{ "id": 1466992, "name": "Wunderlich et al. v. Cates et al.", "name_abbreviation": "Wunderlich v. Cates", "decision_date": "1948-06-21", "docket_number": "4-8487", "first_page": "695", "last_page": "713", "citations": [ { "type": "official", "cite": "213 Ark. 695" }, { "type": "parallel", "cite": "212 S.W.2d 556" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "197 S. W. 2d 482", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "210 Ark. 724", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723964 ], "opinion_index": 0, "case_paths": [ "/ark/210/0724-01" ] }, { "cite": "282 Fed. 592", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 5704392 ], "opinion_index": 0, "case_paths": [ "/f/282/0592-01" ] }, { "cite": "22 Am. St. Rep. 195", "category": "reporters:state", "reporter": "Am. St. Rep.", "weight": 2, "opinion_index": 0 }, { "cite": "8 L. R. A. 559", "category": "reporters:federal", "reporter": "L.R.A.", "weight": 2, "opinion_index": 0 }, { "cite": "13 S. W. 931", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "opinion_index": 0 }, { "cite": "53 Ark. 314", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1911716 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/53/0314-01" ] }, { "cite": "166 S. W. 749", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "112 Ark. 366", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1538817 ], "opinion_index": 0, "case_paths": [ "/ark/112/0366-01" ] }, { "cite": "31 L. R. A. 317", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "33 S. W. 641", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "61 Ark. 429", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902363 ], "opinion_index": 0, "case_paths": [ "/ark/61/0429-01" ] }, { "cite": "225 S. W. 648", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "146 Ark. 469", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1584992 ], "opinion_index": 0, "case_paths": [ "/ark/146/0469-01" ] }, { "cite": "33 S. W. 2d 378", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "182 Ark. 969", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1389935 ], "opinion_index": 0, "case_paths": [ "/ark/182/0969-01" ] }, { "cite": "260 S. W. 438", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "163 Ark. 520", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1383790 ], "opinion_index": 0, "case_paths": [ "/ark/163/0520-01" ] }, { "cite": "206 Ark. 671", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1485021 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/206/0671-01" ] }, { "cite": "35 Am. St. Rep. 670", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "21 L. R. A. 84", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "13 So. 237", "category": "reporters:state_regional", "reporter": "So.", "opinion_index": 0 }, { "cite": "70 Miss. 602", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 1781325 ], "opinion_index": 0, "case_paths": [ "/miss/70/0602-01" ] }, { "cite": "113 Atl. 574", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "138 Md. 46", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2130465 ], "opinion_index": 0, "case_paths": [ "/md/138/0046-01" ] }, { "cite": "207 Ark. 507", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1481816 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/207/0507-01" ] }, { "cite": "4 How. 591", "category": "reporters:scotus_early", "reporter": "How.", "case_ids": [ 1503902 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/45/0591-01" ] }, { "cite": "136 U. S. 479", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1217878 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/136/0479-01" ] }, { "cite": "217 U. S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 407810 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/217/0001-01" ] } ], "analysis": { "cardinality": 1531, "char_count": 35571, "ocr_confidence": 0.485, "pagerank": { "raw": 7.771293078492209e-08, "percentile": 0.45628084880624314 }, "sha256": "e9a879b1096188711a640efe12d2e50b18831fe53da5269b38d248914d3cdae3", "simhash": "1:bb85c46fa68840f6", "word_count": 5991 }, "last_updated": "2023-07-14T14:58:24.264428+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Wunderlich et al. v. Cates et al." ], "opinions": [ { "text": "Griffin Smith, Chief Justice.\nOwnership of an island in the Mississippi River is involved. The appeal presents (a) factual questions, (b) mixed questions of law and fact; and, (c) application of well established principles when it is ascertained which of the litigants presents a record showing a preponderance of competent and relevant testimony. Difficulty arises in determining what witnesses, \u2014 or, as here, which group of witnesses \u2014 had familiarity with physical condition, historical data, (including surveys, flood stages, uncontrolled action of waters, shore contours, elevations, and other factors, such as growth of vegetation and navigation) \u2014 all of which, it is urged, sheds light upon land \u2022formations created by shifting sands and rich alluvium in the area between Arkansas and Tennessee.