*1 CO. LAND & CATTLE ARKANSAS CO. ANDERSON-TULLY et al S. W. 2d 632 5-4896 April delivered Opinion Drew & Holloway, appellant.
Arnold, Dent, Hamilton & Streetman and Ward, Martin & Terry, Vicksburg, Miss., for appellees. A. Both appellant and Fogleman, Justice. John
appellee Anderson-Tully Company claim to be the owners of a tract of land to as usually referred Luna Bar. is the owner of Appellant Sections 9 and 16 in S, County, Ar- T R W and accretions in Chicot kansas. It claims that Luna Bar is within the bound- it, of aries owned tract by even though separated from other appellant’s lands of by chute the Missis- It sippi contention appellant’s River. that Luna Bar was separated from the Arkansas mainland an avul- sion, so that this land remained within the bounda- Arkansas,, and, ries of the State of with any accre- thereto, tions of property On the appellant hand, other Anderson-Tully claims Company owner- ship these lands as accretions to its lands Wash- ington County, Mississippi, known as Carter Point or Woodstock, acquired deed from C. W. Hunter Com- pany October It is the contention of appellees portions the lands within bound- original aries appellant’s lands were eroded away by action of the Mississippi so the boundary the States of Arkansas appellant’s boundaries shifted with the erosion. They also contended that Luna Bar actually consists of ac- cretions to Carter Point in Mississippi.
Appellant instituted this action seeking quiet its title and to interference with appellees1 enioin of this land. Ap- in the use and appellant enjoyment want of complaint moved to dismiss for pellees lands, were they over jurisdiction contending court Mississippi. chancery pro- the State hearings ceeded with extensive upon question jurisdiction. chancery This was taken from the appeal 1Appellee Company rights Chicot Land asserts in the tract virtue hunting August fishing of an exclusive license for dated 1964. Other parties position Anderson-Tully are in the same as so far as issues involved appeal on this are concerned. want appellant’s action court’s dismissal jurisdiction.2 lay agree chancellor that the burden
We with the jurisdiction upon appellees to show want of over the allega- preponderance of the evidence. The lands complaint tions of the Chicot diction. upon indicate that the land was in County, juris- Arkansas, and that the court had depends
Where, here, a motion to dismiss testimony, the introduction of the burden of producing jurisdiction the lack of evidence show party. Running moving is Freight v. Southwest Lines, Inc., Ark. 303 S. W. 2d 578. *3 burden, it incumbent was meet their In order to formed as upon appellees the lands were to show ap- agree that do not Point. We to Carter accretions pellees met this burden. findings studiously recorded
The chancellor following: findings included the These detail. by occupied within Luna Bar was
1. The area and 16 owned 9 of Sections the boundaries appellant Government the United States when Survey January 13, 1825, and certified dated 18, 1823, made. was June appeared in the river sometime Luna Bar
2. years year and the 1872—1874. sailing channel, thalweg, the Mis- or lay 3. sissippi more Luna Bar for west of River years prior than 40 proof
4. That is insufficient to show jumped” and left “land appellant’s re- lands Bar isolated from Luna propriety subject questioning jurisdiction by prelimi 2The matter answer, nary question motion to dismiss rather than when a of fact is involved, court, questioned though in the lower even not it seems that substantially questions the same will be involved trial the merits. on
maining in Sections 9 and 16 on the mainland. thalweg sailing 5. That or channel west existing Luna Bar came into 1872/74-1935 existence reason of erosion and accretion. Appellant points raises four for reversal. Three proof them have to do with the burden of and the con- point clusions is based be drawn from the evidence. The first the contention that expert appellees, Smith, Austin B. roneously an called was er- argued admitted. It is that the witness lacked necessary qualifica- training education, and other opinion tions to make his evidence on the issues in expert case admissible. Determination an whether sufficiently qualified witness lies within the sound judicial judge. Busby, discretion of trial Ratton v. 667, only Ark. S. W. 889. This will 2d court judge reverse decision of a trial on this determina- tion extreme cases where there is error or a manifest discretion. Keeton v. Bozark, clear abuse Ark. 123; S. 339 W. 2d Arkansas-Louisiana Gas Co. v. Maxey, no We find such 245 Ark. W. 430 S. 2d 866. abuse of discretion here. *4 graduate engineering
Smith was a in civil from the University of Arkansas in 1930. He had hours credit geology. employee in He is an the United States Corps Engineers, having employed been on a full- Mississippi time basis the River Commission since 1935. His duties with the commission have been navigation problems connected with and construction Mississippi on the River and its tributaries. He was responsible navigation during for of the river World present supervision War II. His duties are in of con- dikes, abutments, struction of dams and locks and of dredging controlling in the flow river. He ais Society Engineers, member of the American of Civil Society Mississippi Engineers, of Professional Inter- Navigation, Vicksburg Engi- national Association of registered Club, engineer neers Mississippi. Although and a in Louisiana and geological
he had never made a
Mississippi
Commission,
study
he classi-
potamologists.
