*1 largely The issues herein are factual and the jury verdict, evidence, based on substantial resolved against appellant. them The trial court did not err refusing grant a new trial. no We find reversible error committed in the trial of judgment case, therefore affirmed. Affirmed.

Ethridge, Gillespie, J., Inzer, P. Patterson and JJ., concur. Appellants et v.

Robinson, al., Refining Appellees Humble & Company, Oil al., et No. 43476 June 176 So. 2d 307 *2 October 2d So. *3 Satterfield, Shell, Morse, Buford, Williams & Morse & appellants. Jackson, for Hattiesburg; Eaton, Russell, Roberts,

L. V. M. M. Terry, Lang, Gulfport; Ward, & Martin & Cottrell Lent, Rogers, Vicksburg; Gwin, Teller, Biedenharn & Giuin & Hornsby Handy, Laub, Adams, Brandon, Brandon, & Truly, appellees. & Forman Natchez, *5 J. Patterson, approximately 83 acres

This suit title to involves payments royalty therefrom, land, and certain oil County lying present bed between the of Second Adams bed of the stream stream, and the old Creek, a sizeable alleged The in 1885. to have been located as was the location of the eastern to be determined is basic issue complainants’ boundary western land and the being con- boundary tiguous. the same land, defendants’ complainants defendants, and cross John dis- who own without Jr., are brothers Bobinson, Frank pute claim, but who Creek, the land west of Second is east thereof that their eastern suit, charged been it is have Creek as the old bed of Second Tillery, complainant cross L. in 1885. J. located grantee mineral interest of an undivided is a defendant, cross The defendants Bobinson brothers. from the dispute Berkley complainants Plantation own without alleged to have been it was Creek as the east of Second presently cross- claim defend and but located *6 boundary bill that their western extends Second Creek present at its location. There de- are more than 100 complainants fendants and cross who claim their re- spective through Berkley interests the owners of Plan- complainants tation. Hereinafter the defend- cross ants will be referred to as Bobinson and the defendants complainants Berkley. and cross as Refining Company Humble Oil & oil, is the lessee of gas property and mineral leases from the on owners both sides of Second Creek. Their interest in the suit royalty suspended is that of a stake holder to the as payments during pendency of this suit. Their lease controversy interests are not in in this suit. lengthy hearing,

After a court entered decree finding presently of thread Second Creek as Berkley boundary located to be the western of Planta- tion and the eastern of the Bobinson lands. complaint The bill of therefore was dismissed and the confirming cross-bill sustained title in the owners grantees. complain- and their Prom this decree appeal, assignments designating principal ants as their following: of error the

(1) against The court erred as the decree rendered is overwhelming weight of the evidence. (2) excluding testimony The court erred in prior John Bobinson as matters to the death of his parents.

(3) objection sustaining The court erred in to the testimony possession against the remaindermen claiming under the will Anna P. C. Martin.

(4) adjudging complain- The court erred in the cross royalties ants be the owners of the land and in dis- puts.

(5) The court erred because the here- decree rendered deprives complainants, appellants, prop- of their erty process deprives due of law, without them of rights process contrary substantive without due of law, article section of the Constitution of the State Mississippi contrary *7 of to of amendment XIY Constitution of the United States of America. ’ assignments parties These a necessitate review of the contentions as well as the evidence.

Robinson contends that the of Creek movement Second by westward from the line 1885 an avulsion and boundary that his eastern remained bed at the former moving of the stream rather than westward with the stream if in avulsion. Robinson contends further, foregoing, any error in the that in event he has held to the bed of stream as it was 1885, and under color of title, and that he has obtained title thereto adverse possession. begins partition

Robinson’s chain of title with a suit Hargraves in 1885 which awarded to Amanda No. Lot 5 which was described as:

Begin (6) map at on the and the corner S. W. 3 of No. on Est. thence south No. (8) map 24 chs. on the stake whence Pine Oak 30" dia. E. a Pin S. feet and Oak X// 13% 28% along N. 45 "W. feet. Thence Thence N. X// road 11% degree map (15) 1 E. S. 6.00 chs. to on the made high top corner on on forket Oak on of a bank X// East side. 58 to Thence N. E. about chs. Second 89% (17) sycamore map, Creek on the a stake whence a degrees feet, 8 X B.T.” 4 “No. bears S. W. ‘26% up 3 thence creek to E. corner Lot No. S. S. containing beging (sic), 86 to the 280 W. chains 89% added.) (Emphasis acres. par- Mary Ligón 3 in same E. obtained Lot No. tition suit which was described as follows: previously

Begin at 2 S. West corner of Lot No. degrees 2 Thence with Buckhurst line mentioned. S. a for a corner eleven chains to small walnut W. X// side of an old road. Thence with the on the West 3 4 N. chains line of Lot No. and No. E. 35.00 89% 610 gum Haclcberry a whence a 30 corner a X// map. (5) Thence 36 on the N. 60 0. Iks. in. W. X// (6) on the 4 21 chs. to No. South

between No. degrees map post E. 107 Pine a whence a S. X// thence Iks, Iks W. 118 and cluster of Oaks S. X// 6% Second, E. 86 and No. 5 N. chs. between No. 89% Bayou whence a cotton below the mouth Creek Wood map. (18) Thence on South X// 3% feet previously up E. corner No. the creek the S. the Home 2 and around mentioned, thence with No. (Emphasis containing beginning, 270 acres. lot to the added.) conveyed Hargraves Melissa