\nAppellants first insist that Harshman\u2019s Island is in Tennessee. This, if established, would deprive the Mississippi Chancery Court of jurisdiction, and the order restraining Alvin Wunderlich, Harry Stanford, Luther Gifford, and T. L. Brown from \u201cgoing on or interfering with Harshman\u2019s Island or any accretions thereto\u201d is void.\nResponsive to a petition filed in February 1940 by W. C. Cates, the State Land Commissioner, under authority of Act 282 of 1917, caused a survey of Harsh-man\u2019s Island to be made. It disclosed a land area of 109.04 acres within Mississippi County, Arkansas. Field notes and other data incident to the survey were filed with the Commissioner and have been brought into the record as exhibits. The State\u2019s deed to Cates is dated April 1,1940.\nThe complaint, filed in April 1942, asserted Cates\u2019 ownership of the island and his subsequent conveyance of a fourth interest to Andy Harshman, sale of an equal interest to Eddie Reginold, and a lease for 1940 to Jack Buchanan. When Buchanan\u2019s term expired January 1, 1941, he refused to quit. Suit in unlawful detainer was brought, with judgment for the plaintiff in June 1941. It was further alleged that on the day following judgment, Wunderlich, through collusion with Buchanan, \u201cplaced a Negro in possession of the island.\u201d Later the Sheriff established Cates and his co-plaintiffs in possession, removing the Negro. Cates began farming operations, but Wunderlich \u201c. .. . sent various and sundry persons to the island with teams and plows to cultivate. . . . These parties were arrested and fined in Municipal Court, . . .\u201d etc. Another allegation was that Wunderlich caused one of plaintiff Cates\u2019 tenant houses to be broken into, the purpose being to hold possession through T. L. Brown\u2019s occupancy. Brown was arrested, put in jail, and released on bond. He returned to the island and again undertook to occupy the tenant property.\nThese and similar acts were relied upon by Cates to sustain the asserted jurisdiction of equity to abate conduct amounting to a nuisance and continuing trespasses. Want of an adequate remedy at law was urged.\nAs part of a comprehensive denial, Wunderlich, for himself and others, alleged invalidity of the State\u2019s deed to Cates. It was, he said, procured by false representations of the applicant, who induced the surveyor to act fraudulently. Affirmatively, Wunderlich alleged that the area in suit was part of Island 25, \u201cbeing an island in the Mississippi River which formed more than 100 years ago some distance above its present position, and in the middle of'the river.\u201d\nIt was then asserted that the main steamboat channel was on the Arkansas side of the river; that by gradual and imperceptible water processes the upstream end of Island 25 eroded, \u201cand the foot built, until the said island assumed its present position in front of it, or on the river side of sections 12, 13, and 14, township 14 north, range 12 east, and section 18, township 14 north, range 13 east, as the sections were originally surveyed by the U. S. government as a part of Arkansas, about 1845. Subsequently the channel \u201ccaved away the Arkansas shore line as thus surveyed, but a few years later the channel left the Arkansas side of the river; and Island 25 gradually built downstream toward the Arkansas shore, until now a part of the island lies within the original boundaries of the Arkansas survey, but a greater portion lies eastwardly from said original river bank, and the present river channel is east and southeast of all of Island 25, including the island in controversy, the Mississippi River being the eastern and southeastern boundary of said island.\u201d\nThese allegations were followed by the assertion that for more than fifty years Island 25 had been generally regarded as part of Tennessee; that the true boundary between Arkansas and Tennessee at the point in question had not been established \u201cby the proper forum, for the reason that Wunderlich, through mesne conveyances [shown by exhibits] acquired both the titles to all the lands included within the Tennessee survey, and the said area, now being on the Tennessee side of the river; and all adverse claims of title being concluded and consolidated in Wunderlich, [he] has, for convenience, assessed said lands as a part of Arkansas, and has paid taxes thereon in Mississippi County for the past 25 years, and said tax payments have covered the area in question, as well as other parts of 'Island 25.\u201d\nDamages in the sum of $5,000 for wrongful issuance of the restraining order were prayed.\nFirst.- \u2014 Was the land in Arkansas\u2019? Appellant\u2019s admission that he assessed the property in Mississippi Comity \u201cfor purposes of convenience\u201d is highly persuasive that Wunderlich thought it was in Arkansas. Leon W. Smith, special master appointed by the Chancellor, says it was undisputed that in 1892 Island 25 was generally considered a part of Arkansas. Children from the island went to. Arkansas schools, electors of the island served on Arkansas juries and as school directors, and crimes committed on the island were tried in this State. Some of those residing on the island paid taxes in Tennessee in 1902, 1903, and 1904, but all refused after that time to recognize Tennessee sovereignty.