State v. Muncie Pulp Co.

• Decision Date: 28 September 1907
• Parties: STATE v. MUNCIE PULP CO. ET AL.
• Court: Tennessee Supreme Court

104 S.W. 437

119 Tenn. 47

STATE v. MUNCIE PULP CO. ET AL.

Supreme Court of Tennessee.

September 28, 1907

Appeal from Chancery Court, Shelby County; F. H. Heiskell Chancellor.

Bill by the state against the Muncie Pulp Company and another. Decree for defendants, and the state appeals. Reversed and remanded.

Charles T. Cates, Jr., Atty. Gen., and Carroll, McKellar, Bullington & Biggs, for the State.

R. G Brown and Thomas W. Bullitt, for appellee Muncie Pulp Co. Caruthers Ewing, for appellee Cissna.

SHIELDS J.

This suit was brought by the state of Tennessee against W. A Cissna and the Muncie Pulp Company in the chancery court of Tipton county, Tenn., to recover about 1,000 acres of land, charged in the bill to be situated in that county and then in the possession of W. A. Cissna, who claimed to own the same in fee, and the Muncie Pulp Company, his lessee. An injunction was also asked to stay waste in cutting and removing timber, being committed by the Muncie Pulp Company. These defendants made defense by plea in abatement to the jurisdiction of the court, in that the lands sued for were not situated in the state of Tennessee, but in the state of Arkansas. The defendant Cissna in his plea says that these lands were formerly, about 1823, on the Tennessee side of the middle of the Mississippi river, which, as the river then ran, was and is the boundary line between Tennessee and Arkansas, but by gradual and imperceptible erosion upon the Tennessee bank, an accretion upon that of Arkansas, they became in the course of time and are now within and a part of the territory of the state of Arkansas. The defendant Muncie Pulp Company simply says the lands are not within the state of Tennessee, but within the boundaries and a part of the state of Arkansas. The defendants also filed answers to complainant's bill under an agreement of record that in so doing they would not waive their pleas to the jurisdiction of the court. The case, after issue, was by consent of parties transferred from the chancery court of Tipton county to that of Shelby county, and there heard by the chancellor upon the pleas in abatement and the proof offered by the parties upon the issues thus made. The chancellor was of the opinion that the case was with the defendants, and sustained the pleas and dismissed the bill. Complainant has appealed from this decree and assigned error.

The case is before us alone upon the question of jurisdiction presented by the pleas in abatement, but the decision of this question necessarily involves the title of the complainant to the lands sued for, since she claims them as a sovereign state, under the same grants, treaties, and legislation by which its western boundary is defined, declared, and established. The location of the boundary line between Tennessee and Arkansas, and the right of the former to recover the lands in question, are practically the same question, and will therefore be considered together.

The lands described in the bill and sought to be recovered confessedly were at one time, about 1823, under the waters of the Mississippi river. This is admitted in the plea of W. A. Cissna, and is so clearly and conclusively established by the proof, that it is not now controverted by any one. The Mississippi at this point at that time and for many years thereafter made a great bend, forming a tongue or peninsula extending northwestward from a direct north and south line, the distance around which was more than 20 miles, but across the neck connecting it with Tennessee less than 2 miles. This peninsula was separated by McKenzie's Chute, an arm of the river, and the northern part was known as "Island 37." The whole, called "Devil's Elbow," was part of Tipton county, Tenn. The river began this bend at the southern point or apex of Dean's Island, which was between the main channel of the Mississippi river and Barnay's Chute, and is a part of the territory of Arkansas, and property of the defendant W. A. Cissna, and ran first westward, then northward between Dean's Island and the main land of the peninsula and Island 37, then westward and southward around Island 37, then in a northeastern direction until it came within about 2 miles of the place where it started northward, and then resumed its general course southward. The main channel of the river was at this time southwest and west of Dean's Island, about 1 mile, or a little less, in width. The location of the islands here mentioned and the course of the river are difficult to describe, and can best be seen and understood from an inspection of a map made by Maj. J. H. Humphreys, a civil engineer, a copy of which is exhibited with complainant's bill and here reproduced.

