Jones v. Hunter

126 Ark. 300 | Ark. | 1916

Hart, J.,

(after stating the facts). This suit is based upon section 4918 of Eirby’s Digest, which reads as follows:

“All land which has formed or may hereafter form, in the navigable waters of this State and within the original boundaries of a former owner of land upon such stream, shall belong to and the title thereto shall vest in such former owner, his heirs or assigns, or in whoever may have lawfully succeeded to the right of such'former owner therein. Provided, that nothing herein shall be construed to affect the rights or interest of third parties in any such land acquired before the passage of this act.”

(1) The act in question was approved April 26, 1901, and appellees do not contend that they had acquired any rights in the island prior to the passage of the act. The Arkansas River is a navigable stream. According to the original survey, the west boundary line of the fractional west half of section 31, referred to in the statement of facts, was the Arkansas River. A large quantity of the land in the fractional west half of section 31 caved into the river and an island formed in the river opposite the mainland at this point. According to the testimony of Bell, a civil engineer, a part of the island is within the limits of the fractional west half of section 31, but the greater párt of it extends westward beyond the limits of that section as originally surveyed. Appellees asked the court to instruct the jury that if any of the land in the fractional west half of section 31, as it was originally surveyed, has caved into the river and that even a part of the land in controversy formed in the river within the original boundaries, the verdict of the jury should be for the appellants even though the jury might also find that the land so formed now extends beyond the original boundaries. They asked this instruction on the theory that if a part of the land formed within the original boundaries of the former owner, the title thereto vested in appellants under section 4918 of Kirby’s Digest, and that they would acquire title to that part of the island which extends beyond the boundaries of the former owners by accretion. Under the state of the record presented to us, we can not consider this supposed assignment of' error. The bill of exceptions does not show that any objection was made to the ruling of the court in refusing this instruction or that any exceptions were saved to its ruling in that regard. If a party is dissatisfied with the ruling of the circuit judge in a matter of law, that ruling should be brought before this court by an appropriate exception, and as there were no exceptions to the action of the court in refusing the instructions, the objection to the ruling of the court, if made, must be treated as abandoned, and there is nothing for review here. Dunnington v. Frick Co., 60 Ark. 250; Bluff City Lumber Co. v. Floyd, 70 Ark. 418; Ward v. Fort Smith Light & Traction Co., 123 Ark. 548.

(2-3) - It is true the supposed assignment of error appears in the motion for a new trial, but that is not the place to set out the matter constituting an alleged error. The motion for a new trial constitutes an assignment of error, but not the matter upon which the assignment is based. The bill of exceptions must contain a history of the trial, including the matter which was assigned as error. Merely reciting the matter in a motion for a new trial is not sufficient. Harrelson v. Eureka Springs Electric Co. 121 Ark. 269. Appellants in their motion for a new trial also assigned as error the- action of the court in giving certain instructions, "but for the reason just given, we can not consider these alleged assignments of error. The court told the jury that the Arkansas River is a navigable stream and that the statute quoted above relating to the ownership of lands formed in navigable rivers is applicable to the Arkansas River. It further told the jury that all land which is formed in the navigable waters of this State and within the original boundaries of a former owner of land upon such stream shall belong to such former owner and his grantees. It also specifically told the jury that if it should find from a preponderance of the evidence that after the land described in the complaint was patented by the United States on the 13th day of April, 1836, any of the land within the limits of the original boundary of the ownership of the patentee’s was swept away by the waters of the Arkansas River, and that the land in controversy has since formed in the river within the original boundaries of the patentee’s, then its verdict should be for the plaintiffs who are the appellants here. The court also instructed the jury that appellants must recover upon the strength of their own title.

(4) According to the testimony of appellees themselves, and that of a civil engineer, none of the island formed in the river within the original boundaries of a former owner of the land, within the meaning of section 4918 of Kirby’s Digest. Hence there was testimony of a substantial character to support the verdict of the jury, and under the settled rules of this court we can not disturb it even though we might think it was against the weight of the evidence.

(5) Again appellants ask that the judgment be reversed because the court erred- in permitting witnesses, Bell and Burn and appellees, Hunter and Bradley, to testify that the land described in the deeds to appellants did not extend onto the island or embrace any part of it. Their objection to the testimony is that it was a conclusion of law and as such, was not admissible in evidence. We do not agree with counsel for appellants in this contention. Bell and Burn were civil engineers and Bell made a survey showing the location of the island with reference to the- mainland and also a map thereof. He also examined a map showing the original survey. Burn also examined these maps and both of them testified as to the particular facts showing the location of the island with reference to the mainland, and then stated that the island was not included within the limit of the grant to appellants, and we think their testimony was competent. Hunter and Bradley were appellees and-helped to make the survey. They had lived on the island since 1908. They testified that they were familiar with the boundary lines of the grantor of appellants. They had also lived in that community for many years and were familiar with the lands in question, and their location. All these facts were stated in detail by them to the jury, and we think their testimony was competent.

The judgment' will be affirmed.