\nIn 1904 Tennessee health officers went to the island to vaccinate against smallpox, but the citizens refused to concede their right to enforce the Tennessee law, and \u201cordered the officers back.\u201d Irrespective of conflict in the evidence, it is \u25a0our view that appellant did not overcome presumptions arising from the conduct of those immediately concerned, and the acquiescence by Tennessee over a long period of time in a seemingly undisputed status. This conduct justified the Land Commissioner\u2019s representative in believing that his survey was accurate, and that the conclusions to be drawn from all of the facts and circumstances supported one of two alternatives: (a) the land, geographically, was in Arkansas; or, (b) if substantial doubt existed, Tennessee had ostensibly yielded to the Arkansas view, and this \u25a0was tantamount to disclaimer. Maryland v. West Virginia, 217 U. S. 1, 30 S. Ct. 268, 54 L. Ed. 645.\nWhile we are not, in the case at bar, dealing with a controversy between two states, in respect of which the Constitution places original jurisdiction in the Supreme Court of the United States, certain principles mentioned by Mr. Justice Day, who wrote the Court\u2019s opinion in the Maryland-West Virginia dispute, are applicable; for, said he, long acquiescence in the possession of territory, with the exercise of dominion and sovereignty over it, is conclusive of the nation\u2019s title and rightful authority. Citing Indiana v. Kentucky, 136 U. S. 479, 10 S. Ct. 1051, 34 L. Ed. 329. Again it was said, \u201cNo human transactions are unaffected by time. Its influence is seen on all things subject to change. And this is peculiarly the case in regard to matters which rest in memory, and which consequently fade, with the lapse of time and fall with the livfes of individuals. For the security of rights, whether of states or individuals, long possession under a claim of title is protected.\u201d Rhode Island v. Massachusetts, 4 How. 591, 11 L. Ed. 1116.\nThe record with which we are dealing is void of any evidence showing that Tennessee in its sovereign capacity regards Harshman\u2019s Island as within its territorial area; hence, as between the litigants here, the Court was justified in assuming jurisdiction, and its decree will be binding upon the parties until in a contest between the two states there is a finding by the U. S. Supreme Court that the territory in question belongs to Tennessee. In that event the Arkansas decree might not be res judicata.\nSecond. \u2014 It is strenuously contended that, even if the island were judicially found to be in Arkansas, Chancery did not have jurisdiction of the subject matter; that appellants had the right to trial by jury, hence the decree is void. There are cases, such as Smith v. Hamm, 207 Ark. 507, 181 S. W. 2d 475, and Howard v. Western Maryland Ry. Co., 138 Md. 46, 113 Atl. 574, holding (a) that although Chancery may enjoin criminal acts violative of personal and property rights, jurisdiction will not be assumed where the resulting decree is inferential only, and not determinative in respect of the plaintiff\u2019s property rights; and, (b) that injunction should not be granted for the permanent enforcement of an alleged right if that right is involved in reasonable doubt.\nIn the Smith-Hamm case Mr. Justice Knox quoted with approval from Crighton v. Dahmer, 70 Miss. 602, 13 So. 237, 21 L. R. A. 84, 35 Am. St. Rep. 670, where it was said that ordinarily equity will not interfere to prevent the commission of criminal acts if the injury resulting to property is consequential only; hut if the acts (although criminal in the sense that penalties have been imposed for their commission) are primarily and essentially an injury to property, preventive relief may he granted within the same limits and under the same conditions as though the element of criminality were absent: that is, an injunction will not issue unless the threatened damage is irreparable and the evidence is clear and convincing.\nInjunctive relief was upheld in Ritholtz v. Arkansas State Board of Optometry, 206 Ark. 671, 177 S. W. 2d 410, a statement in the opinion being that action of the Board in attempting to restrain the defendant from engaging in a practice denounced by Act 94 of 1941 was not a proceeding to restrain the commission of a crime, as such. Rather, the object was to stop the illegal practice of optometry, prevention of which could not be adequately dealt with by invidiual prosecution.\nThe same principle applies to Cates\u2019 right to make use of his property without molestation. 'The State\u2019s deed was, prima facie, evidence of ownership. Until appellants had shown a superior title they were trespassers whose conduct was repeatedly found to be of a criminal nature. When persisted in, in willful disregard of legal authority, the acts assumed a propensity disclosing malignant willfullness. In these circumstances property rights were impaired.