Opinion
No. 35083.
June 7, 1943. Suggestion of Error Overruled July 9, 1943.
1. INJUNCTION.
In suit to enjoin defendants from prosecuting suit in Louisiana courts against complainant for cutting timber, where defendants were claiming lands and timber thereon through Louisiana title sources, if it were established that lands were in Mississippi, defendants would have no title and therefore no right of action against complainant in either state and complainant would be entitled to injunction.
2. STATES.
Territory transferred from one side of a boundary river to the other by gradual process of erosion on one side and accretion on the other becomes a part of state to which it is added.
3. STATES.
Territory transferred from one side of a boundary river to the other by avulsion continues to be a part of state of which it was originally a part.
4. WATERS AND WATER COURSES.
"Accretion" or "alluvion" is an addition to riparian land made by the water to which the land is contiguous, so gradually and imperceptibly that, though witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on.
5. WATERS AND WATER COURSES.
"Avulsion" is a change in a boundary stream so rapidly or so suddenly made, or in such a short time, that the change is directly perceptible or measurably visible at the time of its progress.
6. WATERS AND WATER COURSES.
"Alluvion" formed by the accretion will be found ordinarily to run along the shore in what may be roughly termed parallel lines as related to that shore, and if within a comparatively short time there is found to have been a remarkable departure from that rule, the inference would be that there had been an "avulsion," in absence of countervailing or explanatory evidence.
7. INJUNCTION.
A court of equity has authority to restrain citizens of state from prosecuting in another state an action against a citizen of home state of all the parties, but power will be reluctantly used.
8. ACTION. Equity.
It is a policy in Mississippi that all questions or issues germane to any principal issue in litigation between the parties shall be settled, if possible, in one suit, and it is particularly true as respects courts of equity.
9. INJUNCTION.
Where it was established that part of land situated on the present channel of the Mississippi river on which alleged trespasses by cutting of timber were committed was in Louisiana and part was in Mississippi, and that all parties to the cause were residents of Mississippi, injunction would be issued enjoining prosecution of suit in Louisiana for damages allegedly resulting from cutting of timber.
APPEAL from chancery court of Adams county, HON. R.W. CUTRER, Chancellor.
Butler Snow, of Jackson, Engle Laub, of Natchez, Ackland H. Jones, of Woodville, and Sholars Gunby, of Monroe, La., for appellants.
It is the contention of appellee that Diamond Island Towhead, sometimes referred to as Diamond Island, or some part of it, accreted to Sections 5 and 6, Township 14 North, Range 2 East, Warren County, and was subsequently cut off by the river breaking through the point, and that the lands in controversy here accreted to the above-mentioned Diamond Island Towhead; and, as a result, are situated within the State of Mississippi and belong to appellee, even though it has the effect to cut appellants, as riparian proprietors on the Louisiana side, entirely off from the river.
It is the contention of appellants that the above-mentioned Diamond Island Towhead did not accrete to said Sections 5 and 6, Warren County; that it was not cut off as claimed by appellee; that a main channel of the river at all times existed eastwardly and southerly of Diamond Island Towhead. And they say, if mistaken in this, and Diamond Island Towhead was ever a part of Mississippi, the lands in question were not accretions to Diamond Island Towhead, but accretions in front of and to Sections 7, 8 and 9, Madison Parish, and constitute a part of said sections. They further contend that if the lands in question accreted to Diamond Island Towhead, they do not belong to appellee because they have formed beyond the limits of appellee's upper northern shore line, and between the lands of appellants and their predecessors in title and the river, and that to award such accretions to appellee would have the effect to cut Sections 7, 8 and 9 entirely off from the river.
It is true that this was an issue of fact before the chancellor, and it is furthermore true that the chancellor's finding of facts will not ordinarily be disturbed. Nevertheless, where such a finding is against the great preponderance of the evidence, it is the duty of this court to substitute its judgment for that of the chancellor.
McCarty v. Love, 145 Miss. 330, 110 So. 795.
Was the area known as Diamond Island Towhead, sometimes referred to as Diamond Island, accretions to the land of a contiguous riparian proprietor of the original Mississippi shore line, and, as a consequence, situated within the territorial limits of the State of Mississippi? There is no evidence in this case to support the averments of the amended bill of complaint and the claim of appellee that the gradual accretions to the Mississippi shore extended westwardly as a point of land projecting westwardly to the place where Diamond Island Towhead or Diamond Island is now located, and that the river cut across this point of land, leaving an island which belonged to the Mississippi proprietors of Sections 5 and 6, or any other Mississippi proprietor.
