Summary
In United States Gypsum Co. v. Reynolds, 196 Miss. 644, 18 So.2d 448 (1944), the appellant, United States Gypsum Company, claimed the title to certain lands which, the evidence showed, had become attached to their sections of land by the gradual movements of the river.
Summary of this case from Hawkins v. WaltersOpinion
No. 35615.
June 5, 1944.
1. EVIDENCE.
A presumption exists, founded on long experience and observation, that movement of about a mile of Mississippi River between 1829 and 1858 was by gradual erosion and accretion.
2. EVIDENCE.
In absence of countervailing evidence, presumption of gradual erosion and accretion prevails when lay of land, length of elapsed time as related to distances of movement and general correspondence of location and directions of river at later period as compared with that of earlier are such that the presumption may be reasonably entertained, and the presumption is also that the river as it gradually moved its bed carried along with it a water covered width at ordinary stages approximately equal to its original width.
3. NAVIGABLE WATERS.
In suit to establish plaintiff's ownership of accretions properly apportioned, evidence was sufficient to disclose, in absence of any other evidence, that location of Mississippi River in 1858, as compared with that of 1829, had been brought about by process of gradual erosion and accretion, and that plaintiffs were entitled to the accretions claimed when properly apportioned.
4. NAVIGABLE WATERS.
Where evidence placed before court by plaintiff was sufficient to disclose, in absence of any other, that location of Mississippi River in 1858 as compared with that of 1829 had been brought about by process of gradual erosion and accretion, and that plaintiffs were entitled to the accretion claimed, when properly apportioned, motion to exclude evidence should have been overruled.
APPEAL from the chancery court of Washington county, HON. J.L. WILLIAMS, Chancellor.
Wynn, Hafter Lake, of Greenville, and Sillers Roberts, of Rosedale, for appellant.
Appellant, United States Gypsum Company, brought this suit in the chancery court of Washington County, Mississippi, to cancel and remove the claim of title of appellees to the lands in Washington County, Mississippi, described in the bill of complaint; to recover $3,750 from appellees for merchantable timber on said lands cut and destroyed by appellees; to enjoin appellees from entering upon and committing any further acts of trespass on said lands; and to award the possession of said lands to appellant against all claim asserted thereto by appellees.
Appellant asserts title to said lands by a deed dated December 30, 1935, from George G. Crawford and wife, Margaret R. Crawford, to the United States Gypsum Company conveying "That part of Refuge Plantation in Washington County, Mississippi, located on the river side of the levee as now located, and all accretions thereto, said Refuge Plantation containing, among other lands, Sections 4, 5, 6, 7, 8, 9 and 10, Township 17 North, Range 9 West, and Section 3, Township 16, Range 9 West," and by adverse possession of said lands for more than ten years.
By their answer appellees assert title to certain lands by adverse possession and by three deeds to appellee, Pearl E. Reynolds, to-wit: one dated April 5, 1930, conveying Section 34, Township 16 South, Range 1 East, in the State of Arkansas, and all accretions thereto; one dated April 9, 1940, conveying Frl. NE 1/4 and Frl. NW 1/4 and Frl. SW 1/4 and Frl. SE 1/4 of Section 33, Township 16 South, Range 1 East, in the State of Arkansas; and one dated August 23, 1940, conveying all right, title and interest of Swiftwater Properties, Incorporated, in that part of Section 10 and Section 11, Township 17 North, Range 9 West, in Washington County, Mississippi, lying on the outside or river side of the main Mississippi levee and all accretions thereto. Swiftwater Properties, Incorporated, had title to the south part of Section 10. By stipulation introduced in evidence, the land claimed by appellees in their answer to the bill of complaint as having been in their possession for more than ten years is described as follows, and according to a map compiled by W.E. Elam, civil engineer, in February, 1932: "Commencing on the east bank of the Mississippi River in Section 3, at a fence running northeasterly through Section 3, which fence is identified as having a gate with a sign on it marked `T.P. Reynolds. Keep Out.,' which fence is approximately one hundred yards, or more, east of the government right-of-way from Shawneetown Ramp to the east bank of the Mississippi River; thence along said fence in a northeasterly direction through Section 3 to a point in the western half of Section 10 on the riverside of the old levee; thence following said fence easterly through the southern parts of Sections 10 and 11 to the southeast corner of Section 11 on the north bank of Lake Lee; thence southerly across Lake Lee to the high bank in Section 27; thence southerly along said high bank of Lake Lee to the southern boundary of Section 34, thence westerly along the southern boundary lines of Sections 34 and 33 to the east bank of the Mississippi River; thence northwesterly up the east bank of the Mississippi River to the point of beginning."