\nIt is true there was no allegation of insolvency\u2014 a declaration ordinarily essential to a proceeding of this nature. There were certain elements, however, that were difficult of ascertainment in monetary measurement. The mere fact that a defendant is solvent does not of itself place his acts of aggravation beyond injunctive reach. If appellants had acquiesced in judicial findings that they were without legal right to harass Cates, there would have been no final determination of property rights in this Chancery action.\n\"While strenuously insisting that as record owner \u201cand in actual and constructive possession\u201d he was entitled to trial by jury, Wunderlich prayed for affirmative relief \u2014 including damages for $5,000; also that the State\u2019s deed be cancelled as a cloud upon his title. Had the proceeding by Cates been one in ejectment, not associated with a distinct equitable right, appellant\u2019s objection would be tenable.\nCates claims to have been in actual possession. His deed from the State was color of title, for its execution was in pursuance of a discretion vested by Act 282 of 1917 to determine essential facts. Since by express terms the Act is not applicable to lands formed by accretion, it necessarily follows that the Commissioner, in making the sale, must have found that Harshman\u2019s Island was not an accretion; hence, until fraud had been shown, the deed, prima facie, was good. Reed v. Wilson, 163 Ark. 520, 260 S. W. 438; nor could the-State\u2019s right to have the island surveyed for the purpose of determining its status under Act 282 be lost by adverse possession. Jones v. Euper, 182 Ark. 969, 33 S. W. 2d 378. See Lewis v. Owen, 146 Ark. 469, 225 S. W. 648, where it was held that in the absence of fraud or collusion the Commissioner\u2019s decision that land the petitioner sought to buy was not an island could not be controlled by mandamus, even if erroneous. Judge John E. Martineau (\u00fc. S. District Judge) said that the Arkansas decisions were authority for the proposition that a determination by the Land Commissioner that lands deeded under Act 282 were island formations concluded the state from contending otherwise, in the absence of fraud or collusion. State of Arkansas ex rel. Norwood, Attorney General, v. Rust Land & Lumber Co., 51 Fed. 2d 555.\nThird. \u2014 If Wunderlich is to prevail his title must rest upon one of two contentions: (a) The so-called island was, in fact, an accretion to lands as to which he lias shown ownership, or (h) an area formerly owned by Wunderlich submerged, and from the bed of this once-destroyed land a new formation arose, constituting what is now called Harshman\u2019s Island.\nA comprehensive discussion of riparian rights is to be found in the Court\u2019s majority opinion by Judge Battle in Wallace v. Driver, 61 Ark. 429, 33 S. W. 641, 31 L. R. A. 317, cited and to some extent explained in Yutterman v. Grier, 112 Ark. 366, 166 S. W. 749. Quoting from St. Louis, Iron Mountain & Southern Railway Co. v. Ramsey, 53 Ark. 314, 13 S. W. 931, 8 L. R. A. 559, 22 Am. St. Rep. 195, (an opinion written by Judge Hughes) it was said that a riparian owner upon navigable stream whose title derives from the United States takes only to high water mark and not to the middle of the stream, the bed of the stream being in the State. \u201cThis high water mark,\u201d says the Ramsey opinion, \u201cis to be found by ascertaining where the presence and action of water are so usual and long continued in ordinary years as to mark upon the soil of the bed a character distinct from that of the banks in respect to vegetation and the nature of the soil. \u2019 \u2019 In the Wallace-Driver opinion Judge Battle added: \u201cAccording to the cases . . . the high water mark, as thus defined, being the boundary line of the riparian owner in this State, is the point at which the formation of all lands acquired [by such owner] by accretion must begin. A formation of alluvion beginning at any other point would belong to the State or other party. In that case the gradual and imperceptible addition, which is necessary to constitute an accretion, would be lacking.\u201d\nIn the Yutterman-Grier case Chief Justice McCulloch said that the Court, in Wallace v. Driver, was speaking in general terms, for \u201cit is not literally correct to say that the rule of accretion does not apply if any part of the process [of formation] is perceptible.\u201d\nAct 127, approved April 26,1901, affected \u201call lands which [have] formed or may hereafter form, in the navigable waters of this State and within the original boundaries of a former owner of land upon such stream.\u201d Title was vested in the former owner, \u201chis heirs or assigns, or in whoever may have lawfully succeeded to the right of such former owner therein.\u201d A preamble recites that \u201cUnder existing laws if such land reforms as an island in a navigable stream, though within the original boundary of the former owner, it belongs not to him, but to the State.