At best, the finding that the area of the towhead accreted to the Mississippi shore, and was subsequently cut off by the river breaking across the point, rests upon speculation and conjecture, and this is not sufficient to justify the decree.
Burnside v. Gulf Refining Co., 166 Miss. 460, 148 So. 219; Furr v. Brookhaven Creamery Co., 188 Miss. 1, 191 So. 684, 192 So. 838; Hercules Powder Co. v. Calcote, 161 Miss. 860, 138 So. 583; McCain v. Wade, 181 Miss. 664, 180 So. 748; New Orleans N.E.R. Co. v. Holsomback, 168 Miss. 493, 151 So. 720; Shell Petroleum Corporation v. Eagle Lumber Supply Co., 171 Miss. 539, 158 So. 331; Tyson v. Utterback, 154 Miss. 381, 122 So. 496.
Any inference, if any, drawn from the maps and charts, that Diamond Island Towhead, as herein particularly described, was ever situated within the territorial limits of the State of Mississippi is overcome and rebutted by the solemn acts and admissions of record of appellee and his predecessor in title.
Huff v. Murray, 171 Miss. 656, 158 So. 475, 477; Levy v. Holburg, 71 Miss. 66, 14 So. 537, 538; Lewis v. State, 109 Miss. 586, 68 So. 785, 786; Mayes v. State, 64 Miss. 329, 1 So. 733, 735; McCloskey Bros. v. Hood Milling Co., 119 Miss. 92, 80 So. 492, 493; Pope v. Ivy, 117 Miss. 501, 78 So. 367, 368; Sharp v. Maxwell, 30 Miss. 589, 591; Wells v. Shipp, 1 Miss. (Walker) 353; Canouge v. Louisiana State Bank, 7 Mart. (N.S.) 583-584; Dawson v. Frazar, 150 La. 203, 208, 90 So. 570; Gillett v. Landis, 17 La. 470, 474; Lachman Jacobi v. Bloch Bro., 47 La. Ann. 505, 516, 17 So. 153; Morgan v. Yarborough, 13 La. 74, 76; Snapp v. Porterfield, 14 La. Ann. 405; Wells v. Compton, 3 Rob. 171, 182, 183.
We think appellee wholly failed to prove that the area known as Diamond Island Towhead accreted to the Mississippi shore line, and is within the territorial limits of this state. But if we are mistaken in this, then we say that appellee wholly failed to prove that the accretions lying to the south and southeast of Sections 7, 8 and 9, and between the levee on the Louisiana side and the Mississippi River as it now runs, are accretions to Diamond Island Towhead.
Northern Assurance Co. v. J.J. Newman Lumber Co., 105 Miss. 688, 63 So. 209; Buck v. Ellenbolt, 16 L.R.A. 187; Crandall v. Smith, 134 Mo. 633, 36 S.W. 612; DeLassus v. Faherty, 164 Mo. 361, 58 L.R.A. 193; Fowler v. Wood, 6 L.R.A. (N.S.) 162; Hempstead v. Lawrence, 127 N.Y. Supp. 949; Nugent et al. v. Mallory, 145 Ky. 824, 141 S.W. 850; State v. Bowen, 39 L.R.A. (N.S.) 200.
Speculation is insufficient to justify the decree and a presumption may not be based on presumption.
Hinman v. Sabin, 147 Miss. 509, 112 So. 871; Masonite Corporation v. Dennis, 175 Miss. 855, 168 So. 613; Masonite Corporation v. Hill, 170 Miss. 158, 154 So. 295, 95 A.L.R. 157; Mobile O.R. Co. v. Clay, 156 Miss. 463, 125 So. 819.
If the lands in controversy are accretions to Diamond Island Towhead appellee has shown no title thereto.
Acoff v. Roman, 172 Miss. 141, 159 So. 555; Archer v. Southern Ry. Co., in Mississippi, 114 Miss. 403, 75 So. 251; Carr v. Barton, 173 Miss. 662, 162 So. 172; Delk v. Hubbard, 153 Miss. 869, 121 So. 845; Hatchett v. Thompson, 174 Miss. 502, 165 So. 110; Patterson v. Morgan, 161 Miss. 807, 138 So. 362; Ransom v. Young, 176 Miss. 194, 168 So. 473.
Even if accretions formed to the towhead, appellee cannot claim same because the effect thereof would be to cut Louisiana riparian proprietor off from the river.
