David M. Cox v. F-S Prestress, Inc.

IN THE SUPREME COURT OF MISSISSIPPI
NO. 97-CT-01547-SCT
DAVID M. COX, PAUL D. EAVENSON AND GULF FORESTRY ASSOCIATES, INC.
v.
F-S PRESTRESS, INC.
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 11/17/1997
TRIAL JUDGE: HON. JOHNNY WILLIAMS
COURT FROM WHICH APPEALED: FORREST COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS: WILLIAM H. JONES
ATTORNEY FOR APPELLEE: ROBIN L. ROBERTS
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION: REVERSED AND REMANDED - 1/18/2001
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 2/8/2001
EN BANC.
BANKS, PRESIDING JUSTICE, FOR THE COURT:
¶1. This case comes to this Court on writ of certiorari to determine whether the change in a river's channel
effected a change in the boundary between private property owners. The chancellor decided that the
boundary changed by the laws of accretion, and his decision was upheld by the Court of Appeals. For
reasons discussed below, we reverse and remand for further proceedings not inconsistent with this opinion.
I.
¶2. The adverse parties are adjoining landowners who have conflicting claims of ownership to
approximately 17 acres of land situated on the Bouie River in Forrest County. The disputed land was once
part of a peninsula which jutted into a westerly bend of the river. The river flowed around the peninsula and
formed its western boundary. This formation of land and river resembled the typical "horseshoe" or "ox-
bow" bend of a river meander. The disputed land was attached by the narrow neck of the peninsula to a
larger tract of land to the east. This neck of land was known as the "falls," and water flowed over it in times
of high water on the river.
¶3. The litigants acquired title of record by deeds which described the river as the boundary of their
properties. In 1957, F-S Prestress, Inc. ("Prestress") acquired title of record to lands described as being
west of the Bouie River. In 1979, David M. Cox and Paul D. Eavenson acquired title of record to lands
described as being east of the Bouie River. The predecessors in title to Cox and Eavenson also claimed title
of record to lands described as being east of the river.
¶4. Until the events described below, the peninsula containing the disputed land lay east of the river,
collared in the ox-bow. This land was not readily accessible. It was used for timber growing, and there was
testimony that the predecessors in title of Cox and Eavenson had harvested the timber at times.
¶5. At some point in time, about 1960 according to the chancellor's findings of fact, the river created a cut-
off, a new main channel running through the falls area in the neck of the ox-bow. The disputed land was
now situated west of the river channel, with the waters of the "new" main channel of the river completely
separating it from formerly contiguous lands to the east. On the west margin of the disputed land lay the
remnant of the "old" channel, now reduced to a slough. This slough is under water in places and dry in
places. Although the disputed land is sometimes referred to as an "island," it appears that this "island" is
completely surrounded by water only in times of high water, at which times the slough completely fills with
water.
¶6. The litigation began after Cox and Eavenson cut timber from the disputed land in 1993. Prestress filed
suit in Forrest County Chancery Court to quiet title to the land and to seek damages for the timber.
Prestress asserted that the east boundary of its property was the Bouie River, which would include all of the
disputed land, and asserted further that the disputed land had been east of the Bouie River since the time
Prestress acquired the property. The complaint described the change in course of the river as an accretive
process which changed the boundary lines of the property. Alternatively, Prestress claimed ownership by
adverse possession. Cox and Eavenson defended on the basis of their own title and asserted that the river
changed its channel by process of avulsion.
¶7. Evidence was introduced at trial concerning among other things the history of record title, the changes in
the river, the use and possession of the land, and payment of taxes. The chancellor ultimately determined
that the decisive issue was the process by which the river changed its channel. In that regard, the most
significant witnesses were Don Williams and Addie Clinton Holleman.
¶8. Williams, a professor of geography at the University of Southern Mississippi, testified that the change in
the river occurred over a ten year period from 1942-1952. He described the process as one which
occurred due to the differences in velocity of the river's current against the outer and inner banks of the ox-
bow bend. As he explained it, the water flowed more rapidly on the outside bend, that is, against the neck
of the "falls" area. The pressure of this rapidly flowing water gradually eroded the land in the bend.
Meanwhile, the water flowed more slowly in the inside curve of the bend, allowing deposits of material on
the river's west bank. Thus, he testified, the cut-off was gradually carved while the old channel of the river
was gradually restricted. As a result the river created a new channel through the neck of the bend, a
shortcut for the southerly flow of its waters, and abandoned the old channel. The old channel of the original
meander was gradually in-filled.