\u201d\nUnder this Act appellant must prevail if Harsh-man\u2019s Island formed within original boundaries of Wunderlich\u2019s land, and this is true irrespective of the claim that it was an accretion to Island 25. In substantiation of this contention it is argued that testimony given by Ed Tillman, O. W. Gauss, and Wunderlich, partially superimposed upon Mississippi River Commission charts showing the river\u2019s progress between 1883 and 1906, and deed from St. Francis Levee District to Wunderlich, brings the transaction within the rule announced in Lightfoot v. Williamson et al., 282 Fed. 592, where Act 19 of 1893, as amended by Act 75 of the same year, was construed.\nIn that case Lightfoot sought to quiet title to Bullinton Island in the Mississippi River as against Williamson and others who had held possession, with cultivation of the 425 acres, for 40 or 50 years. Lightfoot claimed under a deed from the State, pursuant to Act 282 of 1917. Williamson and others associated with him in the suit claimed under two quitclaim deeds from St. Francis Levee District, and the District, in turn, claimed under Acts 19 and 75 of 1893. Lightfoot, who was favored by the Land Commissioner, contended in Federal Court that the Commissioner\u2019s determination of ownership \u2014 whether in the District or State at the time Light-foot\u2019s deed was executed September 19, 1918 \u2014 was conclusive. The Circuit Court of Appeals, in affirming Judge Trieber, found it was not necessary to decide whether the Commissioner\u2019s deed could be questioned, \u201cfor,\u201d says Judge Carland\u2019s opinion, \u201cIf the Levee District had title to the land at the date of [its] quitclaim deeds, that title passed to [Williamson and others], and the Commissioner of State Lands had no jurisdiction to adjudicate the title. Whether the Levee District had title . . . depends upon . . . whether the land was within its boundaries. \u2019 \u2019\nSo, says appellant, if at the time St. Francis Levee District conveyed to Wunderlich\u2019s grantors the land was within the District, then the Commissioner\u2019s deed to Cates was ineffective.\nThe Lightfoot-Williamson case deals with re-formed lands, as distinguished from accretions.\nFourth \u2014 The Evidence.- \u2014 J. A. Pigg, -an abstracter called by appellants as a witness, testified that he had certain records. From a photostatic copy of a map of Island 25 prepared by the Mississippi River Commission, the lines of Secs. 17 and 20 were shown. The work was done in 1923 or 1924. The records in Mississippi County, Arkansas, disclosed that part of the land of Island 25 was claimed by Lauderdale County, Tennessee, and an inspection of records at Ripley, Tenn., showed the same claims. The lines of Secs. 17 and 18 were projected from a designated corner of Sec. 18.\nCopies of deeds numbered from three to twenty-three were introduced. Exhibit No. 18 was a deed from W. P. Hall and S. A. Forsythe, conveying to Alden Land & Timber Co. lands not pertinent to this controversy, and all of Secs. 17,18, and 19, township fourteen north, range thirteen east, and accretions thereto, \u201c. . . located on Island 25 in the Mississippi River.\u201d The deed was dated June 21, 1920. A deed of February 23, .1917, from St. Francis Levee Board to W. P. Hall purported to coyvey \u201cAll that body of land lying east and south of the original government meander line and west of the Mississippi River.\u201d It appears that Forsythe, who joined in Hall\u2019s deed to the Alden Company, derived title through a Tennessee grant.\nAppellant\u2019s abstract contains the statement that in a partition suit concluded in 1907, involving the lands of W. W. Ward, certain lands were set aside to the Ward heirs, claimed by them under the Tennessee grant, \u201c. . . as well as under the riparian title to the Arkansas lands.\u201d The witness then said: \u201cI know that all of the lands in Secs. 17, 18, and 20, which we have been discussing, are on Island 25, a considerable portion having been in cultivation since 1924.\u201d\nConceding, on cross-examination, that \u201chis books\u201d only covered lands in the Osceola District of Mississippi County, Pigg added, \u2018 \u2018 If there is an island east of Island 25 known as Harshman\u2019s Island, I could not testify about it. . . . According to this map, all of Sec. 17 is on Island 25. . . . There could not be any island east of Island 25 in Secs. 17 and ,20, according to the map.\u201d As summarized by appellants, the Pigg exhibits disclosed title \u201c. . . to all riparian lands bordering on the Mississippi River along the reaches involved, and to all the accretions thereto, as well as the deed from St. Francis Levee District.\u201d\nWunderlich testified that the \u201carea involved\u201d is a part of Island 25, purchased by him in 1915 or 1916. The conveyances, he said, cover all of Sec. 17 and the north half of the north half of Sec. 20, \u201cand the lands claimed by [Cates] are within the boundary lines of my deeds.