From the foregoing it will be noted that appellant and appellees do not claim the record title to the same lands, the lands claimed by appellant being situated in Mississippi and those claimed by appellees being situated in Arkansas.
At the conclusion of appellant's evidence, the trial court sustained appellees' motion to exclude the same and entered a decree dismissing appellant's bill of complaint. Appellees' motion is that (1) appellant's evidence failed to show that appellant is the owner of the land in controversy; (2) appellant's evidence failed to show that it and its predecessors in title acquired title to the land in controversy by adverse possession; and (3) appellant's evidence failed to show what lands in controversy constitute accretions to lands assertedly owned by them, and viewed most favorably to them tends to show the following to be the facts: That fractional Sections 3 and 10, Township 17 North, Range 9 West, in Washington County, Mississippi, lies immediately opposite fractional Sections 34 and 33, and 27, Township 16 South, Range 1 East in Chicot County, Arkansas. That up to the year 1829 said lands in Mississippi and Arkansas were separated by the main channel of the Mississippi River. That subsequent thereto the main channel of the Mississippi River changed its course by some process not clear from the evidence whereby the said lands in Chicot County, Arkansas, were made an island and that the former channel of the river separating said lands in Washington County, Mississippi, and Chicot County, Arkansas, filled up by a process, probably to be known as accretions; but that the proof fails to show what was the point of contact of the accretions forming on the Mississippi mainland side with the Arkansas mainland side; and, for those reasons any decree for the complainant would have to be based upon speculation and conjecture as to what lands are accretions to the said mainland in Mississippi and what are accretions to the main land of Arkansas and could not be based upon any competent proof.
The evidence shows that appellant has the record title to the lands described in the bill of complaint.
The evidence shows that the lands in controversy are part of Section 3, Township 16 North, Range 9 West, and Part of Section 10, Township 17 North, Range 9 West, outside of the Mississippi River levee, and accretions thereto, and are a part of Refuge Plantation in Washington County, Mississippi.
By their motion to exclude appellant's evidence, which was sustained by the trial court, appellees say that said evidence, viewed most favorably by appellant, fails to show what lands in controversy constitute accretions to lands assertedly owned by it, and tends to show that up to the year 1829 the lands in Sections 3 and 10 in Mississippi and the lands in Sections 27 and 34 in Arkansas were separated by the main channel of the Mississippi River; that subsequent thereto the main channel of the Mississippi River changed its course by some process not clear from the evidence whereby the lands in controversy were formed by accretions but that the appellant's evidence wholly fails to show whether said accretions were to the Mississippi mainland (in Sections 3 and 10) or to the Arkansas mainland (in Sections 27 and 34).
We contend that appellant's evidence, especially in the absence of any evidence to the contrary, shows, (1) that the lands in controversy are part of Sections 3 and 10, Township 17 North, Range 9 West, Washington County, Mississippi, outside of the Mississippi River levee and accretions thereto, and a part of Refuge Plantation, and (2) that subsequent to the year 1829 and prior to the year 1858, the main channel of the Mississippi River gradually and imperceptibly changed its course; and in the year 1858 suddenly and perceptibly changed its course by an avulsion, known as a cut-off, whereby the center line of the main channel of the Mississippi River as it existed at the time of the cut-off remains the state line between Mississippi and Arkansas and the dividing line between the lands in controversy.
The owner in Mississippi of land on the shore line of the Mississippi River owns to the center of the river.
