Wineman v. Withers

108 So. 708 | Miss. | 1926

^* Corpus Juris-Cyc References: Waters, 40 Cyc, p. 620, n. 70; p. 622, n. 90; p. 623, n. 1; Title to bed on nonnavigable stream in riparian owner, see notes in 42 L.R.A. 171; 70 L.R.A. 275; 27 R.C.L., p. 1371; 4 R.C.L. Supp., p. 1793; 5 R.C.L. Supp., p. 1504. This is a suit in equity by the appellants to quiet their title to certain land and to cancel the appellees' claim thereto. The appellants and the appellees own adjoining land bounded on the west by the Mississippi river and under the calls of their deeds own to the thread of the stream. Morgan v. Reading, 3 Smedes M. 366; The Magnolia v. Marshall, 39 Miss. 109. A large body of alluvion has formed in front of this land, and the dispute between the parties hereto is as to where the line which separates their portions of this alluvion should be drawn.

The contentions of the parties and the grounds thereof can best be set forth by reference to a plat annexed hereto showing the original and present river boundary of the land. The land originally owned by the appellants is designated on this plat by the figure "1" and that

[EDITORS' NOTE: PLAT IS ELECTRONICALLY NON-TRANSFERRABLE.]

owned by the appellees by the figure "2." The original river bank, as it was when the land was surveyed and sold by the government, is represented on this plat by the line A, B, C. A number of years ago the river encroached slightly on the appellants' and considerably on the appellees' land; the new river bank formed thereby being represented by the line, A, D, E. Afterwards the alluvion here in controversy commenced to gradually form, and after several years not only restored the land that had disappeared, but in addition thereto formed a considerable body of land in front of that of the parties hereto. The line A, B, C, representing the original river bank, has been re-established with reasonable certainty. The contention of the appellants is that the new water front formed by this alluvion should be divided between them and the appellees in the same proportions as the old water front, and the side boundary line between their portions of the alluvion should be run in a straight course from the point of division between their lines on the original river front to the point of division on the new.

A further contention of the appellants is that the back shore line, which should be taken into consideration in apportioning the new shore line, is the line A, D, E, formed by the encroachment of the river on the land of the appellants and the appellees, and not line A, B, C, which represents the original shore line before it was encroached on by the river. The court below adopted the rule contended for by the appellants as to the apportionment of the new shore line, but held that the old shore line, according to which the new shore line should be apportioned, was not that formed by the encroachment of the river, but was the shore line as it existed before the encroachment began, and represented on the plat by the line A, B, C. The line between the alluvion owned by the appellants and that owned by the appellees was held to be the line designated on the plat as B, F.

Appellees' contention is that this alluvion should be divided between the appellants and the appellees by a line drawn from the point of division between them on the original shore line, represented on the plat by the letter B, at right angles to the thread of the river, and that a line so drawn would practically coincide with the line B, F, established under the rule adopted by the court below. But, if mistaken in this, the appellees' further contention is that the alluvion formed between the original shore line A, B, C, and the shore line A, D, E, made by the encroachment of the river on the land, should not be taken into consideration in apportioning the present shore line between the appellants and the appellees; in other words, that the title to that portion of the alluvion should not be determined by the law of accretion, but by the law of submergence and reappearance of land. If either of these two contentions of the appellees is sound, the appellants must fail, for in that event they have been awarded all of the alluvion to which they are entitled. The view we have taken of the second of the appellees' contentions relieves us of any necessity of determining the rule by which alluvion formed in front of the land of adjoining riparian owners should be divided between them, and we will express no opinion relative thereto.

When one of the boundaries of land is a river that is nonnavigable within the meaning of the common law, as is the case here, the center or thread of the stream, and not the water's edge, is the boundary, and the title of the owner of the upland embraces also the land under the water to the middle or thread of the stream. Morgan v. Reading and The Magnolia v.Marshall, supra. The title of the owner of such land to alluvion, and to the new bed of the river formed by the encroachment of the river on the upland by erosion, is not wholly dependent, if at all, on the law of accretion, but is controlled in the case of alluvion by the fact that it was formed over land that, although under water, was his, and in the case of encroachment of the river by reason of erosion by the fact that he owned the land before the encroachment of the river thereon. The center or thread of the stream in either event continues to be his water boundary, and he continues to own all of the land, either above or under the water, that lies between that boundary and the opposite upland boundary established by the calls of his deed. When the river encroached on the land of the appellees, they continued to own the land under the river bed, and, when the alluvion formed thereon, it, of course, also became his for the reason that it formed over his land. 3 Farnham on Waters, section 848; City of St. Louis v. Rutz, 138 U.S. 226, 11 S.Ct. 337, 34 L.Ed. 941. To the same effect is the rule governing the title to land which becomes submerged, but afterwards reappears, although the boundary of the original tract is the water's edge. Ocean City Association v. Shriver, 64 N.J. Law, 550, 46 A. 690, 51 L.R.A. 425; Mulry v. Norton, 100 N.Y. 426, 3 N.E. 581, 53 Am. Rep. 206.

It follows, from the foregoing views, that the shore line formed by the alluvion which replaced the land of the appellees, which had been submerged, was but a restoration of the appellees' old shore line, and therefore the court below committed no error in refusing to take it into consideration in apportioning the new shore line between the appellants and the appellees.

We understand the contentions of the parties here pressed to be as hereinbefore set forth, but, if we have made a mistake relative thereto, we will be glad to take the matter up for further consideration on a suggestion of error.

Affirmed.