STOCKLEY v. CISSNA, 119 F. 812

BURTON, Circuit Judge, having made the foregoing statement of the case, delivered the opinion of the court. i. Jurisdiction of the court below: There was the requisite diversity of citizenship, and the jurisdiction of the circuit court was obvious, provided the locus in quo was within the boundaries of the state of Tennessee. When the territory now constituting the state of Tennessee was ceded by the state of North Carolina to the United States, the. center, of the main channel of the Mississippi river was the boundary separating North Carolina from the Spanish territory west of that river. Moss v.

Gibbs, 10 Heisk. 283; treaty of Paris, Sept. 3, 1782; 8 Stat. 81; act admitting Arkansas, June 15, 1836 (5 Sat. 50); Missouri v. Kentucky, 11 Wall. 395, 401, 20 L. Ed. 116. The sudden change in the channel made in 1876, by which the river abandoned its • long course around the bend known as the “Devil’s Elbow,” and cut a new, straight, and short channel across the neck of that bend, did not operate to change the boundary between Tennessee and Arkansas. The new channel was the result of a sudden and uncontrollable change in the direction of the main current of the stream.

In cutting the new channel, some 2,000 acres of cultivated river bottom land was washed away in the course of about 60 hours. Within that time a new channel, some 20 to 40 feet deep, in ordinary water, was permanently established; being the channel now know as “Centennial Cut-Off.” This channel shortened the distance around the bend some 15 miles. As another direct result, the old channel ol the river, so long the boundary between the two states of Tennessee and Arkansas, was completely deserted by the river, and in a short' time became dry land.

Thousands of acres of dry river bottom within the jurisdiction of Tennessee, as land lying on the east side of the main channel of the river, were by this sudden formation of this new channel placed upon the west side of the Mississippi river; and the inhabitants of nearly an entire civil district of Tipton county, one of the counties of Tennessee lying on the Mississippi river, found themselves living on the west, instead of the east, side of the great river.

But this sudden change in the channel of the river did not affect the title to the lands thus transferred from one side of the river to the other, nor did it alter the boundary between the states. The middle of the main channel which the river abandoned was the boundary before the formation of the cut-off channel, and that line in the dry and abandoned bed of the river remains- the line, unaffected by the new course of the river.

The doctrine is well settled that when lands border on navigable rivers, and the banks are changed by that gradual- and imperceptible process known as “accretion,” the boundaries of the riparian proprietor still remain the river, although as a consequence of such change in the shore line the area of his possession may change. A boundary on a river implies a boundary changing as the shore line changes by accretion or erosion, in the absence of definite intention to the contrary. Posey v. James, 7 Lea, 98; Mayor, etc., of Inhabitants of New Orleans v. U. S., 10 Pet. 662, 717, 9 L.

Ed. 573; Jones v, Soulard, 24 How. 41, 16 L. Ed. 604; Banks v. Ogden, 2 Wall. 57, 17 L. Ed. 818; Saulet v. Shepherd, 4 Wall. 502, 18 L. Ed. 442; St. Clair Co. v. Lovingston, 23 Wall. 46, 23 L. Ed. 59; Jefferies v. Land Co., 134 U. S. 178, 10 Sup. Ct. 518, 33 L. Ed. 872; City of St. Louis v. Rutz, 138 U. S. 226, 11 Sup. Ct. 337, 34 L. Ed. 941; Nebraska v. Iowa, 143 U. S. 359, 367, 12 Sup. Ct. 396, 36 L. Ed. 186. The rule applicable to private riparian titles is likewise applicable to the boundaries of nations situated upon opposite sides of a river. In Nebraska v.

Iowa, cited above, the rule as stated by Vattel was adopted and applied in a disputed boundary between two states. After stating that every estate bounded by a river enjoys the right of alluvion, Vattel applies the same law to sovereign states, saying: “As soon as it Is established that a river separates two territories, whether It remains common to the inhabitants on each of its banks, or whether each shares half of it, or whether, in short, it belongs entirely to one of them, their rights with respect to the river are noways changed by the alluvion.

If it happens, then, that by a natural effect of the current one of the two territories receives an increase, while the river gains by little and little on the opposite bank, the river remains the natural boundary of the two territories, and each preserves the same rights upon it notwithstanding it is gradually changing its bed; so that, for instance, if it be divided in the middle, between the persons on each bank, that middle, though it changes its place, will continue to be the line of separation between the two neighbors. The one loses, it is true, while the other gains, but nature alone produces this change.

