Opinion
No. 35068.
November 16, 1942. Suggestions of Error Overruled January 11, 1943.
1. BOUNDARIES.
Where description of land conveyed is by governmental section numbers, the land conveyed, without more, is that which is situated within the designated sections as surveyed and platted by the government.
2. NAVIGABLE WATERS.
Where deeds describing land by governmental section numbers and reserving accretions to the land were executed at a time when because of accretions, shore line of river forming south boundary of land was south of its location when land was surveyed and platted by government so that survey of land then made in accordance with that of government would have embraced what appeared to be the same land as that described in government's plat and field notes, and, as disclosed by evidence, of the same acreage, land intended to be conveyed was that embraced in government's plat and field notes, and "accretion" to land excepted from the deeds was such only as was formed to river's shore line as it appeared in government's survey when the sections were platted.
3. TRESPASS.
Where land was entered by claimants and part of trees thereon were cut after claimants were informed that owners claimed the land, but evidence established that this was done under belief that land belonged to a claimant which belief was reasonable and resulted from honest mistake concerning land included in certain deeds executed by grantor who was common source of title to the land, owners could recover actual value of the trees cut, but were not entitled to statutory penalty, nor punitive damages including attorney's fees and expenses incurred (Code 1930, sec. 3411).
APPEAL from chancery court of Issaquena county, HON. J.L. WILLIAMS, Chancellor.
Dent, Robinson Ward, of Vicksburg, and Williamson Williamson, of Monticello, Ark., for appellants.
The appellees and appellant Anderson-Tully Company are both claiming title to the land in litigation. The land records show a common source of title to all of Sections Thirteen (13) and Fourteen (14), Township Nine (9) North, Range Four (4) West, Issaquena County, Mississippi, which were a part of Magna Vista and Tennessee Plantations beginning with one G.H. Miller who owned this property in 1914. These two sections are what are known as "fractional sections," having as their southern boundary, at the time of the original governmental survey of 1823, the Mississippi River. At the time of the suit an extremely large body of accretions had been added southward to the original sections.
The sole issue in this case is whether or not the land in litigation (the particular area in controversy) is what is legally known as "Accretions" to the Magna Vista Plantation and the Tennessee Plantation, particularly "Accretions" to that part of said plantations which is covered by the legal description "Fractional sections 13 and 14, Township 9 North, Range 4 West," which area was conveyed in the deed from G.H. Miller and James Pearson to Anderson-Tully Company, dated June 12, 1920. The determination of this issue hinges upon the establishment of the exact location on the present ground of the old river bank to which accretions began to form against the original lands which now form a part of said Tennessee and Magna Vista Plantations. The old river bank is necessarily marked by the extreme northward location of the channel of the Mississippi River in this area before it began to move southward to its present location.
We earnestly submit that the learned chancellor was manifestly in error in deciding this case adversely to the contention of the Anderson-Tully Company. The evidence disclosed without any substantial conflict that the property in dispute was what is known as "accreted lands," and that the complainants have no right, title or claim to any lands south of the old river bank. This statement is amply supported by the following:
(1) All of the deeds from Miller to the complainants through the mesne conveyances clearly establish the fact that the Anderson-Tully Company is the owner of all of the accretions to Magna Vista and Tennessee Plantations. When all of the deeds are read the intention of the parties is clear beyond cavil.
(2) The exhibits, the testimony of the expert witnesses, the testimony of the eye-witnesses and the testimony of the surveyors all prove beyond any doubt that the north line of the Anderson-Tully Company's lands is the old river bank as located on Richardson's plat of survey.
(3) All of the owners of this property intended for the old bank line to be the dividing line between the lands of the complainants and the defendant Anderson-Tully Company.
The attorneys for the appellees throughout the trial in the court below, in the course of their argument to the chancellor, stressed two points: (1) that when Miller conveyed this property to Moorman and to Murchie he intended that "the south line of Sections 13 and 14" (whatever they might mean by the south line) was to be the dividing line of the plantations proper and the accretions; (2) that because Miller in his deeds to Murchie and Moorman used the words, "all accretions adjacent to the south of the south line of Section Thirteen (13) and Fourteen (14)," and "excepting the accretions to Sections 13, 14 and 15" that it was his intention to limit the accretions to that part which lay south of the meander line of 1823.