Morgan v. Reading, 3 Smedes M. (11 Miss.), 366; Magnolia v. Marshall, 39 Miss. 109; Archer v. Greenville Sand Gravel Co., 233 U.S. 60, 34 S.Ct. 567, 58 L.Ed. 850.
If the channel of the Mississippi River changes gradually and imperceptibly, known as erosion, the ownership of riparian owners and the state line changes with the channel. However, if the channel of the Mississippi River changes suddenly and perceptibly, known as an avulsion, the state boundary line remains the same as it existed at the time of the avulsion, and the ownership of riparian owners and the state line remains with the old channel as they were before the change in the channel.
A.G. Wineman Sons v. Reeves, 245 F. 254; State of Tennessee v. State of Arkansas, 246 U.S. 158; State of Arkansas v. State of Mississippi, 250 U.S. 39, 39 S.Ct. 422, 63 L.Ed. 832; State of Oklahoma v. State of Texas, 260 U.S. 606; State of Louisiana v. State of Mississippi, 282 U.S. 458, 51 S.Ct. 197, 75 L.Ed. 459.
The owner of land in Arkansas cannot extend an ownership to accretions forming thereto which extend across the state line into the State of Mississippi.
City of St. Louis v. Rutz, 138 U.S. 226; Arkansas v. Tennessee, 246 U.S. 173, 62 L.Ed. 647; Cissna v. Tennessee, 246 U.S. 292, 62 L.Ed. 720; Kitteridge v. Ritter (Iowa), 151 N.W. 1097; Oklahoma v. Texas, 62 L.Ed. 436; Nebraska v. Iowa, 143 U.S. 369-370, 36 L.Ed. 190.
Appellant introduced three witnesses who testified with reference to the foregoing questions, St. George Richardson, W.E. Elam and B.B. Carmichael. All of them are engineers. We submit that on the question involved in the case appellant produced as witnesses on those questions experts of outstanding ability, long experience and unquestioned integrity, whose testimony as exemplified by their maps and reports showed and will merit acceptance by your honors, especially in the absence of any evidence to the contrary.
See Chicago Mill Lumber Co. v. Tully, 130 F.2d 268.
Full credence should be given official government maps.
United States v. Romaine et al., 255 F. 253; Bost v. United States, 103 F.2d 717.
The rule usually adopted for the apportionment of accretions among contiguous riparian owners is to divide the new shore line among the proprietors in proportion to their respective rights in the old shore line and to draw lines from the positions of division thus made in the new shore line to the points at which the old shore line is intersected by the boundaries separating the proprietors.
45 C.J. 529.
See also Smith v. Leavenworth, 101 Miss. 238, 57 So. 803; Wineman v. Withers, 143 Miss. 537, 108 So. 708; Richardson v. Sims, 118 Miss. 728, 80 So. 4; Houston Brothers v. Grant, 112 Miss. 465, 73 So. 284; Jeffrey v. East Omaha Land Co., 134 U.S. 178, 33 L.Ed. 872.
Upon the foregoing facts and under the authorities hereinabove cited, we respectfully submit: (1) that the state line between Mississippi and Arkansas shifted with the course or channel of the Mississippi River between 1829-30 and 1858; (2) that the lands accreted or contiguous to the lands of appellant in Mississippi uncovered by the shifting of the course or channel of the Mississippi River between 1829-30 and 1858 became and are the lands of appellant; (3) that the state line between Mississippi and Arkansas did not change with the course or channel of the Mississippi River resulting from the American Cut-Off of 1858 but remained and is the course or channel of the river in the horseshoe bend of the river in 1858, now known as Lake Lee; that under their deeds to lands in Arkansas, appellees cannot set up claim to and do not own any lands on the Mississippi side of the channel of the river as it remains since the cut-off in 1858 and therefore can make no claim to the land in controversy as being a part of the land situated in Arkansas or accretions to land situated in Arkansas.