Thereafter Amanda *8 by Mazique which de- 1886, 5 on deed 1, Lot December conveyed the land as: scribed accompanying designated Map as 5, Lot No. on by appointed report Special Commissioners County, par- Chancery in Miss., of Adams Court Court, of the tition suit on the General Docket being containing less, more the same acres, 280 or Hargraves in cause No. lot allotted to Amanda said conveyed Mazique by,deed in Book 873 and to Melissa Page AAA 439. Mary Ligón conveyed approximately time

About this Cavanaugh Mazique. partition Lot 3 of acres of said gave Cavanaugh Mazique a deed Melissa and Thereafter of trust to' the National A. Bank wherein of Commerce Geisenberger deed of named trustee. This H. as by and a trustee’s deed trust the trustee was foreclosed September Adolph 1911, was executed to Jacobs on property as follows: described the which designated map accompanying 5 as Lot No. on by appointed report Special Commissioner parti- County, Chancery in the Miss., Court of Adams general docket of numbered No. on tion suit containing more acres, No. 5 court; said said lot being allotted to Amanda the same lot less, or Hargrave in said cause No. 873 and afterwards con- veyed Mazycgue by to Melissa deed recorded deed Page report being book 3-A, 439; commissioners Page recorded in ZZ, Deed Book 580.

That certain 13 acre tract bounded on the South by of Lot as3,No. shown the commissioners report in said cause No. East bank Mead- 873; ville and Natchez Public road and the bank of Second conveyed which said Creek, thirteen acre tract Cavanaugh Mary Mazycgue by Ligón by E. deed re- Page except corded in Book 3-A, 306; save and two conveyed by Cavanaugh acres of said tract which were Masycqtie Harvey by Ranson deed recorded (sic) page deed recorded 3-T, Book 188.

Shortly conveyed property thereafter Jacobs description substantially B. J. Banks the same as leaving property trustee’s deed. died, Banks conveyed by May to his widow who thereafter deed 2, 1936, to Frank and Alberta Robinson No. 5 and Lot by substantially 13 acres off of Lot 3No. the same description as used the trustee’s deed to which Jacobs is hereinabove out set in detail.1 Frank died Robinson leaving intestate on December heirs Al 3, 1941, his berta his Robinson, widow, and John and Frank Robin son, Jr., his who sons, inherited from him his one-half *9 interest the land. Alberta 11, died intestate October leaving complainants 1958, as her sole heirs two the sons, remaining herein, who inherited from her the interest land.2 1 changes only The in the last deed are to the extent paragraphs designated by number, are and a to the reference incorporated trustee’s deed to Jacobs Jacobs within the Banks deed. 2 trust, sale, quitclaim are There numerous deeds of a tax deed assignments, transfers, royalty and numerous leases and mineral pooling agreements, full, etc. too burdensome be set out descriptions. conveyances have which varied above-men- descriptions conveyances paramount and the therein are the tioned concerning this suit.

Berkley it as the center of Second Creek contends plantation boundary of to be the western now exists theory complainants’ ad- avulsion and it denies possession. verse Berkley is admitted Plantation

The chain of title of description not of the deeds thereof, as is the the calls except following, being necessary describes which boundary the western thereof: containing by Creek; the west Second On being that certain forth in the same land as set acres Myra Stanley Blake Schuler deed from Carter Deed 1938 and recorded dated March Schuler page Adams Deed Records of at 225 of the Book 4-W County, Mississippi.' indicate Robinson in the chain of title of

The deeds boundary Creek land to be Second the eastern of this complaint. alleged The deeds in the bill of is so though Berkley limit- in the chain of title of ing Plantation, designate acreage its west- acres, thereof to 1350 being boundary same Creek. as Second ern changes in the location there have been Since present the west of location is to the creek and its migration the creek and This westward 1885location. precipitated question discovery lands in of oil on the principal questions for determina- two this lawsuit. The tion are: suddenly by by change

(1) of the creek Did the location by caused aided or or an avulsion a natural avulsion drainage digging new the creek in a to direct work and cause or both so from either or an avulsion channel, properties its by remained at law prior avulsions to the avulsion or location proof (2) in the absence of alternative, Or, in the boundary of follow did the western of avulsion accretions the stream movement of the western to the old Robinson hold or did bank thereof the east pos- in 1885 adverse it existed the stream bed of *10 statutory regardless session time of the western movement of the live stream? support allegations being

In of their as to there an possession complainant avulsion and as to adverse following testimony introduced the witnesses whose following identity. summarized their

The first witness, Mr. L. 200 acres of Ball, W. owns immediately property land north of the Robinson which acquired he in 1938. This witness testified that he had knowledge any no as to whether of the Robinson land extended east of Creek, Second but that the land of Mazique, just property, Claire which was north of his and on which he measured in 1933, cotton extended east of Second Creek. He recalled when Robinsons moved to their land in 1936 and that stated one of the tenants Ely. of the Robinsons was Dave

Mr. Charlies H. a Perrault, Jr., defendant, was called realligned by as an adverse but was court witness, complainant as a when it was discovered that his in- were terests timony identical to that of the His tes- Robinsons. largely grow- crops

was to the that effect he saw ing question, on the land in two there were property. on fences He did not know whom crops belonged certainty give nor could he with the lo- cation of the fences. complainants,