"Accretions" may be defined as an addition to riparian land gradually and imperceptibly made by the water to which the land is contiguous, or, in another sense, as the process by which such addition takes place.
45 C.J. 522, Sec. 188.
See also Wilson v. Watson, 144 Ky. 352, 353, 138 S.W. 283, Ann.Cas. 1913A, 774; Irvin v. Crammond, 58 Ind. A. 540, 108 N.E. 539, 540; McCoy v. Paxton (Iowa), 135 N.W. 1091, 1092; Western Pac. Ry. Co. v. Southern Pac. Co., 151 F. 376, 396, 80 C.C.A. 606; Fowler v. Wood, 73 Kan. 511, 85 P. 763, 775, 6 L.R.A. (N.S.) 162, 117 Am.St.Rep. 534; Lammers v. Nissen, 4 Neb. 245; Bigelow v. Herrink, 200 Iowa 830, 205 N.W. 531; Bode v. Rollwitz, 60 Mont. 481, 199 P. 688, 691; Melvin v. Schlessinger, 138 Md. 337, 113 A. 875, 877; Katz v. Patterson, 135 Or. 449, 296 P. 54, 55; Meeker v. Kautz (Iowa), 239 N.W. 27, 28; Mercurio v. Duncan, 131 Neb. 767, 269 N.W. 901; Smith v. Whitney (Mont.), 74 P.2d 450, 453.
It seems clear that the correct way in which to describe accretions in a deed is by describing the land involved as being accretions "to" a section, because that is simply the only way in which accretions are built — by additions "to" the river bank of a fractional section. When this fact is realized, then it at once becomes evident that there is absolutely no foundation to appellee's argument that accretions should be referred to as being "within" a section.
The reason appellee fell into error in advancing this contention lies, we believe, in a misconception of the importance or legal effect of the meander line of the Mississippi River as originally laid out by the United States Government. It has been their contention throughout that the dividing line between the lands of complainants and Anderson-Tully Company was the original meander line of 1823.
The general rule, subject to various qualifications, is that the meander lines of a governmental survey are not run as boundaries of the tract surveyed, but for the purpose of defining the sinuosities of the banks of the stream or other body of water, and ascertaining the quantity of the land embraced in the survey; and the stream or other body of water, and not the meander line, is the boundary.
11 C.J.S., "Meander Lines," Sec. 30-b.
See also City of Peoria v. Central National Bank, 224 Ill. 43, 79 N.E. 296, 12 L.R.A. (N.S.) 687; 12 L.R.A. 687; Jefferis v. The East Omaha Land Co., 10 S.Ct. 518, 134 U.S. 178, 33 L.Ed. 872.
Meander lines are run in surveying fractional portions of the public lands bordering upon navigable rivers, not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream, and as the means of ascertaining the quantity of the land in the fraction, subject to sale, and which is to be paid for by the purchaser. In preparing the official plat from the field notes, the meander line is represented as the border line of the stream, and shows, to a demonstration, that the water course, and not the meander line, as actually run on the land is the boundary.
St. Paul P.R. Co. v. Schurmeir, 74 U.S. (7 Wall.) 272 (19:74).
Compare Hill City Compress Co. v. West Kentucky Coal Co., 155 Miss. 55, 122 So. 747; Morgan v. Reading, 3 Smedes M. (11 Miss.) 366.
The meander line per se has no significance as a determining factor in this lawsuit.
The mere fact that this land was, at the time of the original government survey, the northern boundary of the river does not justify the court, by virtue of that fact alone, in using the line as the beginning point for the measurement of accretions.
Northern Pine Land Co. v. Bigelow, 84 Wis. 157, 53 N.W. 1120, 21 L.R.A. 776.