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The river continued to run between Dean's Island and the peninsula and Island 37 opposite it until March 7, 1876. Considerable changes, however, had taken place in its bed at this point in the meantime. The width of the channel, by erosion and caving in of the Tennessee bank south, southwest, and west of Dean's Island along the main land and Island 37, had increased from its former width to that of 1 1/4 miles or 1 1/2 miles, and a towhead, which seems to be a formation upon the bottom of the river, appearing at times, but not always above its surface, and neither a bar, nor yet land, had appeared off the apex of Dean's Island, a navigable chute running between it and the island, and a sand bar and mud flats, only seen in very low water, had also formed in the river near the bank of that island, perhaps below the towhead. A steamboat reconnaissance of the river, under the direction of the War Department of the United States, was made by Col. Suter in 1874, and a map of the place which we are now describing was prepared by him or his assistants and is in evidence. There is no proof of any material changes in the river between 1874 and 1876, and this map, while it is not shown to be altogether correct and accurate, may be said to present the general situation as it existed in the latter year. It is also here reproduced.

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Upon the date referred to, March 7, 1876, the river suddenly and with great violence, within about 30 hours, made for itself a new channel directly across the neck opposite the apex of Dean's Island, then reduced in width to about a mile, which new and shorter channel, thus made, it continues to occupy to this time. The new channel was called the "Centennial Cut-off," and the Island made by it "Centennial Island." The change of the channel, as stated, was sudden and violent. About 2,000 acres of valuable cultivated lands were swept away, with the farmhouses, ginhouses, and other improvements upon them, in a few hours, and the inhabitants with difficulty saved their lives and personal property. The old channel around the bend of the elbow was abandoned by the current of the river, but remained, for a few years, covered with dead water, becoming a lake or lagoon. It was no longer navigable, except in time of high water for small boats, and this continued only for a short time. The fall in the river around the elbow, from six to eight feet, was all condensed in the one mile of the cut-off, and made a strong current there. This, of course, drew the water from the old channel rapidly, and greatly reduced its depth. The old bed immediately began to fill with sand, sediment, and alluvial deposits, and bars formed in it. It became dry land, cottonwood and willow trees began to grow upon it, and it is now for the most part covered with valuable timber and susceptible of cultivation. It is very valuable, both on account of the timber growing upon it and the fertility of its soil. This suit is brought to recover a portion of the main channel lying between the middle of it, as it existed when the cut-off took place, and the Tennessee bank. The claim of the state is that its sovereignty and territory extended to a line drawn along the middle of the Mississippi river, and that, it being a navigable stream, it had title to the lands within its boundaries covered by the waters of the river, and, when the waters abandoned the bed, they remained its property, and it is entitled to recover them in this suit.

We will now proceed to consider this boundary of Tennessee and the title which she acquired and has to the lands claimed. The territory constituting the state of Tennessee, with perhaps small areas upon her northern and southern boundaries, acquired by conventions with adjoining states, was originally the western part of the colony and state of North Carolina, and her boundaries are the same as they were before ceded by that state. Charles II of England, in the second and effective royal charter of North Carolina, granted June 30, 1667, to Edward, Earl of Clarendon, and his associates, described the territory granted as "all that portion, territory or tract of land situated and being within our dominion of America aforesaid, extending north and eastward as far as the north end of Currituck river or inlet upon a straight westwardly line to Wyonoke creek, which lies within or about the degrees of 36 and 30 minutes northern latitude; and so west in a direct line as far as the south seas, and south and westward as far as the degrees of 29 inclusive of northern latitude, and so west in a direct line as far as the south seas, together with all and singular the ports, harbors, bays, rivers and inlets belonging in the province and territory aforesaid, and also all the soils, lands, fields, woods, mountains, farms, lakes, rivers, bays, islets situate or being within the bounds limits last before mentioned, etc." 2 Cobb & Haywood's Compilation, p. 1.

The western boundary of the territory granted was then unknown but extended to the western boundary of the possessions...