125 Ark. 553 | Ark. | 1916
This is an appeal from a judgment by default in an action to recover possession of certain land. Appellee (plaintiff below) alleged in its original complaint that he was the owner of a large tract of land, describing it, known as Boyd’s plantation, situated across the river from the city of Pine Bluff, and that appellant was wrongfully in possession of a portion of it, which is described in the complaint and alleged to contain 40 acres. Appellee did not, in the complaint, deraign title back to the United States government, but began his chain of title with a commissioner’s deed executed in the year 1903.
The action was commenced on May 31, 1915, and on June 4 appellant appeared and filed a demurrer on the ground that the complaint did not show on its face that plaintiff had title to the land in controversy, nor that the lands in controversy are included in the lands to which the plaintiff claims title. No action was taken by the court on the demurrer, but on June 7, 1915, appellee filed an amendment to the complaint. The complaint, as thus amended, still failed to deraign title back to the government, but it alleged a patent by the United States to James Scull in 1828, and then begun appellee’s chain of title from a deed from Culpepper to Johnson executed in January, 1892. The amendment also contains an allegation that appellee and its grantors had been in open, notorious, adverse possession from the year 1892 down to July, 1914, when appellant wrongfully took possession of the 40 acres in controversy.
We may also take judicial notice, as is so forcibly argued by counsel, of the shifting of the channel of the Arknasas River, but it is quite another thing to say that we ought to take notice of the extent of the encroachment's of the river upon adjoining lands, so as to determine, without the aid of extrinsic evidence, how ■far such encroachments have cut _ away particular tracts of land. That must necessarily be left to the proof adduced in each case, and is not a matter of which we can take judicial cognizance. In other words, we take notice of the fact that the river frequently changes its course and washes away land on one side, and forms accretions on the other.- We might also take notice of a great convulsion whereby the, channel of the river broke through and left certain natural objects on one side which theretofore had been located on the other side of the channel of the river. But, as before stated, it is necessarily a matter of proof to determine to what extent accretions have been formed. We have never had called to our attention a case where a court took judicial knowledge of the extent of accretions or erosions.-
The complaint was therefore sufficient on its face to warrant the default judgment.
■ Affirmed.