Archer v. Southern Ry. Co., in Mississippi, supra; Richardson v. Sims, 118 Miss. 728, 80 So. 4; Smith v. Leavenworth, 101 Miss. 238, 57 So. 803; State ex rel. Rice v. Stewart, 184 Miss. 202, 185 So. 247; Wineman v. Withers, 143 Miss. 537, 108 So. 708; Berry v. Hoogendoorn, 133 Iowa, 437; Cooley v. Golden (Mo.), 21 L.R.A. 300; Crandall v. Allen, 118 Mo. 403, 24 S.W. 173; Deerfield v. Arms, 17 Pick. 41, 34 Mass. 41, 28 Am. Dec. 276; Delachaise v. Maginnis, 44 La. Ann. 1043, 1048, 11 So. 715; Doebbeling v. Hall (Mo.), 274 S.W. 1049, 41 A.L.R. 382; Hohl v. Railway Co., 162 Iowa 66; Hecker v. Bleish, 319 Mo. 149; Hempstead v. Lawrence, 127 N.Y. Supp. 949; LaBranche Heirs v. Montegut, 47 La. Ann. 674, 17 So. 247; Miami Corp. v. State, 186 La. 784; Mulry v. Norton, 100 N.Y. 424, 3 N.E. 586, 53 Am. Rep 206; Newell v. Leathers, 50 La. Ann. 162, 23 So. 243; Nugent Stansberry v. Mallory, 145 Ky. 832; St. Louis v. Rutz, 138 U.S. 226, 34 L.Ed. 941; Stockley v. Cissna, 119 F. 812; Widdicombe v. Rosemiller, 118 F. 295; Farnham on Waters, Sec. 844, pp. 274-5, 2484, 2489; Gould on Waters, Secs. 162, 1165; La. Civ. Code, Arts. 509, 510, 516; Mo. Stat. Ann., Secs. 11165, 11168, pp. 4888, 4890; 45 C.J. 528, Sec. 197; 1 Am. Eng. Encl. of Law 478.
Courts of Mississippi cannot in legal effect enjoin appellants from bringing suit to establish title to property.
Oliver v. Loye, 59 Miss. 320; Sharp et al. v. Learned, 182 Miss. 333, 182 So. 122; Sutton v. Archer, 93 Miss. 603, 46 So. 705; Taylor v. Taylor, 51 A.L.R. 1081; 3 Pomeroy's Equity Jurisprudence, Sec. 1318, p. 342, note 2; 21 C.J.S. 53, 54, Sec. 46; 14 Am. Jur. 418, 430-431; 7 R.C.L. 1058.
The contention that the United States Supreme Court is the only tribunal that can determine the territorial situs of the area in question is unsound.
State v. Cunningham, 102 Miss. 237, 59 So. 76; Sutton v. Archer, supra; Hill City Compress Co. v. West Kentucky Coal Co., 155 Miss. 55, 122 So. 747; Howard v. Ingersoll, 13 How. 381, 14 L.Ed. 189; Handly's Lessee v. Anthony, 5 Wheat. 375, 5 L.Ed. 374; United States v. Bevans, 3 Wheat. 336, 4 L.Ed. 404; Henderson Bridge Co. v. Henderson, 173 U.S. 592, 43 L.Ed. 823; Welsh v. State, 9 L.R.A. 664; State of Rhode Island v. Massachusetts, 12 Pet. 657, 9 L.Ed. 1233, 1264, 1268; Fowler et al. v. Lindsey et al., Fowler et al. v. Miller, 3 Dall. 410, 1 L.Ed. 658.
The court may not require the damage controversy both as to the lands in Mississippi and in Louisiana to be litigated in one suit in this state.
Sharp et al. v. Learned, supra; Strickland v. Humble Oil Ref. Co., 194 Miss. 194; 11 So.2d 820, 823; Sutton v. Archer, supra; Allen v. Conn. River Lumber Co., 150 Mass. 560; Brisbane v. Pennsylvania R. Co., 205 N.Y. 431, 44 L.R.A. (N.S.) 274, 98 N.E. 752, Ann. Cas. 1913E, 593; British South Africa Co. v. Companhia Mocambique, 1893 Appeal Cases 602; Cragin v. Lovell, 88 N.Y. 258; Kroll v. Chicago, B. Q.R. Co., 98 Neb. 322, 152 N.W. 549; Pittsburgh, C.C. St. L. Ry. Co. v. Jackson, 83 Ohio St. 13; Van Ommen v. Hageman, 100 N.J.L. 224, 126 A. 468; Code of 1857, Art. 32, p. 483; Code of 1871, Sec. 522; Code of 1880, Sec. 1498; Code of 1892, Sec. 650; Code of 1906, Sec. 707; Code of 1930, Sec. 495; Hutchinson's Code, Ch. LVIII, Sec. 19, p. 835; Cooley on Torts (3 Ed.), 898, 900-901; 21 C.J.S., Courts, par. 38, note 42; 21 C.J.S., Courts, par. 47; 42 A.L.R., 196 et seq.