\u201d\nAppellant had heard there was an island called Harshman\u2019s \u201csomewhere in there,\u201d but he was certain the land in Sec. 17 is all connected with the Arkansas shore. Twenty years ago he walked entirely across Secs. 17 and 18 without finding any water. It was \u201cmade\u201d land, but would be covered by high water. Until Wunderlich heard that Cates had procured a deed from the State he did not know there was a place called Harsh-man\u2019s Island. The name \u201cHarshman\u201d was first used when the Land Commissioner\u2019s representative made the survey in 1940. \u201cWrenn Island,\u201d said the witness, [elsewhere in the testimony referred to for purposes of identifying other points] \u201cis down in Sec. 19, township fourteen, range thirteen \u2014 possibly some in Sec. 20.\u201d\nO. W. Grauss, civil engineer who was in the government service for fourteen years, testified that he had known Island 25 since 1910. Pie mentioned matters in substantiation of his belief that some of Island 25 was the Forsythe (Ward estate) lands included in the Tennessee grant. Since this phase of the litigation has been decided against appellant, the contentions will not' be reviewed.\nReferring to a map introduced as an exhibit to Pigg\u2019s testimony, Gauss said that the lines of Secs. 17 and 20 were correctly drawn, and that these sections were a part of Island 25, and that Wunderlich had been in possession for twenty-five years. The particular area in controversy, identified by Cates as Harshman\u2019s Island, \u201c. . . lies mostly in Sec. 17 [within the boundaries of deeds held by Wunderlich], and recorded. \u2019 \u2019 Referring to a map, surveys, and reports to be found in the Congressional Library at Washington, (copies of which were used) Gauss read from the 1824 edition of Cramer & Spears\u2019 \u201cNavigator.\u201d Island 25 was spoken of as being \u201ctwo miles below the bar, in the middle of the river, with a good channel on either side, and about a mile long.\u201d\nAndy Harshman testified that the island bearing his name formed about 1918, and that vegetation appeared two years later. A sand bar connects it with the mainland, but water still separates the land in suit from Wunderlich\u2019s holdings. When asked how long after the bar appeared river traffic continued on each side of the island- during low water stages, Harshman replied:\n\u201cI don\u2019t think any big boats [ran] during low water after 1927 or \u201928. Six or seven years after the growth [of vegetation] appeared the big boats quit running. [The channel] shut off at the upper end. I imagine it would take a big boat around 25 feet at Memphis to go through there. \u2019 \u2019 [Presumptively the witness intended to say that if the stage at Memphis Avere 25 feet, a big boat could negotiate the channel]. Again referring to the sand bar,- Harshman said that it connected the land in litigation with the Wunderlich lands on Island 25. Later he testified that \u201cThere has always been, and still is, water between Mr. Wunderlich\u2019s land and Harshman Island.\u201d\nThere is a great deal of testimony to the same effect, and many statements that the property contended for by Cates and Ms associates was never part of the Wunderlich holdings.\nM. A. Meroney took a number of pictures in February 1942. For the purpose of photographing -the essential points the witness placed his camera in location just south of the line between Secs. 17 and 20 \u201cfrom Island 25 looking across to Harshman\u2019s Island.\u201d The photographs showed water between the mainland and Harsh-man, \u201cbetween 500 and 800 feet wide.\u201d The witness then said: \u201cAfter taking the pictures I walked around enough to see the channel went into the river. Lex Shamlin and I estimated, with a pole, that the bank was fifteen feet high. \u2019 \u2019\nC. S. Baggett took pictures in 1941, using Island 25 as a base. He said: \u201cThe day [the pictures were taken] we went down where the chute empties into the river. It looked like it was four or five hundred feet wide.\u201d\nJ. C. Bright was familiar with Harshman\u2019s Island:\u2014 \u201cIt appeared out in the middle of the river. Early in 1920 I worked for Luxora Cooperage Company, rafting-logs, going- on both sides of the island with rafts. There was a well defined channel between [Harshman\u2019s] and the Arkansas shore. The formation first occurred as a sand bar. . . . The first place it attached was at the upper end, some time in 1918. I lived right at the head of the chute in 1912 and 1913. I moved away permanently in 1932, [but had lived in the same neighborhood all those years\u201d].\nHenry Freeman said that the island began to \u201cshow up\u201d in 1918. At that time there was a channel between the formation and Island 25, but it has filled since. Now there is only a sand bar between the two islands, but \u2018 \u2018 water is running through there. \u2019 \u2019\nCorbia Dingier occupied Harshman\u2019s Island in 1941 as a tenant. AAM went to and from it in a boat. A sand bar was spoken of as being- \u201cconsiderably north of the land, connecting with- Island 25 during the latter part of the year, [but] there is water at all times [separating] Mr. AAMnderlich\u2019s line across [to Harshman\u2019s\u201d]. On cross-examination Dingier insisted that \u201cwater went through there until the fall of 1928. It was 25 or 30 yards wide, and 100 yards in the middle. \u2019 \u2019\nBoss Stevens, postmaster at Blytheville, had frequently hunted over the area in question. He had known Harshman\u2019s Island since 1925. It was separated from the mainland by a chute, but there were sandbar crossings.