John one of next Robinson, called and testified that his 3, father died December 1941, objection and that his An mother died October 1958. testifying any was sustained to the witness’s as to mat- preceding theory ters that it would establish death of his mother on the

a defense to the cross-bill filed Mississippi An- the defendants violation of Code (1956). section 1690 notated He testified since ‘‘ timber, he had cut over maintained fence farmed, adversely He testified further no had there.” one filed claimed the land since 1958 until cross-bill was property that the east his suit, in this *11 fenced on each the bed of the old creek which was was “just being creek as moth- He described the old as side. has there.” testified that er nature left a bed He pulpwood this land. 1962 he cut from worth $844.58 testified Bobinson, The next the wife of John witness, knowledge property since 1951 when that she had of the testimony moved her Her was she there with husband. property was farmed that east of Second Creek was the eastern her husband and that the old creek bed knowledge her no one had line, and that possession 1951. An interfered with their of it since testimony objection interposed on the was to all of this ground remaindermen that some of the defendants were possession complainants after 1942 and that the against run not statute of would cause the limitations ruling point. them. The court reserved its on this Edgar man, The next a colored Bounds, witness property He who was familiar with the since 1884. tes nearly life; he his that tified that had lived there all of boy caught played fish he creek, swam, as a on Cavanaugh property turtles there. He knew the when Mazique Mazique, Cavanaugh’s it and when owned Jim property He lived stated brother, on the and farmed it. years change many that there was a sudden in the creek ago come, water and, words, “When that flood his Berkley, good part land, throwed of Mr. Blake’s west the creek and on down creek on the side of good part Bobinson’s land on further throwed a ’’ Cavanaugh Mazique3 creek, the east side of the thrown across the land which had been continued farm change He this sudden the creek to the east. identified cyclone having prior storm 1906 to a or occurred as testimony vivid in mind. His which remained his or 1907 right ran that the old creek was to the further effect presently edge you Hill and could Cavanaugh was, and that when where old creek see complainants’ predecessors in title. One of Mazique property, owned the it was fenced on the west by Cavanaugh side of the creek and on the east side Berkley; the owners up that the ran fences and down the creek. He identified Clitns Michael and Alex Fitz- gerald being two place, tenants on Robinson’s but *12 specific he could not be as to the time. He also testified bought hay that he from the Robinsons from across the creek in about 1938 and that the land had “laid out” years prior for about 15 thereto.

George Jones testified that he was born in 1881 and property many, that he many years. had known the change He testified that the creek made a sudden Cavanaugh Mazique that went across the creek and farm- by Sylvester it; ed that plow a man the name of “took a changed and ran some furrows” and that the creek straight went down. On cross-examination this witness property talking being identified the he was about as Ligon-Mazique property which was north of the Robinson property question. here in Mazique,

The next witness was Forea Jr., who has lived property past years on the Robinson for the 27 and is though only familiar with it he it farmed in 1957 and operates 1958. He testified that he a small store near property and has furnished tenants who farmed have every year the area across the creek since he has been place. on the He states that the bank of the old creek against Berkley’s was the hills on side and that Berk- ley’s west line was the old creek. He further testified year that each as far back as he could remember Berk- ley pastured Plantation had been cultivated and its owners. He that stated the creek bed been located as is now since he could recall, but that it caved some to washing year they the west due to the each when had floods. Fitzgerald

Horace was next called and testified that property familiar he was with the since and that he worked on the Robinson land from until about property 1949 and Robinson on the and that lie moved 1959. He testified there until

lived property he bed and that gathered the old creek eastward to ran pecans hay, and raised corn, tenants and other cross-examination the creek.” On there across “over there” “over was land he worked that the he testified approximately island and middle of the six acres Ely, patch Dave Forea was worked that this same Mazique, not over six or there were others; recalled that the island. He also seven acres farmed on was hauled off cut in 1947 or 1948 and the timber was Berkley He testified further that on the side. year. pastured each Plantation was cultivated and Mazique bed of the creek Forea testified the old right Berkley. at the of the hill at He identified foot Fitzgerald Fitzgerald, and Alex Michael, Horace Clitus *13 times as worked for Robinson at various tenants who and their on his land. He testified that the Robinsons tenants worked some of the land on the east side of that a man the name This witness also testified creek. Sylvester Lyles dug of some furrows that caused change a it but overflowed, creek to make sudden when identify he did not this occurrence as to time. August Mazique as to was then called and testified ‘‘ dividing properties question. line between the in dividing right right old line come down the hill and under that it turned the left in and used to be fenced on got each After that cave there no there, side. was fence on the west side at all.” He further testified that there wires in west were old the trees on the side of Berkley kept up old creek and that the fence is on the days. further east side as was old He testified change was a sudden in the but he did not creek, there except say during that it the time when know when Cavanaugh Mazique, property. his owned the On father, big cross-examination he testified that the floods caused caving the creek to cave on the west side that this going places. is still on at party

John B. Robinson, to the was recalled suit, photo as the next witness. He introduced an aerial April the area dated 1952 which was made the United Department Agriculture, according States which, to the shows witness, all of the land that here in dis- pute. The witness testified that from the date of his (the objection father’s death in 1941 court sustained an testimony prior time) present to very to that to the there was depicted

little variance in that which was on the photo they 1952 aerial and the conditions as existed 1941, that is, the same cultivated etc. areas, woodlands, map prior were shown on the 1952 The wit- thereto. knowledge ness further testified that to his no one had except cut the timber on the land himself. He then named place, Fitzgerald the tenants who had been on his Alex from 1942 Ely, 1946; Minor Dave Coleman, 1946 to 1949; Mazique,

1953 to Forea Horace 1956; 1956 to 1958; Fitzgerald, Washington, 1957 to 1949. 1959; James opposed testimony,

