Towell v. Etter , 69 Ark. 34 ( 1900 )

Hughes, J.,

(after stating the facts.) Section 3443 of San-dels & Hill’s Digest provides that “if any person shall enter into or upon any lands, tenements, or other possessions, and detain or hold the same without right or claim of t-itle, * * * in such cases every person so offending shall be deemed guilty of a forcible entry and detainer within the meaning of this act.” Were the defendants guilty under this statute and the proof in this case? The defendant Thompson had a deed as above set out for the southwest quarter of section 13, township 9 north, range 8 east, 151 acres only, and claimed that 35 acres in controversy were an accretion to the southwest quarter of section 13, and that when he bought at' tax sale the said southwest quarter of 13, described in his deed as containing 151 acres, the said 35 acres as an accretion passed to him under his said deed to said southwest quarter of' section 13. Bnt this is not the law. At the time of his purchase of the southwest quarter of section 13, this accretion of 35 acres had been formed, and was above the surface of the water, and susceptible of private ownership, and, according to authorities, the title to the same did not vest in or pass to him under his purchase of the southwest quarter of 13, which, as shown by the evidence, was after said accretion of 35 acres had merged from beneath the water, and had had a housebuiltuponit,and part of ithad been in cultivation. “As between vendor and vendee, the right to alluvion depends upon the condition of the land at the time of the transfer of the legal title. It includes future additions,* but cannot be carried back by relation to the date of a title bond, under which the conveyance was made.” Gould, Waters (3d Ed.) § 186. That is to the effect that a vendee is entitled to accretions to land made after his purchase, but not to those made before, unless the accretions are expressly conveyed. Jones v. Johnson, 18 How. (U. S.), 150.

In Barre v. City of New Orleans, 22 La. An. 612, the court held: “That to riparian proprietors belong the accretions which may, in progress of time, be formed by the sedimentary deposits of the stream along its shores, there is no question. In the sale of the riparian land the test as to whether the alluvion or batture, if any attached to it is conveyed with the land or not, has been definitely settled by repeated decisions of this court. If, at the time of the sale of riparian land, the alluvion attached has attained a sufficient elevation above the waters to be susceptible of private ownership, the alluvion does not pass with the land, unless so expressed.”

So it appears that Thompson had no “right or claim of title to the alluvion of 35 acres accretion to the southwest quarter of section 13 b}r virtue of his purchase and the conveyance to him of said southwest quarter of section 13; for before said purchase and conveyance said accretion “had attained a sufficient elevation above the waters to be susceptible of private ownership,” and had been sold and conveyed, and been partly in cultivation. The expression, “claim of title,” should be construed to mean a claim having some appearance of legality, not a mere bare claim without the appearance or pretense of anything to base it upon.

It follows, therefore, that, under the statute above quoted, the appellant Thompson was guilty of forcible entry and detainer, and that the judgment of the circuit court was correct. Judgment affirmed.