Rhodes v. Cissel

• Court: Arkansas Supreme Court
• Writing for the Court: BATTLE, J.
• Citation: Rhodes v. Cissel, 82 Ark. 367, 101 S.W. 758 (Ark. 1907)
• Decision Date: 15 April 1907
• Parties: RHODES v. CISSEL

101 S.W. 758

82 Ark. 367

RHODES v. CISSEL

Supreme Court of Arkansas

April 15, 1907

Appeal from Mississippi Chancery Court; Edward D. Robertson Chancellor; reversed.

Decree reversed and cause remanded.

S. S Semmes, Charles T. Coleman and J. T. Coston, for appellant.

1. There is no estoppel in this case. None of the elements of estoppel appear. 2 Pomeroy, Eq. Jur. (3 Ed.) § 805; 39 Ark. 131; 38 S.W. 348; 52 id. 52; 46 Ill. 252; 11 Humph. 183; 5 id. 26; 49 Ark. 225.

2. The trust deed was on a different tract of land. But if on the land it would not work an estoppel. 99 S.W. 83; 34 id. 827-8.

3. Where land is bounded by an unnavigable lake or stream, the riparian owner takes to the middle of the stream. 25 Ark 120.

G. W Thomason and W. J. Lamb, for appellee.

Rhodes is estopped. 62 Ark. 316; 3 Washburn, Real Property, pp. 77, 80, 81; 16 Ark. 340; 23 id. 704; 33 id. 468.

OPINION

BATTLE, J.

This is a contest between appellant and appellee over a tract of unsurveyed land in Mississippi County, in this State, known as "Golden Lake." At the time the surrounding lands were surveyed by the United States, it was a shallow unnavigable body of water. Its waters have gradually passed away until the greater part of its former bed has become cultivable. A farm, containing as much as 200 acres of land reclaimed from its waters, has been inclosed and cultivated upon what was the bed of the lake. John Cissel is in possession of this farm and other lands in what is known as the lake, claiming them as his own. J. W. Rhodes and many others, owning the lands surrounding and bordering on this lake, brought an action against him for the possession of the lands in the lake. Cissel answered and denied that plaintiffs were the owners of the lands surrounding and bordering upon the lake; pleaded the seven years' statute of limitation; and alleged that Rhodes and others "induced him to go on the lands and invest large sums of money, and that this appellant agreed with him that all he wanted of Golden Lake was enough to fill out his fractional sections; that appellant advised him that if he would execute a trust deed to him he would have same recorded and would advance him the money for the purpose of improving the land, and that this would strengthen appellee's title; that he did execute the trust deed upon which he borrowed $ 900, a large part of which he expended in improving the land; that appellant lived within a few miles of the land, knew that this defendant was making large investments thereon, and in the belief that he was the owner, and with the assurance that appellant would never claim the land."

On motion of defendant the action was transferred to the Mississippi Chancery Court for the Osceola District.

The land in controversy is located in what would be section 36 in township 11 north and range 9 east if the lines of the United States survey were extended over the lake. The south fractional half of section 25 in township 11 north and in range 9 east, and the south fractional half of section 30 in township 11 north and in range 10 east border and front on the lake and belong to Rhodes; and section 36 in township 11 north and range 9 east lies south of the south fractional half of section 25. Rhodes acquired the first-mentioned tract on the 6th of May, 1897, and the second on the 7th of February, 1896.

Cissel took possession of the land in controversy in August, 1895. The day when the summons was issued is not shown by the record in this court, but it is shown that it was served on the defendant on the 15th or 16th of April, 1902. Adams, under whom the defendant claims, cleared about sixteen acres of the land in controversy more than seven years before the commencement of this action. But Adams followed fishing as an occupation, raised a few hogs, had no claim or color of title to the land; and the evidence does not show that his possession was continuous or hostile to the true owner. In fact, the land, until Cissel took possession, was regarded and treated as public land.

Cissel testified that, before he moved on to the land, in August, 1895, he said to Rhodes that he was going to move to "Golden Lake," and said to him: "I want you to send and get me seven or eight miles of smooth wire." And he says, "What are you going to do with it?" And I said, "I'm going to run it around the lake. I have a letter from the Secretary of the Interior, and (he says) that land doesn't belong to any body; and I am going to put a fence around it, and that will show to the world that that's my land." And he (Rhodes) says: "That's a little risky, and I don't believe I would do that." And I says: "Land is getting so high I have got to do something." That Rhodes consented to his moving on the land; and furnished him with money to make improvements, and took a mortgage on the land to secure the loan, which was $ 900. This was in the spring of 1898 or 1899. That Rhodes advised him to mortgage the land to him, saying that he would have it recorded, and that would improve his title.

Rhodes testified that he did not consent to his going on the land and did not think that he had the right to object, but told him "he was a fool to do so;" and "that it was just a question of time until some body would take it away from him;" that he furnished him with various sums of money, but for no special purpose or understanding. He further testified in effect that he did not know what his right to the land was, and "told Cissel a half dozen times that he intended to have everything that belonged to him (Rhodes) in Golden Lake." He denied that he took a mortgage on the land, and the mortgage shows that it was not taken on this land, but...