Opinion
No. 33682.
April 24, 1939. Suggestion of Error Overruled May 22, 1939.
1. STATES.
The boundary line of a navigable river between two states is the thread of stream and continues with gradual changes in the thread, but where land on a navigable stream belongs to one state and by gradual change in the thread of the stream, the main channel flows between it and the state to which it belongs, it continues to be the territory of that state and not the territory of the state on the opposite side of the stream.
2. STATES.
Where bank of Mississippi river on Mississippi side gradually extended in westerly direction by accretion, the Mississippi river thereafter cut across the land so formed creating a new but minor channel and after new channel was thus formed, the old channel was gradually filled up by accretion, but the change in the channel of the river from the Louisiana side to the Mississippi side of the island thus formed did not destroy the island but left it standing, the old channel between the island and the Louisiana side continued to be the line between the states and the island was a part of Mississippi territory (Act Cong. March 1, 1817, 3 Stat. 348; Act Cong. April 8, 1812, 2 Stat. 701).
3. INJUNCTION.
Where island in Mississippi river on which alleged trespass was committed was situated in Mississippi and all parties to the cause were residents of Mississippi, prosecution of the suit in Louisiana for trespass would be enjoined.
4. INJUNCTION.
Where foreign suit is brought for purpose of evading the rightly applicable laws of the domicile of the parties, such suit will be enjoined.
5. TRESPASS.
As against a trespasser, plaintiff was not required to deraign and show a perfect title to land on which trees were cut, but an allegation of title and right of possession were sufficient.
APPEAL from the chancery court of Adams county; HON. R.W. CUTRER, Chancellor.
Engle Laub, of Natchez, for appellant R.B. Sharp.
It is the contention of the appellant that the establishment of title is a suit of local nature and that the proper place for the trial of such a case is in the county or parish where the land lies. Therefore, the threatened suit was not of a transitory nature but one of local nature and, quite naturally, the appellant, proceeding to protect himself in the matter of the cut timber, assumed that the parish in which the land lies was the proper place to establish title in order that he might then proceed to sue for the damage done them by the cutting of the trees on said land. In event that it is not established that the land in question is in Madison Parish, Louisiana, quite naturally the appellants' case goes out of court. Their case is based solely upon the proposition that this land is in Madison Parish, Louisiana. Being in Madison Parish, Louisiana, we assert that that court is the proper place to try title to the land.
The comparative convenience or inconvenience of the parties from granting or withholding the injunction sought should be considered and none should be granted if it would operate oppressively or inequitably, or contrary to the real justice of the case.
14 R.C.L. 358, par. 60.
The disposition of immovable property, whether by deed, descent or otherwise, is exclusively subject to the government within whose jurisdiction it is situated.
Arndt v. Griggs, 134 U.S. 316, 33 L.Ed. 918; 14 R.C.L. 417, par. 119.
We say the Louisiana courts were the proper courts to which to resort for the trial of this local action. Proof of title had first to be made in the appellants before they could proceed to sue for any trespass to their timber.
32 C.J., page 77, par. 64, and page 94, par. 88; Standard Roller Bearing Co. v. Crucible Steel Co., 71 N.J. Eq. 61, 63 A. 456.
This injunction, if granted, would compel the appellants to litigate their Louisiana title in Adams County, Mississippi, putting the appellants under undue hardship when the land itself, as they claim and on which they rest their title, lies in Madison Parish, Louisiana, and unless they can so prove the appellants have no case for further litigation as to the cutting of the timber. If they can so prove that the land actually does lie in the State of Louisiana and the appellants' title is proved thereto, then most certainly they should have the right to litigate the question of cut timber at the place where the timber was cut, to-wit, Madison Parish, Louisiana.
Cole v. Cunningham, 133 U.S. 107, 33 L.Ed. 538.
There is no attempt to defeat any law or gain any advantage in the instant case but simply a proposed attempt to establish title to lands in a state by resorting to the courts of that state in which appellants assert their lands lie and in which they must prove their title; otherwise, they have no rights.
Snook v. Snetzer, 25 Ohio St. 516; Keyser v. Rice, 47 Md. 203; Burlington M.R.R. Co. v. Thompson, 31 Kan. 180; Massie v. Watts, 10 U.S. 148.
