{ "id": 1630026, "name": "Fred PANNELL v. Cecil L. EARLS et al", "name_abbreviation": "Pannell v. Earls", "decision_date": "1972-04-24", "docket_number": "5-5638", "first_page": "385", "last_page": "393", "citations": [ { "type": "official", "cite": "252 Ark. 385" }, { "type": "parallel", "cite": "483 S.W.2d 440" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "225 N. W. 367", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "151 N. W. 1097", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "133 N. W. 2d 687", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 8643619 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/iowa/257/0533-01" ] }, { "cite": "18 So. 2d 448", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 1914398 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/miss/196/0644-01" ] }, { "cite": "280 P. 340", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 2002051, 2002099 ], "year": 1929, "opinion_index": 0, "case_paths": [ "/or/130/0618-01", "/or/130/0687-01" ] }, { "cite": "250 U. S. 39", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3683848 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/250/0039-01" ] } ], "analysis": { "cardinality": 697, "char_count": 14470, "ocr_confidence": 0.849, "pagerank": { "raw": 9.72368076312738e-08, "percentile": 0.5303697242580552 }, "sha256": "73ca8530be6d1b259bb65d5955f02e98d0b3beb81c2a578d6380847e26212d2f", "simhash": "1:f187614992ad647a", "word_count": 2499 }, "last_updated": "2023-07-14T15:11:02.058798+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Fogleman, J., not participating." ], "parties": [ "Fred PANNELL v. Cecil L. EARLS et al" ], "opinions": [ { "text": "J. Fred Jones, Justice.\nThis is an appeal by Fred Pannell from an adverse decree of the Phillips County Chancery Court in a suit- brought by Pannell to have title confirmed and quieted in him, as against Cecil L. Earls, E. M. Regenold, et al. The land involved consists of approximately 2,000 acres lying east of the Mississippi River and attached to the state of Mississippi on the river\u2019s eastern shore. The appellant contends that the land has always been in Phillips County, Arkansas, and that by avulsive action in 1858 the river changed its course severing the land from the rest of Arkansas and by subsequent accretions attaching it to the state of Mississippi. The appellees content that the land was never a part of the state of Arkansas but became a part of the state of Mississippi by gradual accretion to the east bank of the river throughout the years since 1830.\nThe chancellor found the lands to be in the state of Mississippi and the Phillips County Chancery Court without jurisdiction of the subject matter. The chancellor dismissed Pannell\u2019s petition for want of equity and on appeal to this court Pannell relies on the following point for reversal:\n\u201cThe court erred in holding that the land is in the state of Mississippi and that it was without jurisdiction to try title thereto.\u201d\nThe facts appear as follows: In February, 1967, Mrs. Doris B. Pannell, the wife of the appellant, obtained an Arkansas State Land Commissioner\u2019s deed to land in Phillips County described as follows:\n\u201cSVz Frl SE Sec 8-5S-3E-40.41 acres S5* Frl SW Sec 8-5S-3E-27.40 acres.\u201d\nThis deed indicates that these lands were forfeited to the state under the above descriptions for the nonpayment of taxes in 1904 and 1906 respectively. On February 20, 1967, Mrs. Pannell also obtained an Arkansas State Land Commissioner\u2019s deed to land in Phillips County described as follows:\n\u201cFral. all Sec. 17-Twp. 55-R3E-302.32 acres.\u201d\nThis deed indicates that the land was forfeited to the state under the above description for the nonpayment of taxes in 1927. On January 15, 1969, Mrs. Pannell deeded this property to Beverly Kathleen Schaffhauser by special warranty deed reciting the description as follows:\n\u201cAll of Fractional Section 17; SIS Frl. SEM of Section 8; and the SH Frl. SWM of Section 8; all in 5S-3E, Phillips County, Arkansas, and all accretions thereunto belonging, which said original lands and accretions would be described if the Township, Range and Section lines be extended Eastward as all of Sections 7, 8, 9, 16, 17, 18, 19 & 20, 5S-3E, which lie East of the present main channel of the Mississippi River and West and North of the abandon channel of the Mississippi River marking the state line between the states of Arkansas and Mississippi and referred to on maps and charts as \u2018Old River.\u2019 \u201d\nOn January 22, 1969, Schaffhauser deeded the property back to Mrs. Pannell and Sam J. Howe under the same description and on January 27, 1969, the appellant Fred Pannell obtained a special warranty deed from his wife and Mr. Howe to land under the same description as above. It appears from the pleadings and evidence that the above lands are also claimed as lands in the state of Mississippi by the appellees.\nThis case was tried for two weeks in the chancery court and both sides submitted numerous exhibits as well as voluminous expert and lay testimony in support of their respective contentions. The determining factor before the chancellor actually boiled down to the fact question of whether this land became a part of the state of Mississippi by accretion or whether it was cut off from the rest of Arkansas by avulsive action of the Mississippi River. The question before us on appeal is whether the chancellor\u2019s decree is clearly against the preponderance of the evidence.