Wineman v. Withers

• Decision Date: 17 May 1926
• Docket Number: 25698
• Citation: Wineman v. Withers, 143 Miss. 537, 108 So. 708 (Miss. 1926)
• Court: Mississippi Supreme Court
• Parties: WINEMAN et al. v. WITHERS et al. [*]
• Writing for the Court: SMITH, C. J.

108 So. 708

143 Miss. 537

WINEMAN et al. v. WITHERS et al. ^[*]

No. 25698

Supreme Court of Mississippi

May 17, 1926

Division A

Suggestion of Error Overruled June 15, 1926.

APPEAL from chancery court of Tunica county, HON. C. L. LOMAX Chancellor.

Suit by L. W. Wineman and others against S. A. Withers and others. Decree for defendants, and plaintiffs appeal. Affirmed.

Affirmed.

Watson & Jayne, for appellants.

An issue was made up between appellants and the Messrs. Withers in reference to their respective interests in that part of the accretions in question lying along the front of their respective ownerships and that is the issue now before this court.

I. "Accretions" Defined. Accretions have been defined by the textwriters and the courts with varying expression, but in substance alike; some of the writers using the term "accretions" and others using the term "alluvion," while still others have attempted to distinguish between these terms. See Cooper's Justinian, sec. 20, p. 74; Vattel's Law of Nations, sec. 268, pp. 120-21; Code Napoleon, sec. 556, p. 154; 1 C. J., p. 730; 29 Cyc. p. 348; 1 Franham, sec. 69, p. 320; Nebraska v. Iowa, 143 U.S. 359-370, 36 L.Ed. 186; Yetterman v. Grier, 112 Ark. 371, 166 S.W. 751; Nix v. Pfeifer, 73 Ark. 203, 83 S.W. 953.

II. Accretions on Boundary Streams. (1) The general rule is that where a river forms a boundary between nations the line of demarkation follows the middle channel. Vattel's Law of Nations, ch. XXII; Davis on International Law, p. 46.

(2) International law controls river boundary questions between the states of the nation. Hanley's Lessee v. Anthony, 5 Wheat. 376, 5 L.Ed. 114.

(3) Accretions belong to the shore ownership to which they form whether (a) the boundary be the center thread of the stream; or (b) be along the shore of the river. See Vattel's Law of Nations, ch. XXII, sec. 269; Hanley's Lessee v. Anthony, 5 Wheat. 376, 5 L.Ed. 113.

(4) The rule between nations and states controlling accretions on boundary streams applies to private properties. Arkansas v. Tennessee, 246 U.S. 158, 62 L.Ed. 638, 647, L. R. A. 1918-D 258, 38 S.Ct. 301.

III. Private Ownership on Boundary Streams Subject to

(a) Increase: 1 Farnham on Waters, 324, sec. 70; Wattel, sec. 269, p. 121; Nebraska v. Iowa, 143 U.S. 359-370, 36 L.Ed. 136;

(b) Diminution: 1 Farnham on Waters, 324, sec. 70; Vattel, sec. 269, p. 121; Nebraska v. Iowa, 143 U.S. 359-370:

(c) Extinguishment, Extinguishment may go to the extent of completely wiping out the ownership of the riparian ownership and converting the next real ownerships into riparian ownership with the following results:

(a) That first riparian ownership loses its character as an ownership; and

(b) The new riparian owner takes all accretions thereafter formed to his land, regardless of such accretions progressing forward over the former riparian ownership; or

(c) The extinguishment may be partial, in which event all sectional lines on the extinguished areas are obliterated and thereafter all accretions made to the particular riparian ownership are controlled by and apportioned in accordance with the law of accretions.

(a and b) 1 Farnham on Waters, bottom of p. 332; Minton v. Steele (Mo.), 28 N.W. 746; Bush v. Alexander, (Ark.), 203 S.W. 1028; Widdecomb v. Childs, (Mo.), S.W. 444, 61 L. R. A. 309; Nailor v. Cox (Mo.), 21 S.W. 587; Wells v. Bailey (Conn.), 10 A. 563; Nebraska v. Iowa (U. S.), 36 L.Ed. 186; Parker v. Canter (Kan.), 63 P. 617.

IV. Apportionment of Accretions on Boundary Streams:

(a) As between opposite ownership: The rule with regard to divisions of accretions in cases of opposite ownership is well stated in 3 Farnham, secs. 845 and 845-a, p. 2489, and sec. 847, p. 2491;

(b) As between adjacent ownership: The accretions should be apportioned according to the following formula:

(1) To ascertain the length of the old shore to which the accretions have formed, and reduce that length to a common unit of measurement, such as feet, yards, rods, etc., or to metric lineal units;

(2) To do likewise with the new frontage and divide the same into as many units as there are in the old shore, then allocate to each proprietor as many proportions of the new frontal line as he owned of the old frontal line;

(3) Then to complete the division by drawing lines from the points at which the proprietors be respectively bounded on the old, to the points thus determined on the new frontal line.

