Stockley v. Cissna

• Decision Date: 10 November 1902
• Docket Number: 1,088.
• Citation: 119 F. 812
• Parties: STOCKLEY v. CISSNA.
• Court: U.S. Court of Appeals — Sixth Circuit

119 F. 812

STOCKLEY v. CISSNA.

No. 1,088.

United States Court of Appeals, Sixth Circuit.

November 10, 1902

G. J McSpadden, for plaintiff in error.

Caruthers Ewing, for defendant in error.

In Error to the Circuit Court of the United States for the Western District of Tennessee.

This is an action of ejectment to recover some 1,200 acres of land described as situated in Tipton county, Tenn. The subject-matter of the suit is land lying substantially between the eastern bank and middle thread of an old and dried-up bed of the Mississippi river. The plaintiff claims the whole of this land, as accretions to land owned by him originally bounded by the Mississippi river, as well as two contiguous tracts, one containing 1,050 acres or thereabout and the other 131 acres, more or less. The first or larger tract, which will hereafter be described as the 'Island 37 Tract,' inasmuch as it is now adjacent to the plaintiff's land on Island 37, is claimed both as a accretion to land on Island 37, and by virtue of the very recent grant from the state of Tennessee mentioned above. The other or smaller tract is now part of Centennial Island, and will be hereafter called 'Centennial Island Tract,' and is claimed only as an accretion to the plaintiff's land on Centennial Island. The defendant relied upon the general issue of not guilty. After the evidence for both sides had been concluded, the court below instructed the jury to find for the defendant. This instruction has been assigned as error. From the observations made to the jury by the learned trial judge, we are advised that this instruction was predicated upon the supposed invalidity of the grant under which the plaintiff claimed the greater part of the premises, and upon his failure to show a perfect legal title to contiguous lands bounded by the river, to which the parcels in issue were claimed as accretions.

The premises in dispute is a body of new-made land, resulting form a remarkable change in the course of the river by the sudden formation of a new and short channel across the narrow neck of a great bend of the river, known as the 'Devil's Elbow,' some 30 or 40 miles above Memphis, Tenn. This cut-off channel, now known as the 'Centennial Cut,' occurred in a single night in March of 1876. The distance by the old channel of the river around the bend was from 15 to 20 miles. The distance across the neck, when the new channel was cut, was somewhat less than 2 miles. The general course of the river in the vicinity of this cut before the new channel was formed is very well shown by a reconnaissance survey made by the war department in 1874, which is set out opposite (Map No. 7).

(Image Omitted) The deep water channel of the river at the date of this map is shown by the dotted black line. The cut-off of 1876 occurred at the point on the map where the neck of the bend is narrowest, and upon which appears the name of 'Massey,' a then occupant of part of the land which was washed away by the river. The land claimed on the dry land of Island 37 by the plaintiff is about the point indicated by the name 'Mrs. Smith,' one of the remote grantors under whom plaintiff claims. The elbow cut off from the eastern shore of the old channel by the Centennial Island. ' This island was originally separated from Island 37 by McKenzie's Chute, being the channel mediately after the cut-off in favor of the deeper and shorter channel formed by the Centennial Cut-Off, and shown in the map above, east of Island 37. There was evidence tending to show that the main channel of the river around Island 37, as well as McKenzie's Chute, continued to be navigable for possibly one or two or three years by very small boats after this cut-off, but that both channels were substantially abandoned by navigation immediately after the formation of the new channel, and that since about 1880 both channels have gone substantially dry, except in high water; and that Centennial Island, Island 37, and the Arkansas shores constitute now substantially one body of dry land, capable of being crossed dry shod, except in high water. Much of this new land is now grown up in willows and cottonwoods from 18 inches to 2 feet in diameter, and both of the parties to this litigation claim to have fields now in cultivation within what before the cut-off was the bed of the old river.

An official survey of the river made in 1883-84, under the supervision of the Mississippi river commission, shows the new course of the river through the Centennial Cut-Off. This survey is set out opposite (Chart No. 18).

Chart No. 18.

