252 F. 681 | 8th Cir. | 1918
W. L. Davis and Sudan Plantations Company, a corporation, hereafter called the “plaintiffs,” complain of the judgment of the court below, which dismissed their actions in ■ejectment for the recovery of the possession of lands, for damages for their detention, and for the taking of timber therefrom by the Anderson-Tully Company, a corporation, henceforth called the “defendant.” In their complaint the plaintiffs alleged that the lands were situated in the state of Arkansas; that they own them, and are entitled to the possession of them; that the defendant unlawfully detained •them and has cut and removed timber from them to the damage of the plaintiffs. They also averred that these lands were in and appurtenant to the east half of section 11 and the east half of section 1'4, township 2 north, range 5 east. The defendant denied the material allegations of this complaint and alleged that the lands of the plaintiffs in these sections were bounded on the east, by a lake 800 feet wide and 8 to 12 feet deep; that the defendant owned and was in possession of that portion of the lands described in the plaintiff’s complaint which were east of the lake; and that it was from this portion of the lands that the defendant had cut wood and timber; but that these lands which the defendant owned and detained were not in the state of Arkansas and that the District Court of the District of Arkansas had no jurisdiction of the subject-matter in controversy in
‘‘That, if the jurisdiction of the Circuit Court is in issue and decided in favor o£ the defendant, as that disposes of the case, the plaintiff should have the question certified and take Ms appeal or writ of error” to the Supreme Court..
But, since the objection to the jurisdiction of the District Court which prevailed below, that the lands which are the subject of the action are not within its territorial jurisdiction is an objection common to all judicial tribunals and is not an objection to the jurisdiction of the District Court as a federal court, this court has jurisdiction to review the judgment which sustains that objection. Courtney v. Pradt, 196 U. S. 89, 91, 92, 25 Sup. Ct. 208, 49 L. Ed. 398; Louisville Trust Co. v. Knott, 191 U. S. 225, 233, 24 Sup. Ct. 119, 48 L. Ed. 159; Mexican Central Ry. Co. v. Ekman, 187 U. S. 429, 432, 23 Sup. Ct. 211, 47 L. Ed. 245; Blythe v. Hinckley, 173 U. S. 501, 507, 19 Sup. Ct. 497, 43 L. Ed. 783; Bache v. Hunt, 193 U. S. 523, 525, 24 Sup. Ct. 547, 48 L. Ed. 774; Merriam v. Saalfield, 241 U. S. 22, 26;
The plaintiffs assert that the change of the main channel from Walnut Beud to Bordeau Chute was caused by an avulsion, while the defendants insist, and the court found, that it was not so caused, but was the result of gradual and imperceptible changes. The court, however, also found that the main channel of the river around through the bend at the time of its chang'd" from bend to chute, as subsequently changed by accretion and erosion, was and still is tlie boundary line between the states of Arkansas and Mississippi. The general rule is: (1) That, where the main channel of a navigable stream is the boundary between two states and it changes by the slow and natural processes of accretion and reliction, the boundary follows the channel; and that (2) where it changes by the sudden and. violent process of avulsion, the boundary remains where the main channel was at the time of the avulsion, subject always to such changes as may be wrought after the avulsion by accretion or erosion while the old channel is occupied by a running stream. Arkansas v. Tenn., 246 U. S. 158, 38 Sup. Ct. 304, 62 L. Ed. 638; Cissna v. State of Tennessee, 246 U. S. 289, 38 Sup. Ct 306, 307, 62 L. Ed. 720. But the first clause of this rule was.made to govern and is applicable to cases where, by the slow and natural processes of accretion and erosion, the main channel creeps over the land between its old and its new course. To the rule stated in this clause there is a well-established and rational exception. It is that when a. navigable stream changes its main channel of navigation, not by creeping over the intermediate lands between the old channel and the new one, hut by jumping over them or running around them and making or adopting a new course, the boundary remains in the old channel subject to subsequent changes in that channel wrought by accretion and erosion while the water in it remains a running stream, notwithstanding the fact that the change from the old channel to the new one was wrought gradually during several years by the increase from year to year of the proportion of the waters of the river passing over the course which eventually became the new channel, and the decrease from year to year of the proportion of its waders passing through the old channel until finally the new channel became the main channel of navigation. Missouri v. Kentucky, 11 Wall. 395, 408, 20 L. Ed. 116; Washington v. Oregon, 211 U. S. 127, 135, 29 Sup. Ct. 47, 53 L. Ed. 118.
The evidence in the record in hand upon the question of avulsion vel non is conflicting; but that question is immaterial, because if there was no avulsion this case falls under the exception to the rule of gradual change. The strongest evidence in support of gradual change goes only to prove that for several years prior to the cut-off, which was
Thus the final question becomes: Where was the main channel of the old river around the bend when that river ceased to be a running stream ? Counsel for the plaintiffs argue, and cite testimony to support the contention, that when the cut-off was made the main channel was in the middle of the old bed of the river as that bed is defined by the original surveys of 1823 and 1835 and 1836, and that it was never moved or changed by accretion or erosion, and that it still remains there. But defendant’s counsel contend that at the time the cut-off was made the main channel of navigation of the old river was directly under the Arkansas bank in what is now the lake which lies just east of that bank. Upon this issue, maps, charts, surveys, and testimony, too voluminous for recital or review, were introduced in evidence and have been patiently read and examined. They have convinced that from 1823 until the time of the change of' the main channel of navigation to Bordeau Chute the river ran around through Walnut Bend, that the Arkansas bank of the river along the east side of or upon the east half of sections 11 and 14 was during all this time a bank which curved inward around the flowing river, that, where a navigable river flows between an island or the head of a peninsula upon one side and an inwardly curving bank upon the other side, it ordinarily hugs the curving bank, that that bank is generally eroded and often caves, that accretions ordinarily attach to tire island or peninsula, that the deepest and more navigable part of the stream and its main channel of commerce ordinarily adjoins the curving bank, that during those years from 1823 to 1873 the Mississippi river followed this ordinary course and had this effect as it flowed through Walnut Bend, that when the main channel of navigation was changed to Bordeau Chute that channel was near the Arkansas bank as that bank then and now stands and was in that portion of the river which has now become the lake immediately east of that bank, that the channel has not been moved easterly by accretion, reliction, or erosion since the change of the main
Its judgment was therefore right, and it is affirmed.
36 Sup. Ct. 477, 60 L. Ed. 868.
<§x=iFor other casen see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
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