of the foremost”
himself as “one
fied
He stated
formations
studying
engaged
been
land
that he had
Mississippi
along
River and its tribu-
examining
genesis
purpose
for the
taries
years.
employment
private
for 30
He
these lands
employed
and worked
in three court cases
had been
private
litigation. His
em-
privately in twelve without
the state
ployment
wherein
or 15 matters
included 12
boundary
have written sev-
He
was a factor.
claimed
Mississippi
dealing
papers
the actions of
with
eral
River and
accretions
about 100
been concerned with
to have
dealing
boundary problems
with the
Mississippi,
been
Rivers.
had
and Red
Arkansas
particular
reach of the river on
with this
concerned
and 1965. As
occasions between 1954
three other
navigation,
part
he had
with
duties connected
of his
deepest part
determining
experience
of the river
Although
navigation.
the witness admitted
for safe
employment
regular
had never
that his
duties in
any
genesis of
chan-
included the determination
any geological studies,
River or
nel of
training
experi-
say
education,
we cannot
permitting
of the witness were so deficient
ence
testify
of dis-
manifest error or an abuse
him to
familiarity
required, long
expert
If
cretion.
with
knowledge
observation and
the river and
experience
and formation
river action on banks
may
qualify a wit-
be sufficient to
of islands
bars
ness.
Ark.
Mallory
Brademyer,
We testimonial findings two of the listed As a chancellor’s above. controversy matter of fact there seems to be little points. findings these are concerned Insofar as other question depends upon of the river critical location 1861 and and the means 1872/74 *5 any change accomplished. which of location was testimony Appellees to the offered in addition Guyer, forester for chief that of Austin Smith Walter 500
Anderson-Tully McKnight, Company, a forester S. J. Henry Captain Service, with Forest the United States pilot, Muirhead, Smith, a caretaker C. C. J. Company, predecessor to Hunter in title for W. C. appellee. appellant hand, offered On other testimony Thompson, charge a forester W. John - Mississippi near Manville Timber Lands Johns geologist Spillers, Mississippi, Natchez, a James engineer. Dabney, a T. S. licensed clearly they
Appellees have shown contend that to was accretion tract involved formed that They physical argue location Point. Carter the river and peninsula Point called Carter gives appearance compared rise in 1841 as with their gradually presumption bank the Arkansas to to the Carter land accretion eroded and the formed upon them, peninsula. In the case relied Point oper- pointed presumption however, that this it is out countervailing only evidence. See ates in the absence Reynolds, Gypsum Company United States depends (1944). also Miss. 18 So. It 2d relationship in- between the other such factors lapse movement, tervening and the distance time. comparative general correspondence of loca- and the evidence tions and directions of the river. Under the controlling. presumption here, be do not deem this we in Ander- attention is called the decision Our Supp. son-Tully Company Walls, F. v. Dr. M. J. companion (N. 1967), Miss. termed case. We D. any given the decision in have not consideration to case, principally appears it obvious because to us that testimony before Arkansas that there was considerable Spillers, particularly court, not before federal court. important of the result reached
An element thalweg finding its 1861 the trial court is until sailing Mississippi River was hard or channel of the regard any against the Arkansas mainland without question area in land in the The river in the mass river.
