Whitson v. Morris

• Citation: 304 Ky. 447
• Parties: Whitson et al. v. Morris et al.
• Decision Date: 13 May 1947
• Court: United States State Supreme Court (Kentucky)

Page 447

304 Ky. 447

Whitson et al. v. Morris et al.

Court of Appeals of Kentucky.

November 8, 1946.

Rehearing denied May 13, 1947.

1. Quieting Title. — In action to quiet title, plaintiff must stand or fall upon strength of his own claim.

2. Navigable Waters. — Where a water course is a described line of a tract of land or a line runs to the bank of a stream, the stream is considered as a single line and owner's title extends by construction of law over the bed in front of his land to the middle of the stream and if the shore line gradually shifts, the boundary is still the middle of the stream from lowwater mark.

3. Navigable Waters; Public Lands. — Ordinarily riparian owner whose boundary is extended by construction of law to middle of stream owns intervening islands newly made or arising in area of the extension of lateral lines of his land at right angles with course of stream, and if he holds under a grant, a junior patent to such an island is nugatory.

4. Navigable Waters. — Where a permanent island of long existence, having a separate and well-defined body of land, has been patented apart from the mainland, so that subsequent grantee of mainland does not acquire the island unless he can produce title back to a senior patent, his title to the bed of stream extends only to the center line between island and shore, and the right to accretions belongs to the island to the same extent as to the mainland.

5. Navigable Waters. — Accretions to an island, substantial in area in normal stages of the water, will be regarded the same as are accretions to mainland.

6. Navigable Waters. — The doctrine of accretion will not admit of jumping a slough.

7. Navigable Waters. — Judgment dismissing petition to quiet title to alluvial land as accretion to plaintiffs' island land and quieting title thereto in former owners of land in same location which was part of mainland until loss through erosion when navigable stream cut a new channel was sustained by evidence that island land patented to plaintiffs' predecessors in title was not contiguous to water, that island disappeared in process of stream's return to original course and that alluvial land was formed by accretion to mainland and not to island.

Appeal from Fulton Circuit Court.

J.E. Warren and C.K. Davis for appellants.

W.J. Webb and E.E. Lebo for appellees.

Before M.C. Anderson, Special Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Affirming.

This is an action and counteraction to quiet title to 1,155 acres of alluvial land which was reformed or created by reappearance after the original soil had been washed away or submerged by the Mississippi River.

We agree with the appellants that the history and geography of the locality is of interest. We quote from their brief:

"Of all the inconceivably, mischievous pranks upon its neighbors by this `Ole Man River' in his ubiquitous and incomprehensible process of `just keep rolling along' in its course to the Gulf of Mexico, the most peculiar is that perpetrated on or against the States of Kentucky and Missouri just above the point where these two states join Tennessee, and which is the location in controversy. Within an area of not exceeding fifty square miles north and east of this juncture, it forms a complete inverted letter `S,' thereby creating a peninsula in Missouri some two or three miles in width and jutting south some seven miles in length into Kentucky and Tennessee, and another peninsula in Kentucky of about equal length and slightly greater width extending north from the State of Tennessee and bounded on three sides (east, north and west) by Missouri. This latter peninsula is known as Madrid Bend, or sometimes as Kentucky Bend, and is a portion of Fulton County, Kentucky. In order to reach it by direct route from the remainder of the county, it is necessary to cross the river twice and traverse this intervening part of Missouri. The indirect route, however, and the one which is used in travel, is to go out of Kentucky, proceed some five miles or more into Tennessee, around the first river bend and thence back up to Kentucky — a circuitous route of ten or twelve miles in order to reach a point not more than two and a half miles from the starting point on the line between Kentucky and Tennessee."

The locus in quo is the southwest corner of Madrid Bend. Before 1900 the river at this point was relatively straight, flowing almost due south. Erosion began on the east bank. It was greatly accelerated in 1912, and by 1914 the river had cut back a great semicircle two or two and one half miles deep. Some estimated that the river was five miles wide at this place. It almost cut the peninsula in two. Three entire sections and parts of three others of rich land were submerged. Some persons lost all of their land in the area. Others had parts of their tracts left. Others, whose land had been two miles or more from the stream, became riparian owners. A bar had begun to form in the old bed closer to the Missouri shore than to the new Kentucky shore. By 1914 it had become a considerable island. In that year J.R. Adams and J.F. Adams, who had lost much land in the catastrophe, obtained patents from the Commonwealth for 200 acres each on the island as unclaimed or vacant land. Section 4704, Ky. Stats., now KRS 56.230. The two tracts formed an exact rectangle, leaving marginal land all around the edges, the island being elliptical or oval in shape. There were navigable channels on both sides. The new channel formed by the wash-out was the principal one, being 50 feet deep. By 1918 the west channel became only a chute and not navigable. Afterward there was some dredging and this channel began to widen and cut into the island. Eventually the capricious river deserted the new channel and returned substantially to its original bed. Most, if not all, of the island disappeared and the great curve which had washed out from the main land filled up to within ten feet of its original level. That alluvial deposit is the land involved in this litigation. There are many witnesses and much detail, but this is the heart of the case.

Dan Whitson and Charles Keaton were successors in title of the Adamses to the 400 acres on the island. They claim the re-formed land as accretions to it. To clear their title they instituted this action against a number of persons who owned the land which had been washed away. In response the defendants set up their claims and sought to have their respective titles quieted. Four groups filed separate answers and counterclaims, but no cross-actions against one another. They set up chains of title devolved from patents or grants by the Commonwealth issued in 1825 and one in 1833. Both sides pleaded adverse possession. The defendants charged that the Adamses' grants were champertous; also that no part of the land involved was embraced within them. The judgment dismissed the petition and quieted the title of the defendants.

The property of one of the defendants, now appellees, Mrs. Lucille Cunningham, extended into Tennessee. It was all washed away except a small corner on the southeast. One Prevow, the owner of land back of her property that had in part become riparian, claimed all of the new or re-formed land out to the restored river channel. In a well-reasoned and fully supported opinion the Western Section of the Court of Appeals of Tennessee held that the original lines of land on a navigable stream which disappear by the process of erosion cease to exist and thereafter the relationship of the then riparian lands and the river determines the...