The injunction should be dissolved as to the Louisiana lands.
Sharp et al. v. Learned, supra; Bigelow v. Old Dominion Copper M. S. Co., 74 N.J. Eq. 457; Jones v. Hughes, 156 Iowa, 684, 137 N.W. 1023, 42 L.R.A. (N.S.) 502; Lancaster v. Dunn, 153 La. 15, 95 So. 385; McWhorter v. Williams, 228 Ala. 632, 155 So. 309; Mo. Pac. R. Co. v. Harden, 158 La. 889, 105 So. 2; New Orleans Brewing Co. v. Cahill, 180 La. 749, 178 So. 339, 115 A.L.R. 231; 32 C.J. 116; 28 Am. Jur. 389-398; 14 R.C.L. 412, 417.
The court should not undertake the task of pointing out the line between the states.
Haraway v. Sledge Norfleet Co., 194 Miss. 133, 11 So.2d 903, 904; Stockley v. Cissna, 119 F. 812, 829, 833, 838-9.
Effect if two suits allowed and Louisiana courts and Mississippi courts should fix different boundary.
Arkansas v. Tennessee, 246 U.S. 158, 62 L.Ed. 638, 649; Arkansas v. Mississippi, 250 U.S. 39, 63 L.Ed. 832; Fauntleroy v. Lum, 210 U.S. 230, 52 L.Ed. 1039; Hinderlider v. La Plata River Cherry Creek Ditch Co., 304 U.S. 92, 82 L.Ed. 92; Washington v. Oregon, 297 U.S. 517, 80 L.Ed. 516; Williams v. North Carolina, 87 L.Ed. 189.
Wells, Wells, Lipscomb Newman, of Jackson, Brandon Brandon, of Natchez, Young Watson, of St. Joseph, La., and Mason Spencer, of Tallulah, La., for appellee.
A decision of a chancellor on the facts is binding.
Neno v. Crosby et al., 174 Miss. 28, 163 So. 678; Langston v. Farmer, 176 Miss. 820, 170 So. 233; Whitney National Bank v. Stirling, 177 Miss. 325, 170 So. 692; Early v. U.S. Fidelity Guaranty Co., 181 Miss. 162, 176 So. 720; Cartee v. Blacketor, 179 Miss. 665, 176 So. 532; Chapman v. Federal Land Bank of New Orleans (Miss.), 185 So. 586; Conn v. Conn, 184 Miss. 863, 186 So. 646; Lear v. Hendrix, 186 Miss. 289, 187 So. 746; Smith v. Lowry, 185 Miss. 600, 188 So. 549; Montroy v. Gully, 189 Miss. 13, 193 So. 40; Shaw v. Shaw (Miss.), 194 So. 751; Stroud v. Loper, 190 Miss. 168, 198 So. 46; City of Louisville v. Chambers, 190 Miss. 833, 1 So.2d 771; Richardson v. Bethune (Miss.), 6 So.2d 925; Griffith's Mississippi Chancery Practice, Secs. 674, 675.
Appellants' contention that the inferences favoring the theory of the complainant which may be drawn from maps offered in evidence "are overcome by solemn acts and admissions of record" is unsound.
Moore v. Lord, 50 Miss. 229; Crump v. Gerock, 40 Miss. 765; Meyer v. Blakemore, 54 Miss. 570; Tinnin v. Brown, 98 Miss. 378, 53 So. 780; McGehee v. Fitts, 65 Miss. 357, 4 So. 93; Pigott v. Pigott, 112 Miss. 873, 73 So. 800.
All other questions and points raised by appellants in their brief have been settled as the law of this case on the former appeal.
Sharp v. Learned, 185 Miss. 872, 873, 188 So. 302.
That the complainant is entitled to the injunctive relief by him prayed, and by the court granted, has been settled and adjudicated as the law of this case, the facts alleged in the amended bill of complaint having been established to the satisfaction of the trial court.