501 Spanish to as Moss Bend. An 1841 edition is referred containing Pilot, Missis- charts of the of Western sippi navigation, with directions for described River entry being just upstream Spanish Moss Bend as preferred sailing of Island south around this The channel 82. naviga- island was the left or east. The suggested right tional directions an incline toward the passed coming shore after this island was Map downstream. depicting No. this area shows the channel as 12 being in the center of the stream between the Arkansas suggested mainland and Carter Point after the turn. thalweg time, against, least, At this at was not hard finding the Arkansas shore. The correctness of this may depend well on what is determined to constitute the Arkansas shoreline. pub- Mississippi
Lloyd’s Map River of the Lower sailing is hard channel lished shows 1862 against end at the extreme south the Arkansas shore opposite point but shows Arkansas Island of the through Spanish the stream the Moss Bend. E. A. the center of Map Douglas’ Line of of the designates Landing this to Luna Levee land formation Gaines not show a con- as Luna Bar and does Landing is shown with either shore. Luna nection map being perhaps the south- meander line a mile south of this as tip of the formation. The ernmost Douglas map. superimposed upon The this 2,000 feet west of bank is shown to be some Arkansas running along meander line. A levee” this “state having shore from the north is shown Arkansas opposite bank the north terminated at the termination end of Luna Bar. A levee with a northern virtually opposite the southernmost at the river bank pur- primary tip the formation is also shown. The pose Douglas survey effect was to determine the upon levees. of floods
Major Corps Suter, Charles R. of the United States Engineers, mapped his reconnaissance of the Missis- sippi Congress accordance with an Act map His shows a land mass between June Point and Arkansas mainland. shows Carter virtually equidistant Ar- as a land from the this mass designation Span- banks. kansas placed Moss ish Carter Bend is formation *7 landing Point. A or called is shown town Luna tip near the southernmost the Arkansas mainland on composition of this land The mass.3 of the surface of appears the land mass to have been as shown sand. Testimony concerning cypress stumps found in signifi- west the water of the island is of some Thompson rings counted annual cance. sound on one
stump. stump He described the next it as larger, being fragmented. but rotted out and He testi- stump fied section from which he took cross grew spot in the where he found it and that appellees’ theory stumps cypress that these were from point they which trees to the are floated now found they separated stumps where were from the which then present clearly into their was sank location erroneous. appearance stumps at of least two of these in photographs support introduced to lend tends Thompson’s testimony appellees’ theory. than rather Support ap- for the statement of this is witness pearance designation “cypress of a knees” or other “cypress designation stumps” along or trees Arkansas shore near mainland on several Missis- sippi River Commission charts exhibited. One of cypress stumps along these shows the Arkansas shore in 1894. These charts indicate that there were evidences cypress many years stumps ap- before when pellees they theory claim were left It there. is their floating cypress there to a custom trees downriver point logs away where were cut hauled stumps standing upright left at the river bank. C. J. practice Smith told of and said that he first saw stumps these in 1940. Austin that if Smith testified theory by gradual the river channel moved mi- gration, by avulsion, correct, rather than these stumps present posi- could have not remained their maps landing 3Other show both and a community called “Luna” proximity to each other. tugs pilot Captain Muirhead, of steam a retired tion. and tenders channel around sailing Mississippi River, traced on the or Towhead Luna Bar Tarpley Cut-Off construction before pláced main- the Bar and the Arkansas it between exhibit, tracing he com- an line on While land. as follows: mented you got the foot you down to will note “Now extremely right there, in there was the towhead sides, a lot
deep there was but on both water always the main stumps ran near we in there and snags in there around avoid those shore to towhead.” island or
Although Captain Muirhead said that the channel *8 east of Luna Bar was too shallow to be used boats steam- except during excessively high any water at dry on, time from he said that there was never 1920 land between Luna Bar and Point until Carter Tarpley significance construction of The Cut-Off. saying of this witness’ that the channel west of Luna Spanish Bend, Bar had been called Linwood rather than designated, Bend, Moss is not to be as it is now Spanish overlooked, in view of location of Moss Suter’s Bend east of the bar. Spillérs impressive. He James geologist degrees,