\nBussell Farr identified a plat made by W. H. Law-horn and O. W. Gauss in 1935 showing lands the witness owned. He said: \u201cAfter the blueprint was made Mr. Wunderlich and I agreed on a boundary line 900 feet south of the line of Secs. 18 and 19, and we exchanged deeds. The picture [you have shown me] was taken with the camera near the dividing line [to which I have referred]. We took another picture down the chute two or three hundred feet, and we went down the chute to the river. . . . There is a well-defined chute between Wrenn\u2019s Island and Harshman\u2019s Island. . . . Several years ago I was on what is known as Harshman\u2019s Island when it was just a small body of sand and land out in the river. I walked from the lower end of Wrenn\u2019s Island on a sand bar without crossing any water at all. \u2019 \u2019\nOn recall, Andy Harshman testified that water would run through the chute between Harshman\u2019s Island and the Arkansas shore when a stage of 21 feet at Memphis is reached. It ivould require a stage of 38 feet to put water over the island. . . . The water in the chute extends north [of Bench Mark A-1-32]. Before the 1937 [flood] it extended to the river. Now it is partly dry in low water periods, there being deep and shallow places in it. It goes dry in extremely low water.\u201d\nJ. W. Meyer, an engineer, identified Bench Mark A-l-32 on the enlargement of a map filed as an exhibit to Pigg\u2019s testimony. The contour showed a gradual lowering of the land \u201ceach way.\u201d It sloped off on all sides from the highest elevation of 250 feet, to the lowest point where the elevation was 225 feet.\nC. M. Buck, Blytheville attorney of fine attainments, and one who has had many years of experience with litigation resulting from accretion, avulsion, and island formations, made a personal inspection of the area involved, and said, \u201cIn my opinion Harshman\u2019s Island is an island if you mean to distinguish it from an accretion. \u20195\nL. McMakin, 71 years of age \u2014 a steamboat pilot since 1900, had been familiar with the Mississippi River in the vicinity of Island 25 since 1916. He distinctly remembered that in 1932 or 1933 he made a trip upstream, \u201c. . . going to the left of a towhead called Island 25 Towhead. The boat drew five or five and a half feet of water. Willows were sticking out on this towhead. I think it formed in 1916. . . . When I went between what I call Towhead of Island 25 and Island 25 the river was bank-full.\u201d\nRebuttal testimony offered by appellants was in direct contradiction to that offered on behalf of appellees.\nTestifying for appellant Wunderlich, Ed Tillman (who claimed to have observed river trends for many years) said the Harshman Island area began forming as a gravel bar just below a point known as Tomato, then built south; \u201cfor,\u201d said he, \u201ca bar forms at the shore and builds out.\u201d On cross-examination the witness testified there was a growth of willows on the bar, and that the growth extended to the shore, [presumptively Island 25] \u201cand from there out to the river there is scattered vegetation. . . . You will find [cottonwood and willows] all over the bar. . . . During high water [it is probable that gas boats negotiate the area between Harshman\u2019s Island and Island 25], but no steamboat traffic has ever run there, to my knowledge. . . . Going to the house [on Harshman\u2019s Island] there would be no way to get there except by crossing water, or crossing a bare sand bar.\u201d [The testimony was given by deposition at Osceola September 7, 1943].\nFifth. \u2014 Master\u2019s Report. \u2014 After discussing mixed questions of law and fact, the Master concluded his review of appellants \u2019 claim that the land was in Tennessee with this statement: \u201cIf Island 25 were in Arkansas in 1916, then there could be no question of Harshman\u2019s Island being in Arkansas, because the undisputed proof shows that the towhead [referred to by numerous witnesses] started west of the channel and east of the Island 25.\u201d A head note to Mr. Justice Hughes' opinion in Railway v. Ramsey, 53 Ark. 314, 13 S. W. 931, 8 L. R. A. 559, 22 Am. St. Rep. 195, was used as a definition:\u2014 \u201cA gravel bar in the bed of navigable river, over which steamboats in ordinary high water pass, which is distinguishable from the banks by the absence of soil and vegetation, is not alluvion added to the land of the riparian owner, but belongs to the State,\u201d the Italicized words having been omitted from the quotation.\nIt was the Master\u2019s understanding of Wunderlich\u2019s contentions that Harshman\u2019s Island was consummated from a beginning described by Ilerschel Mitcheson, who as a witness identified a point on the west bank of the river, where formation of a sand bar gradually extended downstream southeasterly. The point of beginning was approximately 2,600 yards north of the north line of Wunderlich\u2019s property \u2014 Island 25. Following extension of the bar into deeper water, and reappearance of the bar, alluvion accumulated, forming land\u2014 sometimes called an \u201coutcropping.