See also Fisher v. Pacific Mutual Life Ins. Co., 112 Miss. 30, 72 So. 846; Davis et al. v. Natchez Hotel Co., 158 Miss. 43, 128 So. 871; E.J. Platte Fisheries v. Wadford, 170 Miss. 617, 155 So. 161; Archer v. Board of Mississippi Levee Commissioners, 158 Miss. 57, 130 So. 55; Morgan v. Reading, 3 Smedes M. (11 Miss.), 366; Martin v. O'Brien, 34 Miss. 21; Richardson v. Sims, 118 Miss. 728, 80 So. 4; Smith v. Leavenworth, 101 Miss. 238, 57 So. 803, writ of error dismissed 235 U.S. 690, 59 L.Ed. 427, 35 S.Ct. 205; Wineman v. Withers, 143 Miss. 537, 108 So. 708; Gilman v. Ketcham, 84 Wis. 60, 54 N.W. 395, 23 L.R.A. 52, 36 Am. St. Rep. 899; Bacon et al. v. Horne, 123 Pa. 452, 16 A. 794, 2 L.R.A. 355; Speed v. May, 17 Pa. 91, 55 Am. Dec. 540; Law v. Mills, 18 Pa. 185; Moore v. Bonnell, 31 N.J.L. 97; Weaver v. Alabama Great Southern R. Co., 200 Ala. 432, 76 So. 364; Miami Corporation v. State, 186 La. 784, 173 So. 315, certiorari denied 302 U.S. 700, 82 L.Ed. 541, 58 S.Ct. 19; Heirs of LaBranch v. Montegut, 47 La. Ann. 674, 17 So. 247; Newell v. Leathers, 50 La. Ann. 162, 23 So. 243, 69 Am. St. Rep. 395; Producers Oil Co. v. Hanzen, 132 La. 691, 61 So. 754, judgment affirmed 238 U.S. 325, 59 L.Ed. 1331, 35 S.Ct. 755, as compared with Archer v. Southern Ry. Co., supra, and see Navigable Waters, 45 C.J. 570, 571 et seq.; Story, Eq. Jur., Secs. 899, 900; Civil Code of Louisiana, Secs. 450-453; Beach on Injunctions, Sec. 79; 1 Joyce on Injunctions, Secs. 79, 606; 1 High on Injunctions, Sec. 106; 7 R.C.L. 1035, Courts, Sec. 65; 14 R.C.L., Injunctions: Sec. 112, pp. 411, 412; Sec. 113, p. 412; Sec. 114, pp. 413, 414; Sec. 115, pp. 414, 415; Sec. 116, p. 415; Sec. 117, p. 416.
It having been demonstrated that Diamond Island or Diamond Island Towhead had its origin and inception within and as a part of the State of Mississippi, the subsequent shifting of the main channel of the Mississippi River to a minor channel, whereby said island or Towhead was cut off, did not change the state line, and hence said formation, it having never disappeared or washed away, remains a part of the State of Mississippi and it and the accretions formed thereto and to its side of the former thalweg or state line are all in Mississippi.
Sutton v. Archer, 93 Miss. 603, 46 So. 705; Moore v. McGuire, 205 U.S. 214, 27 S.Ct. 483, 51 L.Ed. 776; Missouri v. Kentucky, 11 Wall. (U.S.) 395, 20 L.Ed. 116; Randolph v. Hinck, 227 Ill. 11, 115 N.E. 182; Whiteside v. Morton, 205 F. 5, 123 C.C.A. 313, 45 L.R.A. (N.S.) 112; Indiana v. Kentucky, 136 U.S. 479, 34 L. Ed. 329; Washington v. Oregon, 211 U.S. 127, 53 L.Ed. 118, and on rehearing 214 U.S. 205, 29 S.Ct. 631, 53 L.Ed. 969; Iowa v. Illinois, 147 U.S. 1, 13 S.Ct. 239, 37 L.Ed. 55; City of St. Louis v. Rutz, 138 U.S. 226, 34 L.Ed. 285.
The court may require the damage controversy, both as to the land in Mississippi and in Louisiana, to be litigated in one suit in this state where all of the parties reside.