Compare Smith v. Leavenworth, 101 Miss. 238, 57 So. 803; Widdecomb v. Chiles et al., 173 Mo. 195, 73 S.W. 444, 61 L.R.A. 309; Peuker v. Canter et al., 62 Kan. 363, 63 P. 617; 45 C.J. 529.
The water boundaries of land on running streams, whatever they may be in the beginning, whether the thread of the stream, the water's edge, ordinary high or low water mark, always remain the same when they change gradually, as by the process of accretion or attrition.
Wallace v. Driver, 61 Ark. 429, 33 S.W. 641, 31 L.R.A. 317; New Orleans v. U.S., 10 Pet. 662, 717; Jefferis v. Land Co., 134 U.S. 178, 10 S.Ct. 518; Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396; Gould on Waters, sec. 155; 2 Bl. Comm. 262.
Deeds are clear that meander line of 1823 was not the boundary.
When the case was argued in the court below, appellees laid a great deal of stress upon the fact that Sections Thirteen (13) and Fourteen (14) were mentioned in the deeds and therefore they conclude that it was the intention of the parties to fix the meander line as the boundary of the lands conveyed to Murchie and Moorman. This contention, we believe, is of absolutely no merit when you consider the phraseology of the deeds themselves. It should be noted that the deed to Moorman conveys a parcel of land "known as Magna Vista Plantation, except the accretions thereto" and the deed to Murchie conveys, "the plantation known as the Tennessee Plantation accept the accretions to Sections 13, 14 and 15 which are expressly reserved and retained and excepted from this conveyance." This is the land which Mr. Miller intended to convey, viz: two plantations less the accretions to these plantations. The deeds would have been perfectly good if he had stopped there and the complainants would be entitled only to that part of these two plantations which is comprised of up-land, and the Anderson-Tully Company would be entitled to the accretions. Just where the dividing line between the accretions and the upland is has been clearly proven to be the line fixed by the old river bank at its furtherest northward progression, where it is still plainly visible on the ground and is marked as the north boundary of appellants' accretion lands. It is true that Miller then went on to say that the "plantations" were composed of "the following lands," and he then described the plantations according to governmental sections. The act of Miller in thus mentioning the governmental sections is one of reiteration only, and is of no effect and has no significance in any way as limiting or enlarging the conveyance which he had previously made — that is, the plantations less the accretions.
It is a well established rule that a good general grant will not be limited by a subsequent particular description, where the second description is one of reiteration, unless it definitely appears from the terms of the particular description that it was the intention to thereby limit the general grant.
Barksdale v. Barksdale, 92 Miss. 166, 45 So. 615.
See also 11 C.J.S. "Boundaries," Sec. 57; 26 C.J.S., "Deeds," Sec. 100 (L).
The court erred in allowing any damages to the complainants, either by way of statutory penalty or by way of exemplary damages.
Murphy v. Seward, 145 Miss. 713, 110 So. 790; Seward v. West, 168 Miss. 376, 150 So. 364.
The court erred in allowing any attorneys' fees to appellees.
Kalmia Realty Ins. Co. v. Hopkins, 163 Miss. 556, 141 So. 903; Cooper v. U.S.F. G. Co., 186 Miss. 116, 188 So. 6; E.L. Bruce Co. v. Edwards, 192 Miss. 1, 3 So.2d 846.
Brunini Brunini, of Vicksburg, for appellees.
Where land is described in a deed by sectional numbers according to the government's survey, the land thereby conveyed is that only which is situated within the designated sections as surveyed and platted by the government.
Goff v. Avent, 122 Miss. 86, 84 So. 134.
See also Vick v. Peck, 4 How. (5 Miss.) 407; Fulton v. McAffee, 5 How. (6 Miss.) 751, error dismissed 41 U.S. (16 Pet.) 149, 10 L.Ed. 918; May v. Baskin, 12 Smedes M. 428 (20 Miss.); Burton v. Butler, 107 Miss. 344, 65 So. 459; J.R. Buckwalter Lumber Co. v. Wright, 159 Miss. 470, 132 So. 443.
When the meaning of language contained in a deed is to be determined by the court, the intent of the parties, expressed in the words they have used, must govern.