\u201d But the Master said that at low water a sand bar extended entirely around the property in question, barren of soil or vegetation. He believed this to be undisputed. While we do not think that this statement was uncontradicted, it is not difficult to agree that a preponderance of the evidence supports it.\nThe testimony and exhibits, according to the Master\u2019s views, disclosed that the land claimed by Oates had for some time been of substantial foimation, and susceptible of cultivation. There was a further finding that the so-called sand bar was not attached to Wunderlich\u2019s property at any point. At extreme low water the bar, if not entirely barren, is from ten to twenty-five feet lower than well-defined banks of Island 25. \u2018 \u2018 Certainly,\u201d said the Master, \u201c[Harshman\u2019s Island] cannot be considered as accretion, as it did not form from defendants \u2019 land outward or away from it, but by filling in behind this bar toward [Wunderlich\u2019s] land. These observations are made upon the assumption . . . that [Wunderlich\u2019s] theory [is] that the land in question is an outcropping on this bar extending out into the river. Land which begins forming at a bar or island in the river and [builds] toward the mainland is not accretion to the mainland. \u2019 \u2019\nMany maps, drawings, surveys, plats, river bulletins, charts, photographs, copies of ancient publications, and other material documentation were introduced, including a table of conventional signs used in a reconnaissance of the Mississippi and Ohio Rivers by Gapts. H. Young and W. T. Pouissin, topographical engineers, in 1821, and surveys by the Mississippi River Commission. These were intended to verifj7' the appellants\u2019 belief that Harshman\u2019s Island was in Tennessee. They are of little lielp in determining how the island was formed.\nIn mentioning testimony given for appellants by St. George Richardson, a civil engineer of Memphis, the Master, discussing a statement by the witness that Harshman\u2019s Island was part of a sand bar \u201cattached to the mainland,\u201d said that from an examination of maps and charts to which Richardson referred, it was fairly inferable that the witness had in mind a sand bar connected with the mainland a mile and a half north of the Wunderlich property. The Master then said:\n\u201cIt is my opinion that a sand bar now between Wunderlich\u2019s land [on Island 25-, and Harshman\u2019s Island], filled in from the towhead toward the west chute of the river, and, as a matter of fact, has gradually filled in below the sand bar attached to the mainland north of Wunderlich\u2019s property, [and this process continued] until, of course, the chute between the mainland and the island has been narrowed perceptibly on both ends; but in ordinary high water there is still a well defined channel between the mainland and the island.\u201d\nQuestions of fact have been decided against appellants by two Chancellors and a Master. A decree was rendered November 30, 3945, by Edward L. Westbrooke, Jr., Special Chancellor, whose right to act was challenged. The controversy on that point was decided in Wunderlich\u2019s favor November 18, 1946. Cates v. Wunderlich, 210 Ark. 724, 197 S. W. 2d 482. On remand the entire case was retried on the record formerly made, supplemented by a motion to dismiss, the appointment of a Master, and the Master\u2019s report, upon which final adjudication was predicated. All have been carefully checked and compared.\nA transparent map superimposed over a 1937 chart (referred to as Sheet 40) would place Harshman\u2019s Island partly within Secs. 17 and 20; but there is nothing persuasive to show, in respect of testimony given by Richardson, (other than deductions, speculation, and conclusions) that the island accreted to property owned by Wunderlich, that it formed within the original boundaries of lands owned by Wunderlich bordering on the river, or that it did not come into being as a towhead, separated completely from Island 25 by a channel or chute. True, testimony is in sharp disagreement regarding the nature of the channel; but the fact that Harshman\u2019s Island is somewhat connical \u2014 that is, it slopes gradually north, east, south, and west, from center \u2014 affords physical support to the suggestion that it gradually built as appellees claim. At least a preponderance of the evidence sustains this conclusion; hence the decree must be affirmed. It is so ordered.", "type": "majority", "author": "Griffin Smith, Chief Justice." } ], "attorneys": [ "Wils Davis and D. Fred Taylor, Jr., for appellant.", "Holland & Taylor, for appellee." ], "corrections": "", "head_matter": "Wunderlich et al. v. Cates et al.\n4-8487\n212 S. W. 2d 556\nOpinion delivered June 21, 1948.\nWils Davis and D. Fred Taylor, Jr., for appellant.\nHolland & Taylor, for appellee." }, "file_name": "0695-01", "first_page_order": 711, "last_page_order": 729 }