The trial court erred in sustaining objection to the written report of his survey prepared by the witness Richardson. It is settled law in Mississippi, with one exception, that a general objection to the admissiblity of evidence is not sufficient to sustain the exclusion of such evidence or to warrant a review on appeal if the objection be overruled. The one exception to the rule is that the inadmissibility of the evidence objected to must be so apparent that no difference of opinion could arise over it. In other words, it must appear on its face that the evidence objected to by general objection has no purpose whatever for which it could have been admissible, otherwise, the general objection thereto is of no avail.
Griffith's Mississippi Chancery Practice, p. 646.
Clearly, under the foregoing rule, the trial court erred in excluding the written report of his survey made by the witness Richardson. Under the appellees' general objection thereto, (1) the trial court could not intelligently rule on its admissibility, (2) appellant was not apprised of the alleged infirmity therein, and (3) this court cannot review the ruling of the trial court thereon because the basis of that ruling is not shown. It is equally clear from a reading of the report that it is not within the exception to the foregoing rule. The report, made at the time of his survey, is simply a written report of the survey. It stands on the same basis as his map. His map is a record of his survey in lines and figures. His report is a record of his survey in words and figures. In fact, the report is a composite statement of the field notes of his survey. In addition, the report was clearly competent in explanation of the survey and map prepared by the witness, both of which were admitted in evidence. The authorities in support of this statement will be cited in our discussion of the third assignment of error.
The trial court erred in sustaining appellees' objection to the testimony of the witnesses Richardson, Elam and Carmichael in explanation of the maps introduced in evidence.
Gulf Research Development Co. v. Linder, 177 Miss. 123, 170 So. 646; Lenoir v. People's Bank of Laurel, 87 Miss. 559, 40 So. 5; Sharp v. Learned, 195 Miss. 201, 14 So.2d 218; Chicago Mill Lumber Co. v. Tully, 130 F.2d 268; Maney v. Dennison (Ark.), 163 S.W. 783; A.G. Wineman Sons v. Reeves, 245 F. 254; Hoague et ux. v. Stricker Land Timber Co., 69 F.2d 167; Arkansas v. Tennessee, 62 L.Ed. 638; New Orleans v. United States, 38 L.Ed. 872; Nebraska v. Iowa, 36 L.Ed. 186; Missouri v. Nebraska, 49 L.Ed. 372; 20 Am. Jur., Secs. 821, 983; 22 C.J. 910; 2 Jones Commentaries on Evidence, Revised Edition, Sec. 597, p. 1103.
The evidence shows that appellant has title by adverse possession to the lands described in the bill of complaint. The land in controversy is a small part of other land owned by appellant and wild, uncultivated, lying between the river and the levee and is flooded whenever the river overflows out of its banks. Land of this nature does not admit of permanent and useful improvement.
One claiming under a deed, who enters into possession of part of lands described therein by actual occupancy, holds constructive possession of the balance of lands conveyed, and is in constructive possession of the whole.
Welborn v. Anderson, 37 Miss. 155; Sessions v. Doe ex dem Reynolds, 7 Smedes M. (15 Miss.) 130; Green v. Irving, 54 Miss. 450, 28 Am. Rep. 360; Wilson v. Williams' Heirs, 52 Miss. 487; Native Lumber Co. v. Elmer, 117 Miss. 720, 78 So. 703; Evans v. Shows, 180 Miss. 518, 177 So. 786; Shepherd v. Cox, 191 Miss. 715, 1 So.2d 495, 4 So.2d 217, 136 A.L.R. 1346; Bullock v. Greer, 181 Miss. 190, 179 So. 264; Hanna v. Renfro, 32 Miss. 125; Paepcke v. Kirkman, 55 F.2d 814; 2 C.J. 244, Sec. 533.
Neither actual occupancy, cultivation, nor residence is necessary to constitute actual possession of property in such sense as to render it adverse to the true owner, where property is so situated as not to admit of permanent useful improvements and the continued claim of the property evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right, and would not exercise over property which he did not claim.
McCaughn v. Young, 85 Miss. 277, 37 So. 839; Mitchell v. Bond, 84 Miss. 72, 36 So. 148; Dedeaux et al. v. Bayou Delisle Lumber Co. et al., 112 Miss. 325, 73 So. 53; Evans v. Shows, supra; Paepcke et al. v. Kirkman et al., supra.
