Plummer v. Marshall
| Decision Date | 17 March 1910 |
| Parties | PLUMMER et al. v. MARSHALL.<SMALL><SUP>†</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Fannin County; Ben H. Denton, Judge.
Action by C. Marshall against J. T. Plummer and others. Judgment for plaintiff, and defendants appeal. Affirmed.
McGrady & McMahon, for appellants. Richard B. Semple, for appellee.
This is an action of trespass to try title to 83 acres of land situated on the south side of and adjacent to Red river in Fannin county. From a judgment in favor of the plaintiff in the suit, the defendants have appealed.
The sufficiency of the petition in describing the land sued for is attacked in a general demurrer. It is contended that the field notes call for only one object, either natural or artificial, and that object is Red river. The field notes call for two corners of the Cox survey, and from its northwest corner to run at a definite variation to Red river. The lines and corners of an older survey are considered artificial objects in the description of land, and in point of dignity second only to natural objects. The objection to the sufficiency of the description can be made by a general demurrer only when it is manifest from the face of the petition that the land cannot be distinguished from all other tracts. Crabtree v. Whiteselle, 65 Tex. 111; Goldman v. Douglass, 81 Tex. 650, 17 S. W. 235. That defect does not appear from the petition in this case.
It is also contended that the land in controversy is situated within the state of Oklahoma, and that the court was without jurisdiction over the subject-matter of the suit. The description shows that the land is bounded on the north and east by the present channel of Red river, and on the south by the original N. B. line of the William Martin survey. The evidence shows that the Martin survey was patented in 1845, and in its field notes called for the south bank of Red river as its N. B. line; that since that time the channel of the river has changed to the north, and was at the time of the trial in the court below from one-fourth to one-half a mile distant from where it was when the Martin survey was patented. In the space between the present and the former channel is a considerable area of low flat land built up by accretion, and in that space is located the land in dispute. The appellants contend that this accretion formed by the shifting of the course of the stream is the result of a sudden avulsion, occurring under such conditions as would leave the original boundary line between Texas and Oklahoma at the place occupied by the old channel. Whether the shifting of the course of a stream forming the boundary line between two states is brought about by such conditions as would leave the original location of the line undisturbed, or would carry it with the new channel, involves an issue of fact that must be decided by the proper tribunal, the trial court. The party who asserts that the channel of a water course recognized as the boundary line is not in fact, at the point in controversy, the true boundary, resting his contention upon a sudden shifting of the course of the channel, assumes the burden of proving that fact. The rule for determining whether the boundary line remains with the old channel or follows the shifting course of the stream, has been so fully discussed and so clearly stated in the following cases that we merely refer to them: Nebraska v. Iowa, 143 U. S. 359, 12 Sup. Ct. 396, 36 L. Ed. 186; McBaine v. Johnson, 155 Mo. 191, 55 S. W. 1034; Denny et al. v. Cotton et al., 3 Tex. Civ. App. 634, 22 S. W. 122. While the court found that the channel of Red river had changed its course since the location of the Martin survey, his judgment involves the further finding that this change did not occur under such conditions as would prevent the line between the states from following the new channel. The testimony upon that issue is not such as would justify us in saying that the judgment of the court was unsupported by the evidence. It is a matter of common knowledge that large streams, like Red river, passing through a loamy soil, when great rises occur, often shift their channels— sometimes moving a considerable distance, first to one side and then to the other, leaving but little evidences of where the main channel...
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