It destroys the land of the one, while it forms fresh land for the other. This can be no otherwise determined, since they have taken the river alone for their limits.” Vatt. Law Nat. § 269. But if the change in the channel of the stream be not gradual and imperceptible, but sudden and violent, so that a new channel is suddenly cut when there had been none before, and the old channel deserted for the new, there is no change in the boundaries of states or nations bordering on the river. The boundary remains where it had been,—in the middle of the old abandoned main channel of the river. Vatt.

Law Nat. § 270; Nebraska v. Iowa, 143 U. S. 359, 367, 12 Sup. Ct. 396, 36 L. Ed. 186; Posey v. James, 7 Lea, 98; Moss v. Gibbs, 10 Heisk. 283. After fully reviewing the authorities, Mr. Justice Brewer, in Nebraska v.

Iowa, cited above, says: “The result of these authorities puts it beyond doubt that accretion on an ordinary river would leave the boundary between the two states the varying center of the channel, and that avulsion would establish a fixed boundary, to wit, the center of the abandoned channel.” The evidence in this case made it clear that, whatever may be said in respect to the formation of new land within the banks of the old channel, the new channel called “Centennial Cut-Off” was an avulsion.

This was the clear admission of both parties upon this question of fact before the court and jury below, and in consequence of which evidence was stopped; having no other purpose than to show the suddenness and violence of the change in the course of the river. As much as 2,000 acres was carried away in the course of about 60 hours, upon which stood farmhouses, stables, cotton gins, warehouses, etc.; and so rapid was the process of washing away the farms through which the river ran as to make it in some cases impossible to remove household effects rapidly enough to avoid the caving banks.

It is clear, whatever the

interpretation placed upon the ambiguous judgment relied upon to show that the defendant withdrew his plea to the jurisdiction, that the lands in dispute are on the eastern side of the middle line of the channel of the old river, and therefore within the boundary of the state of Tennessee, although now west of the present channel of the Mississippi river. 2. As to the small parcel of 131 acres: The questions upon which the plaintiff’s right to recover this tract depends are not precisely the same as those in respect to the other and larger parcel, though many of the questions are common to both.

There was evidence quite satisfactorily establishing the fact that this parcel, while owned by John Trigg, the second grantee in the line of title, was rapidly washed away by the sudden change of the course of the river in 1876, and that it has since been restored by accretion or some other process by which the submerged land has again emerged above the water. The plaintiff claims that this parcel, as plotted on the Humphrey map, was included.within the grant of 1824 to Simon Huddleston, and in the'deed of Huddleston to John Trigg of the 1,500 acres, forming the eastern end of the Huddleston grant.

Speaking of this 131-acre tract, the court below said: “Wholly on the bank as that was, and wholly above the low-water mark as it was in its original form, the plaintiff would be entitled to recover that 131 acres down to the low-water mark of 1876, when it was hid away by the flood of the cut-off of that year, if he had not failed to show title by deraignment,” etc. Plaintiff did deraign title down to John Trigg, who was in possession of the premises at the time of the flood of 1876. His trouble is to show how he has acquired the John Trigg title.

A paper purporting to be a copy of the will of John Trigg, giving the 1,500 acres of the Huddleston grant owned by him to his son W. W. Trigg, was put in evidence. This operated to put title in W. W. Trigg, if of any effect whatever. How did the title get out of W. W. Trigg? The plaintiff undertook to show this by two lines of proof: First. He put, in evidence a deed dated March, 1897, purporting to be made by certain persons describing themselves as being “all the heirs of W. W.

Trigg, deceased”; one of the grantors describing herself as his widow, while the others describe themselves as his “only surviving children.” This deed describes the property conveyed by the same description as that of the deed from Huddleston to Trigg. Second. He put in evidence a certified copy of a decree purporting to have been made by the chancery court for Shelby county, Tenn., entitled in a cause styled “T. A. Nelson, Ex., v. M. L.

Trigg, et al.,” devesting the title to certain portions remaining above water after the flood of 1876 of the Trigg 1,500-acre tract of land out of the parties to that suit, and vesting it in a partnership styled Sledge, McKay & Co. The boundaries of the tracts of land thus devested and vested have been heretofore set out. This decree was made December 4, 1879. The next link is a deed conveying the right and title of the grantors as heirs and executors of Norfleet R. Sledge, and as heirs of W. M. Sledge, in the land described in said decree, “in settlement of the partnership affairs of Sledge, McKay & Co.,” to A.