Goff v. Avent, supra; Dunn v. Stratton et al., 160 Miss. 1, 133 So. 140.
A good general grant will not be limited by a subsequent particular description unless the terms of the particular description show an intention to limit the general grant.
Barksdale v. Barksdale, 92 Miss. 166, 45 So. 615.
In the case at bar, the intention is clearly manifested to limit the general grant. This was done by the use of this qualifying and limiting clause: "All accretions adjacent to the south of the south line of said Sections Thirteen (13) and Fourteen (14) of said Magna Vista Plantation are hereby reserved from this conveyance and title to which is not intended to pass by this conveyance but to remain in the said G.H. Miller."
Nothing could be plainer. The intention is certainly expressed in said reservation, and was not to take in any of the accretions north of the south line of the said Sections Thirteen (13) and Fourteen (14).
Where are those sections to be found? Nowhere except in the governmental survey of 1823. That is confirmed by the fact that the exact acreage is given in the deed of Sections Thirteen (13) and Fourteen (14) that is contained in the governmental field notes and map of 1823. So we see that there is not a mere redescription. There is certainly a limitation.
In the drafting of the deeds to the two plantations, there was uppermost in the mind of Miller, the grantor, that he was not disposing of the accretions to Sections Thirteen (13) and Fourteen (14), and how would one find the south line of these sections without taking into consideration the full description of the sections as shown by the plat of 1823? The mere use of the governmental subdivisions shows that reference was made to the governmental field notes and survey of 1823. That is inescapable. Miller, while describing the plantations by metes and bounds and adopting the governmental subdivisions, made it perfectly plain by his reservation of the accretions to the said plantations, both by his language and by the use of the subdivisions and their acreage.
May we ask that if Miller did not mean the meander line which we call the section line, which line did he mean? Miller did not employ the meander line of 1882 nor any other meander line. He necessarily had in mind the section or meander line, as it may be termed.
Note also that Miller did not reserve any part of the accretions north of the section line, but he did reserve the part that was south of the south line of the section, by which of course he meant the line as shown on the governmental map of 1823, based on the field notes, whether one calls it the "meander line" or the "section line."
The language in the reservation by Miller could have meant nothing else. If that was not the line, what was? Where were the accretions? South of the south line of the sections.
Certainly this honorable court knows that the language employed was to make definite what he intended to convey of the accretions. The language taken in connection with the description by the governmental subdivisions, we submit, is conclusive.
Compare Southern Railway Co. v. Archer, 120 Miss. 376, 82 So. 261.
The appellees were entitled to exemplary damages.
Neal v. Newburger Co., 154 Miss. 691, 123 So. 861; Godfrey v. Meridian Light Railway Co., 101 Miss. 565, 58 So. 534; Yazoo M.V.R. Co. v. Fletcher, 100 Miss. 589, 56 So. 667; Vicksburg Waterworks Co. v. Dutton, 98 Miss. 209, 53 So. 537; Hines v. Imperial Naval Stores Co., 101 Miss. 802, 58 So. 650.
Where the facts are such that an award of exemplary damages may be made, the probable counsel fees may be considered by the jury in estimating the amount of the damages.
Cooper v. U.S.F. G. Co., 186 Miss. 116, 188 So. 6; Kalmia Realty Ins. Co. v. Hopkins, 163 Miss. 556, 141 So. 903; Yazoo M.V.R. Co. v. Consumers' Ice Power Co., 109 Miss. 43, 67 So. 657; New Orleans J. G.N.R. Co. v. Allbritton, 38 Miss. 242, 75 Am. Dec. 98; 25 C.J.S. 533, Sec. 50(b).
See also 8 R.C.L. 499, Sec. 60.
Argued orally by Emmett Ward and Lamar Williamson, for appellants, and by John Brunini, for appellees.
This is an appeal from a decree enjoining the appellants from cutting timber on land owned by the appellees, and awarding actual, statutory and punitive damages for the cutting of timber therefrom by the appellants. The land lies in Sections 13 and 14, Township 9 North, Range 9 West, and G.H. Miller is the common source of title thereto of the parties hereto.