Under the proposition that equity follows the law, we say that the law of Mississippi is that suit for cutting trees is a local action and should be brought in the county where the cutting took place.
Appellee's bill asserts that the conflicting claims to the land in controversy could be adjudicated and determined as between appellants and appellee only by establishing or having established by a court of competent jurisdiction the question of whether or not the particular lands in controversy were within the territorial limits of Mississippi at said point and place, and that such dispute and question could only be determined in a suit of original jurisdiction in the United States Supreme Court, and then only in a suit between the sovereign states of Mississippi and Louisiana. We cannot agree with that proposition. The boundaries of the two states need not be established in order for the ownership of the land in controversy to be established in either appellants or appellee.
Smoot Sand Gravel Corp. v. Washington Airport, Inc., 283 U.S. 348, 75 L.Ed. 1109.
An action for trespass on land is not "transitory action."
Sharp v. Learned, 181 So. 142.
Here is a contested title to land claimed by the appellants in one state, i.e., Louisiana, claimed by the appellee in another state, i.e., Mississippi. Here there is no question of specific performance of a contract, enforcement of a trust or the doing of any act which from previous dealing is binding on the conscience of the parties, although the court had jurisdiction of the parties, so that these appellants having first instituted suit on the controversy between them, and having resorted to the courts of Louisiana in the parish where they claim their lands were situated under the decision of our Supreme Court as reaffirmed on the former appeal of this case, will not be interfered with by the appellee through process or injunction, and the attempt to amend the bill of complaint can in no wise change, or alter, the real controversy which really exists between the parties and which is again set up in the amended bill, that is that one party claims the land in Mississippi, the other in Louisiana — hence an actual bona fide controversy.
Sutton v. Archer, 93 Miss. 603, 46 So. 705; Sharp v. Learned, 181 So. 142.
To permit an injunction to stand under a statement of facts as outlined in this bill would be a manifestation of disrespect of the judicial machinery of an adjoining sister state where it is sought to have an adjudication of a real action made covering land claimed to lie in the State of Louisiana, the sister state.
181 So. 142; Sutton v. Archer, 93 Miss. 603, 46 So. 705.
We respectfully submit that this is not a case where there should be a restraint of prosecution of a suit in another case for the reason that no clear equity has been made out requiring the interposition of this court to prevent manifest wrong or injustice, but on the contrary these appellants have gone to the very forum to which they should have gone in order to establish their asserted rights in a real and not a transitory action.
Jones Stockett and W. Roger Jones, all of Woodville, for appellant R. Mason Stricker.
The case attempted to be made presents one vital question, all other questions involved although integrated in that vital question, are dependent entirely thereon. The question is this: can one citizen of Mississippi enjoin another citizen of Mississippi from instituting and prosecuting in the courts of the State of Louisiana a suit to establish and protect his title to lands in Louisiana owned by him, unless the bill itself presents a case of clear equity, and one to prevent manifest wrong and injustice?
The decision of this court, on the first appeal ( 181 So. 142) has set at eternal rest two of the factors of the questions raised by this appeal. The first is that ordiarily a court of equity will not restrain the prosecution of a suit in another state unless a clear equity is made out requiring the interposition of the court to prevent manifest wrong or injustice, and the second is that an action for trespass on land is not transitory.
Platte Fisheries v. Wadford, 170 Miss. 617, 155 So. 151.
This is not a case in aid of any pending action to try title; it is not a bill to remove any supposed cloud, or to confirm any title; it is not to restrain waste pendente lite; it is not one charging insolvency of defendants, but it is solely based on an assertion of title and then, on the bare assertion, enjoining defendant, these appellants, from applying to the court which they contend has sole jurisdiction of the cause.
North Lbr. Co. v. Gary, 88 Miss. 644, 35 So. 2.
Much was said in the arguments in the court below about the demurrers admitting the facts as alleged and particularly admitting, by the nature of the demurrers, that the area is in Warren County. That position is without foundation. The demurrers do not admit any conclusion of law asserted by complainant; they do not admit any inference or deductions of fact although such inferences or deductions might be drawn from facts stated in the bill.
Griffith's Chancery Practice, sec. 286.