¶9. Williams described this process as one of accretion and, although he described the process as one
which occurred over a period of ten years, he also testified that there came a point in time when the
remaining material in the bend would have been removed "rather rapidly." He stated that the new channel
became the main channel of the river "very rapidly" after the cut-off occurred.
¶10. Holleman lived in the area of the disputed land and testified regarding her memory of the same events
which Williams described. Holleman's family owned the land east of the Bouie River in the period from
1946 to 1979. She described the formation of the new channel as a process occurring over several years.
She testified that her family used the disputed land as a picnic area until the 1970's. It was then, she said,
that a flood caused the falls area to be completely covered by water.
¶11. The chancellor found from the evidence that the river cut through the peninsula between the years
1942 and 1960 and formed its new, larger channel located to the east of the old channel. He found further
that the formation of the new, larger channel transformed the peninsula into somewhat of an island parcel,
with water running completely around the parcel in the old channel only occasionally. This process, the
chancellor determined, was one of accretion. Therefore, he ruled that Prestress had acquired title to all the
disputed land because it is now situated west of the new main channel of the Bouie River. The chancellor
found that it was unnecessary to decide Prestress's claim of adverse possession. Prestress was awarded
$27,118.52 in damages for the cutting of timber, pursuant to Miss. Code Ann. § 95-5-10 (1994).
¶12. On appeal by Cox and Eavenson, the Court of Appeals of Mississippi initially affirmed the chancellor
by unanimous vote. On petition for rehearing, however, the Court of Appeals split evenly. Four judges
would have reversed upon a finding that the severance of the island was an avulsion, and would have
remanded the case so that the issue of adverse possession could be decided.
¶13. Cox and Eavenson petitioned for writ of certiorari. Their position is that the chancellor and the Court
of Appeals have misapplied the laws of Mississippi on accretion and avulsion to the facts of this case. The
question for review is whether the courts below were correct in deciding that the boundaries of the disputed
land were changed by process of accretion.
II.
¶14. The chancellor's determination that this land boundary changed by process of accretion is a finding of
fact. More precisely, the chancellor's determination is an application of the body of common law on
accretion and avulsion to the facts of this case. This Court will not disturb the findings of a chancellor when
supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly
erroneous or an erroneous legal standard was applied. Griffin v. Armana, 687 So.2d1188, 1192 (Miss.
1996).
III.
¶15. This Court has established a body of case law applicable to lands bounded by waters. The law in
Mississippi, as to boundaries on freshwater streams above the ebb and flow of the tides, is that regardless
of the size or navigability the owners of abutting land own to the thread or thalweg of the stream. Wilson v.
St. Regis Pulp & Paper Corp., 240 So. 2d 137, 139 (Miss. 1970). When a stream is the boundary
between properties, the boundary shifts with the gradual vagaries and changes in the stream, but if there is a
sudden or avulsive change in its course, the boundary remains fixed to the location of the stream prior to the
avulsion. Robinson v. Humble Oil & Ref. Co., 253 Miss. 602, 623, 176 So. 2d 307, 316-17 (1965).
¶16. Accretion has been defined as 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. Sharp v. Learned,
195 Miss. 201, 215, 14 So. 2d 218, 220 (1943). "Ordinarily, accretion means the gradual deposit of
alluvial soil upon the margin of the water or the gradual recession of the water." Harrison County v.
Guice, 244 Miss. 95, 108, 140 So. 2d 838, 842 (1962), overruled on other grounds, Mississippi State
Hwy. Comm'n v. Gillich, 609 So. 2d 367 (1992). Avulsion, on the other hand, is a change in a boundary
by 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. Sharp, 195 Miss. at 215, 14 So 2d at 220.
¶17. A presumption of accretion can be entertained in a proper case, depending on the lay of the land,
length of time involved, and location and direction of the river. United States Gypsum Co. v. Reynolds,
196 Miss. 644, 659, 18 So. 2d 448, 449 (1944). This presumption depends largely on a rule of parallelism.
That is, that accretion ordinarily occurs when alluvium builds as a stream migrates roughly in parallel lines
across the landscape. The presumption is negated where, as here, the river moves at right angles to the
former channel. Sharp, 195 Miss. at 215-18, 14 So.2d at 220-21.
