Opinion
No. 33969.
February 12, 1940. Suggestion of Error Overruled March 25, 1940.
1. BOUNDARIES.
In suit involving correct boundary line, burden was on complainants to prove correct channel of the stream forming boundary at time patents were issued by the United States.
2. PUBLIC LANDS.
Where patentees obtained their patents from the government their rights became vested and fixed as of that date, and could not be affected by any subsequent survey or corrected survey by the government.
3. ADVERSE POSSESSION.
Overlapping constructive possession does not aid either party against the other.
APPEAL from the chancery court of Claiborne county; HON. R.W. CUTRER, Chancellor.
T.J. Lawrence, of Vicksburg, and Engle Laub, of Natchez, for appellants.
The law is clear that a person having possession under a deed that accurately described the dimensions of the tract claimed and in actual possession, and occupancy of a portion of the tract holds the balance of the tract actually described in his deed constructively. The law is also clear that a person in possession of a tract of land not described in his deed can only claim adverse possession to that portion which he actually encloses and actually occupies openly, adversely and notoriously, so that the real owner and the world may know he is claiming same.
Cook v. Mason, 134 So. 139, 160 Miss. 811; Evans v. Shows, 177 So. 786, 180 Miss. 578.
There is no constructive possession in any case where the deed or the party who holds possession does not describe the part not actually enclosed.
The present channel of Bayou Pierre was established as an avulsion and the land which has built up to the north of Bayou Pierre was not created or brought about by accretion.
Archer v. So. Ry., 114 Miss. 403, 75 So. 251; Nix v. Dickerson, 33 So. 490, 81 Miss. 632.
The lower court ignored the law which places the burden of proof on the defendants to show acquisition of title by adverse possession or by accretion.
The character of adverse possession must be an entry under color of right, claiming title hostile to the true owner and the world, and the entry must be followed by possession and appropriation of the premises.
Dixon v. Cook, 47 Miss. 220; Davis v. Bomar, 55 Miss. 671; McCaughn v. Young, 37 So. 839, 85 Miss. 277; A. V. Ry. Co. v. Joseph, 87 So. 421, 125 Miss. 454; Staten v. Henry, 94 So. 237, 130 Miss. 372; Davis v. Gibbs, 1 Miss. Dec. 89; Paepcke v. Kirkman, 55 F.2d 814; Dedeaux et al. v. Bayou DeLisle Lbr. Co. et al., 73 So. 53, 112 Miss. 325.
The burden of proof is on the party claiming adverse possession.
Neal v. Newberger, 123 So. 861; McCaughn v. Young, 85 Miss. 277, 37 So. 839.
It was necessary for the lower court in order to reach the decree it rendered in this case to throw into the scrap heap all the jurisprudence of the State of Mississippi with respect to the law of adverse possession and to substitute for facts, assumptions and conclusions for which in the evidence there can be found no substantial support or in fact any support whatsoever.
Alexander v. Polk, 39 Miss. 737.
Luther A. Whittington, of Natchez, for appellee.
It was necessary before the complainants could be given the relief prayed for by them to prove and establish a perfect legal and equitable title in themselves to the land in controversy as well as to establish the invalidity of the defendant's claim to the land in controversy.
Camp v. Celtic Land Imp. Co., 129 Miss. 417; Toulmin v. Heidelberg, 32 Miss. 268; Griffin v. Harrison, 52 Miss. 824.
Complainants must show a perfect legal or equitable title independently of defects in defendant's title.
Jones v. Rogers, 85 Miss. 802; Goff v. Avent, 122 Miss. 86.
This suit being filed under Section 404, Mississippi Code of 1930, if the complainants can recover at all, they must recover on the strength of their own title and not upon any weakness in the title of defendant.
The universal rule is that where a stream forms a boundary line between two grants under government surveys and grants this line changes with the shifting stream. And there is positively no exception to this rule of law except in case of avulsion.
"Avulsion" is the sudden change of the banks of a stream such as occurs when a river forms a new course by going through a bend; and where the stream forms the boundary of land, the avulsion has no effect upon such boundary, but it still remains the center of the old channel, whether water flows in it or not.