West v. McClure, 85 Miss. 296, 37 So. 752; Oliver v. Loye, 59 Miss. 320, 324; Arizona Commercial Min. Co. v. Iron Cap Copper Co., 119 Me. 213, 110 A. 429; Whidden v. Seelye, 40 Me. 247, 63 Am. Dec. 661; Brady v. Brady, 161 N.C. 324, 76 S.E. 235, 44 L.R.A. (N.S.) 279; Campania Transcontinental de Petroleo, S.A., v. Mexican Gulf Oil Co, 292 F. 846, affirming 281 F. 148; Cooper State Min. Co. v. Kelvin Lumber Supply Co. (Tex.), 227 S.W. 938, 203 S.W. 68; Ellenwood v. Marietta Chair Co., 158 U.S. 105, 39 L.Ed. 913; Greeley v. Stilson, 27 Mich. 153; Hodges v. Hunter Co., 61 Fla. 280, 54 So. 811, 34 L.R.A. (N.S.) 994; Hoy v. Smith, 49 Barb. 360; Lasslie v. Gragg Lbr. Co., 184 Ga. 794, 193 S.E. 763, 113 A.L.R. 932; McGonigle v. Atchison, 33 Kan. 726, 7 P. 550; Montesano Lumber Co. v. Portland Iron Works, 78 Or. 53, 152 P. 244; Montesano Lbr. Mfg. Co. v. Portland Iron Works, 94 Or. 677, 186 P. 428; Ophir Silver Min. Co. v. Superior Ct., 147 Cal. 467, 82 P. 70, 3 Ann. Cas. 340; Stone v. United States, 167 U.S. 178, 17 S.Ct. 778, 42 L.Ed. 127; Tyson v. McGuineas, 25 Wis. 656; Code of 1930, Secs. 490, 495; 7 R.C.L., Courts, Sec. 98, pp. 1061-1062.
A question of boundary arising between the United States and one of the states or between two states is not of a political nature and is susceptible of judicial determination. The United States Supreme Court has original jurisdiction of suits between two states, or between the United States and a state, to determine a state boundary.
Hill City Compress Co. v. Kentucky Coal Co. et al., 155 Miss. 55, 122 So. 747; Joyce-Watkins Co. v. Industrial Commission, 225 Ill. 378, 156 N.E. 346; State of Arkansas v. State of Tennessee, 246 S.W. 158, 38 S.Ct. 301, 62 L.Ed. 638, L.R.A. 1918D, 258; State of Oklahoma v. State of Texas (U.S.), 68 L.Ed. 1118; 59 C.J. 63, States, Sec. 30; 59 C.J. 65, States, Sec. 31.
What would be the effect if two suits were allowed and the Louisiana Courts should find the line to be at one place and the Mississippi courts should fix it differently? To ask the question is to answer it — unutterable confusion would result. And therefore these Mississippi litigants should rest all questions with the courts of the State of Mississippi until the boundary question shall have been fixed and determined by convention between the states of Mississippi and Louisiana or by litigation between the two states in the United States Supreme Court.
If the appellants cannot be compelled to bring whatever damage issue they may conceive they have in the state courts of Mississippi, then certainly no suit can be brought by them in Louisiana which may affect this appellee's title to lands in Mississippi and under his Mississippi claim of title, until and unless the state line may have been fixed and adjudicated by an original action in the United States Supreme Court. But the appellants are not required to await that determination, for as we have hereinbefore shown their damage action is maintainable in the state courts of Mississippi, and in that action they can as well show that timber belonging to them in Louisiana was cut and removed as they could do in the state courts of Louisiana. The cause of action for damages should not be split.
See Farmer v. Union Ins. Co. of Indiana, 146 Miss. 600, 111 So. 584; Home Ins. Co. v. Tate Mercantile Co., 117 Miss. 760, 78 So. 709; Pittman v. Chrisman, 59 Miss. 124.
The consolidation of two suits was not an abuse of trial court's discretion where consolidation would save labor and costs, prevent delay, would not prejudice the rights of parties, and where the two suits were between substantially the same parties and respective rights of parties, and the facts on which they were based were closely interwoven.
Lundy v. Greenville Bank Trust Co., 179 Miss. 282, 174 So. 802; Planters' Oil Mill v. Yazoo M.V.R. Co., 153 Miss. 712, 121 So. 138; Gwin v. Fountain, 159 Miss. 619, 126 So. 18, suggestion of error sustained 159 Miss. 619, 132 So. 559; Columbus G.R. Co. v. Mississippi Clinic, 152 Miss. 869, 120 So. 187.
See also State Highway Commission v. Buchanan, 175 Miss. 157, 165 So. 795; Gorman v. Marsteller, 10 Fed. Cas. 5629, p. 831, 2 Cranch CC. 311.
Argued orally by George Butler, for appellants, and by Gerard Brandon, for appellee.
During the summer and fall of 1937, appellee cut and removed the merchantable timber, or a considerable part thereof, from what is known as Diamond Island Towhead, which is situated immediately west and north of the present main channel of the Mississippi River, opposite the lower part of Warren County, Mississippi. Appellants claim the land and the timber thereon through Louisiana title sources, and that the land is located in Louisiana, and under such claims appellants brought an action by attachment in that state to recover of appellee damages for cutting and converting the timber. All the parties are residents of Mississippi, and appellee thereupon brought his suit in the county in this state of the residence of one of appellants, seeking to enjoin the prosecution of the action in Louisiana. On appeal we held in Sharp et al. v. Learned, 182 Miss. 333, 181 So. 142, 182 So. 122, that, taking the averments of the bill strongest against the pleader, the land is in Louisiana, and that such being the case, there was no equitable basis for the injunction sought.