What fact is stated in the bill whereby this land can be located in Warren County? There is the mere conclusion of the pleader that by an alleged tax patent it is so located, but he gives no fact upon which that conclusion can be reached. He says so, and then by his own ipse dixit, regardless of court or opponent, or any one else, on his base and bold assertion sues and obtains injunctive relief.
It is manifest from this bill that the controversy is solely one over title to land, the appellee vaguely asserting that the land is in Mississippi, but refusing to ask the court of that state to quiet his title, while appellants not only say their land is in Louisiana but have actually entered the court of that state to protect their title.
The charges of fraud, oppression, desire to evade the laws of Mississippi, in this bill are figments of the vivid imagination of appellee, and since no fact evidencing such on the part of appellants are made in the bill, they constitute a deliberate insult to the court of a sister state.
Sutton v. Archer, 93 Miss. 603, 46 So. 705.
We submit that in this bill for an injunction there is not one averment or charge involving the specific performance of a contract, the enforcement of any trust, any act of fraud, or the doing of any act which from previous dealings, is binding on the conscience of a party. The case is one merely over a contested title, the parties being now, and at all times in the past, at arms length.
Integrated in the question of title is, of course, that of the actual situs of the land, but it is manifest that the actions brought and now pending in Louisiana is a real action, and one purely local in nature.
Court has primary duty to see if it has jurisdiction of the subject-matter and the parties.
Broom v. Board, 171 Miss. 586, 158 So. 544; Brotherhood v. Agnew, 170 Miss. 604, 155 So. 205; Cocke v. Brewer, 68 Miss. 775, 9 So. 823.
Chancery will not deprive one of legal rights, allow "inequity" to be done, nor grant relief against pending suits unless clear equity is shown.
Sturgis v. Jackson, 88 Miss. 508, 40 So. 547; Platte Fisheries v. Wadford, 170 Miss. 617, 155 So. 161; Sharp v. Learned, 181 So. 142; Sutton v. Archer, 93 Miss. 603, 40 So. 705; Jones v. Hughes, 42 L.R.A. (N.S.) 502.
Local actions must be brought in court having jurisdiction of res.
Sutton v. Archer, 93 Miss. 603; 4 Pomeroy Eq. Jur. (3 Ed.), 1318; 3 Pomeroy Eq. Jur. (3 Ed.), 17; 1 Pomeroy Eq. Jur. (3 Ed.), 298; Columbia v. Morton, 7 L.R.A. (N.S.) 114; Sharp v. Learned, 181 So. 142; Massie v. Watts, 10 U.S. 148.
Brandon Brandon, of Natchez and Wells, Wells Lipscomb, of Jackson, for appellee.
It is a well recognized principle that the courts of one country can exercise no jurisdiction or control over courts of another, and the rule once prevailed that a court could not restrain a citizen within its jurisdiction from prosecuting a suit in a court of a foreign nation: "Gradually, however, recognition was given to the distinction between endeavoring to control the action of a foreign court, by a mandate directed to it, and controlling the action of a resident, over whose person the court had undisputed jurisdiction, until, according to later decisions, unqualified approval is given to the doctrine that, in a proper case, if the court has jurisdiction of the person it may enjoin him from prosecuting such a suit. The courts in these cases proceed on the theory that the restraint operates on the person of the litigant who, as a resident within the jurisdiction of the court from which the mandate is issued, may be compelled to recognize and obey its laws and the decrees of its tribunals.
14 R.C.L. pages 411, 412, sec. 112, and pages 413, 414, sec. 114.
It is recognized that a court of equity in one state has power to restrain its own citizens, of whom it has jurisdiction, from prosecuting suits in the courts of other states, whenever the facts of the case make such restraint necessary to enable the court to do justice and prevent one citizen from obtaining an inequitable advantage over other citizens.
14 R.C.L., pages 414, 415, sec. 115, page 415, sec. 116, page 416, sec. 117, page 412, sec. 113.
The applicable principles contended for by this complainant have been announced by the Supreme Court of the State of Mississippi in three cases: Fisher v. Pacific Mutual Life Ins. Co. 112 Miss. 30, 72 So. 846; Davis v. Natchez Hotel Co., 158 Miss. 43, 128 So. 871; E.J. Platte Fisheries v. Wadford, 170 Miss. 617, 155 So. 161.
