| Tenn. | Dec 15, 1919
delivered the opinion of the Court.
By this proceeding in ejectment complainants sought to recover from defendants, F, R. Humphrey and'L. C. Sutton, a certain tract of land on the Mississippi river, in Shelby county.
It is alleged in the bill that the complainants, as the heirs at law of their father and those under whom he claimed, had, prior to the year 1897, been in the open and adverse possession of the property for a period of more than thirty years and that on account of the encroachment of the Mississippi river in the year. 1897 the property became untenantable, and they were compelled to abandon the same. It is further stated that for the last few years there has been a continuous accretion on the inundated property formerly owned and occupied by them, so that now the same has again risen above high-water mark and is capable of occupancy and cultivation.
After the filing of a demurrer by the defendant L. C. Sutton, which was properly overruled, the defendants, en
Upon the hearing at the conclusion of complainants' proof the cause of action as to defendant Humphrey was dismissed, and at the conclusion of all of the proof a decree was entered by the chancellor in favor of the defendant L. C. Sutton.
An examination of the record convinces us that this decree was erroneous, and that complainants are entitled to succeed.
The facts, as disclosed, show that as early as the year 1866 one John Keel was in possession of part of the property in question, and that upon his death the same descended to Thomas Keel, father of the complainants, who occupied and cultivated the site of the property now held by defendant Sutton up until his death.
Complainants, whose ages range from forty-one to fifty-two years, were born on the place, and made the same their home until the year 1897, when it became necessary to move on account of the change of course of the river, which caused the banks to cave in, leaving only a narrow strip of some 5 or 6- acres of that which had been cultivated by them. This erosion had been in process for a number of years, but not until 1897 did it become necessary to abandon the property.
Some of the complainants removed,to what is known in the record as' Island Forty, a short distance from the
It is shown for the defendant Sutton that some 8 years prior to the institution of this action he discovered the property, then consisting of some 15 or 20 acres, and, seeing that it could be cultivated, undertook to find the owners for the purpose of leasing the same, and that some four years later, being unable to locate the owners of the property, he purchased the same at a tax sale, and immediately began its cultivation.
The tax title under which the defendant claims calls for 64 acres, described as the “east of the Kettman, one hundred and ninety-four acres, on the east bank of the river.” This property had been assessed to “unknown owners,” and the defendant paid taxes thereon for the years 1915, 1916, and 1917.
The title under which defendant claims is immaterial in this action, as complainants, if entitled to recover at all, must succeed upon the strength of their own title. We are of opinion that they have been successful in establishing an indefeasible title to that part of the property sued for, which was occupied and cultivated by them, and those under whom they claim, prior to the year 1897.
The insistence of the defendant here made seems to be that because no paper writings are introduced to show title the complainants are not entitled to succeed.
“Possession of land is prima-facie evidence of title; the law supposes that it had á legal origin, and when undisturbed for a period of twenty years, it becomes, in view of the law, an assurance of title of no less force or efficacy than the actual grant, whose place it supplies.”
See, also, Scales v. Cockrill, 40 Tenn. (3 Head.), 433-435; Marr v. Gilliam, 41 Tenn. (1 Cold.), 489-501.
Complainants, under the showing made in the proof of continuous, adverse possession of the property for a period of more than twenty years, became entitled to maintain an action of ejectment therefor just as if a de-raignment of title from the State had been made, or a' continuous, adverse possession under registered color of title for the statutory period.
That the land in question because of the inroads of the river became untenantable, and they were consequently forced to abandon the same, did not have the effect of divesting title out of them. It is well settled that where-land becomes submerged by reason of erosion, or from some other cause, title thereto is not lost, and when the same reappears, either by accretion or reliction, the original owner is entitled to take possession of and hold the property reclaimed. Angell, Tidewaters, 76, 77; Mulry v. Norton, 100 N.Y., 424" court="NY" date_filed="1885-11-24" href="https://app.midpage.ai/document/mulry-v--norton-3579283?utm_source=webapp" opinion_id="3579283">100 N. Y., 424, 3 N. E., 581, 53 Am. Rep., 206; City of St. Louis v. Rutz, 138 U.S., 226" court="SCOTUS" date_filed="1891-02-02" href="https://app.midpage.ai/document/st-louis-v-rutz-92946?utm_source=webapp" opinion_id="92946">138 U. S., 226, 11 Sup. Ct., 337, 34 L. Ed., 941" court="SCOTUS" date_filed="1891-02-02" href="https://app.midpage.ai/document/st-louis-v-rutz-92946?utm_source=webapp" opinion_id="92946">34 L. Ed., 941-950.
“As a consequence of the changed course of the river in 1876, the submerged Trigg lands have been restored, through accretion or some other process, and are now dry land. It cannot be contended that, because the surface of” this “land was washed off, Trigg lost his title to the land so submerged, beyond recovery. The law is otherwise. Land lost by erosion or submergence is regained to the original owner, . . . when by reliction or accretion the water disappears and the land emerges.”
It is also the law that the' lapse of time during which the land is covered with water does not prevent the original owner from reclaiming the same and asserting the priority thereto when it reappears. See State v. Pulp Co., 119 Tenn., 130, 131, 104 S. W., 437; Stockley v. Cissna, 119 Tenn., 175, 176, 104 S. W., 792.
It is urged for the defendant that the necessary adverse possession is not shown to have existed on any particular or specified part of the land claimed by complainants, and especially of that part now held by de-fedant. It is true that complaiants seek ‘to recover a specified boundary, containing some 253 teres. This they are not entitled to do. Presenting no deeds or other written evidence of title, and relying upon the presump-aion arising from a possession of over twenty years, they are restricted to the extent of their actual possession, and not to that of the boundaries claimed. The proof shows that at the time of the submergence of the property they had, for the necessary period, been in posses
We are^ of opinion that the complainants are entitled to the possession of that part of the arable land on the bar which is situated immediately south of the Archer tract, now occupied by Humphrey, and bounded by the lake on the east and the river on the west.
The decree of the chancellor will be reversed, and because of the insufficient description of the exact boundaries of the land herein awarded a reference will be had for the purpose of determining same and awarding decree thereon. Complainants seek to recover for the use of the land occupied by defendant during the years 1910, 1916, and 1917, and also the value of a small house erected on the property by Jesse Keel which was appropriated by the defendant. Our examination of the proof with reference to these items justifies an award of $100, for which amount decree will be entered. The costs 6f the cause will be paid by the defendant.
On the hearing of the cause in this court a motion was made by appellants to hear and determine the cause at Jackson, instead of Nashville, the motion being .predicated upon the alleged unconstitutionality of chapter 617 of the Private Acts of 1919, which provides that appeals from the cSurts of Shelby county shall be taken to the Supreme Court sitting at Nashville.