On remand appellant amended his bill, and on the second appeal, Sharp v. Learned, 185 Miss. 872, 873, 188 So. 302, it was concluded that the averments of the amended bill were sufficient to locate the land in Mississippi, and that if, upon the hearing on the merits, such was found to be the case, the injunction would be properly allowed.
The case, upon its return to the trial court, was heard on the merits, the injunction was granted, and the cause is here again upon the facts as shown by the proof.
Appellants make the preliminary point, that appellee has shown no adequate title in himself even if the lands are in Mississippi. This point is not well taken, for if the lands are in Mississippi, appellants have no title and, therefore, no concern as to whether appellee has any title, and no right of action against appellee in either state; and it is an action being taken against him by appellants that appellee seeks to enjoin. And this is true as to any such part of the land as in Mississippi.
The proof has consisted largely of maps, charts, and drawings, there being a large number of these, together with explanations made thereof by two expert witnesses, whose opinions in some material respects do not agree. The difficulties in the case have arisen out of the fact that in the 120 years from the date of the admission of this state into the Union until the time of the alleged conversion of the timber, the Mississippi River at the point in question has changed its main channel, either through the process of erosion and accretion or else by avulsion, so materially and so often that it now presents a perplexing problem as to where exactly was the territorial line between the states as regards this particular piece of land in 1937. And that is an issue which necessarily must be adjudicated as between these private litigants, even though such an adjudication would have no force so far as concerns the two states as sovereign states.
It is impracticable, if not impossible, to reproduce these maps, and charts and drawings or any one of them as a part of this opinion, and, therefore, any extended discussion of the manifold details presented would be of no service except to those immediately engaged in the case, and as to them a summary of our conclusions will be sufficient. This, then, is all that we shall undertake herein. We preface the summary, however, with the statement that we have applied, in our consideration of the many maps and charts introduced, the established rules found in the text-books on that subject, and have allowed such inferences to be drawn therefrom as are reasonably permissible in the light of the expert testimony dealing with them and in view of the force carried by the findings of fact implicit in the decree of the trial court.
And in the matter of substantive law we have applied the four rules upon which the authorities are in general agreement, as follows:
(a) 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.
(b) 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.
(c) Accretion or alluvion is an addition to riparian land made by the water to which the land is contiguous, so gradually and imperceptibly that, though the witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on.
(d) Avulsion is a change in a boundary stream so rapidly or so suddenly made, or in such a short time, that the change is distinctly perceptible or measurably visible at the time of its progress. Or to state it otherwise, so far as concerns practical purposes, when the change is not by accretion, it is by avulsion.
And in dealing with those issues we have also applied what the expert witnesses, taking their testimony as a whole, have affirmed, namely, that the alluvion formed by the accretion will be found, as an ordinary rule, to run along the shore in what may be roughly termed parallel lines as related to that shore — from which it would follow that if within a comparatively short period of time there is found to have been a remarkable departure from that rule, the inference would be that there had been an avulsion, in the absence of countervailing or explanatory evidence covering the period of time in question.
Under the foregoing rules and after an extended examination of this record, we have concluded:
(1) That the line between Louisiana and Mississippi as it existed in 1817, the year of the admission of this state into the Union, was approximately that which is shown between the meander lines of the official township and section surveys of 1826-7 and 1830, or approximately by the solid purple lines on the small map attached as "Appendix A" to appellee's brief.
(2) That by the process of gradual accretion and erosion the Mississippi line had moved westwardly by nearly a mile, so that, in 1861, the line between the states was as shown by the broken green lines on the said small map Appendix A, representative of the Humphreys map of that year. This line did not embrace as being then east of the river the land which constitutes the island next hereinafter referred to. That land was in 1861 to the west of the river and on the Louisiana side.
(3) That between 1861 and 1874, the latter being the year in the latter part of which Major Suter's reconnaissance map was made, no substantial changes occurred in the river at this point, except that the river had divided into two channels, one of which went around and formed an island of the approximate size and shape as that which is marked "A" on the small map, Appendix A heretofore referred to.