The court will take judicial notice of the laws of Louisiana and of the fact that the laws of Louisiana with respect to extent of riparian ownership on navigable waters, with respect to the ownership of islands formed in navigable waters, with respect to the division of accretion, and with respect to the effect of the conveyance of the mainland portion of realty as conveying the accretion formed thereto, are different from the rules of law prevailing in the State of Mississippi; further, that the Louisiana law is founded upon an entirely different system of jurisprudence, both as to substantive and procedural law, than is that of the State of Mississippi, — the law of Louisiana being founded upon the Code of Napoleon and being all statutory, whereas that in Mississippi is founded upon common law. Many and sundry differences in the application of law to the rights of parties to this litigation would become apparent on a trial of the controversy if that trial were had in Louisiana courts rather than in the courts of the state of Mississippi.
Merely by way of suggestion of the many differences between the laws of the State of Louisiana and those of Mississippi, particularly with reference to the ownership of riparian lands, division of accretions, construction of conveyances of riparian lands, etc., we call the court's attention to the following:
In the State of Louisiana it has been held that the rights of the sovereign state to the ownership of beds of navigable waters must be read into titles of those who own lands bordering on such waters (Civil Code Louisiana, secs. 450-453), Miami Corporation v. State, 173 So. 315, 186 La. 784, certiorari denied 58 S.Ct. 19, 302 U.S. 700, 82 L.Ed. 541.
To the contrary, the rule in Mississippi is that riparian rights include the right to ownership and to use of land to the center of the stream.
Archer v. Bd. of Mississippi Levee Comrs., 158 Miss. 57, 130 So. 55; Morgan v. Reading, 11 Miss. (3 S. M.), 366; Martin v. O'Brien, 34 Miss. 21.
In Louisiana it is held that the boundary line of land bordering on a navigable river is the margin of the water at the ordinary stage.
La Branch, Heirs of v. Montegut, 17 So. 247, 47 La. Ann. 674.
To the contrary the rule in Mississippi is that a riparian owner takes to the center of the thread of navigable streams, subject only to the public right of use and navigation.
Richardson v. Simms, 80 So. 4, 118 Miss. 728.
With reference to the division of accretions, the rule in Louisiana has been announced to be that where alluvion is formed each proprietor of original tracts fronting on the river takes between the lines of its old frontage on the water course, measured directly forward toward the new frontage.
Newell v. Leathers, 23 So. 243, 50 La. Ann. 162, 69 Am. St. Rep. 395.
This rule is contrary to that prevailing in Mississippi for apportionment of accretions and a new river front on the basis of proportionate ownership on the old line of a river.
Smith v. Leavenworth, 101 Miss. 238, 57 So. 803, 35 S.Ct. 305, 235 U.S. 690, 59 L.Ed. 42; Wineman v. Withers, 108 So. 708.
As to construction of conveyances of riparian lands and on the question of whether such a conveyance carries, without specific mention, the alluvion or batture thereto attached: — In Louisiana the rule is announced that where at the time of the sale of a riparian estate the alluvion or batture attached has attained a sufficient elevation to be susceptible of private ownership, the alluvion does not pass with the land unless so expressed in the act of sale.
Producers Oil Co. v. Hanzen, 132 La. 691, 61 So. 754, 35 S.Ct. 755, 238 U.S. 325, 59 L.Ed. 133.
This is contrary to the rule in this jurisdiction as announced in Archer v. Southern Railway Co., 132 Miss. 894, 95 So. 680; and the Louisiana rule is contrary to the usual common law rule of construction, as to which see Navigable Waters, 45 C.J. 571, et seq.
It is clear that this complaint is entitled to injunctive relief prayed, as well as for the other causes and reasons assigned in his bill of complaint.
Weaver v. Alabama Great Southern R.R. Co., 200 Ala. 432, 76 So. 364.
The case of Sutton v. Archer, 93 Miss. 603, is not similar to the case at bar on the facts and is not controlling here. It cannot be said that Sutton v. Archer is controlling in the case at bar unless upon a hearing of the evidence and a determination of the questions of fact it should be found that Diamond Island or Diamond Island Towhead completely washed away and the place where the island once stood is now occupied by accretion formed to the Louisiana mainland. Such will never be shown as a matter of fact, for such are not the facts with reference to Diamond Island.
