Sharp v. Learned

• Decision Date: 07 June 1943
• Docket Number: 35083.
• Citation: 14 So.2d 218,195 Miss. 201
• Court: Mississippi Supreme Court
• Parties: SHARP et al. v. LEARNED.

14 So.2d 218

195 Miss. 201

SHARP et al. v. LEARNED.

No. 35083.

Supreme Court of Mississippi

June 7, 1943

Suggestion of Error Overruled July 9, 1943.

Butler & Snow, of Jackson, Engle & Laub, of Natchez, Jones & Stockett, of Woodville, and Sholors and Gunby, of Monroe, La., for appellants.

Brandon & Brandon, of Natchez, Young & Watson, of St. Joseph La., Mason Spencer, of Tallulah, La., and Wells, Wells Lipscomb, & Newman, of Jackson, for appellee.

GRIFFITH Justice.

During the summer and fall of 1937, appellee cut and removed the merchantable timber, or a considerable part thereof, from what is known as Diamond Island Towhead, which is situated immediately west and north of the present main channel of the Mississippi River, opposite the lower part of Warren County Mississippi. Appellants claim the land and the timber thereon through Louisiana title sources, and that the land is located in Louisiana, and under such claims appellants brought an action by attachment in that state to recover of appellee damages for cutting and converting the timber. All the parties are residents of Mississippi, and appellee thereupon brought his suit in the county in this State of the residence of one of appellants, seeking to enjoin the prosecution of the action in Louisiana. On appeal we held in Sharp et al. v. Learned, 182 Miss. 333, 181 So. 142, 182 So. 122, that, taking the averments of the bill strongest against the pleader, the land is in Louisiana, and that such being the case, there was no equitable basis for the injunction sought.

On remand appellant amended his bill, and on the second appeal, Sharp v. Learned, 185 Miss. 872, 873, 188 So. 302, it was concluded that the averments of the amended bill were sufficient to locate the land in Mississippi, and that if, upon the hearing on the merits, such was found to be the case, the injunction would be properly allowed.

The case, upon its return to the trial court, was heard on the merits, the injunction was granted, and the cause is here again upon the facts as shown by the proof.

Appellants make the preliminary point, that appellee has shown no adequate title in himself even if the lands are in Mississippi. This point is not well taken, for if the lands are in Mississippi, appellants have no title and, therefore, no concern as to whether appellee has any title, and no right of action against appellee in either State; and it is an action being taken against him by appellants that appellee seeks to enjoin. And this is true as to any such part of the land as in Mississippi.

The proof has consisted largely of maps, charts, and drawings, there being a large number of these, together with explanations made thereof by two expert witnesses, whose opinions in some material respects do not agree. The difficulties in the case have arisen out of the fact that in the 120 years from the date of the admission of this State into the Union until the time of the alleged conversion of the timber, the Mississippi River at the point in question has changed its main channel, either through the process of erosion and accretion or else by evulsion, so materially and so often that it now presents a perplexing problem as to where exactly was the territorial line between the states as regards this particular piece of land in 1937. And that is an issue which necessarily must be adjudicated as between these private litigants, even though such an adjudication would have no force so far as concerns the two states as sovereign states.

It is impracticable, if not impossible, to reproduce these maps, and charts and drawings or any one of them as a part of this opinion, and, therefore, any extended discussion of the manifold details presented would be of no service except to those immediately engaged in the case, and as to them a summary of our conclusions will be sufficient. This, then, is all that we shall undertake herein. We preface the summary, however, with the statement that we have applied, in our consideration of the many maps and charts introduced, the established rules found in the text-books on that subject, and have allowed such inferences to be drawn therefrom as are reasonably permissible in the light of the expert testimony dealing with them and in view of the force carried by the findings of fact implicit in the decree of the trial court.

And in the matter of substantive law we have applied the four rules upon which the authorities are in general agreement, as follows:

(a) Territory transferred from one side of a boundary river to the other by a gradual process of erosion on one side and accretion on the other becomes a part of the state to which it is added.

(b) Territory transferred from one side of a boundary river to the other by avulsion continues to be a part of the state of which it was originally a part.

(c) Accretion or alluvion is an addition to riparian land made by the water to which the land is contiguous, so gradually and imperceptibly that, though the witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on.

(d) Avulsion is a change in a boundary stream so rapidly or so suddenly made, or in such a short time, that the change is distinctly perceptible or measurably visible at the time of its progress. Or to state it otherwise, so far as concerns practical purposes, when the change is not by accretion, it is by avulsion.

And in dealing with those issues we have also applied what the expert witnesses, taking their testimony as a whole, have affirmed, namely, that the alluvion formed by the accretion will be found,...