(4) That the divided channel which went around this island to the north and west thereof was the product of an avulsion and did not occur through the process of accretion. It is possible that this occurred as a result of the great overflow in the spring of 1874 of which Major Suter speaks in his report. Be that as it may, the oral proof demonstrates that this island was never detached from Louisiana by the process of gradual erosion and accretion. Betty Morton testified that she lived on this island and that her recollection thereof extends back to about or before 1880. She said she lived there in what was then an old house, and the witness Russ who from 1900 to 1904 saw the remains of the houses, said they had the appearance of having been slavery time houses. Photographs of these remains tend strongly to substantiate the stated facts. Had the progress of the river from 1861 to the northern and western channel around this island as it existed in 1874 been by gradual erosion and accretion, those old houses, and all traces thereof, would have disappeared.
(5) That in the year 1878, when the next map was made, and this by the Mississippi River Commission, the north and west divided channel around the island had well begun to fill up, and the subsequent maps show that from 1878 down to the map of 1895-6, designated as the "Ozalid Print of Mississippi Low Water Survey," made by the commission, the process of gradual erosion from the Mississippi side and accretion to the Louisiana side had occurred so that there had been a recession to the south and east whereby the south bank of the river in 1895-6 was near the south part of Section 5, crossing into Section 7 at the northwest corner thereof, thence across the north part of Section 7 to the line of the property now particularly in dispute, leaving part of Section 5, all of Section 6, and nearly all of Section 7 in Mississippi territory, as well as the former accretions to the Mississippi side still remaining to the south and east of the 1895-6 line. The above references are to the original township and section survey of Township 14 N., R 2 E., of Warren County.
(6) That the next chart or drawing made by the Commission in 1908 shows that within the short space of twelve years the north bank of the river was, at one point, approximately a mile below the south bank as it existed in 1896. Moreover, the approach from the north in 1908 as compared with 1896 tends to show a cutting across, but if this could be reconciled, the line of the river in 1908, where it reaches what was the south bank in 1896 on the west, cuts squarely across the 1896 river lines — almost at right angles. This, upon the present record, cannot be reconciled with the rule of parallelism heretofore mentioned, which leads to the conclusion that the location as it existed in 1908 was the result of an avulsion and not by gradual erosion and accretion. It may be that there are living witnesses who are available and who, by their own personal knowledge and distinct recollection, could show that the change from 1896 to 1908 was by accretion and not by avulsion, but no such witnesses were produced, with the result that upon the record, as it now stands before us, the territorial line is that shown by the chart of 1895-6, with the further result that a part of the land in controversy is in Louisiana and part is in Mississippi.
This leads, then, to what is the ultimate question so far as this appeal is concerned, and that question is: Shall these parties, being all residents and citizens of this state, be permitted to litigate in Louisiana the damage issue as to all this land, or shall they be required to submit that controversy in its entirety to the courts of this state?
The authority of a court of equity to restrain citizens of the state from prosecuting in another state an action against a citizen of the home state of all the parties is well established, but, as stated in 28 Am. Jur., p. 392, Section 207, Injunctions, the power is sparingly and reluctantly exercised and the relief is not granted except for grave reasons and under very special circumstances. Counsel for both sides have stated that after a diligent search they have been unable to find a case in precise point upon this question when compared with the factual situation here presented.
It has long been a cherished policy in this state, and to which its citizens are required to give allegiance, that all questions or issues germane to any principal issue in litigation between the parties shall be settled, if possible, in one and the same suit, and this is particularly true as respects our courts of equity. Here the principal issue, to which the others are subsidiary, is where was the territorial line between the two states at the time of the alleged conversion. A voluminous record has already been built up by the parties in the present case in the chancery court in this state, and at a heavy cost to them. Under the ancient jurisdiction in equity in respect to boundaries, and the power therein to settle all issues, appellants may file a cross-bill in the present case for their recovery in damages or for conversion, and they, as well as appellee, may proceed to a further development of the facts, if competent witnesses may be found, upon the said principal issue; and since that issue must be decided by one court, not by two, and may be done in the present case at a large saving of labor and expense, which in itself is a point worthy of some consideration, although not enough if it stood alone, we are of the opinion that the situation here is within what has been termed the very special circumstances under which the injunction prayed for and allowed may properly be sustained.
The decree recited nothing which purported to make any final adjudication of title, or ownership of the timber, or as to the location of the territorial line. So far as the decree discloses, the chancellor may have been of the same opinion as that set forth in our summary of conclusions, — he filed no separate, written opinion. It is conceded that appellee is amply able to respond to any judgment rendered against him, and the decree is simply an injunction against the prosecution of any action by appellants in Louisiana, and as such it will be affirmed.
Affirmed.