We have alleged in our bill of complaint that Diamond Island is a part of Mississippi and it can and will be shown when this matter is determined upon the facts that the original land and surface which was once on the Mississippi side of the main channel of the Mississippi River is still in existence and has never washed away, and that thereto there has been formed accretion which is a part of Diamond Island and not a part of Louisiana. There has also been formed between the island and the Louisiana shore some quantum of accretion, and whatever was deposited and formed to the Louisiana shore, to the thalweg of the stream between the island and the Louisiana mainland is undoubtedly Louisiana territory; but that which formed to the island side of the thalweg is appurtenant to the island and is Mississippi territory.
Appellants' argument and authorities cited are inapplicable to this case on demurrer to the bill of complaint, because Diamond Island and Diamond Island Towhead are sufficiently alleged to be within the territorial limits of Warren County, Mississippi.
That this bill of complaint now sufficiently avers that Diamond Island and Diamond Island Towhead is situated within the territorial limits of Warren County, Mississippi, and is a part of Warren County, Mississippi, cannot now be controverted for the reasons set forth in the next proposition.
The territorial situs of an island in a navigable river is not changed by reason of the filling of the main channel by deposits and the consequent lessening and ultimate ceasing of the flow of the waters from that channel and the diversion and ultimate increase of low through the formerly minor channel of the river, and similarly in such instances the navigable river boundary between the two states is not changed, but the boundary remains in the place of the original main channel, subject to be ultimately fixed in the thalweg therein on the line where the water last ceases to flow therein.
Moore v. McGuire, 205 U.S. 274, 27 S.Ct. 483, 51 L. Ed. 776; Missouri v. Kentucky, 11 Wall. 395, 20 L.Ed. 116; Randolph v. Hinck, 227 Ill. 11, 115 N.E. 182; Whiteside v. Morton, 205 Fed. 5, 123 C.C.A. 313, 45 L.R.A. (N.S.) 112; Indiana v. Kentucky, 136 U.S. 479, 34 L.Ed. 329; Iowa v. Illinois, 147 U.S. 1, 13 S.Ct. 239, 37 L.Ed. 55; Washington v. Oregon, 211 U.S. 127, 53 L.Ed. 118.
The case of Missouri v. Kentucky, 11 Wall. (U.S.) 395, 20 L.Ed. 116, decided by the United States Supreme Court March 27, 1871, is another case which strongly supports the proposition which we are here submitting.
The proposition for which we are here contending was by the United States Supreme Court recognized in the case of Louisiana v. Mississippi, 282 U.S. 458, 51 S.Ct. 197, 75 L.Ed. 459.
In the case of Whiteside v. Norton, 205 Fed. 5, 123 C.C.A. 313, 45 L.R.A. (N.S.) 112, the same proposition was recognized and approved.
Indiana v. Kentucky, 136 U.S. 479, 34 L.Ed. 329; City of St. Louis v. Rutz, 138 U.S. 226, 11 S.Ct. 357, 34 L.Ed. 941; State of Iowa v. State of Illinois, 147 U.S. 1, 37 L.Ed. 55, 13 S.Ct. 239; State of Washington v. State of Oregon, 211 U.S. 127, 53 L.Ed. 118; Missouri v. Kentucky, 11 Wall. 395, 20 L.Ed. 116.
Argued orally by S.B. Laub, and A.H. Jones, for appellants and by Gerard Brandon, for appellees.
This case is here on appellee's amended bill, demurrers thereto by appellants, a decree overruling the demurrers, and an appeal therefrom to settle the principles of the cause. This is the second appeal of this cause ( 181 So. 142, and on suggestion of error, 182 So. 122).
