Ussery v. Anderson-Tully Co.

• Decision Date: 09 June 1954
• Docket Number: No. H-464.,H-464.
• Citation: 122 F. Supp. 115
• Parties: USSERY et al. v. ANDERSON-TULLY CO.
• Court: U.S. District Court — Eastern District of Arkansas

122 F. Supp. 115

USSERY et al. v. ANDERSON-TULLY CO.

No. H-464.

United States District Court, E. D. Arkansas, E. D.

June 9, 1954.

W. H. Daggett, Marianna, Ark., Hendrix Rowell, Pine Bluff, Ark., for plaintiffs.

Lamar Williamson, Monticello, Ark., for defendant.

LEMLEY, District Judge.

This cause, commonly referred to by Court and counsel as the "Red Fork Point Case", having been tried to the Court,¹ and the Court having considered the pleadings, exhibits, testimony and briefs, and being well and fully advised, doth hereby make and file herein the following Findings of Fact, Conclusions of Law, and Comment thereon, to wit:

Findings of Fact.

1. This is an accretion case involving title to more than four hundred acres of wild, unimproved and unenclosed land, locally known as Red Fork Point; the area in controversy is located on a peninsula bounded on the East, South and West by the channel of the Arkansas River as it flowed in 1944 immediately prior to the functioning of the artificial 1945 Red Fork Cut-Off, which cut-off is depicted upon maps and aerial mosaics prepared by the Corps of Engineers of the United States Army since 1945. The channel above mentioned will be at times referred to herein as the "1944 River". The northern boundary of the area in controversy is the south line of Fractional Section 31, Township 8 South, Range 2 West, North of Arkansas River (NAR) in Arkansas County, Arkansas, as originally surveyed in 1840, or the thalweg of the channel of the Arkansas River if after 1840 that channel eroded northward into, and east and west across, Section 30, Township 8 South, Range 2 West, NAR. The actual area in controversy is that portion of said peninsula which lies within the geographical area which was originally surveyed by the United States Land Office in 1840 as the Fractional East Half of Section 3, Township 9 South, Range 2 West, South of Arkansas River (SAR) in Desha County, Arkansas, together with accretions thereto, if any.²

2. Plaintiffs are citizens of Arkansas, and the defendant is a Michigan corporation. The area in controversy is forested with valuable hardwood timber, and exceeds in value the sum of $3,000. One of the plaintiffs, Floyd Brown, claims no interest in the land itself, but he is the holder of a timber deed executed by the plaintiffs, B. S. Ussery et ux. Brown's rights to the timber are, of course, dependent upon the validity of the claim of the Usserys to the land.

3. Certain facts have been stipulated by the parties, and the Court finds those facts as stipulated, whether hereinafter specifically referred to or not.

4. In the vicinity of Red Fork Point, both the north and south banks of the River were surveyed in 1840; at that time Section 3 was riparian to the south bank of the River, whereas Section 31, containing about 40 acres, was riparian to the north bank. Section 30 was located immediately north of Section 31, and appears to have been a full section containing 640 acres.

The Usserys have record title to Section 3 in Desha County, and they and their predecessors in title have paid taxes thereon in that County for more than 15 years. Defendant has title to Section 31 and to such portions of Section 30 as are here relevant, and it and its predecessors in title have paid taxes thereon in Arkansas County for more than 15 years.

5. It is the theory of the plaintiffs that after 1840 the River pursuing its customary course of channel change, eroded northward into Section 31 and across it until it reached a "line of maximum recession" in the South half of Section 30; and that in the course of this supposed northerly migration all of Section 31 and a portion of Section 30 were washed away and completely destroyed, being off-set by corresponding accretions to Section 3 on the original south bank. They further contend that at some undetermined time between 1840 and 1897 an avulsion took place across the southern part of Section 3, leaving a portion of that Section, together with the supposed northern accretions thereto, on the north bank of the River as it flowed immediately after the supposed avulsion. They further contend that after this supposed avulsion the River migrated southward until it reached the position which it occupied immediately prior to the occurrence of the 1945 cut-off which has been mentioned, and that in the course of this subsequent migration southward accretions were formed to the portion of Section 3 which then was on the north bank of the River. Stated slightly differently, it is the plaintiffs' theory that the area in controversy consists of a portion of original Section 3, together with both northward and southward accretions thereto, all of which was located on the north bank of the 1944 River.³