¶18. The law of accretion and avulsion is based on public policy. Perhaps the most practical reason offered
for the rule of accretion, which changes boundaries, is to give a riparian owner the benefit of access to
water. Guice, 244 Miss. at 108, 140 So.2d at 842-43. It has been said that the rationale for the law of
avulsion is to mitigate the hardship of a change in title resulting from a sudden movement of a river. Bonelli
Cattle Co. v. Arizona, 414 U.S. 313, 327, 94 S. Ct. 517, 38 L. Ed. 2d 526 (1973), overruled on other
grounds, Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S. Ct
582, 50 L. Ed. 2d 550 (1977).
¶19. As noted above, the chancellor found that over an eighteen year period the river created a cut-off by
gradually eroding the neck of the peninsula. An island was thus created, as the disputed parcel was
separated from the larger tract to the east by the new main channel of the river. The chancellor found that
the change in the river was caused by accretion and that the boundaries of the properties changed as a
result.
¶20. The instant case presented the chancellor with a somewhat novel factual situation, at least insofar as
cases decided by this Court. This case presents some facts which are characteristic of accretion, but other
facts which are characteristic of avulsion.
¶21. Undoubtably, accretion was involved to some degree in this process. The soil in the neck of the
peninsula was lost to the adjacent lands by laws of accretion as the neck was eroded and washed into the
river to be deposited elsewhere. This alluvium was distributed to the banks of the river by process of
accretion. This is not in dispute.
¶22. Notwithstanding the chancellor's finding that the disputed parcel was detached over time, we disagree
with his ultimate conclusion that the boundaries of the disputed land were changed under the law of
precedents applied to these facts. By careful analysis of the applicable body of common law, we conclude
that the Bouie River changed its position relative to the disputed land by an act of avulsion.
¶23. If speed of the entire process was the only factor to consider, we would be compelled to hold that the
Bouie River changed its course in relation to the disputed land by process of accretion. Accretion occurs
gradually and imperceptibly. Sharp, 195 Miss. at 215, 14 So. 2d at 220. But, as suggested by Wilson,
240 So. 2d at 138-39, it is the change in the thalweg of a stream which effects a change in boundaries
under the law of accretion. The testimony here was that the new main channel, the thalweg, formed very
rapidly after this land was cutoff by the river, whether or not this may have happened in time of flood. These
facts suggest that an avulsion occurred.
¶24. Furthermore, this cannot be accretion if the other elements of an accretive process are considered.
The disputed land was left intact, readily identifiable as the same land existing before the process began. The
land was not formed by alluvial deposits on the west bank of the river. It did not emerge from gradual
recission of the water. This land was not washed over or eroded during the process. The disputed land
existed in the same form, before the process began and after the process was completed.
¶25. In circumstances such as this, both federal and state case law recognize an exception to the
generalized definitions of accretion. That exception, as stated in Davis v. Anderson-Tully Co., 252 F.
681, 685 (8th Cir. 1918), is this:
when a navigable stream changes its main channel of navigation, not by creeping over the intermediate
lands between the old channel and the new one, but by jumping over them or running around them
and making or adopting a new course, the boundary remains in the old channel subject to subsequent
changes in that channel wrought by accretion and erosion while the water in it remains a running
stream, notwithstanding the fact that the change from the old channel to the new one was wrought
gradually during several years by the increase from year to year of the proportion of the waters of the
river passing over the course which eventually became the new channel, and the decrease from year
to year of the proportion of its waters passing through the old channel until finally the new channel
became the main channel of navigation.
Accord, Commissioners v. United States, 270 F. 110, 113 (8th Cir.1920); State v. Ecklund, 23
N.W.2d 782, 789 (Neb.1946). This rule is analogous to the island rule, which provides that "if there is a
divided river flow around an island, a boundary once established on one side of the island remains there,
even though the main downstream navigation channel shifts to the island's other side." Louisiana v.
Mississippi, 516 U.S. 22, 25, 116 S. Ct. 290, 133 L. Ed. 2d 265 (1995).
¶26. We find under the facts of this case that the change in course of the Bouie River was an act of avulsion
which did not, in and of itself, affect title to the disputed land. The judgments of the Court of Appeals and
the Forrest County Chancery Court are reversed. Because the chancellor did not adjudicate title based on
Prestress's claim of adverse possession, this matter is remanded to the Forrest County Chancery Court for
further proceedings on that issue.
¶27. REVERSED AND REMANDED.
McRAE, P.J., SMITH, MILLS, WALLER, COBB AND EASLEY, JJ., CONCUR.
PITTMAN, C.J., AND DIAZ, J., NOT PARTICIPATING.