is a with bachelor’s and master’s who has done some work toward a doctorate. He has many years experience geologist, during as a which part-time professor he has served as a associate geology Mississippi University. major at Southern His employment prior company. to an 1963 was with oil Geologist Since that time he has served as in Chief charge Engineering Geological of the Division of the Louisiana in State Mineral Board. He has worked profession California, Carolina, Texas, his Louisiana, in North and Alabama. Two-thirds of his spent deep career has been in strata and evaluation of geological structure, and the remainder surface geology. study origin He made a and evolution
504 borings Spillers question. took mass the land of digging places. post In one of different holes four escarpment of an area face of the eastern them on permanent province bench mark 1, he found he called Corps Engineers, cov- C States H of United 168 crept colluvium, he said had which feet of ered four sample a least one cliff. In at the face of the over lithology Spillers mesa, at cor- boring found a on the sample on responding to that of similar elevations community Luna.4 proximity the mainland physiographi- Spillers into five divided the island “provinces.” designated areas, One which he cal acres, high of about mesa-like area these was 200 ranging at the northern ex- from 135 feet elevation wholly tremity area at the south. This lies feet original 16, S, T 15 lines of Sections 9 within survey original government in Arkansas. R 1 W of the Significantly, line of the river runs meander escarpment. along He found a distinct eastern province pattern part drainage His of the island. sloped gradually 1 to the north downward from No. 2 and east. Province province lying north, east and west accretionary him as was described lay province 4 west of Nos. His east and No. 2. accretionary it as a series of and he characterized 5 consisted of the abandoned materials. Province water and west of the island. found channels east running through island and between the *9 Carter Point. survey maps Spillers
By study charts, and a relationship elevation of a between the demonstrated physiographic province Arkansas and both the Mississippi mainland. From elevations shown on and’ survey maps con- and charts exhibited he the various low-lying a had never been that the formation cluded appeared always high him It but was a mass. island Luna Bar had remained the channel east of the fact somewhat diminished weight of this 4The sample never returned taking this only dug feet Spillers down a few had made studies pointed that others out borings. Austin Smith for further Spillers’ conclusions. tend to contradict would which study essentially By location since a the same Mississippi showing River Commission charts the lo- early geological survey river channels a cation migra- courses, channel of ancient he established that point southwesterly of the bar in a tion moved the prior year. at a direction to 1891-95 the rate 50 feet By method, the same he noted that all channels had relatively position remained in the same after 1872-74. study He referred to a monumental of the river made Mississippi Fisk, River for whom he Commission a Dr. authority be
considered to an eminent geology history.5 study This part upon borings. 16,000 was based in It was made 22, accompanying 1944. Plate Sheet Dr. Fisk’s report prehistoric is a chart of historic and study legend accompanying courses. A shows of the this chart occupied posi- that the river channel never occupied by part tion now Bar of the mesa area of Luna nearly years. map early A stream chan- prepared nels in the office of the President of Mis- sissippi River Commission also indicates that the river occupied area, never at least since beginning point study. which is the The indi- cated places “indeterminate bank line” thereon it east According Spillers, of this mass. if Luna Bar had been peninsula, accretions to the Carter Point it should slope have westerly had some in direction.
Spillers changes calculated place that the that took require 1861 and would 1872-4 a dramatic migration approximately per year, 550 feet more average than migration five times the of other bends that reach of the river. Spillers history also recounted the of flood intensi-
ty 1874.6 found that the flood previous gauge exceeded heights all Cairo, at ex- de- cept during year great 1815 and that there was 5Austin geological Smith obtained data report. from Dr. Fisk’s 6Austin Smith testified that appeared Luna Bar first government on a *10 survey in 1870.
