Houston Bros. v. Grant , 112 Miss. 465 ( 1916 )

StbpheNs, J.,

delivered the opinion of the court.

Our construction of the deed from Smith and Moore to Malcom McN. Grant leads to the conclusion that the learned chancellor erred in rendering a decree in favor of appellee as complainant in • the court below. The deed by which she claims conveys a definite, well-defined parcel of land. To designate the' area conveyed the draftsman of the deed makes use of compass and chain, and traces the. definitely surveyed line. The deed states upon its face that it conveys ■“one hundred and seventy-five acres more or less.” This fact is not controlling, hut persuasive. At the ‘time this deed was executed the large body of ground ■formed by accretions was clearly above the water line, and had been formed so long that valuable merchantable timber stood upon it. The accretions formed a parcel of land much larger than the area conveyed by the deed in question. For purposes of this we must assume that Smith and Moore were the legitimate owners of the three hundred and thirteen and twenty-four liundredth acres, and in conveying their land they had a perfect right to convey only such portion as they wanted to convey. The deed discloses upon its-face an intention to convey a definite parcel of land, and not to convey the accretions. The intention of the deed should, of course, govern. If the grantors had conveyed by lot numbers or by governmental subdivisions, the case would be different. The deed to Grant nowhere states that the water line is a boundary, and, according to the definite description, no line run or described in the deed is in fact the water line. The water nowhere touches the one hundred and seventy-five acres particularly described. The case is therefore differentiated from the cases relied upon bv counsel for appellee. It is contended for ap-pellee that appellant’s timber deed covers accretions to Carolina Landing Plantation, and does not include tbe accretions in controversy. But tbis is not a controversy between appellants and tbe grantors of tbe-tim-ber rights. Appellee, as complainant, was obliged to show title, or at least actual possession. Sbe stood upon her title but failed to prove it. It is stated in Jones et al. v. Johnston, 18 How. (59 U. S.) 150, 15 Law Ed. 320:

“Any past accretions belonged to tbe then owner, and whoever sets up a title to them must show a deed of tbe same, as in tbe case of any other description of land. ’ ’

Tbe opinion at another point observes that:

“A grantee can acquire by bis deed only tbe lands described in it by metes and bounds, and with sufficient certainty to enable a person of reasonable skill to locate it, and cannot acquire lands outside of tbe description by way of appurtenanec or accession.”

Tbe Arkansas court, in tbe case of Towell et al. v. Etter et al., 69 Ark. 34, 59 S. W. 1096, quotes from Could on Waters (3d Ed.), par. 186, and then states:

“That is to tbe effect that a vendee is entitled to accretions to land made after bis purchase, but not to those made before, unless tbe accretions are expressly conveyed” (citing, also, Jones v. Johnston, supra).

It is said by tbe Louisiana court in Barre v. City of New Orleans, 22 La. Ann. 613:

“If, at tbe time of tbe sale of riparian land, tbe al-luvion attached has attained a sufficient elevation above tbe waters to be susceptible of private ownership, tbe alluvion does not pass with tbe land, unless so expressed. ’ ’

Tbis in no wise conflicts with tbe rule clearly announced by the supreme court of tbe United States in other cases that a .description by a lot number as designated on tbe government survey will carry acere-tions already formed. That is not the ease here. It follows that the decree of the court below should he reversed, and a decree entered here in favor of appellants, dismissing the hill.

Beversed, and decree here for appellants. •

Reversed.