On May 4, 1915, Miller executed a deed to Moorman, and on October 1, 1917, he executed another to Murchie, the description of the land in both of which the reporter will set out in full. The appellees have succeeded by mesne conveyances to the title to the land conveyed by these deeds to Moorman and Murchie. In June, 1920, Miller conveyed to the appellant Anderson-Tully Company "All the accretions to Sections Thirteen (13) and Fourteen (14) in Township Nine (9) North Range Nine (9) West . . . . in said Issaquena County, in the State of Mississippi," and "All the accretions, already made by the Mississippi River, to what is known as the Tennessee Plantation, situated in Issaquena County, in the State of Mississippi, being the same specially reserved and retained by G.H. Miller in deed to John M. Murchie dated October 1st, 1914, and recorded in Deed Book `E.E.' page 519 of the records of deeds of said Issaquena County, and also such accretions to the said Tennessee Plantation as have formed since the date of the said deed from the said G.H. Miller to the said John M. Murchie."
Miller deed to Moorman, ". . . I, G.H. Miller, do convey and warrant to the said W.B. Moorman the parcel or piece of land known as Magna Vista Plantation, except the accretions thereto, situated in Issaquena County, and State of Mississippi, and more particularly described as follows:
"That certain tract or parcel of land lying and being in Township Nine (9) North, Range Nine (9) West, Issaquena County, Mississippi, and more particularly described as follows:
"All of Fractional Section Thirteen (13); all of Section Twelve (12) except seven acres sold to Richard Christmas as shown of record in Deed Book "D" page 40 of the records of deeds of Issaquena County, Mississippi; also the following described part of Section Eleven (11) and Fourteen (14) to-wit: Beginning at a point on the Bank of the Mississippi River at which a continuation of the back levee would strike the river; thence up the top of said levee and at the center thereof, following the meanderings thereof, to the point where the said levee intersects the north and south line between Sections Eleven (11) and Twelve (12); thence south with said Section line to the Mississippi River; thence with said River to the place of beginning.
"Said several tracts contain nine hundred eighty three and thirty-eight one hundredths (983.38) acres, more or less.
"All accretions adjacent to the South of the south line of said section Thirteen (13), and Fourteen (14) of said Magna Vista Plantation are hereby reserved from this conveyance, and title to which is not intended to pass by the conveyance but to remain in the said G.H. Miller. . . ."
Miller deed to Murchie. ". . . I, G.H. Miller, of Chattanooga, Tennessee, subject to the conditions and reservations hereinafter mentioned, do convey and warrant to the said John M. Murchie the plantation known as the Tennessee place, — except the accretions to Sections 13 and 14 and 15, which I specially reserve and retain and except from this conveyance, retaining the title and possession of and to all of the said accretions to said sections 13, 14 and 15, to and in myself, and convey, subject to such reservations, all of the land, as follows, to-wit, — situated in the County of Issaquena, and State of Mississippi, and particularly described as follows: The Southwest Quarter (SW 1/4) of Section Two (2), embracing one hundred and fifty-six (156) acres, more or less, — all of section Ten (10) containing six hundred forty-one (641) acres, more or less, all of section Eleven (11) and all of Section Fourteen (14), except one hundred fifty six (156) and forty-five one hundredths (156.45) acres off from the Eastern portion of the last two named sections Eleven (11) and Fourteen (14), as particularly described in a deed from Writ Adams and wife to D.W.C. Bonham, recorded in Deed Book B, page 552; all of the above in Township Nine (9) North, Range Nine (9) West, — containing in — the aggregate one thousand four hundred forty-six (1446) acres, more or less; Except all accretions, as aforesaid. Also the unexpired lease to fractional school section Fifteen (15), Township Nine (9), North, Range Nine (9) West, containing One hundred Two (102) acres, more or less, — which commenced Oct. 20th, 1849, and will expire Oct. 20th, 1948, and which is fully described in a lease from the Board of Supervisors of Issaquena County to John Butts, recorded in deed Book Q, pages 184 and 185, of the records of said County, — excepting accretions to the above described and already made, or which may hereafter be made, by the Mississippi River in the front of said property. . . ."