506 The 1865 of at all below Cairo.
struction levees points intensity was of less flood was noted for duration but ex- 1868, as an classified which was one of than the almost was characterized flood flood. An 1867 treme rises, two and and height rapidity unprecedented floods were also 1871 There two weeks apart. crests a 1874, great been classified former having and the floods, or coupled, individually Either of these flood. the opportunity offered an according Spillers, or channel.7 a new alternate formed to have and when physiographic topographic, concluded conditions, minimum age 100-year the lithological mass, migration comparison the mesa land the and the relative bendways, stability channels in other channels, and after are both before 1861 1874 the considered, only formation of Luna Island could the of the Mississippi been the result of an avulsion have than of the grad- and rather River between 1874 1862 accretion, and that the island ual of erosion process which there mainland to is a remnant of the Arkansas been accretions. have contrary to directly
The of Austin is theory Smith considerable Spillers. emphasis that of He placed the or chart to indicate the any map presence failure of boundary general is the1 when 7The rule follows the channel the change recognized exception. is not sudden and violent. But there is boundary place changes remains in the same whenever a river its main chan nel, by excavating, filling intervening place passing not over and then the channel, land, by flowing intervening the new old and but around meantime, change which never becomes the main channel the and the wrought period years from the old to the new channel over a is gradual propouion passing or waters occasional increase over eventually corresponding the new and a course which becomes part flowing through greater in the waters channel until decrease old States, through the new Commissioners v. waters flow channel. United 753, (8th 1920), prosecution, F. 110 dismissed for want of 260 U. S. Cir. 14, Gypsum (1922). 43 S. 62 L. Ed. also Uhlhorn United States Ct. See Co., denied, (8th 1966), F. 2d cert. 385 U. S. 87 S. Cir. Ct. (1967) “thalweg Ed. is L. wherein it demonstrated that 2d 674 rule,” boundaries, fixed, boundary governing requires state remain changed gradual imperceptible process unless of erosion ac cretion, though process by even which the river seeks new channel ’ anot true avulsion. *11 vegetation prior hydro- of graphic on the island to a 1925
survey Mississippi made for the River Com- vegetation mission. The same witness stated that this destroyed Spillers vegetation that testified by in certain instances is sometimes removed sand mi- gration, by of dunes and the action the effect may and water an winds. constant floods have been denuding portion element in all or of this tract vegetation. Spillers scouring testified that action of during the river floods tended to remove soil trees submerged. from lands which were then point testimony Another cardinal Smith’s is could never have accommodated itself to the narrow distance between Carter Point and line the 1833 meander on
edge of Luna Bar. Yet the 1939 Ar- kansas-Mississippi Quadrangle Map published Corps Engineers United States and introduced through him shows the 1833 meander lines place of the river. These seem to the river between points. appears these two It also depicted that the width of the two channels is as about the same map, Suter hydrographic survey, maps and other and charts introduced. experience determining Smith’s genesis lack of weight of land formations tends detract from the given testimony regardless expertise to be his physical river action. Smith’s the island reconnaissance of cursory. also seems have been the other rather On Spillers hand, spent days six on the island. significance Considerable par- is accorded both findings ties to vegetation, age foresters as to its history. agree We with the chancellor that no
weight can be accorded to because it interpretations given and the it are in such conflict it is possible inconclusive. It would not be say, present record, finding chancellor’s important on this against preponderance factor was of the ed If evidence. findings trial court’s had rest- factor, only
on this we could affirm its decree. appellees any rate, meet their did not we find At question proof on the the evidence and that burden appellant. jurisdiction preponderates in favor of proceedings. further is remanded for The cause supple- its Appellees’ cost of to tax the motion granted. against appellant abstract mental *12 disagree dissenting. with I Conley Justice, Byrd, Spillers reverse to the reliance the the finding. trial court’s undisputed the main chanel fact here is that Tarpley Mississippi River, until descending the cut-off