As to this and cross the defendants complainants following introduced the witnesses: approximately years age, Williams,

Loretta who except had lived on all her Plantation life years, about or and who testified that her father, up Ike cleared or cleaned the bottom land back Jones, grand- creek, of his house to the and that her uncle and father also worked in the bottom, farmed this same *14 they and farmed west that area, Creek, to Second and place what now is the creek; Robinson’s over across grandfather father, uncle, that her her and her were all Berkley, and that father other tenants after her left, tenants lived the same house and farmed the same bottom land. This witness further testified that “Old Mazique Man” Jim farmed the there at one land over upgo but time, that his cultivation the foothills did not to Berkley that the two Plantation; creek divided Maziques and corn for that she had hoed cotton marriage prior creek and that across the her in 1916 to bed in there. seen an old creek she had never employee of Poster, an next Mr. R. D. witness, The Company, that his com- testified the Natchez Hardwood pany beginning Berkley Plantation cnt the timber on they continuing years; cut all that or portion Berkley thereof the western over Plantation to they in- cut without and that which was Second Creek prior terruption anyone; the timber that he cruised from cutting during being he was out that to its cnt and cutting supervise there two times a month litigation start- this removal of the timber and that since years men- in the back that area; ed he has been ques- they now in the land that is tioned cut timber on that he He further testified on cross-examination tion. crops any time of at the evidence of row did not see cutting; with in woodland that most of the area was farming ground perhaps saw no and he there, a little bed there. evidence of an old creek logging Johnny con- Lishman, a The next witness was logger in 1947 as a that he worked who testified tractor, logging employee contrac- who was a as an of his father they Plantation over cut over and that tor, flowing he and that stream, is, Creek, Second they again logged cut again 1953 and that this area in during flowing stream; Creek, to Second period cutting operation, of from over a extended which logging equip- types they used all months, four to six caterpillars, there was loaders; trucks and ment, cutting opera- nothing their and that it, about secretive anyone. objected cross-examina- On not tion was being- any cultivation not recall could this witness tion the creek. east of in the area a consultant Huff, R. Jr., was Curtis next witness question two surveyed with the area who forester, age of the assignments first to estimate mind, *15 619 immediately oldest timber west situated on that area of the bluff east make a and of Second Creek.and sample age similar ately of the timber immedi- oldest drilling assignment east of unit No. The second 7. species, was to estimate the the amount and value of harvesting through the timber which had been removed year. the beginning point that he made his last The witness testified mid-point survey line

near the of the by Montgomery this area made in 1951 and that from southwesterly in a for a distance of he moved direction primarily elm about feet he found timber, where years, age and that and with an of from 61 to locust, pecan, continuing southwesterly he found in a direction ages years, and of 41 to 60 elm, oak, with estimated he timber in this direction found that as he continued up years along varying age Creek from to Second age. years testified as This witness further to 40 topography foot of that between the land; of the plain or flood there is a flat the bluff and Second Creek land near the bluff that the land; or extreme bottom higher testified He further that next to the creek. than general pattern species ac- a of trees follow cording species the alluvial that within soil; to the pioneer spe- begins deposit with usual succession grows that as the soil cottonwood, willow or cies, sycamore, pecan maturity it is succeeded elm, and a little firmer becomes this after soil occurs deposited organic matter is or more more sediment types ages, upper portion, other and as the soil gum cherry, follow sweet ash and as oak, trees such between in the area further testified succession. He ages distinct two there were Creek the bluff and Second being youngest to Second nearest first or soil, high too very not with sand content which has Creek designated soil top first soil. He much firmness or you that as being very young said he soil; new or mature more go there is creek from the toward the bluff *16 which, supporting pecan soil is now elm and trees, appears maturity this soil to be it has more than older; that near the creek. This witness found no indication of an old bed, creek but testified that there was an old drain at the foot bluff which drains the hills to question. the east of the area in His examination of stumps cutting. (Evi- revealed them to be of recent dently cutting this refers to the that was made Mr. 1962.) Robinson in witness On cross-examination this testified that he did see some evidence of cultivation in the area; that he did not much in cultiva- know how was testify positive tion, and refused to as to that. He was depression the soil between the at bluff the foot of the deposited by and the stream was that which was a stream. parent It not a was soil. engineer, many years Smith,

Austin B. a civil with experience profession presently in his and who is employed engineer by Mississippi as an River Com- experience mission, and who has had much channel with problems Mississippi, Arkansas, and cutoff on the tributary Red River and numerous testified streams, next for the defendants. He testified that he had been employed to make an examination Creek Second dispute engineering area that is in and make an stream study of the stream’s action and determine to the best ability question of his how lands were formed and prepare report setting findings forth his and con- question. problem clusions as to this The heart of the presented genesis was to determine of the lands question. investigation This witness an made extensive background of the area and material which included the topographical maps, official records, deeds, aerial surveys, borings. background and soil From in- maps formation this witness introduced numerous compiled by other data him which indicate that since according testimony, to his the stream has meand- points ered a band of about 600 feet and that in some today it is almost identical to its location He 1885. further testified that there was no cutoff the stream in the area and he found no evidence of an avulsion of equally positive He stream. no there was old creek bed in the but that there was an old area, adjacent drain to the hills of to the east. He testimony concurred in the Huff, forester, makeup present of the land between the location of *17 Berkley Second Creek and according which, the foot of the hill at younger to his statements, was that the soils progressively west, were to the and became older as they approached Berkley by and this was borne out specie age growths the and the timber His thereon. dispute conclusion was that the lands in were formed as riparian that lands; accretions Plantation by this fact is documented the meandered accretion data, bank line of maximum recession chan- data, information, positive proof appeared data, nel trace that no “cutoff” be- between 1886 and 1963 in the sector of the channel points tween and H on his and and 9, 13, Gr exhibits on-the-ground finally and on timber and information, soil data. cross-examination, extensive the witness reaffirm-