N. McKay, as the “surviving member of that firm.” This deed purports to have been made in 1883, and describes the land as bounded by the chancery decree before mentioned. This is followed by a conveyance made in 1888 to Thos. H. Allen, Jr., by certain persons who describe themselves as executors, devisees, and heirs at law of A. N. McKay. Thos. H. Allen and wife in the same year conveyed to the plaintiff.

The last two deeds described the land by metes and bounds, identical with those of the decree of 1879, and for the first time refer to accretions by adding to the description the words “and all accretions thereto.” There are a number of difficulties in the title as thus made out. If the will of John Trigg operated to vest the title in W. W. Trigg, which we may assume, it devolved upon the plaintiff to deraign title from W. W. Trigg. This he claims to have done by the production of a deed from persons who describe themselves as the heirs of W. W. Trigg. There was no evidence of either the death of W. W.

Trigg, or that the persons claiming to be his surviving children and heirs were in fact- his children or heirs. The deed is practically a quitclaim, as it warrants only against persons claiming finder the grantors. Being made in March, 1897, it is such a recent instrument as to carry with it no presumption in favor of the authenticity of the recitals as to heirship. That recitals in an ancient deed may be evidence as against persons who are not parties to the deed, and who do not claim under it, may be regarded as well settled. Carver v. Jackson, 4 Pet. 1, 7 L. Ed. 761; Crane v. Morris’ Lessee, 6 Pet. 598, 8 L.

Ed. 514; Deery v. Gray, 5 Wall. 795, 18 L. Ed. 653; Fulkerson v. Holmes, 117 U. S. 389, 6 Sup. Ct. 780, 29 L. Ed. 915; Hodge v. Palms, 68 Fed. 61, 15 C. C. A. 220. The fact necessary to be established in order to give effect to this deed is that the persons making it were in fact the children and heirs of W. W. Trigg. The fact was one of pedigree, and this is a fact which may, upon grounds of necessity, be established by hearsay evidence, contrary to the general rule excluding evidence of that character. Now, the makers of this deed recite therein that W. W.

Trigg is dead, and that they were his only children and heirs. Undoubtedly they were competent to prove these facts. But the plaintiff, instead of introducing them or other persons acquainted with the family, and proving their relation and the death of W. W. Trigg intestate, insists that the self-serving declaration of the grantors constitute evidence per se sufficient to make at least a prima facie case to go to the jury. We are not aware of any rule which attaches evidential value to recitals of this character in-deeds not ancient, unless supported by circumstances tending to establish. their authenticity.

In Carver v. Astor, 4 Pet. 1, 83, 7 L. Ed. 761, Justice Story, after speaking of the value of a recital in deeds between the parties or their privies as estoppels, said of such a recital: “It does not bind persons claiming by an adverse title, or persons claiming from the parties by a title anterior to the date of the reciting deed. Such is the general rule. But there are cases in which such a recital may be used as evidence against strangers.

If, for instance, there be the recital of a lease in a deed of release, and in a suit against a stranger the title under the release comes in question, this recital of a lease is not per se evidence of the existence of the lease.

But if the existence and loss of the lease be established by other evidence, there the recital is admissible as secondary proof, in the absence of more perfect evidence, to establish the contents of the lease; and if the transaction be an ancient one, and the possession has been long held under such release, and is not otherwise to be accounted for, there the recital will of itself, under such circumstances, materially fortify the presumption, from lapse of time and length of possession, of the original existence of the lease.

Leases, like other deeds and grants, may be presumed from long possession, which cannot otherwise be explained; and under such circumstances a recital of the fact, of such a lease in an old deed is certainly far stronger presumptive proof in favor of such possession under title than the naked presumption arising from a mere unexplained possession.” The rationale of the subject is that unless the recitals, in connection with other circumstances, are such as to raise a natural presumption of the truth of the facts recited, they are not evidence per se.

The more ancient the deed, the less the necessity for circumstances in support. Jackson v. Cooley, 8 Johns. 128, is supposed to justify the admission of very recent recitals as evidence per se. But in that case there was evidence bending to support the truth of the recitals of heirship contained in the deed, and these circumstances were held strong enough, with the recitals, to make a prima facie case for the plaintiff. The rule seems to clearly be that recitals in-a deed of recent origin that the makers are the heirs of a former owner, without circumstances in support, are not evidence against a stranger.

