Sutton v. Archer

• Citation: 46 So. 705,93 Miss. 603
• Court: United States State Supreme Court of Mississippi
• Decision Date: 22 June 1908
• Parties: THOMAS J. SUTTON ET AL. v. GEORGE F. ARCHER

46 So. 705

93 Miss. 603

THOMAS J. SUTTON ET AL. v. GEORGE F. ARCHER

Supreme Court of Mississippi

June 22, 1908

October 1908

FROM the chancery court of Washington county, HON. PERCY BELL Chancellor.

Sutton and others, appellants, were complainants in the court below Archer and others, appellees, were defendants there. From a decree in defendants' favor complainants appealed to the supreme court.

Complainants' suit was for confirmation of their alleged title, and cancellation of defendants' claims, to land described as being in township 18, range 8, west, in Washington county this state, and embracing what were originally Towhead island and Island No. 83, in the Mississippi River. The complainants showed proper deraignment of title from the United States government. The two islands formerly lay in the Mississippi River near the Mississippi side of the main channel and had been formerly recognized by the United States government as being in Washington county, this state. These islands were very gradually washed away and the course of the river gradually shifted from the Arkansas side, these changes being accompanied by a slow accretion of land on to the Arkansas side of the river, until the place where these islands had been became a part of the Arkansas bank of the river. The defendants, whose grantors were owners of the land in Arkansas from which the river had gradually receded and to which the accretion has gradually added area, proved that the site of the two islands had, by accretion and the changes of the river, become a part of their property on the Arkansas side of the stream, and contended that the land in question had, for more than ten years before institution of the suit been on the Arkansas side, and that, through such period of time they had occupied it adversely to the complainants. Defendants further contended that, whether the land be in Mississippi or Arkansas, the complainants were pre eluded from exercising legal claim thereto because of the statute of limitation, the period of limitation, under the Arkansas statute, being seven years, and, under the Mississippi statute, ten years. Defendants also insisted that, inasmuch as the land had become a part of the state of Arkansas before the suit was instituted, the Mississippi courts could not entertain jurisdiction A very large amount of evidence was adduced on these issues. The decree of the court below dismissing the bill does not state upon what ground the decree was reached.

Affirmed.

Paxton & watson, and Hugh C. Watson, for appellants.

Are the lands in Arkansas or in Mississippi? Mississippi's boundaries, when the state was admitted into the union in 1817, were fixed on the west at the Mississippi river. Hutchinson's Code, 59. This meant the main channel or middle of the river. Code 1857, pp. 47, 48; 2 Am. & Eng. Ency. of Law (2d ed.), 504; Morgan v. Reading, 3 Smed. & M., 366. In 1817 and thence down to the date of complainants' purchase and occupation and for many years afterward the main channel of the Mississippi river was west of Towhead island and therefore much west of Island No. 83. See U. S. War Dept. maps, 1812, 1820, 1831, 1848. The land were surveyed, located and claimed by Mississippi from the date of the state's organization and regularly listed on the state's assessment rolls and taxed as Mississippi property.

The state of Arkansas was organized in 1836, and its boundaries on the east fixed at the Mississippi river, at that time west of the lands in controversy. See Nav. maps 1822, 1831, 1848. The state of Arkansas has never, throughout eighty-eight years, laid any claim to the lands until after this suit was instituted; when, about two years ago, according to the testimony of appellee, Archer, they were surveyed by some authority in Chicot county, Arkansas; and, since such time, Archer has paid taxes in Arkansas.

Hence, the lands are yet Mississippi territory. It has not been shown by any satisfactory proof that Towhead island was ever entirely washed away. Several veracious witnesses testified that in one year, 1876, the river suddenly turned its current east of Towhead island and citizens of Greenville went out in boats and attempted with dynamite to reopen the channel of the river between Towhead and the Arkansas side. Lamar Fontaine, a truthful and experienced civil engineer of varied experience, testified that in 1849 Towhead island was a mile and a quarter east from Point Chicot, Arkansas, and that he remembers its location well.

Now, if Towhead island never washed away and the river changed its bed from the west to the east around it, there was no change of boundary or title. Missouri v. Kentucky, 11 Wall. (U.S.), 226; Indiana v. Kentucky, 136 U.S. 479; Virginia v. Kentucky, 11 Wall. (U. S.), 395; McGuire v. McFerrin, (U. S. S. C.) 51 L.Ed. 218.