The general rule thus laid down seems to have been first thoroughly worked out and adopted by the supreme court of Massachusetts in Deerfield v. Arms, 17 Pickering 45-46, 28 Am. Dec. 276.

As neither of the riparian properties can establish any claim superior to the other, it is manifest that the newly acquired land must be divided equally between the parties in proportion to the land which they respectively hold as riparian proprietors and in virtue of which the law attributes to them this acquisition.

It will be observed that the court based the principle of equitable apportionment on two foundations: (1) Equitable apportionment of the area; (2) to secure to each an access to the water and an equal share of the river line in proportion to his share of the original line of the water. Deerfield v. Arms was approved in the Supreme Court of the United States in Johnston v. Jones, 1 Black (66 U.S. 209, 17 L.Ed. 117).

The rule adopted as above has, with few exceptions, been followed in the United States and the reasoning thereof seems to be satisfactory from a standpoint of equity as well as from a standpoint of giving to each riparian owner continued access to the water front.

In Louisiana the civil code has adopted in statutory form the general rule as above stated and the Louisiana court in Newell v. Leathers, 23 So. 245-46-47, goes into the reason for the rule, approving the Deerfield v. Arms, Johnston v. Jones, and other cases upholding the doctrine here contended for and especially contends that the two main purposes are subserved by this rule; to-wit: (a) That the principle of equity is subserved; and (b) that the right of the riparian owner to water frontage is safeguarded, citing on the last point St. Louis v. Rutz, 138 U.S. 226, 34 L.Ed. 951. Numerous other cases may be cited also. See Malone v. Mobbs, 102 Ark. 545, 145 S.W. 194; Reeves v. Moore, 105 Ark. 598, 151 S.W. 1025; Peuker v. Canter, 62 Kan. 373, 63 P. 621; Watson v. Horn, 64 N.H. 418, 13 A. 790; Groner v. Foster, 94 Va. 653, 27 S.E. 493; Northern Pine Land Co. v. Bagley (Wis.), 54 N.W. 496-500; Yutterman v. Grier (Ark.), 166 S.W. 750; Berry v. Hoogendoorn (Iowa), 108 N.W. ; Hathaway v. City of Milwaukee, 111 N.W. 570; Blodgett & Davis Co. v. Peters (Mich.), 49 N.W. 917.

Great emphasis is placed on the importance of the preservation of water frontage to each riparian owner in the apportionment of accretions by every court that has passed upon the question of apportionment. So that in the adoption of any rule for the apportionment of accretions on a navigable river, the courts keep an eye to this important feature. So important is this right that some of the courts, including that of Mississippi, will not permit accretions formed to islands within the confines of one ownership to pass the line of a coterminous neighbor and cut the latter from access to the navigable stream. Mulry v. Norton, 100 N.Y. 437, (3d Ed.), N.E. 586; Archer v. So. Ry., 75 So. 251; City of St. Louis v. Rutz, 138 U.S. 226, 34 L.Ed. 951.

One of the rights of a riparian owner is access to the navigable part of the river to the front of his land and to make a landing wharf or pier for his own use or the use of the public. City of St. Louis v. Rutz, 34 L.Ed. 949; Dutton v. Strong, 66 U.S. , 1 Black 23, 17 L.Ed. 29; St. Paul & P. R. Co. v. Schurmeyer, 74 U.S. , 7 Wall 272, 19 L.Ed. 74; Yates v. Milwaukee, 77 U.S. , 10 Wall 497-504; 19 L.Ed. 984-86.

V. Effects of, the Application of Any Other Rule of Apportionment Than That Invoked in the Instant Case. It is earnestly urged by appellants that the rule invoked by them is the only rule that will give equitable results in the instant case.

(a) If the method of apportionment used in Leavenworth v. Smith, 57 So. 803, be applied to the lands here, the appellant would be entirely cut off from the water front.

It will be borne in mind that the Mississippi court did not adopt the method of apportionment used in Smith v. Leavenworth, as a general rule for apportioning accretions but only let the apportionment there made stand because it worked out substantial justice. In that opinion Chief Justice SMITH stated the rule to be as contend by appellant in the instant case in the following language:

"The general rule for apportioning alluvion between coterminous landowners is to give to each such proportion of the new shore line as they possessed of the former shore line before the formation of the alluvion."

To use the method of Leavenworth v. Smith, would also cut complainants entirely off from a water frontage so far as other lands in this case are concerned. Nor could justice be worked out by attempting to extend perpendicular lines from the boundaries of the parties to the cause outward and perpendicular to the Mississippi River. Nor could justice be worked out by attempting to extend the old section lines in the direction they would run if projected.

Dulaney & Jaquess, for appellees.

I. Title to Submerged Lands. As early as 1844 it was held in Mississippi that the holder of a riparian grant owned the submerged land to the thread of the stream subject only to the right of the public for navigation and this has frequently been re-affirmed by the court. Archer v Greenville Sand & Gravel Co., 233 U.S. 60, 58 L.Ed. 850; Morgan v. Reading, 3...