This is not to say that nothing akin to commerce has been transported on these waters. In its strictest sense taking fish and moving them to market is a commercial transaction; and trapping and hunting for profit and consequent use of the lake as a means of transportation for a limited distance would have some of the aspects of commerce and to that extent the waters would be navigable.
But our own decisions and decisions of the U. S. Supreme Court have given the term a practical meaning--a construction in keeping with realistic concepts of transportation. A case in point is McGahhey v. McCollum, 207 Ark. 180, 179 S.W.2d 661. Many of the facts disclosed in the suit at bar were present in the McGahhey case. We upheld the chancellor's finding that Cook's lake was not navigable. In the opinion written by Mr. Justice McHaney Harrison v. Fite, 8 Cir., 148 F. 781, 784, was cited. Judge William C. Hook of the Eighth Circuit, in dealing with...
To continue reading
Request your trial
-
State v. McIlroy, 79-320
...mean always navigable. Five Lakes Outing Club, Inc. v. Horseshoe Lake Protective Ass'n., 226 Ark. 136, 288 S.W.2d 942; Parker v. Moore, 222 Ark. 811, 262 S.W.2d 891. The majority treatment of Barboro v. Boyle, supra, as a prophecy of a new test of navigability, is certainly not warranted, i......
-
Ozarks Unlimited Resources Co-op., Inc. v. Daniels
...S.W.2d 230; State v. Tedder, 326 Ark. 495, 932 S.W.2d 755 (1996); Fireman's Ins. Co., 301 Ark. 451, 784 S.W.2d 771; Parker v. Moore, 222 Ark. 811, 262 S.W.2d 891 (1953). There is no issue of waiver or consent by the appellant in the case before us. O.U.R. relies, rather, on a claim of immun......
-
Ark. Lottery Comm'n v. Alpha Mktg.
...defense of sovereign immunity after filing an answer, a compulsory counterclaim, and a third-party complaint); Parker v. Moore, 222 Ark. 811, 812, 262 S.W.2d 891, 892 (1953) (finding that the Game & Fish Commission could not avail itself of the defense of sovereign immunity because it filed......
-
State Office of Child Support Enforcement v. Mitchell
...301 Ark. 451, 455, 784 S.W.2d 771, 774 (1990), cert. denied 498 U.S. 824, 111 S.Ct. 76, 112 L.Ed.2d 50 (1990) (quoting Parker v. Moore, 222 Ark. 811, 262 S.W.2d 891 (1953)). In Parker, this court refused to consider the State's immunity defense when the State Commissioner of Revenues, who w......