Rees v. McDaniel, 21 S.W. 913, 914, 115 Mo. 105; Bouvier v. Stricklett, 59 N.W. 550, 552, 40 Neb. 792; Nebraska v. Iowa, 143 U.S. 359, 36 L.Ed. 186; Willey v. Lewis, 28 Ohio L.J. 104; McKay v. Huggan, 24 N.S. 514; Sweatman v. Holbrook, 18 Key. L. Rep. 870, 872.
In Mississippi an avulsion has been defined as having occurred where in various years during extraordinary floods large parts of land bordering a river have caved into the river and where it appeared when the flood subsided it was plainly evident that an equal deposit of land had taken place on the other side of the river.
Nix v. Dickerson, 33 So. 490.
It must be apparent to the court that the whole doctrine of avulsion necessarily depends in the beginning upon the identification of a definite fixed and original course of a stream at the time property rights bordering on each side of such stream becomes vested in different owners. The evidence in this case introduced by the complainants themselves does not show the original traverse of Bayou Pierre or where its channel was at the time the land was entered from the government.
The evidence conclusively shows that neither the complainants nor their predecessors in title have ever at any time actually occupied and possessed the land in controversy continuously for a period of ten years.
Sec. 2923, Miss. Code of 1930.
The evidence in this case abundantly established that the land in controversy did not belong to the complainants by reason of adverse possession. On the contrary, the evidence conclusively shows that for more than ten years prior to the filling of this suit the defendant had been in the actual occupancy of the land and had actually used it for all suitable purposes and had taken manual possession thereof, which continued until the suit was filed.
Sec. 2885, Code of 1930.
We submit to the court that under all the facts, circumstances, oral and record evidence, that complainants have absolutely failed to establish their right to recover the particular and specific land in controversy but on the contrary the entire record abundantly shows that Senator Byrnes was the owner of a perfect record title to all of the land in controversy since its entry from the government down to the present date and that he and his immediate predecessors in title have been in the actual occupancy and possession and use thereof for the past hundred years or more.
E.S. and J.T. Drake, of Port Gibson, for appellee.
Boundaries, where a stream is the boundary, change with the stream, except in case of an avulsion.
9 C.J. 189, 195.
We ask that the court read the bill carefully. It does not make any claim of title to the land in controversy, except such as is founded upon adverse possession, and this will have to be sustained by proof according to the rules laid down for making claim under such circumstances.
The statutes of our different states dealing with adverse possession appear to differ widely from each other, and of course the controlling law in this case is the applicable Mississippi statute which is Section 2287, Code of 1930, which is identical with Section 3094, Code of 1906, which in its turn was carried forward in its identical form from the Code of 1892.
The statute reads as follows: "Ten years' adverse possession gives title. Ten years' actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to persons under the desirability of minority or unsoundness of mind the right to sue within ten years after the removal of such disability, as provided in the first section of this chapter; but the saving in favor of persons under disability or unsoundness of mind shall never extend longer than thirty-one years."
This statute has been many times construed by this court.
McCaughn v. Young, 85 Miss. 277, 37 So. 839; Stevens v. Hughes, 38 So. 769; Leavenworth v. Reeves, 106 Miss. 722.
Since 1908 none of the complainants have exercised any rights of possession over any land north of the Bayou Pierre, being the land in controversy.
It will be seen that the complainants were not in actual possession of the land in controversy though they were in possession of their land South of the Bayou Pierre. To the land north of the Bayou Pierre — we insist that they had no title, and the chancellor so found. Their only claim is based upon an erroneous survey not brought to defendant's notice, which allotted to complainants' ancestors the land south of the Bayou Pierre, to which the title was good, and also the land north of the Bayou Pierre which is in dispute, and which the chancellor found belonged then to defendant's predecessor in title. Under this state of facts the actual possession of land to which complainant had title could not give them constructive possession of the land which is in dispute, and which both parties are now claiming.
Leavenworth v. Reeves, 106 Miss. 722.
This is a case of conflicting claims and the claims overlap. The defendant has been for over ten years concededly in possession of a part of the overlap and the chancellor found, as a fact, that he was actually in possession of all of the overlap, and his finding is supported by a preponderance of the evidence. On this state of facts constructive possession by the complainants cannot be predicated as they have no actual possession of any part of this overlap. The true doctrine is that if one party has actual possession of a part of the overlap and the actual possession of the other party does not extend to the overlap that the first mentioned party is, in law, in possession of all of the overlap.
