245 F. 254 | 5th Cir. | 1917
The appellants, A. G. Wineman & Sons, brought two suits, one of them in the chancery court of Tunica county, Miss., against W. D. Reeves, J. D. Asher, John P. Moore, and A. C. Sexton, the bill in which averred that the complainants are the true and lawful owners of described lands, including accretions thereto, al
The main channel of the Mississippi river as it was in 1824, when the Arkansas shore opposite Tunica county, Miss., was surveyed and platted, and in 1836, when the Mississippi shore, including that of Tunica county, was surveyed and platted, and as it remained for many years afterwards, except for slight changes, due to accretions to one shore and erosions from the other, went, in the direction of the flow of the water, around a bend, called Walnut Bend, turning from the westerly direction it had before the bend was reached to a northwesterly direction, and then turning again and going in- a southerly direction. The result was that the land within the bend was a peninsula, extending from the Mississippi mainland in a northerly direction, except that there were two chutes, the northerly one called Whisky Chute, and the one farther south called Bordeaux Chute, through which there was, except when the river was quite low, some flow of water from the part of the river in the upper reach of the bend to the part in the lower reach of the bend. The island made by what was cut off by the first-mentioned chute was called Whisky Island, and another island, which was larger and farther south, and was bounded on the northwest by Whisky Chute and on the southwest by Bordeaux Chute, was called Bordeaux Island. Many years ago, about 1869, or a little, though not much, later, but exactly when was not satisfactorily proved by the evidence, the main channel of the river ceased to be around Walnut Bend. When this change first occurred, the new route of the main channel was through Bordeaux Chute; A Result of the greater volume of the wa
From the averments of the bill it is to be inferred that the plaintiffs understood that the contested claims set up by the defendants included only land which had emerged between the shore line of the subdivisions owned by the plaintiffs as it existed before the channel of the river deserted Walnut Bend and went through Bordeaux Chute, and where the middle of the old channel was before that change occurred, and a longtime right to cut timber on the remainder of such new land. The answers of the defendants so delineated the boundaries of the land claimed by them as accretions to subdivisions of land in Arkansas which they owned as to make their claims cover, not only land which had emerged in the space covered by the water of the river when it went around Walnut Bend, but also land south of the old Mississippi shore line of the subdivisions patented to the plaintiffs’ predecessors in title, which had been submerged by the river and emerged again as the channel shifted farther to the south.
“No adequate relief to the owners of real property against the adverse claims of parties not in possession can be given by a court of law. If the holders of such claims do not seek to enforce them, the party in possession, or entitled to the possession — the actual owner of the fee — is helpless in the matter, unless he can resort to a court of equity.”
Such an enlargement of equitable right resulting from a state statute may be enforced in a federal court of equity in favor of an owner of land not in possession, when the situation is such that the legal remedies available to such owner are inadequate or less efficient that the one he seeks by bill in equity. Devine v. Los Angeles, 202 U. S. 313, 26 Sup. Ct. 652, 50 L. Ed. 1046; Dick v. Foraker, 155 U. S. 404, 15 Sup. Ct. 124, 39 L. Ed. 201; Gormley v. Clark, 134 U. S. 338, 10 Sup. Ct. 554, 33 L. Ed. 909; New Jersey & N. C. L. & L. Co. v. Gardner-Lacy Lumber Co., 178 Fed. 772, 102 C. C. A. 220. Under Mississippi statutes the bill filed by the plaintiffs was maintainable in the state court in which it was brought, whether the plaintiffs were or were not in possession of the land they claimed. Code Miss. 1906, §,§ 549-552. Upon its removal to the federal court, it was maintainable on the equity side of that court, unless, under the circumstances existing at the time the suit was brought, the plaintiffs had an adequate and equally efficient remedy at law. As the situation, as disclosed by the record, was such as to justify the conclusion that the legal remedies available to the plaintiffs were inadequate, we are not of opinion that it has been made to appear that the suit is one calling for an order transferring it to the law side of the court.
“It is the established rule that a riparian proprietor of land bounded by a-stream, the banks of which are changed by the gradual and imperceptible pro*259 cess of accretion or erosion, continues to hold to the stream as his boundary; if his land is increased, he is not accountable for the gain, and if it is diminished, he has no recourse for the loss. But where a stream suddenly and perceptibly abandons its old channel, the title is not affected, and the boundary remains at the former line.” Philadelphia Co. v. Stimson, 223 U. S. 605, 624, 32 Sup. Ct. 310, 346, 56 L. Ed. 570.
It is to be inferred from the evidence that the emergence of land where the bed of the river formerly was around Walnut Bend occurred a considerable time after the river had made for itself a new main channel through Bordeaux Chute. Such filling up of that old river bed as occurred was by a gradual process; towheads, sandbars, and islands making their appearance above the surface of the water and gradually enlarging, while one or the other of the formerly existing shore lines encroached as the water receded from, it, until space formerly occupied by the river was no longer under water. Whether it was or was not a fact that this new land so formed first made its appearance as additions to land on the Arkansas side of the boundary, the fact that the boundary had ceased to be a shifting one before the new land was added to the old prevented the change from, having the effect of enlarging the state of Arkansas or of diminishing the area of the state of Mississippi, or of adding to or lessening what was included within the boundary lines of the subdivisions of land in the two states which were contiguous and had as a common boundary a line which formerly, but no longer, was a shifting one. Though it was by means of gradual and imperceptible accretions that new land was formed or built up from where the Arkansas shore line formerly was, until it extended beyond the boundary line of the two states, such a change in the surface conditions, in so far as it occurred after the boundary ceased to be a shifting one, was without effect on the title or ownership of the tracts the common boundary of which was fixed.
The claims asserted by the plaintiffs included no land on the Arkansas side of the center line of the old channel around Walnut Bend, as that line was located when the river made for itself a new channel through Misissippi land, part of which was patented by the United States to the plaintiffs’ predecessors in title. Our conclusion is that the court was in error in declining to pass on questions duly raised by the pleadings and evidence in the case, on the ground that tire land in dispute is not a part of the state of Mississippi.
Because of that error, the decree is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
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