On overlay his No. which an to his 13, ed that exhibit “very near” correct from a recon- 11, exhibit No. struction was descriptions of the in the old deeds which were background conjunction data, used in with the other photographs. particularly the aerial engineer, Jeffreys, consulting geological offer a

E. T. that he had made an witness, as a rebuttal testified ed property, which included extensive examination borings taking physical reconnaissance, core holes or a geological pres the and the formations to examine soil by flying airplane a in an to obtain over the area ent, by examining eye the various aerial it, bird’s photographs, view of were intro the deeds and the records that engineering foregoing wit referred to or duced day that his first in the on The witness testified ness. from, appeared what to be he holes area that took core escarp at foothill of bed of Second Creek the old underneath side, east and found or blnff on the ment layer gray top depression silt, a which soil this deposited by at Creek was Second the witness believed further testified time it that course. He followed depression gray only in this that this silt was found part present cultivated, that was it was not that beyond it two or three was even hill, or nor found depression appeared to have been feet out of which river further testified there was the old bed. He avulsion of creek around an lay proven by growth positively of timber which present creek; the old bed and the between creek had to have killed these trees the creek avulse or would present position. if it had across to its He meandered his line introduced exhibit which indicates blue J-5 have been the creek as the witness believed it to located *18 considerably 1885 and is east of some of 1886, in which depicted map the trees which on the of the forester. were honey further he locust tree He testified that located a age proximity great size in close to other trees of and depicted map the but that on of the this tree forester, map. According testimony not shown to his was on the it, this tree is west the old creek as he locates of positive this he no from was there was accretion westward as it have tree. He would killed this testified further as to of stream; the avulsion the Second rejuvenated by engineering had Creek been virtue of work on Homochitto River which the below, increased thereby causing of the flow stream cutoffs and avulsions. These were set on his exhibit He out testified that J-6. accuracy, able to he was locate with reasonable from survey given plats the data the aerial on the evidence the southeast corner of exhibits, Lot No. survey he was reconstruction of the 3 and that approximate of old Second the location able to establish According testimony, this reconstruction to his Creek. to which creek, bank of the in that the old was accurate easily survey on discernible is 1885, made his Babbit ground.4 the Fitzgerald recalled were and Horace Bobinson

John had or Lishman that either Foster denied rebuttal, across the creek. timber on the land cnt testimony com- court, the of the At the conclusion inspected complainants, pliance of the a motion with rendering prior premises decree, its which the complainants. adverse assignment opinion first that the are of

We against over rendered is that the decree error, of whelming weight taken, both is not well evidence, of theory complainants’ and adverse of avulsion that when possession. is well established The law boundary boundary properties, this between stream is changes vagaries gradual in the shifts with change or avulsive if there is a sudden stream, but the location fixed to remains course, in its Anderson-Tully prior the avulsion. See the stream Tingle, 36, 59 Ct. 2d cert. den. S. 166 F. 224, v. Co. 1948) (5th rule wherein this Cir. 93 Ed. 371 L.

U. S. as follows: is announced Mississippi fresh- as to boundaries

The law of the tides and flow of the ebb streams above water regardless actual the size and law, the common navigability is that and that law streams; current to the thread the land own owners *19 proof of other in the absence assumed stream, boun- that the stream; but center line of to be the changes gradual in the dary non-avulsive with shifts 4 Jeffreys and surveys and other exhibits The reconstructed great degree. vary to a Smith

624 may gain

stream, so that an owner lose or an indefinite thereby. area inquiry, being dispute

The there no as point, on this law reduced itself to a determination of by the facts the trial and this court, limitation narrows scope of this Court’s review to the ascertainment of support whether there was credible evidence to the find ings of the chancellor since we abide the oft-cited the effect that law to the chancellor as the trier of fact appears should not be reversed unless that he was manifestly wrong. Ellis, Ellis v. 248 Miss. 483, 160 So. (1964); Hastings 2d 904 Co., v. 241 Miss. California (1961); 129 2d 379 160, So. v. Norman, Smith Van (1958); Miss. 106 So. 2d 897 526, Thomas, Osborn v. (1954). Miss. 2d So. The evidence was sharp conflict toas whether there was an avulsion complainants’ of the creek. Two of the who witnesses, many years, had known the stream for testified that change there awas sudden in its did the course, as geological expert, Jeffreys. testimony However, the engineer, experts the forester and the both in their re spective fields, and who examined the area in detail, precisely contrary. argument to the complainants presence honey that of the old locust by Jeffrey’s tree between the old creek bed, established present very exhibit 5, No. and the Second Creek is persuasive theory and would be decisive of the avulsion engineer, if it were not refuted the exhibits of the placed which the meander of Second Creek to the west particular logic of this tree. The chancellor could with accept reject being or either of these exhibits as correct. hearing