But if we concede that the two islands were entirely washed away, it is manifest that neither the title nor the boundary was disturbed. It was undisputably proved that the land was reformed in the old boundaries, which boundaries can now be definitely located, first as islands disconnected from either shore, and, then, that gradually these islands were enlarged, sloping toward Arkansas until finally at their northern and southern extremities they became joined to the mainland, although even now the old line of the channel can easily be seen. The ultimate joining of the islands to the mainland did not give the proprietor of the mainland any right to the islands, or, what had formerly been islands, because, for the same reason, the owner of the former islands might as well have laid claim to the mainland.

To entitle the riparian owner to the land, the water must begin to recede from his land. It is not sufficient if the water begins to recede at some other point and finally recedes from his land. Farnham on Waters, vol. 1, p. 322; Perkins v. Adams, 132 Mo. 131, 33 S.W. 778.

The title of the shore owner is not established where it appears that as the waters receded they at first left islands separated from the land of the shore owner and from each other by swales or depressions in which the water remained for some time before the whole tract became dry. Hammond v. Sheppard, 186 Ill. 235, 78 Am. St. Rep. 274; St. Louis v. Rutz, 138 U.S. 226; Sweetman v. Holbrook, 18 Ky. (Law), 870; York v. Rolls, Ont. App. Rep. 72.

We do not understand opposing counsel to claim that the accretions were to appellees' lands, but they do claim that the accretions were to the Arkansas bank below high water mark, and that accordingly the state of Arkansas got title to the lands in dispute and that the title now rests in Arkansas. Our answer to this is merely to refer to Kirby's Digest of Arkansas Statutes, p. 1056, § 4918, reading as follows: "All land which has formed or may hereafter form in the navigable waters of this state, and within the original boundaries of a former owner of land upon such stream, shall belong to and the title shall vest in, such former owner, his heirs or assigns or whosoever shall lawfully succeed to the right of such former owner therein." Hence, under appellees' own contention, the title to the lands in dispute belongs to appellants.

Are the complainants, appellants here, barred by statute of limitation? There was no actual possession or occupation of any of the lands sued for by appellees' vendors. Appellees did not occupy the same until April, 1897. This suit was instituted in May, 1904, and the answer denied possession. If the lands are in Arkansas, and appellees' contention about accretions is correct, then until April, 1901, the title was in the state of Arkansas and the statute of limitation did not run either in favor of appellants or appellees.

Should the court below have granted relief to appellants as complainants, even though holding that the lands were in Arkansas? It must be remembered that all of the parties to the suit were in Mississippi and within the jurisdiction of the court, and that the bill prayed for special and general relief. It is a fundamental maxim that equity acts in personam. Indeed, this was the original field of jurisdiction of courts of equity. Story Eq. Vol. 1, § 44; Bispham Eq. (2d ed.), § 47; 2 Kent Comm. 463; Penn v. Lord Baltimore, 2 Lead Cas. Eq. 767; Nabob of Arcot v. East Ind. Co. 3 Bro. Ch. 325; Earl of Kildare v. Eustace, 1 Vern. 419; Parham v. Randolph, 4 H. (Miss.), 455.

This jurisdiction has been recognized and approved by the Arkansas courts. Pillow v. King, 55 Ark. 633.

Wynn & Wasson, for appellees.

The appellants must recover upon the strength of their own title, whether the appellees have title or not. Hart v. Bloomfield, 66 Miss. 100, 5 So. 620.

Appellants denied in their answer that Towhead island was ever in the state of Mississippi, or rather ever belonged to the state of Mississippi under the swamp land grant. It appears that in 1830 only one island, namely Island No. 83, existed in the stream of the river, and that at that time Point Chicot, on the Arkansas side, extended in a tongue-like shape nearly out to this island; and it appears that in time the restless river cut through the point of land, and thus made Towhead island. This is the explanation given by Lamar Fontaine, one of the appellees' witnesses. And if this be true, as we do not doubt, the state of Arkansas never lost title to Towhead island.

The appellants claim that the doctrine of accretion does not apply because, as they say, the caving was rapid, and, while they admit that Island No. 83 caved entirely away, they say that Towhead island did not entirely cave away, and that notwithstanding all the land in dispute is on the Arkansas side at present, they should have the right to sue therefor in Mississippi. But the facts do not present...