Wallace v. Driver

• Decision Date: 04 January 1896
• Citation: 33 S.W. 641,61 Ark. 429
• Parties: WALLACE v. DRIVER
• Court: Arkansas Supreme Court

33 S.W. 641

61 Ark. 429

WALLACE v. DRIVER

Supreme Court of Arkansas

January 4, 1896

Appeal from Mississippi Circuit Court, JAMES E. RIDDICK, Judge.

This was an action in ejectment, brought by the appellee, James D Driver, against the appellant, D. W. Wallace, for recovery of a portion of the lands situated in a fractional quarter section of land lying along the banks of the Mississippi river. The answer set up a general denial; also the special plea that the land held by defendant was the property of the State of Arkansas, by reason of having been formed in the bed of the Mississippi river.

The agreed statement of facts is as follows: "The NW. fr 1/4 section 30, in T. 13 N. and R. 11 E., Mississippi county state of Arkansas, was entered from the U.S. government by Harrison Phillips,in November, 1848, and contained, at that time, one hundred and fifty-four (154) acres; which land was afterwards conveyed by Phillips to the plaintiff, Driver, and James H. Edrington; and the said Edrington conveyed his undivided interest to the said Driver, who now claims to be the sole owner of said NW. fr. 1/4 section. Subsequently to the entry of said land from the government, a large portion thereof caved into the Mississippi river, and where said caving took place became a portion of the bed of the river and so remained for some twenty-five years before said island formed in the bed of said river. After this an island was formed out in front of the main shore, and of the residue of the quarter section not washed away, within the metes and bounds of said quarter section as originally entered from the government, and in the place where was a portion of said quarter section before the same washed away. Between the island so formed and the main shore, there is a chute through which the water flows when the Mississippi river is high, but such chute, during low water, is dry, with the exception of a few water holes, and is not now a part of the bed of the river, having been filled by deposit of the river. The defendant, D. W. Wallace, is now in possession of thirty-five acres of the land made by the formation of said island within the original boundaries of said fractional quarter section, at the time of its entry from the government. The tax books show taxes to have been paid by the plaintiff on 80 acres only, in said fractional NW. 1/4 section from the date of his purchase up to the year 1891."

The jury found that the defendant was in the unlawful possession of 35 acres of the land sued for, and the court rendered judgment accordingly.

Reversed and remanded.

Charles P. Harnwell, for appellant.

The title to the bed of navigable streams belongs to the state, and the riparian owner takes only to "high water mark," and not "ad medium filum aquae." 53 Ark. 314, 315; 54 id. 517; Woolrych on Waters, 40-44; Angell on Tide Waters, 22, 24; 94 U.S. 325; 9 Conn. 40; 3 Iowa 1, 54; 33 N.Y. 461; 3 Howard, 27, 220; 9 id. 471; 29 S.W. 681-2; 25 Ark. 120; 1 Am. & Eng. Enc. Law, 137; 21 S.W. 592.

S. S. Semmes, for appellee.

The facts in this case are different from those in 53 Ark. 314. Here the land claimed is within the metes and bounds of the United States survey. Where one's lands are eroded or washed away, and are made back again or uncovered, they become his property, if he can locate them. 28 S.W. 746; 86 Mo. 209; 61 How. Pr. 197.

BATTLE, J. Riddick, J., disqualified. BUNN, C. J., dissenting.

OPINION

BATTLE, J.

The water boundaries of land on running streams, whatever they may be in the beginning, whether the thread of the stream, the water's edge, ordinary high or low water mark, always remain the same when they change gradually, as by the process of accretion or attrition. They gradually shift as the water recedes or encroaches; and the area of the riparian owner's possession varies as they change by this process. Whatever constituted them at first still constitutes them so long as it remains permanent or shifts gradually and imperceptibly. Hence, land formed by alluvion, or the gradual and imperceptible accretion from the water, and land gained by reliction, or the gradual and imperceptible recession of the water, belong to the owner of the contiguous land to which the addition is made. This rule has been vindicated by some one on the principle "that he who sustains the burden of losses and of repairs, imposed by the contiguity of water, ought to receive whatever benefits they may bring by accretion. By others it is derived from the principle of public policy that it is the interest of the community that all land should have an owner, and most convenient that insensible additions to the shore should follow the title to the shore itself." New Orleans v. United States, 10 Peters 662, 717; Jefferis v. East Omaha Land Co. 134 U.S. 178, 33 L.Ed. 872, 10 S.Ct. 518; Nebraska v. Iowa, 143 U.S. 359; Gould on Waters, sec. 155; 2 Blackstone, 262.