In addition to evidence, the chan premises question cellor viewed the and determined change that there was no sudden or avulsion of the creek. support We hold there was substantial evidence to certainly conclusion and we cannot state that he was *20 manifestly wrong regard, particular in this so Gypsum Reynolds, view of v. 196 Miss. 644 at U. S. Co. (1944) 2d 448 at 449 that: So. countervailing In the absence of evidence, presumption gradual pre the of erosion and accretion lay length elapsed vails when the of the land, of movement, time as related to the distances of the general correspondence and direc location period compared of the river at the later tions with presump that of the are such that the stated earlier, may reasonably tion be entertained. . . . complainants contend, under this however,

assignment, that title to the lands west of the hill at present flowing and east of the stream was complainants by possession vested adverse under statutory period color of title in of excess of the years. exceptions, The evidence with reflects, two complainants predecessors and their in title have many dispute years used the area in in excess of the statutory period by cultivating six or seven acres across being- perimeter creek, of the lands cultivated not by cutting hay by gathering described, fire therefrom, by selling by gathering pecans there wood, timber, continuity only exceptions of we find to this from, possession being cutting timber from and removal of area in 1947 and in 1953. In view of these facts complainants occupancy a insist their use and portion possession the boun of the area extended their acquisition. daries as set forth their 1936 deed of substantially as were The calls of that deed are the same wherein these deeds used deeds from 1885 to 1936 specify the creek as described the eastern to be partition 1885 and the various reference to the suit of pos given The rule of deeds in accordance therewith. portion a tract of session, title, under color extending possession the deed to the limits of land such *21 plausible jurisprudence. well-established in our and is Page (1949); O’Neal, v. 207 Miss. 42 So. 2d 391 350,

See (1938); Greer, Bullock v. 181 264 190, Miss. 179 So. (1938). How Shows, 518, Evans 180 177 786 v. Miss. So. weight theory applies equal ever, this of law with pos dispute, continuously the defendants without who, occupied Berkley down used and Plantation sessed, statutory period, through years far in excess of the possession and their would also extend to the boundaries by the the western boun deed, established dary calls of their of which was the center of Second Creek. proprietors Berkley riparian were owners with a vest right property, might ed the accretion to their we and, by posses the vested hazard of loss erosion. Their add, sion of Berkley its boundaries, remained constant with and as the Creek, one of which was the thread of Second migrated changed, boundary, creek or so did the being Anderson-Tully coextensive. Co. v. two See Tingle, 224, 816, F. 2d cert. den. 69 335 U. 36, 166 S. Ct. S. (5th supra; Philadelphia 1948) cir. Co. v. 93 L. Ed. 371 Stimson, L. Ed. 340, 223 U. 32 S. Ct. 56 570 605, S. County Lovingston, (1912); v. 23 U. and St. Clair S. (1874). Sharp Learned, also v. 23 L. 59 See 46, Ed. (1943), 14 2d 218 and Wineman 201, 195 Miss. So. (1926), own 537, 143 Miss. our Withers, So. v. reflects that to the same effect. The record decisions portion questioned area was cultivated and of the year by stated, each as above which, used the Robinsons possession gives them to the area within constructive It reflects that the calls of their deed. also year give also to it con cultivated each which would possession its of the area within the calls of structive Assuming, deciding, position deed. but not complainants asserting that the eastern property by reference to the their partition became stabilized subject therefore not

suit of 1885 and was subsequent and there stream, lateral fluctuations of the assumption begets contrary.5 The are authorities to the possession party. only overlapping which aids neither (1940) Byrnes, 127, 193 Miss. So. 622 See Lawrence v. wherein states: attempted possession

Each side show adverse occupancy triangular but in this tract, actual argue appellants inasmuch But both sides failed. possession they been in the actual adverse have years part 3 of than of that of Lot Share more ten plat description was made of of which 1, partition which lies record the decree *22 existed, it then and where channel, south of the as change since that it continued to exist without has by possession construction their extends time, adverse triangular tract across the stream to the involved plat by decree aforesaid shown which was the and difficulty part a Lot The as of said 3 of Share 1. path respect appellants in the in to this contention of throughout appellee the is that has been, and was, possession period occupancy same in the actual and large part a of a of under and substantial Section recorded him owner the entire sec- deed to as the of possession tion so would extend that his constructive simply to all of we have section, the wherefore would See Jefferies v. East Omaha 518, 33 L. Ed. 872 that up deed opinion, ... to line, describing it such justifies that no matter how shifting where the lot the view announced (1890): a water line by exactly number or name shifts, line Land is as it does remains the Co., the by 135 U. S. the up Circuit Court conveys boundary, to of 178, a fixed side a given lot, the land S. in its Ct. line. . . . conclusion, side lines of in the the These views result ran the to not as the river at lot 4 are to be extended the river patent 1851, survey of the it ran at date but as the time date, the latter the land which existed at and that all so and between line of the side lines extended between north, conveyed by the river on the lot on the south and patent. overlapping possession,

a case of constructive which, against party of not course, does aid either as Miss, (188 135.) other. at description portion of western of Plan- tation was definite in that it extended the stream. center of

By description contrast the of the eastern portion complainants’ urged upon as land, us complainants, is indefinite and uncertain inasmuch as definitely no one has established the location Second possession Creek as it existed in 1885. The constructive complainants’ vague within the calls of deed is therefore subject and indefinite such not to definite de- cision. We hold, therefore, the trial court com- finding complainants mitted no error that the failed prove possession title in themselves adverse confirming Berkley’s present title thread of Second Creek. opinion