6. The defendant, on the other hand, denies that the River ever eroded northward after 1840. It is its theory that subsequent to 1840 the River migrated southward and pursued an uninterrupted course of erosion in that direction until it reached the position which it occupied immediately prior to the occurrence of the 1945 cut-off, and that in the course of this erosion practically all of Section 3 was destroyed, and that the geographical location of the destroyed portions of said Section 3 was occupied by accretions formed to Section 31. Defendant contends further that even if it be conceded that for a time after 1840 the River migrated northward so as to destroy all of Section 31, this course of erosion was checked in that portion of Section 30 owned by defendant and its predecessors, and that thereafter the River moved southward down to the position occupied by it immediately prior to 1945, building up accretions to Section 30.

7. The plaintiffs seek by their complaint and amendment thereto to quiet and confirm title to the area in controversy in themselves; defendant, on the other hand, has filed a counterclaim whereby it seeks to establish its alleged title to said area. The correct disposition of this case calls for a solution of the accretion problem posed by the conflicting theories of the parties, which theories have been outlined above; that is to say, the Court is called upon to determine from the evidence before it the nature and origin of the area in controversy. Of course, the burden is upon the plaintiffs upon their complaint to establish their ownership of the area by a preponderance of the evidence, and conversely, the defendant has a similar burden with respect to its counterclaim.

8. The Court is unable to find from a preponderance of the evidence that the area in controversy was formed in accordance with the theory of the plaintiffs, or that the plaintiffs are the owners of said area; the Court does find, on the other hand, from a preponderance of the evidence that said area did form as accretion to either Section 30 or Section 31, and that it is owned by the defendant.

More specifically, the Court finds in this connection that even if the River migrated northward to some extent after 1840 so as to destroy all of Section 31 as originally surveyed, its northward recession ceased while it was flowing through those portions of Section 30 owned by the defendant, and that thereafter the River migrated southward in an uninterrupted course of erosion until it reached the position occupied by it immediately prior to the occurrence of the 1945 cut-off, and that in the course of this southward erosion all of original Section 3 was destroyed, except the relatively small portion thereof remaining on the south bank of the River immediately prior to the occurrence of said cut-off. All of the land in controversy which is now in place on the original north bank and which occupies the geographical location of original Section 3 has accreted either to original Section 30 or to original Section 31, and is the property of the defendant.

Conclusions of Law.

1. This Court has jurisdiction of this cause and of the parties hereto.

2. Since plaintiffs have failed to establish their ownership of the area in controversy by a preponderance of the evidence, their complaint must be dismissed with prejudice.

3. Since the defendant has established its ownership of the area in controversy by a preponderance of the evidence, a decree should be entered quieting title to said area in it, as against the plaintiffs.

Comment.

As above stated, the ultimate issue in this case is the nature and origin of the area in controversy; we have found that the defendant's theory in that connection is correct, and we have rejected the opposing theory of the plaintiffs. Before discussing these respective theories we consider it desirable to make certain statements relative to the factual aspects of cases of this kind, which statements, we believe, are applicable not only to the instant case but also to accretion cases in general.⁴

In Bryant et al. v. Chicago Mill & Lumber Co., supra, we had occasion to say that the Mississippi River and some of its tributaries, including the Arkansas, are not stable streams as far as their channels are concerned. Characteristically, these rivers are continually changing their courses by eroding their banks, and as erosion proceeds on one side of the stream, corresponding accretions or alluvial deposits are built up on the opposite side. One of the results of this erosive process is the creation of great bends flowing around long points or peninsulas which have been formed as the accretions built up to one bank follow and off-set the erosion and bank caving which is taking place on the other bank. These points or peninsulas can be, and frequently are, built out so far that they extend into and occupy the geographical location of lands formerly on the opposite shore, which, in the meantime, have been entirely washed away.

Given a course of erosion proceeding in one direction, there would, at first glance, seem to be no reason for that course not to continue indefinitely until the River in its migration encounters solid rock or...