Farish, Keady Branton, of Greenville, for appellees.
Our contention was in the trial court, and is here, that the proof of appellant is insufficient to sustain the propositions advanced by the appellant, and that the actions of the river, according to the state of this record, are matters about which the trial court could only speculate, guess or conjecture and not reach any definite conclusions from the evidence introduced.
We concede the law in this state to be well settled as follows: That a riparian owner of land in Mississippi owns to the thread of the stream; that territory transferred from one side of a boundary river to the other by a gradual process of erosion on one side and accretion on the other becomes a part of the state to which it is added; and that territory transferred from one side of a boundary river to the other by avulsion continues to be a part of the state of which it was originally a part.
Sharp v. Learned, 195 Miss. 201, 14 So.2d 218.
Admittedly, from its own maps, appellant seeks to establish a record ownership to lands once joined to the Arkansas shore by transferring them to the Mississippi shore. Even to make out a prima facie case, the appellant's evidence must show two facts; one, that the change in the course of the river after 1829 was by erosion and not by avulsion; and two, that as the land eroded in Arkansas, land was built up in Mississippi gradually and imperceptibly, and that the land in Arkansas, being submerged by water, did not reappear as Arkansas land. We contend that both points must affirmatively appear from the evidence in this case and that the evidence fails to establish either proposition except by way of speculation and conjecture.
The party asserting that there have been material changes in the course of a river has the burden of proving them, whether they are recent or old.
Oklahoma v. Texas, 260 U.S. 606, 638, 67 L.Ed. 428, 435.
Where the mid-channel of a river as it formerly existed is shown by the evidence, the presumption of the continued existence of a state of facts, and more especially of the permanence of boundary lines, is to be applied. The accretions or erosions affecting the boundary between that time and any subsequent point of time must be clearly shown by the party asserting it, and cannot be established by vague or speculative evidence.
State v. Muncie Pulp Co., 119 Tenn. 47, 104 S.W. 437; 59 C.J. 60.
It is not, however, every disappearance of land by erosion or submergence that destroys the title of the true owner or suffices to enable another to acquire it, for the erosion must be accompanied by a transportation of the land beyond the owner's boundary to effect that result, or the submergence followed by such a lapse of time as will preclude the identity of the property from being established upon its reliction.
Mulry v. Norton, 100 N.Y. 424, 3 N.E. 581; Baumhart v. McClure (Ohio), 153 N.E. 211; Compare Wineman v. Withers, 143 Miss. 537, 108 So. 708.
A surveyor may illustrate his testimony by the use of charts and plans prepared from actual knowledge and surveys. They can, however, testify only in regard to facts, never in regard to conclusions of fact or of law, as such matters are for the determination of the jury or the court as the case may be.
9 C.J. 287-288, Sec. 345.
We submit that the written report of the witness Richardson, offered as expert evidence, the admissiability of which in any case is within the discretion of the trial court, was properly excluded below for the reason that it was nothing more than a surmise on the part of the witness and was not an explanation of facts as shown by Chart No. 40, or any other official map introduced in evidence. It is possible that the river could have changed in the manner and way suggested by the witness, but it is likewise possible that the river could have changed suddenly, or that, even if the change was gradual, Arkansas land submerged for a while by water reappeared as Arkansas land and not as accretions to the Mississippi shore. But it is a settled rule of this court that evidence which suggests nothing more than possibilities is insufficient for the basing of a verdict or decree in favor of the party offering such proof.
We concede the admissability of all government maps. We concede the competency of all maps prepared by appellant's witnesses based on actual surveys made by them. We concede also the admissability of expert evidence in explanation of what facts the maps may show, but we deny the competency of expert evidence offered in explanation of maps as to facts which cannot possibly appear on the maps testified about and about which facts the maps were absolutely silent. And if the report of the witness Richardson is excluded, the record is absolutely silent as to what happened to the river bed and to the Arkansas land between the years 1829 and 1858. In this state of the case, the appellant has failed to show an ownership of land beyond the center or thread of the original bed of the stream as it existed in 1829, and consequently has failed to show a record title as to the bulk of the lands involved in this suit.