2 C.J.S. 802.
Argued orally by Chas. F. Engle, for appellants, and by J.T. Drake and Luther A. Whittington, for appellee.
On June 4, 1821, the predecessor in title of appellants received a patent from the United States for fractional Section 24 in Tp. 12 of R. 4 E., Claiborne County, the quantity being recited as 136 acres. On December 12, 1821, appellee's predecessor in title received a patent for Section 14 in the same township and range. The boundary line between these sections is a stream called Bayou Pierre.
Until forty or fifty years ago the channel of this stream shifted from time to time. There seems to have been three surveys of these sections by the government. The last was made in 1847. Looking to the field notes of this survey and to the plat made in pursuance thereof, it is found that from the southwest corner of Section 24 running approximately north, it was 48 chains to the channel of the stream as then located, and the acreage shown for the section was 170.78. A plat was made also in 1829, and on this the distance from the southwest corner of the section to the channel is given as 54 chains, and the contents of the section 205.73 acres. The first plat apparently was made in 1826, but there are no field notes in the record relating to this plat nor does it give the measurement north from the southwest corner of Section 24. It gives the acreage of the section, however, as being 136, which corresponds with the recitals of the patent.
There was a partition proceeding among appellants of their lands in Section 24 adjacent to this stream in 1901, and when the survey was then made it was found that the channel of the stream was only about 24 chains north of the southwest corner of Section 24, a shift of nearly 25 chains since 1848.
When the parties in partition, appellee not being a party thereto, made up their surveys and plats for a division among themselves, they proceeded upon the theory either (1) that the location of the thread of the stream in 1847 was the original location thereof in 1821, or else (2) that they were entitled to act upon the last survey and plat of the government which, as stated, was the one of 1847-1848. Accordingly, their plat for Lot 3 of Share 1 of the division among themselves was projected across Bayou Pierre, as it then existed, up to the position of the channel as it was located in 1847, thus forming between the channel as it was located in 1901 and the location of 1847 a tract roughly in the form of a triangle and consisting of about 30 to 35 acres; and it is this tract which is the subject of the litigation in the present case. It may be remarked at this point that taking the location of the channel as it existed in 1901, there was still left in Section 24 approximately 175 acres, whereas appellant's patent called for 137 acres.
The primary question in the case is this: Where was the channel of this stream located in 1821? The burden was upon appellants as complainants in the trial court to make this proof, but appellants were unable to make it. When the patentees obtained their patents from the government, their rights became vested and fixed as of that date and could not be affected by any subsequent survey or corrected survey by the government. 50 C.J. pp. 913, 914. The plat of 1847-1848 formed no basis for the determination of the proprietary rights between the owners of the two sections mentioned, for if the stream in 1821 was located at a different point as compared with that shown on the plat of 1847-1848, the latter had no effect whatever on the title. What this evidence shows and all that it does show is that between the high bluffs to the north of the location of the stream in 1829 and the high bluffs south of the location of the channel in 1901, a distance north and south of about 25 chains, this channel had been shifting about from time to time up until about forty or fifty years ago, and no man knows where it was in 1821, save that such evidence as there is indicates that it was considerably south of its location in 1848.
Each side attempted to show adverse possession by actual occupancy of the triangular tract, but in this both sides failed. But appellants argue that inasmuch as they have been in the actual adverse possession for more than ten years of that part of Lot 3 of Share 1, the plat and description of which was made of record by the decree in partition in 1901, which lies south of the channel, as it then existed, and where it has continued to exist without change since that time, their adverse possession extends by construction to the involved triangular tract across the stream which was by the plat and decree aforesaid shown as a part of said Lot 3 of Share 1. The difficulty in the path of appellants in respect to this contention is that appellee was, and has been, throughout the same period in the actual occupancy and possession of a large and substantial part of Section 14 under a recorded deed to him as the owner of the entire section so that his constructive possession would extend to all of the section, wherefore we would simply have a case of overlapping constructive possession, which, of course, does not aid either party as against the other.
Affirmed.