Wilson v. Watson

• Decision Date: 16 December 1910
• Parties: Wilson v. Watson.
• Court: Kentucky Court of Appeals

141 Ky. 324

Wilson v. Watson.

Court of Appeals of Kentucky.

Decided December 16, 1910.

Appeal from Carlisle Circuit Court.

JOHN E. KANE and ROBBINS & THOMAS for appellant.

JESSE F. NICHOLLS for appellee.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER — Affirming.

This is an action of ejectment wherein appellant, T. J. Wilson, seeks to recover of appellee, Aaron Watson, two tracts of land containing one hundred acres each, situated west of Island No. 3 in the Mississippi River. The jury returned a verdict in favor of appellee, and from the judgment predicated thereon this appeal is prosecuted.

Island No. 3 was granted by the Commonwealth of Kentucky to Price and Edrington on September 19th, 1837. In the patent it was described as an island, and conveyed as an island. The Commonwealth of Kentucky made a further grant with reference to Island No. 3 to Willam Parsons on June 15th, 1872. On the same date it granted to William Parsons two towheads near the foot of Island No. 3, one containing seventy acres and the other ten acres. Appellant acquired the title granted by the Commonwealth to Island No. 3 from S. Mathis and wife, on January 31st, 1898, and acquired title to the two towheads from Noah Parsons on the 25th day of November, 1899.

One Mrs. F. E. Johnson, after obtaining the proper orders from the Carlisle county court, procured from the Commonwealth of Kentucky, on December 31st, 1897, a grant to the lower one hundred acres of land west of Island No. 3, and on June 20th, 1900, procured a further grant from the Commonwealth for the upper one hundred acres. Appellee acquired by deed such title as Mrs. Johnson acquired from the State.

At the point where the two tracts of land in controversy are located there is a large bend in the Mississippi River. The main channel of the river has been for years, and is now gradually moving west. In doing this, it has not deserted all of its old beds, but left several natural waterways. Chute No. 2 is the first of these, and separates Islands Nos. 2 and 3 from the mainland. The chute connects the river, both north and south. Large steamboats often go through it, and were doing so at the time of the trial herein. The chute is about two miles long, and varies in width from one-quarter to one-half mile; it is also of considerable depth. Going down the river we find another chute, called Chute No. 3, which extends south and flows into Chute No. 2, about one mile from the main stream of the river, and forms a waterway between Islands Nos. 2 and 3. The chute is often navigable. Further down the river is another natural waterway, which is called Sand Cut. After going a considerable distance it divides; that part which goes to the southwest and flows into the river is called Deep Cut; while that part which goes south-east and flows into Chute No. 2 retains the name of Sand Cut. The southern portion of the upper one hundred acres of land in controversy is separated from appellant's land by Deep Cut, while the northern portion is separated from appellant's land by Sand Cut and the lower part of the one-hundred acre tract owned by J. W. Turk. The lower tract of one hundred acres is bounded on the east by Deep Cut which separates it from appellant's land at all points. Some forty or fifty years ago there was a towhead formed where appellee's land now is. By accretions this towhead gradually increased in size and approached appellant's land. At the time it formed there was a stream of water separating it from Island No. 3. Sand Cut and Deep Cut, while they have been known in time of drought to become dry in places, are still natural waterways, and when the water is reasonably high constitute a continuous stream separating appellee's land from that of appellant.

It is not contended, nor can we say, that the finding of the jury is flagrantly against the weight of the evidence; indeed, the evidence upon the question of accretions rather preponderates in favor of appellee.

The court. in its instructions, defined an accretion, and told the jury in substance that the land in controversy was not covered by appellant's title papers and that they should find for appellee unless they believed from the evidence that the land was an accretion to appellant's lands.

There was also submitted to the jury an issue of champerty, predicated on the adverse possession by Mrs. F. E. Johnson of the lower one hundred acres at the time appellant purchased his land from Mathis on January 31st, 1898, and from Parsons on November 25th, 1899.

Appellant offered several instructions based upon the theory that he was a riparian owner, and, as such, entitled to recover the lands in controversy because they lay between him and the thread of the main channel of the river. For the error of the court in instructing the jury that appellant's title papers did not cover the land in question, and the further error of the court in refusing to give one of the several instructions offered by him and based upon his ownership to the thread of the main channel of the river, appellant asks a reversal of the judgment herein.

In this connection we may say that the common-law rule with reference to navigable or non-navigable waters has been adopted in this State. By that rule only those waterways are deemed navigable in which the tide ebbs...