Archer v. Southern Ry. Co.

75 So. 251 | Miss. | 1917

Cook, P. J.,

delivered the opinion of the conrt.

Mrs. Archer, the appellant was the complainant in a bill filed in the chancery court of Washington county seeking to have her title confirmed to a certain island and the accretions thereto, which it is alleged formed in the Mississippi river opposite lands owned by complainant. To the bill of complaint appellee interposed a demurrer, which was sustained by the court, and from this decree complainant prosecuted this appeal.

The bill alleged that Mrs. Archer was the owner of' certain lands, described in the bill, bordering on the Mississippi river; that an island had formed in the river opposite and west of her land and east of the thread of the stream; that by accretions the island had gradually extended up the river, until its northernmost point is now in front of the lands of the Southern Railway Company, which lands lie north of and adjoining complainant’s lands. Complainant contends that, when the island in question formed offshore in front of her lands, it became her property, and that all of the accretions which thereafter formed upon thé island are a part of the island, and therefore her property, and that this is true although the accretions to the island have formed between the lands of the coterminous owner and the thread of the stream.

Complainant also contends that she and defendant derived their title from a common source; that the deed made by the common grantor to the defendant described the land conveyed by metes and bounds, and fixed the western boundary as the bank of the river. In other words, complainant contends that the deed to the railway company conveys only to the banks of the river, and not to the stream — along the bank and not along the stream. These descriptive words, it is insisted, manifest an intention to reserve all riparian rights to. the grantor.

With this postulate, it is argued that the common grantor afterwards having conveyed all of the lands owned by him in this locality to complainant by proper descriptive words, and by the general words, “except that previously conveyed,” this conveyance carried the riparion rights of the grantor lying in front of the lands conveyed to the railway company.

It is somewhat difficult to state complainant’s theory with reference to the ownership of the riparian rights,, but we understand it to be that the deed to the railway company excepted the lands lying west of the bank of the-river — thereby reserving to the grantor the land under the water west of the bank to the thread of the stream,, and furthermore that the deed to complainant conveyed, all of the common grantor’s rights not previously conveyed, which meant the riparian rights previously reserved.

Following the description of the lands conveyed to-complainant, it appears that the land expressly described does not touch the banks or stream of the river;, and, this being true, complainant must rely upon the general words “except that previously conveyed.”

It is argued that the grantor did not convey to defendant the land under the water, but by the general words, did convey the same to complainant.

We find ourselves' unable to endorse the reasoning of complainant. In the first place, it is not at all clear that-the conveyance to defendant did not carry with it all riparian rights. But, if we are mistaken in this, we cannot believe thajt the common grantor intended to convey riparian rights which did not under any circumstance appertain to the land particularly described. As complainant must stand upon the strength of her own title, and has failed to establish same to our satisfaction, it follows that the riparian rights are in some one other than complainant.

We come now to the very interesting question, which in our opinion will finally dispose 'of this appeal. In the numerous cases decided by this court and other courts we have been unable to find but little authority exactly in point.

The island which formed in front of complainant’s land, it is agreed, belonged to the owner of the land lying east of the river. The defendant does not challenge complainant’s title of the island immediately in front of complainant; but, when complainant seeks to establish ownership beyond the northen limit of her shore line, defendants demur. It is pointed out that if complainant is right, when the nucleus of the island formed in front of her land, she would own the island if it should thereafter extend up and down the river along the entire river front of Washington county, and even more.

The general rule is stated to be, when an island is so formed in the bed of the river as to divide the channel and to lie partly on each side of the thread of the stream, if the land on opposite sides of the river belongs to different owners, the island is divided between them to the extent of their lands in length according to the original thread or medium line between the banks of the river. Gould on Waters, section 166.

It seems to be pretty well settled that, where an island 'forms opposite lands on one side of the stream and extends across the stream, the proprietor on the opposite .side of the stream takes that part which forms on his side of the stream.

Mulry v. Norton et al., 100 N. W. 437, 3 N. E. 586, 53 Am. Rep. 206, stated the rule thus:

“However such accretions may be commenced or continued, the right of one owner of uplands to follow and appropriate them ceases when the. formation passes laterally the line of his coterminous neighbor.”

This expression by the New York court strikes us as sound in principle and draws the line rationally and in accordance with common justice. If the owner can claim the island in question after it has passed the line of his neighbor oh the north, many complications as to reparian rights would inevitably arise; and if this is the iron-clad rule his ownership may extend over county lines no matter what may be the vagaries of the river.

As we have said before, there is a singular absence of authority on the precise question involved in this case. Much learning has been displayed by our own court, in the early cases, upon the subject of accretions and riparian rights; but we have searched in vain for a case just like the present case. The industry and ability of counsel has npt produced a case in point, and so far as we know we are blazing the way in this decision. There must be some limit of the ownership of islands formed offshore in nonnavigable rivers, and, when we fix the limit at the line of the coterminous owner, we feel that we are not out of line with the authorities, and safe within the boundaries of the general principles of convenience, justice, and common rights of property.

Believing that the learned chancellors reached the proper conclusion, the bill will be dismissed.

Affirmed.