United States Gypsum Co. v. Grief Bros. Cooperage Corp.
| Citation | 389 F.2d 252 |
| Decision Date | 23 February 1968 |
| Docket Number | No. 18826.,18826. |
| Parties | UNITED STATES GYPSUM COMPANY, Appellant, v. The GREIF BROTHERS COOPERAGE CORPORATION, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
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George K. Cracraft, Jr., Helena, Ark., for appellant and filed brief.
William H. Daggett, of Daggett & Daggett, Marianna, Ark., for appellee and filed brief.
Before VOGEL, Chief Judge, and GIBSON and LAY, Circuit Judges.
The District Court, The Honorable Oren Harris, for the E. D. of Arkansas entered summary judgment on February 23, 1967 in favor of the plaintiff-appellee, The Greif Brothers Cooperage Corporation, and against the defendant-appellant, United States Gypsum Company, in a quiet title suit and voided a purported "Island Deed" from the State of Arkansas.
This is a diversity case, in a requisite jurisdictional amount and the law of Arkansas applies. We affirm.
These parties are not strangers to riverland litigation nor to each other. In 1963 Gypsum brought suit in the Federal District Court to enjoin Greif from cutting timber on lands in Sections 22 and 23, Township 11 S., Range 1 W., Desha County, Arkansas, and to quiet title thereto.
A decree was entered by the District Court on October 24, 1963 holding the land in the North Half of Section 23 adjacent to Long Lake belonged to Gypsum this land is not in controversy in this suit and holding that land in the Southwest Quarter of Section 23, and land in Sections 21 and 22 together with accretions, relictions or reformations of submerged lands lying South of said Sections and North of the main channel of the Mississippi River belonged to Greif. This 1963 decision was appealed to the Eighth Circuit and affirmed in an opinion reported at 341 F.2d 167 (1965).
The land here in controversy lays along the North bank of the Mississippi River and North of the main channel, sometimes called "The Steamboat Channel", of that river, the middle of the channel being the State boundary line between Arkansas and Mississippi.
The Township was first surveyed in 1846 by the General Land Office, and Sections 21, 22, 23, 26 and 28 of Township 11 were platted as fractional sections being bounded on the South by the riparian bank of the Mississippi River and on the North by what was known as Long Lake. Sections 28, 27 and 26 lie directly South of Sections 21, 22 and 23 respectively.
The Mississippi River had eroded Northward into Sections 21, 22 and 23, and reached in its line of maximum recession, or what is referred to in the record as the "northernmost chute or depression", in about 1914. The Mississippi River then reversed its migration to the North and proceeded back in a southerly direction thus exposing additional lands in Sections 21, 22 and 23 and also causing the appearance of land south of the original survey, which is now for the main part in Sections, 28, 27 and a small part in Section 26. Also the waters in Long Lake receded and land formed in its old bed.1
The crucial point of the present litigation is whether the lands forming on what was the South boundary of fractional Sections 21 and 22 and on into Sections 28, 27 and 26 were accretions or relictions, or were independent islands having no connection with the North riparian bank of the Mississippi River as that bank was constituted in Sections 21, 22 and 23 and as is now constituted in Sections 28, 27 and 26.2
On May 12, 1954 George K. Cracraft, Jr., Gypsum's counsel, filed his application to purchase the purported island lands. A special surveyor was appointed by the Commissioner of State Lands on that same day to survey the lands South of the meander line of the 1846 G.L.O. survey. The land was surveyed and platted with reference to the survey of adjacent lands by the extension of the Township, Range and Section lines to the south. The surveyor filed his survey notes on July 15, 1954 and was paid the sum of $881.13 for survey costs by Mr. Cracraft on that date, but Cracraft did not request or receive his deed from the State Land Commissioner until December 10, 1965, which was after the termination of the 1963 litigation in this Court (Rehearing denied February 23, 1965). He then conveyed this same property to Gypsum the following day.
The statutes respecting the acquisition of title to island lands owned by the State of Arkansas, Ark.Stat.Ann. §§ 10-601 to 10-607, were repealed in 1959 and re-enacted with substantial changes which provided for competitive bidding on these types of lands.3 The old statutes in force at the time of Cracraft's application, however, gave the applicant Cracraft a vested right to acquire the so-called "island lands" which the 1959 repeal and re-enactment could not affect. United States Gypsum Company v. Uhlhorn, 232 F.Supp. 994 (E.D.Ark.1964). Cracraft, who is here treated as the agent and counsel for Gypsum, therefore had a vested right to receive on behalf of Gypsum the purported state title to the lands now in controversy, and Gypsum would be vested with an equitable interest in whatever title the State had in these lands.
The Commissioner of State Lands found that the area was comprised of four islands, designated upon his plat and survey as Cypress Bend Islands No. 1, No. 2, No. 3 and Caulk Neck Peninsula Residue Island, lying in Sections 21, 22, 23, and in 26, 27, 28 and 29 of Township 11, by the extension of the Section, Township and Range lines. The Commissioner also found that the islands were the property of the State subject to sale, save for that portion of the island lands that were North of the meanders of the 1846 G.L.O. survey. All of Island 1 and most of Island 2 and approximately 25 per cent of Island 3 and a small part of the Caulk Neck Island are all North of the meander lines of the 1846 survey.
On April 6, 1967, the Greif Brothers Cooperage Corporation filed a complaint in the United States District Court for the Eastern District of Arkansas asking that the "Island Deed" to George Cracraft, Jr., and his subsequent conveyance to United States Gypsum be canceled and set aside and that Greif's title to lands it owned that were purportedly conveyed by the "Island Deed" be forever quieted in it. Greif claimed to be the owner of:
by virtue of (1) a decree of Desha County Arkansas Chancery Court dated October 21, 1940 * * *", (2) a deed from the heirs of B. O. Zellner, (3) a court decree of 1963 entered in the United States District Court, and (4) by consecutive tax payments since 1940.
The Chancery Court's decree quieted title to the above described lands in Arkamiss Timber Company and Greif against C. W. Hunter Company. The Chancery Court declared the plaintiffs as owners of the land described, and noted "That plaintiffs and those under whom they claim, have paid all taxes assessed against same for a period of more than seven years under color of title." Arkamiss Timber Company conveyed its interest in the above described property to Greif on October 15, 1940, by quit claim deed.
The land embraced by the foregoing description includes: all the land now in controversy with the exception of a comparatively small tract of approximately 19.7 acres in the Northeast ¼ of Section 26, independent title to which is asserted through a predecessor, J. U. Fehr, and the payment of taxes thereon by Fehr and Greif for a period of more than 10 years. Fehr conveyed his interest by special warranty deed of July 19, 1965.
In the 1963 suit Gypsum claims it was only litigating title to lands in Section 22, lying North of the meander line of the 1846 survey. It asserted title thereto by virtue of a later deed from the heirs of B. O. Zellner. Greif claimed title to all of the land by virtue of the Chancery decree of 1940, and a quit claim deed of August 29, 1940 from A. C. Zellner individually and as attorney-in-fact for the heirs of B. O. Zellner, the common source of title as between the parties in the 1963 litigation. The land conveyed by the Zellner deed to Greif is described as follows:
The claim of Greif in the 1963 suit did extend beyond...
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