We are the lower court holding relating erred in inadmissible evidence events prior complainants’ to the death of father and mother rights as the same was introduced not to defeat the estates, but was rather in behalf of the estates. Ford Byrd, (1938); v. 183 Miss. 846, 184 So. 443 Cock v. *23 Abernathy, (1900); 77 Miss. 28 49 Miss. 19 18 and 872, So. Sweat (1873). v. Parker, man We are of opinion admitting the further the in court erred not the might against introduction of evidence which have been the under remaindermen the will of Anna F. C. Martin having the since statute started to run before the death of the it not abated owner, would be her death. See Leggett (1942). Norman, 192 494, v. Miss. 2d 578 So. complainants preserve

However, did not these questions in the record we their so that can consider Manning weight appeal. on Hammond, See v. 234 Miss. (1958) 2d So. wherein this Court held: opinion While we are of the the chancellor holding incompe- was in error in these witnesses to be excluding testimony, we con- tent and in their cannot appear it in the sider such error because does not proposed proved what these wit- record was be say position therefore, and we in a nesses, are, not testimony whether offered be material would preju- or its constituted relevant whether exclusion Miss, (234 307.) at dicial error. assignments these of error are not hold, therefore, We well taken. assignment opinion error, are of the

We final the decree of the lower court is violative of Mississippi as the United Constitution, well as States is taken Constitution, not well the record reflects deprived any right complainants and that were not process they of law. were accorded due Affirmed. except Gillespie, J., who no

All concur took Justices part.

ON EBBOB SUGGESTION OF J.: Inzer, opinion majority my

A of the brethren are suggestion should be over that the of error this case it must will be overruled. Therefore, ruled. I the reasons herein

However, would sustain It at that there set out. should be stated the outset any disagreement among very fun- if us as little principles this are of law involved in case. We damental disagreement appli- as to some of the facts the facts. cation of law to study

After a careful in this case I am record opinion affirming that we were error wrong manifestly when he case. chancellor no from evidence there had been avulsion found *24 opinion recognized Creek. in this case of Second Our changed have that in for Second the fact order Creek its location accretion that bed in 1885 must have its 100-year-old been located somewhere west of the tree. All the evidence on this in 1885 to be east of the old locust locust point reveals its location except testi- tree, mony study of the witness Austin Smith. A careful testimony place Smith’s reveals that in order him the bed of the stream west of the old locust tree in 1885 necessary only it was for him not to move the location point of the creek 674 feet west of the where Babbitt change showed it to be located in but also to easterly curve in the creek from an direction as shown map westerly Babbitt on his ato one. allow him To to do this is to allow him to discredit an ancient docu- contrary ment. This is to law and It common sense. is strange that neither Smith nor the witness Huff ever prior Jeffreys saw this locust tree to the time the witness testimony revealed its location in his in rebuttal on be- appellants. half of This tree was located near an oil any person well, and should have been obvious to making property question. an examination of the testimony point on this Smith is a clever and obvious attempt testimony to bolster his that there was no avul- testimony I sion of Second Creek. do not think that his point opinion credible, on this and I am of the it should disregarded by have been the chancellor and this Court. premises The fact that the chancellor viewed the after trial of this case is not sufficient reason to affirm his point nothing decision on this because there on the ground that he could see that would reveal to him where the bed of Creek was in Second 1885. opinion manifestly

I am also of the the chancellor was wrong holding appellant prove had failed to possession, adverse and that we were in error in affirm- ing finding. though such This is true even we concede that there was no avulsion of Second An exami- Creek. partition nation of the decree rendered in 1885 reveals description describing that the used in the various lots *25 including parties, set aside to the Lots and 5 involved description case, in a with this was metes bounds descriptions distances and monuments. Each call in the that a certain reached the bank of Creek went Second distance to a on bank the creek and each stake of stake a defi- had marked reference This established tree. points. nite is that the calls monuments at these It true points from thus ran creek. established with testimony from However, we know from the oral photographs if case that aerial in evidence this prior to there it was accretion involved that occurred by property acquired to when Robinson title his partition. description same that was used the 1885 possession acquiring After of title Robinson went into pos- property all for he was in called deed. Thus to session under deed which called for his land extend a points by partition 1885. decree of to established up of the trial of this From that time until time open, remained in and his heirs had case, Robinson possession uninterrupted exclusive notorious, They ownership. property exercised claim of under the ownership property rights that it was of on the all cultivating including capable having exercised on it, of During period year portion this entire each a of the land. any of Plantation ever made none the owners shows, In so far as the record fact, claim to this land. any they until after oil was discovered. never made claim Berk- This is unusual that none of owners case they ley There no evidence that testified in this case. is they any even land or that claim to this ever asserted it. reveals owners of The record now claim be their one of cross bill was sworn their answer and attorneys any The result of the owners. and not prevail fiction of law been allow a our decision has possession of title under color adverse over actual statutory period longer ten period than the of far years. although in this

It clear from evidence case conceded there was and no be no avulsion adverse *26 possession title, color of under of the decree the chan- affirming dispute cellor appellees the title to all land in in the affirming in error,

was and we were in error part upon that of decree. the This statement is based proof question fact the that the shows and with- without dispute appellants portion out that have a cultivated of opinion this land from 1936 to the of date Our trial. only seems to this indicate was about acres. six How- documentary ever, evidence it be a shows to much larger properly fact, area. In one of the in exhibits evidence reflects area cultivated constitutes about opinion although proof 27 acres. in We indicated our that appellants acquired establishes had to this title area by possession, justified adverse that the chancellor was finding they proof in had failed to meet the burden of definitely because of failure describe the land so it definitely could be located. overlooked the fact that We proof in the face of this that had chancellor dis- regarded granting prayed it in the relief for in the proof cross bill. It is elemental that the burden of was upon appellees prove they all that owned the land dispute, including in acres, before the chancellor justified cancelling appellants’ would be claim to the they proof land. This failed do, the reason the appellants acquired portion shows had titled of property by possession. adverse fact definitely by not descrip- described metes and bounds give appellees tion does not photographs clearly title to the land. The aerial property