Jones v. Sherman, 56 Miss. 560; Costello v. Burke, 63 Iowa, 361, 19 N. W. 247; Potter v. Washburn, 13 Vt. 558, 37 Am. Dec. 615; Watson v. Gregg, 10 Watts, 289, 36 Am. Dec. 176; Mining Co. v. Irby, 40 Ga. 479. We do not find that the Tennessee supreme court has ever decided the question here presented. The cases cited from that state are for the most

part cases in which the effect of recitals as estoppels between parties and privies, or recitals against interest, or recitals by officials in statutory deeds, were involved. There is nothing in any of the cases in conflict with the rule we have stated, and the reasoning in Wilcox v. Blackwell, 99 Tenn. 352, 41 S. W. 1061, and Henderson v. Galloway, 8 Humph. 692, is in line with the authorities we have cited. In the case at bar there was no evidence that W. W. Trigg was dead, and none that the grantors in this deed were his children.

There was in fact no evidence that these grantors had ever been in possession of any part of the premises conveyed. The deed itself was a quitclaim,—a circumstance not tending to support the claim of title and heirship. There was therefore a chasm in the chain of title through W. W. Trigg. But plaintiff did no better in his effort to deraign title from John Trigg through the judicial sale under decree of the Shelby county chancery court. No part of the record was introduced, except the final decree vesting and devesting title.

The decree undertakes to devest title out of “the parties” to the cause, but does not recite who were parties. How are we to know that the heirs and devisees of John Trigg were parties?

There is not even a recital that they were, and there is no presumption that they were, arising under the vague and indefinite recitals of the decree put in evidence by the plaintiff.' There is no reason in such a case for indulging presumptions in favor of the jurisdiction of the court or the regularity of the proceedings, for there are no recitals in the decree from which we can even guess who were the parties over whom the court claimed to have jurisdiction. We need go no further, for, if the subsequent links were made out, these chasms were fatal to the effort to deraign title from John Trigg.

The plaintiff has failed to show that he has acquired the title of John Trigg, which appears to be the only legal title Jo either the lands on the bank of the river, or the new-made land included in the 131-acre parcel once submerged, but now restored. ■ Possessory title: But it has been very earnestly insisted that, if the plaintiff in error has failed to deraign title from John Trigg, he has nevertheless had such possession of the premises in dispute as to entitle him to recover in this action; and he has assigned it as error that the court did not instruct the jury that plaintiff had had such a continuous adverse possession under his deed from Thos.

J. Allen, Jr., as vested him with an indefeasible fee-simple title in the lands therein conveyed, including the accretions thereby conveyed. He has also assigned as error that the court did not submit to the jury, under proper instruction, the question as to whether plaintiff had shown an actual adverse possession for a period of seven years of any part of the land described in the conveyance of Allen to him. We have already called attention to the fact that the plaintiff Stockley’s deed from Thos. H. Allen, Jr., conveys two distinct parcels.

One is described as a tract of 33 acres and a fraction, and the other as a tract containing, by survey, 305 acres and a fraction. These tracts .are not connected, and the smaller one, with its accretions, is not he.re involved in any way.

The parcel of 131 acres, which is claimed as an accretion, is not included within the specific boundaries described, but is conveyed by Allen, if at all, by operation of the added words,’ “and all accretions thereto.” This 131-acre parcel is not an accretion to the 305-acre tract conveyed by Allen to Stockley, inasmuch as it is but a restoration of a part of the 1,500 acres conveyed by Huddleston to John Trigg, which was washed away as a first effect of the Centennial Cut-Off.

But if we regard the conveyance as operating to convey this tract of new-formed land under the description of “all accretions thereto,” we are then to inquire whether there was any such conclusive evidence of a continuous adverse possession for the full term of seven years by the plaintiff and those under whom he claims as would justify the court in withholding the question of title by possession from the jury, or, in the alternative, such a conflict of evidence tending to show such a continuous possession as would require the submission of the question to the jury.

There was evidence tending to show that plaintiff was in the actual possession of some part of the tract of 305 acres, and some evidence that he is also in the actual possession of some part of the accretion south of the 131-acre parcel, and south of what is called “Sandy Chute” on the Humphrey map, which accretion is not here involved. There is no ■ evidence that he has now or ever had any actual possession of any part of the 131-acre accretion, other than that constructive possession which results from his possession of other parts of the land included in the Allen deed.

We shall assume for the purposes of this case that the plaintiff’s possession of the 305-acre parcel'was a constructive possession of the 131-acre parcel although the two tracts may be claimed by different titles.