of the along right bank of the river was the right descending along in the the bank and had been long Spanish have as as records Moss Bend area been kept. undisputed the main fact is that Another according Luna Bar the river was west of channel of maps depicted is also its existence. It to the first that Mississippi undisputed years the that the 1879-80 be made caused its Chart No. 39 to River Commission supervision Lieutenant S. under the Leach, of First Smith A., Luna Bar is and that on this chart U. S. maps highway Furthermore, shown as a sand bar. Mississippi indicated the bound- of both and Arkansas being in the main aries between the two states as along right descending the Mis- bank of channel Tarpley sissippi cut-off until sometime after in 1935. potomologist, he Smith, testified that
Austin problem Spanish study began Moss Bend Young) his map (prepared that accom- an with panied map report Congress and that that to an snags River. channel of showed navigation improve report (The purpose was to of the pointed navigation.) snags were a menace de- made a cut-off the river to have out Spillers, have would the new channel scribed Mr. into and back Luna Bar had to make a circuit around long and all of miles at least the old channel the three go vegetation in the silt, haye sand and would river. In all the he had made there was no in- studies deposition large land dication of of this mass down- opinion if stream from Luna Bar. It was such large deposited material had been amount of down- stream, it and he was have been recorded able would to find no such record. pointed following
Mr. Smith out that sur- began snags vey, government the federal to remove practice has cording down date of trial. continued Ac- government survey the to an 1894 bore holes Spillers, locating cypress stump, would have deepest part been in of the when the survey analysis was made. Smith’s the charts Spillers’ and the information obtained bore was origin that the alluvium on Luna Bar recent Mississippi. and within the boundaries of the State of explained presence cypress Mr. Smith stumps practice because of the common on the river *13 dredges pull logs away river, from the cut the portion drop timber of the tree and then the roots and stumps in back the river. Spillers, contending
Mr. stumps in that the had grown place, in admitted that when Exhibit 13 was cypress stump overlaid on his Exhibit the would right descending be close to the bank the river. Ac- cording Spillers, slipoff a concave bank caves in a slips manner —the river in, undercuts the bank and it letting vegetation the fall in the river. He stated that caving expect occurs, when top he would a tree on the cypress to rotate and lean and that the tree he found (record 353). boring did made, lean 351 to From the age cypress stump, topography of the and the of Spillers land Mr. concluded that did position not cut and erode to its 1935 it but en- leaving circled Luna Bar the land mass intact. Spillers’ opinion, Mr. based evidence that appears, now cannot be reconciled with the recorded observations of First Lieutenant Smith S. Leach in the question (cid:127) area in
years
effect that
to the
1879-80
expectation
Furthermore,
a
bar.
sand
was a
caving
rotate and lean
bank would
concave
tree on
nothing
place
to me that he knows
shows
and remain
caving
bank.
concave
about
into a
a bank cave
that makes
It is not
water
water, much
movement
river.
the force and
It is
dentists,
that cuts
used
drill
like the modern air
under the
any
through
root formations
terra
firma and
away
(and
pilings)
the alluvium banks
also
caves
and movement is such
rivers. When the force
of our
manner, it
moves
terra firma in that
also
to move
away any vegetation, including
massive oak and
cypress
ob-
such streams. Who has
that abound on
caving
Mississippi with
bank on the
served a
concave
along
edge
leaning stumps
water
or trees
obvious,
be-
next
the concave bank?
answer
cleanly
are well and
cause all such banks
scoured.
Spillers’
testimony
preponderate
Mr.
not
does
against
finding
the trial court’s
for still another reason
e.,—i.
having
there is no record of an avulsion
oc-
though
curred
this area even
all of the charts in-
signs
troduced and relied on
both sides show
civilization in the area in the
nature
towns or com-
carrying popular
munities
member that the
names. In this we must re-
here is that it would have
taken a three mile cut into the Arkansas bank of river for the river to have encircled Luna Bar and left it
place.
College Rose,
In
Dartmouth
Iowa
(1965),
In of 1937 the summer pening of an avulsion intervenor, testi- no witness contended repeat said what is event. We to such an fied 1094, 1097; May, supra, ‘A sud- Iowa v. Bone River, change the Missouri the course den land, would, we affecting acres of 600 or more think, Ii is attract considerable attention. altogether that it would have been known likely by everybody ” in that around.’ living territory, miles added force is to the foregoing propo- Considerable sition since that Luna part Spillers’ hypothesis Bar shows the remnants of an levee on the identifiable side of Arkansas the main channel river before cut-off. Tarpley reasons, For these I would the trial affirm court. C. in this dissent. join Harris, Holt, J. J. SMITH, R. DOEPKE
Clarence Michael Ex’r J. 5-5137 452 S. W. 2d delivered
Opinion April