\nThe division line between Arkansas and the state of Mississippi is fixed as the middle of the main channel of navigation of the Mississippi River. Article 1, Arkansas Constitution 1874; Arkansas v. Mississippi, 250 U. S. 39, 63 L. ed. 832, 39 S. Ct. 422. The appellant argues he clearly proved by the preponderance of the evidence, that prior to 1858 the land involved was on the west and Arkansas side of the main channel of the Mississippi River and that by avulsive action occuring in 1858, the river changed its course to its present position leaving the land involved as an island on the east side of the main channel of the river and by subsequent accretions it became attached to the east shore.\nThe appellees argue that the appellant has failed to prove such avulsion occurred in 1858 or at any other time. They argue that the river gradually changed its course to its present position by eroding away the Arkansas shore, and that the land involved was added to the state of Mississippi by gradual accretion and not by avulsion.\nA riparian owner of land in Arkansas who undertakes to prove Arkansas title to land on the east shore of the Mississippi River, has a considerable burden in proving that the land was severed from Arkansas by sudden avulsion. This is true because there is a strong presumption in favor of the permanency of land boundary lines. See Wyckoff v. Mayfield, 280 P. 340 (1929), 9 C. J. \u00a7 300. Furthermore, when land lines are altered by the movement of a stream, the weight of authority, both state and federal, appears to recognize a strong presumption, founded on long experience and observation, that the movement occurs by gradual erosion and accretion rather than avulsion. United States Gypsum Co. v. Reynolds, 18 So. 2d 448 (1944); Dartmouth College v. Rose, 133 N. W. 2d 687 (1965); Kitteridge v. Ritter, 151 N. W. 1097; Bone v. May, 225 N. W. 367.\nIt would serve no useful purpose to set out in detail the evidence in this case. Suffice it to say, both sides presented conflicting expert testimony as to the hydraulics of the changing thalweg of the Mississippi River as related to its erosive effects on both banks of the river. Both sides presented conflicting evidence as to the significance of forestry and vegetation found on and in the area involved. The appellant offered maps from the United States General Land Office Survey of 1830 showing the land involved to be partially on \u201cIsland 64\u201d with the main channel of the Mississippi River running east of the island and an \u201cisland chute\u201d running west of the island between Island 64 and the remainder of Phillips County, Arkansas. Later maps offered by both sides show the area involved to be on the east side of the main channel of the river and firmly attached to the general land mass forming the state of Mississippi.\nThe appellant relies heavily on probate court records, and most heavily on a map or plat in connection with the administration of the estate of Jehoida Halsey under his will made and probated in Coahoma County, Mississippi, in 1866. For the purpose of our discussion here we may assume that Halsey owned land in Phillips County by deed of conveyance dated 1857 with description as follows:\n\u201cSW Frl Vi (West of East Island Chute and west Frl of the NW Frl M of Frl Section 17-5S-3E, in the District lands subject to sale at Helena, Arkansas, containing 118.26 acres.\u201d\nAn abstract of title was submitted in evidence and according to the abstract, on August 15, 1866, this land was sold to William I. Robson under the residuary clause of Halsey\u2019s will. The description in the executor\u2019s deed is as follows:\n\u201cIsland 64 being all of Section 17 and all of Section 18 South of the dividing line between Jones Halsey\u2019s heirs except Henry\u2019s interest, according to recent Survey 393,34 acres and 127.50 acres of Batture, in Township Five South, Range Three East in Phillips County, Arkansas.\u201d\nIt is in connection with the \u201crecent survey\u201d recited in this deed that the map or plat designated \u201cFontaine Survey\u201d was introduced. For a clearer understanding of its significance we are reproducing it here.\nIt will be noted that in the executor\u2019s deed to William I. Robson the deed recites the conveyance of \u201cIsland 64 being all of Section 17 and all of Section 18 South of the dividing line,\u201d etc. (Emphasis added). It will also be noted from the map or plat, that what appears to be the main channel of the Mississippi River is designated \u201cMississippi River Cutthru 1858\u201d and the land lying in Section 18 west of the river is designated \u201cOld Island 64,\u201d (emphasis added), and the land lying east of the main channel is designated \u201cEast Island 64 or Robson Island.\u201d (Emphasis added). Also on a part of \u201cOld Island 64\u201d and west of the main channel of the river is shown a dead end appearing area designated as \u201cOld Chute,\u201d and east of \u201cEast Island 64 or Robson Island\u201d is designated a dead end appearing area labeled \u201cOld Bed Mississippi River.\u201d It would appear therefore, if the designations on this exhibit represent the result of an avulsion occuring in 1858, the river channel did not change to the original \u201cEast Island Chute\u201d as would have appeared logical, but it took a less logical course through the middle of Island 64 and did not bother to fill its original bed or the East Island Chute. According to this exhibit, on July 2, 1866, \u201cOld Island 64\u201d was attached to the state of Arkansas and \u201cEast Island 64 or Robson Island\u201d was attached to the state of Mississippi, with the exception of the dead end area designated as \u201cOld Bed Mississippi River.