The original and amended bills are in all substantial respects the same except one. In the amended bill, the appellee sets out the facts relied on as constituting Diamond Island Towhead, as a part of the territory of this state, instead of that of Louisiana. The amended bill in that respect alleges:
"That because of changes in the course of the navigable stream of the Mississippi River, said Diamond Island or Diamond Island Towhead is now situated to the Westerly side of the present navigable stream of the Mississippi River and is joined in part to the Louisiana shore, but despite said fact the same has ever been and is now within the territorial limits of the County of Warren and State of Mississippi; and, in support of the allegation of fact, Complainant charges and shows with reference to the formation of said Diamond Island, the following, to-wit:
"That at the time when the State of Louisiana was admitted to the Union as a State by Act of Congress, found at Chapter 50 of the United States at Large, Vol. 2, page 701, approved April 8th, 1812, the boundary of the State of Louisiana at this point (the same being South of the 33 degrees of North latitude and North of the River Iberville) was designated as being down the Mississippi River, — the thread or center of said River forming said boundary originally; and by Act of Congress of the United States of March 1st, 1817, 3 Stat. 348 entitled `An Act to enable the people of the western part of Mississippi territory to form a constitution and state government, and for the admission of such state into the union, on an equal footing with the original states,' — pursuant to which the State of Mississippi was formed and admitted to the union as a state, the Western boundary of the territory to be included within said State North of the 31st degree of North latitude and South of the Southern boundary of the State of Tennessee was designated as being up the Mississippi River, and that the thread or center of said River formed said boundary originally.
"That the County of Warren, State of Mississippi, is on the Mississippi River, North of said 31 degrees of North latitude and North of said River Iberville and South of said 33 degrees of North latitude and South of the Southern boundary of the State of Tennessee.
"That thereafter at the place where said Diamond Island is now located and opposite said Warren County, Mississippi, the land on the Mississippi River in the State of Louisiana gradually wore off by erosion and caved into the Mississippi River and disappeared, while at or near said point the shore or bank of the Mississippi River on the Mississippi side was gradually extended in a Westerly direction by accretions formed successively and imperceptibly to the soil of said shore until it extended westerly as a point of land projecting Westwardly to the place where said Diamond Island or Diamond Island Towhead is now located; that as the Mississippi shore or bank along the Mississippi River was thus extended in a westerly direction by alluvion formed by accretion, the thalweg or thread of the channel of the Mississippi River was likewise extended in a Westerly direction; that as the thread of said channel was thus extended westerly, the boundary line between the States of Louisiana and Mississippi was also extended westerly in like manner and in like distances, remaining at all times to the North, West, and South of the point or projection of land thus formed and attached to the Mississippi shore.
"That after the boundary line between the said States had been thus extended Westwardly so as to include within the territorial limits of the State of Mississippi the land which is presently known and designated as Diamond Island or Diamond Island Towhead, and which was formed as a point of land formed by accretion to the Mississippi shore and a part of the territorial limits of the State of Mississippi, the Mississippi River cut across said point of land, forming a new but minor channel across said point of land, thereby cutting off a portion thereof from the Mississippi mainland and forming an island which was thereafter known and designated as Diamond Island or Diamond Island Towhead; but yet in so doing the Mississippi River yet flowed in a main channel around to the North, West, and South of said Diamond Island, leaving the same yet upon the Mississippi side of the then main channel of the Mississippi River; and said Island when so formed was, continued to be, and now is within and a part of the territorial limits of the County of Warren and State of Mississippi.
"That thereafter the new channel which was thus formed by the action of the Mississippi River in cutting across said point of land over a period of years gradually widened and deepened, and the old or original channel which lay to the North, West, and South of said Diamond Island or Diamond Island Towhead was gradually filled by accretion in most part formed to said Island and in small part formed to the Louisiana mainland, until finally the new channel thus formed as above alleged became the principal or main channel of the Mississippi River, and the old Channel gradually filled by accretion, until finally the said accretions formed to said Island in most part and that formed in small part to the Louisiana mainland met at certain places, and the water of the Mississippi River ceased to flow at low stages therein and between Diamond Island or Diamond Island Towhead Mississippi shore and the Louisiana mainland shore.
