Maney v. Dennison ( 1914 )

McCulloch, C. J.

This is an action instituted by appellees against appellant in the circuit court of Phillips County to recover possession of certain lands lying near the bank of the Mississippi River, and alleged to be accretions to the lands fronting on the river according to the plats of the public survey. The lands in con-, troversy are described by metes and bounds and are alleged to be located within the bounds of section 4, in township 4 south, range 4 east. There was no section of that description on the plats of the original survey, for the reason that at that point the channel of the river cut through township 3 south, range 4 east, at the time the Government survey was made. At that time, as shown by the plats, the Mississippi River at that point ran in a westerly direction, and turned south from section 36, township 3 south, range 4 east, for a short distance, and thence hack north to a point near the southeast corner of section 33 of the same township, thus forming a peninsula, and then ran westerly through the south half of sections 33 and 32. Section 33 was, therefore, a fractional one, and there was no part of section 4 in township 4 south, range 4 east, in existence to be surveyed, but on the peninsula mentioned there was a fraction of section 3.

The testimony in the case shows that the lands in controversy were formed as accretions to sections 33 and 3.

In the year 1900 the lands were put on the tax books as fractional section 4, township 4 south, range 4 east, and, under that description, were forfeited to the State for nonpayment of taxes. They were not redeemed, and after the expiration of the time for redemption, they were certified to the State, and appellees’ grantor purchased the same, receiving a deed from the Commissioner of State Lands. Appellees assert title under their deed from the State’s grantee and also under a deed executed by the owners of the east half of section 33.

The case was tried before a jury, and the court gave a peremptory instruction in favor of appellees.

The question therefore presented on this appeal is, whether there was a disputed question of fact to be submitted to the jury.

It is insisted, in the first place, that the lands in controversy are not sufficiently described in the complaint to authorize a judgment for recovery for the reason that they are described as a part of section 4, which is not on the Government plats and have never been officially surveyed.

The proof shows, however, that the lands are popularly known as section 4 according to the extended lines of the Government surveys, and we are of the opinion that this is a sufficient description upon which to base a judgment.

For like reasons there could be a valid tax sale of the lands under that description, provided the same were subject to taxation. Buckner v. Sugg, 79 Ark. 442.

If the land in controversy was formed to the main shore by accretion, and thus became the property of the private owners of the abutting lands, it was subject to taxation, though unsurveyed, and could be described in any appropriate manner sufficiently to give public notice as to what lands were taxed.

It is further contended that the testimony is conflicting as to whether or not the lands were joined to the main shore by accretion, or whether the formation began out in the channel and grew toward the shore line until the same was joined thereto. Appellant introduced no testimony, but contends that there was a conflict in the testimony of Purvis, a witness introduced by appellees. It is contended that, according to the testimony of this witness, it is left in doubt whether the land was formed by accretion or not, and that this question should have been submitted to the jury.

After a careful consideration of the testimony of Purvis, we find that his testimony is to the effect that the lands were formed by accretion to the main shore and that there is no dispute on this point. Counsel for appellant quote isolated statements of the witness which, standing alone, might tend to raise a doubt as to whether the land was formed by accretion or not, but when his testimony is read together as a whole, it is very clear that there can be no dispute about the effect of it. The witness did not claim to have observed the formation while it was going on, and his statements are in the nature of expert testimony, based upon long experience -and observation. He had known the lands for aboul; twenty years and had studied the formations along the Mississippi Eiver for a much longer period. He states his unqualified opinion, from an examination of this land and the appearance of it, including the growth of timber, etc., that it was formed by accretion'; and it can not be said that there is any dispute in his testimony. He testified with a map before him and made many references to the map, which do not appear plain to us for the reason that his indications are not explained in the record. Doubtless the circuit judge understood his statements, and we indulge the presumption, to some extent, that those indications strengthened the view of the circuit judge that there was no contradiction of his testimony.

We can not, therefore, say that the court was in error in taking that question from the jury.

There is, however, some conflict as to what lands these accretions belonged to and the proper apportionment according to the rules announced by this court. Malone v. Mobbs, 102 Ark. 542; Reeves v. Moore, 105 Ark. 598. But since the evidence shows that the lands were formed by accretion to the main shore, in the absence of affirmative proof that the lands to which same were attached were other than that of private ownership, then there is a presumption which attends the State’s deed that the lands were subject to taxation. The deed of the State Land Commissioner to the grantor of appellees establishes the title prima facie, and the burden was on the party attacking the tax sale to overcome it. Kirby’s Digest, § 4807; Scott v. Mills, 49 Ark. 266.

According to the undisputed evidence, the title of appellees was, therefore, established under the tax deed, and the court was correct in making declaration of that fact to the jury.

Discussion of appellee’s claim of title under the deed from the owners of section 33 is unnecessary, the title being otherwise established.

Appellant pleaded the statute of limitations, but introduced no proof on that score, relying upon the testimony of witnesses introduced by his adversary.

The burden of proof was on appellant to prove his title by adverse possession. Brown v. Bocquin, 57 Ark. 97; Nicklace v. Dickerson, 65 Ark. 422; Calhoun v. Moore, 79 Ark. 109.

There are many statements in the testimony of witnesses introduced by appellees tending to show that appellant has occupied different portions of the land for many years, but after reading the testimony of these witnesses carefully, we find that it is impossible to pick out any particular portion of the land which he has occupied a.sufficient length of time to ripen into title by limitation, and the testimony merely shows an uncertain and shifting possession, which would not justify a verdict in appellant’s favor under a proper description. The burden rested on appellant to show adverse occupancy of a definite area, sufficiently described to found a verdict upon, and, in the absence of such proof, he can not complain that the court refused to submit his plea of title by limitation to the jury.

Judgment affirmed.