Sections 13 and 14 are fractional sections, the south boundary of which is the Mississippi River, and a considerable body of land lying here north of the river consists of accretions to the river's former shore lines.
In 1823, the land was surveyed and platted by the government, the field notes of which survey show the then shore lines of the Mississippi River. When Miller's deeds to Moorman and Murchie were executed, the shore line of the river was some distance south of what it was in 1823, because of accretion to that shore line. According to the evidence for the appellees, all accretions south of the river's shore line in 1823 were made subsequent to that date. There is, however, a well-defined old river bank north of its 1823 shore line; and the evidence for the appellants is to the effect that, after 1823, the river encroached on the land as far north as this old river bank and thereafter receded gradually, leaving accretion to its shore lines until it reached the point where it now bounds the lands. The land in controversy is that between what was the river's shore line in 1823 and the old river bank north thereof.
The appellees' contention is that the accretion excepted from Miller's deeds to Moorman and Murchie is that only which lies south of what was the river bank in 1823 and formed after that date. The appellants' contention is that all accretion to the land was excepted from those deeds whether formed before or after 1823. The conclusion at which we have arrived, renders it unnecessary for us to determine whether or not the appellants' contention as to when this accretion was formed is correct.
The description of this land in Miller's deeds to Moorman and Murchie is by governmental sections numbers, and when such is the case, without more, the land conveyed is that "which is situated within the designated sections as surveyed and platted by the government." Goff v. Avent, 122 Miss. 86, 84 So. 134, 135. The plat and field notes of the government's survey of this land made in 1823 disclose, according to the evidence, that the shore line of Sections 13 and 14 was then where the appellees now claim, and but for the exception in these deeds they would have conveyed the land embraced in the government's survey of the sections, plus accretions thereto.
The land being excepted from Miller's deeds being described as "accretion," the question for determination is: Do these exceptions embrace all or a portion of the accretion, and if the latter, what part thereof? The difficulty which here arises could have been easily prevented by describing the excepted land in another manner, but that difficulty must be faced, and what Miller intended to convey must be determined, if it is possible so to do. When these deeds were made, the river's shore line was some distance south of where it was when the land was surveyed and platted by the government, so that a survey of the land then made in accordance with that of the government would have embraced what appears to be the same land as that described in the government's plat and field notes, and, as the evidence discloses, of the same acreage. We must conclude, therefore, as the court below did, that the land intended to be conveyed by Miller was that embraced in the government's plat and field notes, and that the accretion to the land excepted from his deeds was such only as was formed to the river's shore line as it appeared in the government's survey when the sections were platted. This conclusion is reinforced as to Miller's deed to Moorman by the use of the words "adjacent to the south line of said sections thirteen (13) and fourteen (14)."
This brings us to the question of the damages allowed to the appellees. No error here appears in the court's rulings on evidence offered in this connection. After allowing actual value of the trees cut by the appellants, the court allowed the statutory penalty for the trees and punitive damages, including attorney's fees and certain expenses incurred by the appellee. Code 1930, Sec. 3411. The allowance of the first of these items is unexceptionable, but the statutory penalty and punitive damages, even if both are recoverable in cases of this character, as to which we express no opinion, should not have been allowed. It is true that the evidence discloses that the land was entered and part of the trees were cut by the appellants after they were informed that the appellees claimed to own the lands; but it is clear from the evidence that this was done under the belief that the land belonged to the appellant Anderson-Tully Company, and in view of the difficulty of determining where the line between the land conveyed by Miller's deeds and that retained by him therein should be drawn; or to express it differently, in determining that the land in controversy is not included in that excepted from these deeds, we must hold that this belief of the appellants was reasonable, and that the trespass committed was the result of an honest mistake.
The decree of the court below will be affirmed except in so far as it allows damages other than the actual value of the trees cut, and such other damages will be here eliminated.
So ordered.