We submit that the lower court was, on account of the vagueness in the proof, justified in rejecting the same and by concluding that an avulsion had not been proved, since it is most confusing from the evidence as to when and where the American Cut-off converted itself from a gradual into a sudden process. We submit, however, that even though the proof does show an avulsion as to the southern end of the American Cut-off, it is of no consequence because appellant has failed to show where the state line was located prior to such an event, and cannot recover as to any lands lying east of the center of the original stream as of 1829.
Appellant also contends that, apart from having a record title to the lands in controversy, it has acquired title thereto by adverse possession. The lower court took the view that the evidence as to the second phase of the case showed merely a "scrambling possession" on the part of all parties to the case. We submit that, the appellant having failed to establish a record title to the lands in controversy, it has also failed to make out a case of adverse possession. The deed on which appellant would base its "color of title" to the lands involved in this litigation conveys "that part of Refuge Plantation in Washington County, Mississippi, located on the river side of the levee as now located, and all accretions thereto, said Refuge Plantation containing among other lands, . . . part of Section 10, Township 17, Range 9 West, and Section 3, Township 16, Range 9 West." Thus, as appellant has not shown that the lands in controversy are accretions to Section 3 and part of Section 10 owned by it, it has no color of title to said lands, and appellant can only acquire title by adverse possession to such lands as were acquired and continually occupied or actually possessed by it for the statutory period of ten years.
Where a party has no color of title to land, he can only acquire title by adverse possession to such part of the land as he has actually held in possession and inclosed, or otherwise actually and continuously occupied for the statutory period of ten years.
Dedeaux v. Bayou Deslisle Lumber Co., 112 Miss. 325, 73 So. 53; Delk v. Hubbard, 153 Miss. 869, 121 So. 845.
We contend that appellant has not shown a color of title to the lands in controversy because it has failed to prove them to be accretions to Mississippi land, and, therefore, it is not in position to invoke the rule that a person claiming title by deed to lands, and being in possession of a part of said lands, is deemed to be in constructive possession of all of the lands described in the conveyance.
A mere scrambling possession of land, however long continued, is insufficient to confer title by adverse possession.
Cohn v. Smith, 94 Miss. 517, 49 So. 611.
Argued orally by W.T. Wynn and Walter Sillers, for appellant, and by W.C. Keady, for appellee.
The original government survey and the township plats based thereon made in 1829 were such that Section 3, Twp. 16 N., R. 9 W., and Section 10, Twp. 17 N., R. 9 W., in Washington County, abutted upon and were riparian to the Mississippi River, the river being to the east and southeast of the sections. The stated directions as bearing upon these two sections had happened because to the southwest of this location, the river had departed from its general southerly course and had made a sharp bend to the east and northeast, the bend being in fact almost in the shape of a large letter U, or, as sometimes called, a horseshoe bend; and the sections named were on the east inside of the bend and in such a situation as to make the river their boundaries on the east and southeast sides as stated. Section 3 is adjoined by Section 10, the latter being to the northeast of Section 3, and both are irregular or fractional sections.
In the years from 1829 to 1858, inclusive, a period of thirty years, the river bed opposite these sections had gradually moved to the south and east, so that at the bottom of the U in the bend, the river had receded to the southeast about a mile, and opposite Section 3 had receded to the east a lesser distance, and opposite Section 10 a still lesser distance, the general shape and correspondence of the bend being preserved.
In 1858 there was an avulsion by which the river cut across the bend, cutting the U in half and making a complete departure from the directions which the river had theretofore followed at that immediate location. In this avulsion the lower half of Section 3 was washed away and became a part of the new river bed, and what in that year had been the river to the east and southeast of Sections 3 and 10 was wholly abandoned by the new river, and became in the course of a few years dry land, or land in place, except that part now called Lake Lee, a small portion of which is opposite Section 10.
Appellants, as the record owners of Sections 3 and 10, filed their bill seeking to have established their ownership of the accretions properly apportioned which became a part of said sections by the gradual movement of the river during the thirty-year period from 1829 to 1858.