(Image Omitted) The outlines of old Island 37 are not shown on this map, as the work done by the commission did not include the surface between the northerly lines of Centennial Island, as bordered on what was McKenzie's Chute and the old Arkansas bank of the river. Island 37 is therefore represented on this map by the blank space between the Arkansas shore line and Centennial Island. But to understand the issues involved, it becomes necessary to show the relation of the riparian lands claimed by the plaintiff at the time when they were granted, and at successive periods between his remote and immediate grantors. All of the lands on both Island 37 and Centennial Island were granted by the state of Tennessee about 1823. For the purpose of showing the course and channel of the river as it is supposed to have existed at the time of the old grants under which he claimed, the plaintiff caused a map to be constructed by Mr. J. H. Humphrey, a local civil engineer, in which the banks of the river, as this engineer supposed them to have existed in 1823, are set down from data obtainable from two sources-- First, the government survey and plot of the government lands on the west or Arkansas shores; second, from the calls and plots of Tennessee surveys and grants of land on the Tennessee side of the then channel of the river. The map, is reduced form, is set out herewith (see Humphrey's map, below).

Humphrey's Map.

(Image Omitted) On this map the old banks of the river are represented by black shaded lines, as are also collateral channels or chutes called 'McKenzie's Chute' and 'Dean's Chute.' the channel now occupied by the river is shown by black lines shaded with blue. The land in dispute is that shown between red lines, though the western lines are not indicated. The Centennial Island tract, of 131 acres, is indicated by the lines marking off a tract of 131 acres on northwest corner of Centennial Island. This is claimed by the plaintiff to have been upland included within the lines of deeds under which he holds his Centennial Island lands, and has been since restored by accretion. This Centennial Island tract is by the evidence indisputably shown to be included within the boundaries of a 2,000-acre grant to Simon Huddleston. As we shall have occasion to refer to the lines of that grant more than once, we here set them out: 'Beginning at a willow marked S. S. Stephen Slade's northeast corner, on the bank of the Mississippi river; thence south with his line one hundred and fourteen chains to a mulberry marked S. H.; thence east two hundred chains to a mulberry marked S. H.; thence north seventy-eight chains to a white oak marked S. H., on the bank of the Mississippi river; thence down said river with its meanders north, 41 degrees west, thirty-five chains, south, 82 degrees west, thirty chains, north seventy-one west, thirty-two chains, south 70 degrees west, sixty-two chains; thence north, 72 degrees west, fifty-two chains, to the beginning. ' This grant bears date January 22, 1824. The eastern 1,500 acres of this tract were conveyed to John Trigg in 1837 by deed duly recorded, and this deed plainly includes the 131-acre tract now in dispute.

The plaintiff claims to deraign title from this John Trigg, and for this purpose introduced the following conveyances:

(1) Will of John Trigg, 1865, giving the east 1,500 acres of Huddleston grant to his son W. W. Trigg.

(2) Quitclaim deed of certain persons claiming to be the widow and only surviving children and heirs of W. W. Trigg to plaintiff, Stockley. This deed is dated March, 1897.

(3) A decree of December 4, 1879, of the Shelby county, Tenn chancery court, entitled as follows, 'T. A. Nelson, Ex., v. M. L. Trigg, et al.,' and reciting that 'Sledge, McKay & Co., a mercantile partnership,' had purchased two certain tracts of land in Tipton county, Tenn., one containing 33.75 acres and the other 305.75 acres, belonging to the estate of John Trigg, deceased, sold under the former decrees of this court, herein described as follows: 'Portions of a certain tract of about 1,300 acres of land, situated in Tipton county, Tennessee, which has been surveyed by C. C. Burke, who reports that the Centennial Cut-Off has placed nearly 1,000 acres under the X of the Mississippi river, and which is in range 9, section 5, on said river; the said cut-off leaving 33.75 acres on the main land and 305.75 acres on the island: (a) The tract containing 33.75 acres begins at a stake on the bank of the mississippi river, thence down said river with its meanders north, 75 degrees west, 16 chains, north, 76 1/2 degrees west, 32 chains, south. 50 1/2 degrees west, 3 chains and 8 links, south, 43 degrees west, 11 chains and 50 links; thence east 56 chains and 80 links to the point of beginning,-- all open land,' etc. '(b) The tract containing 305.75 acres begins at a stake on the bank of the Mississippi river, on Centennial Cut-Off, at the dividing line between C. A. Stockley's and John Trigg's land; thence north 97 chains and 14 links to a small cottonwood, marked T. on the bank of old river; thence up old river south 71 degrees east, 11 chains, south, 50 degrees east, 13 chains, south, 40 1/2 degrees...