"That said Diamond Island or Diamond Island Towhead never washed away and at the time said new channel of the Mississippi River was formed by the action of that river in cutting across said point of land and forming an island the line between the States of Louisiana and Mississippi was in and remained in the center of the old channel which flowed to the North, West, and South of said point of land and of the land thus formed into an island designated as Diamond Island or Diamond Island Towhead, and which old channel was and is to the West of the new channel made by said action of the river in cutting across said point of land. That when the water thus ceased to flow through said old channel as above described and became stagnant, the boundary line between the States of Louisiana and Mississippi then became fixed in the middle of the old navigable channel and was not afterward affected or changed by the filling up of said old channel, and that said line is now the boundary line between said States of Louisiana and Mississippi at that place, and all the territory and land which forms said Diamond Island or Diamond Island Towhead and all accretion thereto, being all that lying to the South, East, and North of said old channel, was, remained, and is the land known and designated as Diamond Island or Diamond Island Towhead and in Warren County and State of Mississippi, and it is upon said lands so known as Diamond Island or Diamond Island Towhead, being said tract of land in Warren County, Mississippi, that, as above alleged your Complainant has recently cut, severed, and removed certain trees and timber, and such is the same land to which your Complainant claims title, as by him hereinafter asserted."
We have reached the same conclusion the chancellor did — that under the allegations of the amended bill Diamond Island Towhead is Mississippi and not Louisiana territory. On the former appeal we held that under the allegations of the original bill it was a part of the State of Louisiana. We reached that conclusion upon applying the principle that the boundary line of a navigable river between two states is the thread of the stream and continues with gradual changes in the thread. There is an exception to that rule which is that where land on a navigable stream belongs to one state, and by gradual change in the thread of the stream, the main channel flows between it and the state to which it belongs, it continues to be the territory of that state, and not the territory of the state on the opposite side of the stream; the line between the states remains where it was before the land was cut off — it is the old thread, not the new thread of the stream. There seems to be little, if any, conflict in the authorities supporting that proposition. Missouri v. Kentucky, 11 Wall. 395, 20 L.Ed. 116; Indiana v. Kentucky, 136 U. S. 479, 10 S.Ct. 1051, 34 L.Ed. 329; Iowa v. Illinois, 147 U.S. 1, 13 S.Ct. 239, 37 L.Ed. 55; Washington v. Oregon, 211 U.S. 127, 29 S.Ct. 47, 53 L.Ed. 118, and on rehearing 214 U.S. 205, 29 S.Ct. 631, 53 L.Ed. 969; Louisiana v. Mississippi, 282 U.S. 458, 51 S.Ct. 197, 75 L.Ed. 459; Randolph v. Hinck, 277 Ill. 11, 115 N.E. 182; Whiteside v. Norton, 8 Cir., 205 F. 5, 123 C.C.A. 313, 45 L.R.A. (N.S.), 112.
In Iowa v. Illinois, the Supreme Court quotes with approval the following [ 147 U.S. 1, 13 S.Ct. 242]: "Grotius and Vattel speak of the middle of the river as the line of demarkation between two jurisdictions, but that modern publicists and statesmen prefer the more accurate and more equitable boundary of the navigable mid-channel. If there be more than one channel of a river, the deepest channel is regarded as the navigable mid-channel for the purpose of territorial demarkation; and the boundary line will be the line drawn along the surface of the stream corresponding to the line of deepest depression of its bed. The islands on either side of the mid-channel are regarded as appendages to either bank; and, if they have once been taken possession of by the nation to whose bank they are appendant, a change in the mid-channel of the river will not operate to deprive the nation of its possession, although the water frontier line will follow the change of the mid-channel."
Sutton v. Archer, 93 Miss. 603, 46 So. 705, relied on by appellants is not in point. The islands there involved were gradually washed away — they were destroyed. The court held that accretions formed opposite on the Arkansas side belonged to that state. The change in the channel of the river from the Louisiana side to the Mississippi side of Diamond Island Towhead did not destroy the island — it was left standing, and, under the authorities referred to, the old channel of the river between the island and the Louisiana side continued to be the line between the states.
Appellants argue that, granting that the island is a part of Mississippi territory, they had the right to resort to the courts of Louisiana for redress for the alleged trespass. We adhere to what was said on this question in the opinion on the former appeal of this case. Here we have the lands on which the alleged trespass was committed situated in this state, and all the parties to the cause residents of this state. In some respects the laws of Louisiana, with reference to the rights of riparian owners, are different from those of Mississippi. "Where the foreign suit is brought for the purpose of evading the rightly applicable laws of the domicile of the parties," such suit will be enjoined. 14 R.C.L., sec. 116, page 415.
Appellee was not required to deraign and show a perfect title to the land on which the trees were cut. His allegation of title and right of possession were sufficient.
Affirmed and remanded.