There is no dispute between the parties upon the present record that the river was located in 1829 as shown by the lines in blue on the superimposed map, Exhibit 7, made by the engineer Richardson, and no dispute that the location in 1858 is as shown by the orange lines on that map, — affirmatively evidenced by map Exhibit 5, and Miss. River Chart No. 40, — and no argument has been made by appellees that the accretions between the middle, the thalweg, of the river of 1829 and that of 1858 have not been properly apportioned by the engineer as shown on his map, Exhibit 1.
The main question, and the determinative question so far as the present appeal is concerned, has arisen out of this: No authentic survey was made of the river and its movements at this point between the years 1829 and 1858. There is no map in the record showing precisely what happened there between those dates, and, of course, no witness is now alive who could directly tell about it. The contention of appellees, sustained by the trial court, is that there being no direct proof whether the river moved between those years by the process of gradual erosion and accretion, appellants cannot prevail because of the absence of such proof.
We cannot assent to that contention. The weight of authority, both state and federal, is that there is a presumption, founded upon long experience and observation, that a movement such as happened here between 1829 and 1858 was by gradual erosion and accretion.
In the absence of countervailing evidence, the presumption of gradual erosion and accretion prevails when the lay of the land, the length of the elapsed time as related to the distances of the movement, and the general correspondence of the location and directions of the river at the later period as compared with that of the earlier, are such that the stated presumption may be reasonably entertained, and the presumption is also that the river as it gradually moved its bed, carried along with it a water-covered width at ordinary stages approximately equal to its original width.
Precisely that situation was presented in the first phase of the recent case Sharp v. Learned, 195 Miss. 201, 14 So.2d 218. In that case, as here, there had been no authentic survey as to what had happened between the years 1830 and 1861, and, of course, no living witness, but the presumption was sustained that the movement by the river westwardly by nearly a mile during that thirty-year period was by the process of gradual erosion and accretion, the general situation being such as to satisfy the conditions as stated in the next preceding paragraph of the present opinion. And that what happened in 1858 was an avulsion is supported by what was said as to the third phase in Sharp v. Learned, 195 Miss. 201, 14 So.2d on pages 220, 221 under numerals (6) and 6, and this is even more evident here than in that case.
The testimony of the highly competent civil engineers, all or practically all of which was relevant and admissible, who made a close study of this location and all its physical indications, sustains the validity of the presumption of gradual erosion and accretion in the case now before us as to what happened between 1829 and 1858, and before the avulsion in that year, but a study of the map, Richardson Exhibit 7, together with Miss. River Chart No. 40, is enough to sustain it. This map shows that the point of the greatest recession, about a mile, was at the bottom of the bend or U. Considering what had been taking place in clearing and ditching in the vast area above, tributary to the river, during that thirty years, the nature of the sandy and alluvial soil in the particular area here in question, the size of the river there and the force of its currents, it would not be unreasonable to expect that the water at highwater periods, and even when not extremely high, as it came rapidly southward would surge against the bank at the bottom of the bend or U and would gradually scour this south bend bank and at a rate which in a year's time would amount to as much as 200 feet, and which in thirty years would be 6,000 feet or more than a mile. And it would be expected that the force of the current directed strongest against the bank at the bottom of the bend would gradually have less force and would gradually eat away less of the bank as the water was forced to take direction into the east and northeast reaches of the bend and would to the northeast finally get back into the river as it was, and the map, reasonably interpreted, shows this and all this. And as stated, the general course of the river at the point in 1858 was the same as in 1829; the feature of parallelism, spoken of in Sharp v. Learned, was distinctly preserved, until the avulsion, called the American Cut-off, occurred in 1858.
The evidence placed before the court by appellants was sufficient to disclose, in the absence of any other, that the location of the river in 1858 as compared with that of 1829 had been through the process of gradual erosion and accretion and that appellants, under applicable rules of law, were entitled to the accretions claimed, when correctly apportioned. Therefore, the motion to exclude the evidence should have been overruled.
Reversed and remanded.