show where this is located, surveyor and it would be no difficult task to have locate proof and describe the land. Under the state of in this justified cancelling case chancellor was not appellants portion claim of they to that of the land that acquired possession. had title to adverse opinion For the I am we should reasons stated, suggestion sustain the error reverse this case. and go certainly if we should However, do not we far, part very suggestion so at least sustain the of error part as to reverse that cancelled decree they appellants culti- claim of to the 27 acres that have many ownership. years In these under vated claim my opinion the in this results in a mis- decision ease justice equity. carriage of and does not do Suggestion Jones, overruled, J., Lee, error G. Brady, Rodgers Inzer, Smith, Patterson JJ.; part Ethridge, and dissents JJ., dissent; J.,P. concurs in Gillespie, part; part. J., took no *27 dissenting, Suggestion of Error: J., On Rodgers, presented re- has conference This case been to the very peatedly study to has this much been devoted I am facts, nevertheless, difficult statement of convinced wrong agree the I with we have reached the conclusion. following dissenting opinion Judge rea- Inzer for the (1) Assuming imperceptible move- sons: there was an west and that the creek from the east to the ment of gradual a than accretion, a rather such movement was sudden shows opinion, my humble evidence, the avulsion, long obviously occurred otherwise, such accretion parties purchased creek. west the the the land before points the northwest deed described definite Their same their and was the corners of and southwest lots, given description previously in other deeds to this land judgment, my establishes This, the creek moved. before by lands described title to all of the a color of claim possession, they into the time went deeds, at in their regard located at the the creek was to where without They occupied used deeds were made. time the twenty-seven east of creek and therefore acres of land the to described entitled all of lands within were a because of adverse claim to calls of their deed their part property, occupied. (2) Again assuming thus that there was sufficient to establish that evidence there by was an accretion the creek from east to west after parties riparian proprietors became of the land to by overwhelming the west, it is nevertheless, shown evi- dence that the owners on land the west oc- used, cupied twenty-seven and claimed acres east of the creek dispute and there can be no reasonable as to the fact they occupied twenty-seven long- used and acres necessary by er than was to establish claim adverse possession But, land. said landowner to the they possession twenty- east, not did claim adverse they prove description seven acres, nor did or area argu- of land east used of the creek. The answer to twenty-seven ment is obvious. The acres were shown by photograph, aerial from which actual metes and description easily bounds Moreover, the obtainable. riparian proprietors title was divested from the western upon by riparian proprietor, a cross bill filed the eastern upon cross-complainants burden was to show — (cid:127)— they by title obtained accretion not avulsion all of the lands claimed have been obtained accre- § (1947). 56 Am. tion. Jur. Waters facts show beyond question that the eastern landowner never had possession twenty-seven acres used the west- riparian proprietor. ern

In either we case, should have reversed the court. trial opinion I am of the the western landowner was up entitled to all of his land to the eastern description shown the calls of the as in his deed. Failing argument, certainly in this he was entitled to adversely occupied years. the lands he for more than ten join up flag I in this to dissent hold a the trial to they appellate may courts, so that as well as the court taking property be reminded that the of from one land- giving only fraught owner and danger it to not with another, is injustice, very of but the court should be cautious legal using property fiction own- in a as a tool to divest Suggestion ers of to their I the of title land. believe Error be sustained. should part dissenting part: concurring in in J., and

Ethridge, controlling points I the concur in most of decided in the opinion previously 2d Miss. rendered. 253 So. only relatively (1965). This dissent concerns the which have small tracts on the east side of Second Creek many adversely by appellants years, possessed been for agrees everyone the record shows. chancery justified finding there court was in right appellees’ such was accretion and the to land, appellants claim the vested in Nor can accretions them. of color of since the location title, benefit of the doctrine and there- in 1885 was not established, of Second Creek partition appellants assert con- decree, fore the which purpose. inadequate of for that stituted color title, controlling as the establishes, the evidence However, recognizes, appellants predecessors opinion and their adversely possessed between six title used and have many years, twenty-seven acres across the creek for and selling cultivating gathering and timber. firewood, it, expressly complaint request Although not of did the bill actually, ownership adjudication of ad- the land of an chancery power versely possessed, court had general allegations duty, bill, under and the my and in so, It have done decide. should so find and part suggestion should be overruled error view, part, cause remanded sustained purpose: To determine the boundaries limited appellants adverse have been actual land of which statutory years. possession ten for more than the plain facts and be equitable would in accord with This result con- It would be an decision. would effectuate chancery duty this Court sistent with the it to or remand case files,” to “remand *29 636 appropriate

the trial court for determination of facts necessary equitable to an decision. See Williams v. Ed- (1963); 246 wards, Miss. 149 2d 92, So. Griffith, § Chancery (2d 1950). Miss. Practice This is ed. judicial the aim of administration. The non-existence precedents point prevent of direct on this should not effectuating justice. use of a reasonable method of On contrary, appropri- it indicates the need for such an procedure. ate

Appellants have shown actual, adverse continuous, possession portion of a small of the entire in liti- tract gation. duty chancery It should be the court, hearing appropriate identify after evidence, to tract recognize appellants’ and to title to it.

Mississippi Highway State Nixon, Commission v. et al. September

No. 43317 2d 680 So.