\u201d\nIt is also noted from the abstract of title, when William I. Robson transferred this land to Merlin Perry, three days after he purchased it, no reference is made to \u201cOld Island 64\u201d and \u201cEast Island 64 or Robson Island,\u201d but the land is simply described as:\n\u201cIsland 64, being all of Section 17 and all of Section 18 South of the dividing line between Jones and Halsey\u2019s heirs except Henry\u2019s interest, according to recent Survey 393.34 acres and 127.50 acres of Bottom in Township 5 South, Range 3 East.\u201d\nAccording to the abstract of title, in 1868 Sarah A. Perry deeded this land to Dewitt C. Hughey and John R. McGuire, under description as follows:\n\u201cThe NW frl. M of Section 17,\nSW frl Vi of Section 17,\nNE frl Vi of Section 17, et al lands, all in 5S-3E, containing about 400 acres all on Island No. 64.\u201d\nOther trust deeds of record through 1877 refer to the land as being 400 acres on Island 64. On February 8, 1879, Hughey and McGuire executed a deed to Prince Malloy describing the land as follows:\n\u201cNW Frl Vi Section 17, 152.72 acres;\nSW Frl Vi Section 17, 61.23 acres, all in 5S-3E et al land.\u201d\nExcept for forfeitures for nonpayment of state taxes and levee district assessments, no further reference is made to the acreage in the land until in 1926 when the state Land Commissioner of Arkansas made a deed to C. W. Hunter reciting conveyance of:\n\u201cAll Fractional Section 17, Twp 5S, Rge 3E, containing 302.13 acres, more or less.\u201d\nThis deed, however, was based on a 1904 forfeiture. In 1928 C. W. Hunter made a warranty deed to \u201cC. W. Hunter Company\u201d describing the land as:\n\u201cAll Frl Section 17, Twp 5S, R3E \u2014 302.13 acres, et al lands, Phillips County, Arkansas.\u201d\nNo additional transfers of this land appear of record until the 1967 deed from the state Land Commissioner to Doris B. Pannell.\nThis so-called Fontaine survey map with its designated \u201cMississippi River Cutthru 1858\u201d is the primary evidence upon which appellant relies to sustain his theory that the land involved was separated from the Arkansas mainland by avulsion in 1858. This instrument was vigorously attacked by the appellees who offered expert testimony that the paper on which the instrument was drawn contanined the element titanium which was not used in the manufacture of paper prior to 1932. The appellees also produced a handwriting expert who testified that the spencerian handwriting in which this instrument is drawn was accomplished, not in a bold freehand style, but by small separate strokes of the pen. It does not require an expert to detect the last above observation for it is obvious, even from the photographic copy in the abstract of title, that the flourishes to the handwritten letters were done in small short strokes of the pen. If it was the intention of the scrivener to pass the document off as the original of an ancient map or plat, his efforts were crudely performed and his purpose poorly accomplished.\nEven though the integrity of this instrument was severely impeached as an original map or plat prepared by Surveyor Fontaine in 1866, that does not necessarily mean it was fraudulently prepared and secretly inserted in the probate record books pertaining to the probate of the estate of Jehoida Halsey and where, theoretically, it had lain loose and without observation for over 100 years. It is entirely possible that this instrument was copied from one previously prepared and the scrivener doing the copy work attempted to simulate the spencerian style of penmanship used in the original and in doing so, simply had more time on his hands than fraud on his mind. Aside from the conflicting evidence as to how this instrument was found loose in one of the probate record books in Phillips County, there is no authenticity whatever attached to it as a surveyor\u2019s map or plat of the area indicated. There is ample evidence to indicate that this plat referred to as \u201cFontaine survey\u201d is at most, a freehand copy drawing of some other instrument which could have been as easily prepared for the purpose of demonstrating contentions as recording or demonstrating facts. This land was involved in court litigation on previous occasions and the instrument could have been prepared by a witness for use in testifying in previous and related litigation as well as in the case at bar. This instrument on its face would indicate that it was prepared for some purpose other than to accurately set out and record events in the vicinity in 1858, and certainly the notation \u201cMississippi River Cutthru 1858\u201d could have been self-serving as well as strictly hearsay.\nWe agree with the chancellor that the appellant failed to sustain his burden of proving the alleged effects of an avulsion on the Mississippi River occuring in 1858. In any event, we are unable to say that the chancellor\u2019s decree is against the preponderance of the evidence.\nThe decree is affirmed.\nFogleman, J., not participating.", "type": "majority", "author": "J. Fred Jones, Justice." } ], "attorneys": [ "Gerland P. Patten and Charles B. Roscopf, for appellant.", "Joe C. Barrett, Walter P. Armstrong, Jr., and .Randy W. Ishmael, for appellee." ], "corrections": "", "head_matter": "Fred PANNELL v. Cecil L. EARLS et al\n5-5638\n483 S.W. 2d 440\nOpinion delivered April 24, 1972\nGerland P. Patten and Charles B. Roscopf, for appellant.\nJoe C. Barrett, Walter P. Armstrong, Jr., and .Randy W. Ishmael, for appellee." }, "file_name": "0385-01", "first_page_order": 409, "last_page_order": 417 }