In order to constitute an accretion, it is not necessary that the formation be indiscernible by comparison at two distinct points of time. It is true that it is an addition to riparian land, "gradually and imperceptibly made by the water to which the land is contiguous;" but the true test "as to what is gradual and imperceptible in the sense of the rule is that, though the witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on." Rex v. Lord Yarborough, 3 B. & C. 91, is a good illustration. In that case the court held that 450 acres of land formed by the gradual deposit of ooze, sand and soil from the sea belonged to the owner of the adjoining land as an accretion. Other cases to the same effect may be cited. Jefferis v. East Omaha Land Co., 134 U.S. 178, 33 L.Ed. 872, 10 S.Ct. 518.

What has been said of accretions is equally true of the loss suffered from the gradual encroachments of running streams. As their beds change imperceptibly by the gradual washing away of the banks, the boundary lines of contiguous lands change with them; and the owner, having, in the beginning, acquired no fixed freehold in them, but one that shifted with the changes, is limited and confined, in the extent of his rights and possession, by the new boundaries. St. Louis v. Rutz, 138 U.S. 226, 245, 34 L.Ed. 941, 11 S.Ct. 337; Camden & Atlantic Land Co. v. Lippincott, 45 N.J.L. 405; Welles v. Bailey, 55 Conn. 292, 10 A. 565; Steele v. Sanchez, 72 Iowa 65, 33 N.W. 366; Niehaus v. Shepherd, 26 Ohio St. 40; Wilson v. Shiveley, 11 Ore. 215, 4 P. 324; Dunlap v. Stetson, 4 Mason 349; In re Hull & Selby Ry. 5 M. & W. 327; Scratton v. Brown, 4 B. & C. 485, 10 E.C.L. 670; Foster v. Wright, L. R. 4 C. P. D. 438; Gould on Waters (2 ed.) sec. 155.

In Welles v. Bailey, 55 Conn. 292, 10 A. 565, in speaking of rights acquired by changes gradually made by rivers, it is said: "If a particular tract was entirely cut off from a river by an intervening tract, and that intervening tract should be gradually washed away until the remoter tract was reached by the river, the latter tract would become riparian as much as if it had been originally such. This follows necessarily from the ordinary application of the principle. All original lines submerged by the river have ceased to exist; the river is itself a natural boundary, and every changing condition of the river in relation to adjoining lands is treated as a natural relation, and is not affected in any manner by the relation of the river and the land at any former period. If, after washing away the intervening lot, it should encroach upon the remoter lot, and should then begin to change its movements in the other direction, gradually restoring what it had taken from the remoter lot, and finally all that it had taken from the intervening lot, the whole, by the law of accretion, would belong to the remoter but now proximate lot. Having become riparian, it has all riparian rights. This general principle is recognized by all the text writers, and by numerous decisions of the English and American courts. The river boundary is treated in all cases as a natural boundary, and the rights of the parties as changing with the change of its bed."

In Foster v. Wright, L. R. 4 C. P. Div. 438, "the plaintiff was lord of a manor held under grants giving him the rights of fishery in all the waters of the manor, and, consequently, in a river (Lune) running through it. Some manor land on one side, and near, but not adjoining, the river, was enfranchised, and became the property of the defendant. The river, which then ran wholly within lands belonging to the plaintiff, afterwards wore away its bank, and by gradual progress, not visible, but periodically ascertained during twelve years, approached and eventually encroached upon the defendant's land, until a strip of it became part of the river bed. The extent of the encroachment could be defined. The defendant went upon the strip and fished there." The court held "that an action of trespass against him for so doing could be maintained by the plaintiff, who had the exclusive right of fishery which extended over the whole bed of the river, notwithstanding the gradual deviation of the stream on to the defendant's land." Judge Lindley said: "Supposing, therefore, that the plaintiff's right to fish in the Lune depends on his ownership of the soil of the river bed, I am of the opinion that the plaintiff has that right; for, if he was the owner of the old bed of the river, he has day by day and week by week become the owner of that which has gradually and imperceptibly become its present bed; and the title so gradually acquired cannot be defeated by proof that a portion of the bed now capable of identification was formerly land belonging to the defendant or his successor in title."

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