Yutterman v. Grier

• Decision Date: 13 April 1914
• Docket Number: 253
• Citation: 166 S.W. 749,112 Ark. 366
• Parties: YUTTERMAN v. GRIER
• Court: Arkansas Supreme Court

166 S.W. 749

112 Ark. 366

YUTTERMAN v. GRIER

No. 253

Supreme Court of Arkansas

April 13, 1914

Appeal from Sebastian Chancery Court, Fort Smith District; J. V Bourland, Chancellor; affirmed.

Decree affirmed.

Winchester & Martin, for appellant.

1. This is an action in ejectment, cognizable at law, in which court plaintiff brought his suit, deliberately, and in which court he ought to have been required to abide the issue. The case does not present "the peculiar equities" essential to the jurisdiction of a court of equity. It is not a case of disputed boundaries, as in Deidrich v. Simmons, 75 Ark. 400, but it is a case presenting a question of fact, i e., whether or not the land in question is accretion, to be determined from the testimony of witnesses, and in the determination of which appellant was entitled to the verdict of twelve men rather than the finding of one man, the chancellor.

2. The land in question was not an accretion. The change of the course of the river was sudden and radical--an avulsion--with the result that the east boundary of section 13 was not changed, did not follow the river into its new channel.

"The river line is a natural boundary, and its gradual advance or retreat carries the owner's line with it, except in case of an avulsion, or sudden and perceptible change of the water course, in which latter case the line remains at the old water line, and becomes fixed by it, not subject to further change by the caprice of the river." 73 Ark. 199-202; 53 Ark. 314; 61 Ark. 429; 138 U.S. 226. See, also, 143 U.S. 359; Gould on Waters, § 159.

H. C Mechem, for appellee.

1. Appellant's sole defense at the former trial was that the land claimed to be an accretion was not properly divided. His appeal was not from the finding of the court that the land was accretion, but from the finding upon the question of its division. He should not be permitted to shift his position so as to present a new issue at the second trial, namely, that the land was the result of an avulsion. 31 Cyc. 423, note 16; 83 N.W. 733; 81 A.D. 140.

2. The case was properly transferred to equity, under the rule announced by this court in Malone v. Mobbs, 102 Ark 542. See, also, 75 Ark. 404; 3 Pomeroy, Eq. Jur., § 1384; 12 Pet. 734; 17 Pick. 41; 135 A.D. 365; 56 Cal. 622.

3. Under the evidence, the land in dispute is an accretion, and not an avulsion. 61 Mo. 352; 143 U.S. 359; 223 U.S. 605; 56 Law. Ed. 570; 59 N.W. 550; 84 Ia. 241; 101 Ia. 625; 3 Tex. Civ. App. 634; 134 U.S. 178; 99 N.E. 850; 122 N.W. 233.

OPINION

MCCULLOCH, C. J.

This controversy involves the title to lands alleged to have been formed by accretion on the west bank of the Arkansas River in Sebastian County, Arkansas.

Plaintiff Grier, instituted the action against defendant, Yutterman, in the circuit court of Sebastian County, Fort Smith District, to recover possession of what he claims is the accretion to his land.

The circuit court rendered judgment in his favor for some of the land claimed, but apportioned the accretion according to the wrong basis, and he appealed to this court. The judgment was reversed on account of that error. 102 Ark. 433.

As the pleadings then stood there was no denial of the allegation that the lands in controversy were formed by accretion. On the remand of the case for a new trial, the defendant amended his pleadings so as to deny the allegation that the lands were formed by accretion and to raise an issue on that question.

The plaintiff thereupon amended his complaint so as to show that other land owners fronting on the river were interested in the apportionment of the accretion and moved that they be made parties and that the cause be transferred to equity.

This was done over the objections of the defendant and is one of the principal grounds urged here for the reversal of the decree.

The cause was heard upon the pleadings and the depositions of numerous witnesses, and the court found that the lands formed along the original shore-line were accretions and belonged to the riparian owners, and appointed a commissioner to divide the lands according to the rule laid down by this court in Malone v. Mobbs, 102 Ark. 542, 145 S.W. 193.

The question of the correctness of the court's ruling in transferring the cause to equity is not free from doubt.

In Malone v. Mobbs, supra, no objection was made to the jurisdiction of the chancery court, and we pretermitted any decision of that question, holding that no objection having been made to the cause proceeding in equity the decree could not be attacked here.

We held in Deidrich v. Simmons, 75 Ark. 400, 87 S.W. 649, "that the mere fact that boundaries are in dispute is not of itself sufficient to authorize the interference of equity; and that courts of equity will not interpose to ascertain and settle boundaries unless, in addition to the confusion and dispute over the boundaries, some other peculiar equities are shown."

In Brizzolara v. Fort Smith, 87 Ark. 85, 112 S.W. 181, we held that a court of equity will (quoting from Mr. Pomeroy) "take cognizance of a controversy, determine the rights of all parties, and grant the relief requisite to meet the ends of justice, in order to prevent a multiplicity of suits, where a number of persons have separate and individual claims and rights of actions against the same party, but all arise from the same common cause, are governed by the same legal rule, and involve similar facts, and the whole matter may be settled in one action, there being a community of interest between them in the question at issue and in the remedy. (1 Pomeroy's Equity Jurisprudence (3 ed.), §§ 255, 269.)"

In Ellsworth v. Hale, 33 Ark. 633, the court decided that "to warrant the interference of chancery on the ground, alone, of preventing multiplicity of suits, the same rights should be claimed by different persons against one, or by one against many."

Whether the facts of this case are sufficient to bring it within the rule which permits a court of equity to assume jurisdiction in order to avoid multiplicity of suits we will refrain from deciding, for we are of the opinion that the decision was correct upon the undisputed evidence and that appellant can not, for that reason, complain of the transfer to equity.

It is not contended that the court did not apportion the alleged accretion according to the rule established by this court in Malone v. Mobbs, supra. The only contention as to the facts is that the proof does not establish that the land was formed as accretion.

But we are of the opinion that the proof, not only establishes the fact, but that the testimony is undisputed on that issue. The plaintiff introduced a large number of witnesses who were familiar with the lands along the river bank in that locality and had observed them for a great many years, and the testimony of those witnesses thoroughly establishes the fact that the land in controversy was formed by a gradual shifting of the shore-line at that place, the banks on the east side of the river gradually caving in and the deposit on the other side and the recession of the waters gradually forming the lands in controversy on the west side of the river. The only dispute is that some of defendant's witnesses testified that the greater part, if not all, of the land was formed during the overflow of 1898, and that the change was perceptible, in that the caving on the east side was perceptible. Some of the witnesses testified that they saw or heard the bank caving in. This circumstance does not, we think, take the facts of the case out of the operation of the general rule applicable to lands formed by accretion. The law on that subject is well settled.

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