The contention upon this state of facts is that we must presume, and that it would have been the duty of the jury to presume if the case had been submitted to the jury, that this actual possession which is shown to have existed when the defendant entered began at the date of the deed from Allen, which was in January, 1888, and that thus the plaintiff has, through this presumption, shown an actual adverse possession for more than seven years under the deed of Allen, which at least was color of title under the Tennessee statute of limitations, and that by operation of such adverse possession he had at the commencement of this suit, in 1901, an indefeasible fee in all the lands so held by and under an instrument so purporting to convey the fee.

Mill. & V. Code Tenn. § 3459; Blantin v. Whitaker, 11 Humph. 313; Belote v. White, 2 Head, 705, 712; Bleidorn v. Mining Co., 89 Tenn. 167, 15 S. W. 737. There is no legal presumption that the plaintiff’s actual possession began at the date of his deed from Allen, and there is no evidence from which the jury could reasonably and legally infer that his actual possession began then, or at any other date far enough back to constitute an adverse actual possession for more than seven years before the defendant’s entry.

To sustain his claim that the law raises a presumption that the plaintiff took actual possession of the land conveyed to him by the deed of Allen, lie cites Lafferty v. Whitesides’ Lessee, I Swan, 123-128, and Fowler v. Nixon, 7 Heisk. 719, 727. These cases fall far short of sustaining any such contention.

A deed or lease may constitute part of the evidence of possession, as showing its extent as well as charterizing it, but there is no authority for the contention that an actual adverse possession such as will start the statute of limitations is presumed from the mere fact that the plaintiff at a particular date took a deed, grant, or lease to the land in question.

A title by seven years’ adverse possession under a deed purporting to convey the fee réquires an actual adverse occupation for the entire period of seven years, and no such evidence of a continuous adverse possession for that period by either the plaintiff or those under whom he claims was shown as to justify or require the submission of the case to the jury on that question.

But the plaintiff insists that, inasmuch as the plaintiff has shown a possession under color of title, which constructively extended to the 131-acre parcel as included‘within the Allen deed, and inasmuch as the defendant exhibited no paper title whatever, he is entitled to recover, as against the defendant, even though he has not shown a perfect legal title, by deraignment or otherwise. The defendant claims the premises in dispute as accessions or accretions to Dean’s Island, upon which he appears to be a riparian proprietor.

The land being new-made land, lying between occupants of opposite banks of the old channel of the river, each seems to have advanced claims based upon the law of accretion. True, the defendant has not shown a legal title to the old Arkansas bank. But he has taken actual possession of the res, and thus forced the plaintiff to all the hazards of an action of ejectment. The plaintiff has not chosen to resort to the Tennessee statutory action of unlawful entry. That is an action which tries only the immediate right of possession, and lies whenever there has been actual trespass, resulting in a tortious dispossession.

On the contrary he has brought a straight action of ejectment, which in Tennessee is something more than a mere possessory action, inasmuch as the judgment, contrary to common law, is conclusive upon the parties, saving to persons under disability another action within three years after the removal of the disability. Shannon’s Code Tenn. §§ 5000, 5001.

Whatever may be the right of a plaintiff iti other jurisdictions to recover in ejectment upon proof of mere possession at the time of the defendant’s entry, in Tennessee the rule is well settled that the plaintiff cannot recover in ejectment unless he shows a perfect legal title, either by deraignment from the state, or by evidence of actual occupation under deeds purporting to convey the title for the full term of seven years. Polk v. Henderson, 9 Yerg. 312; Kimbrough v. Benton, 3 Humph. 129; Campbell v. Campbell, 3 Head, 325; Walker v. Fox, 85 Tenn. 154, 2 S. W. 98; Evans v. Land Co., 92 Tenn. 355, 21 S.

W. 670; Hubbard v. Godfrey, 100 Tenn. 150, 156, 161, 47 S. W. 81; Stinson’s Lessee v. Russell, 2 Tenn. 40. The precise question here involved received a full and elaborate reconsideration by Associate Justice McAlister in Hubbard v. Godfrey cited above.

A judgment of. the chancery court of appeals holding that the complainants might recover, although they had failed to show a complete legal title or seven years’ adverse possession, because the defendant had shown no title in himself and was a trespasser, was reversed, and the rule restated and fortified by a consideration of a long line of Tennessee decisions, constituting a well-settled part of the land law of the state.

There was in the suit now under examination no evidence of such long and continuous possession under deeds purporting to convey the disputed premises by the plaintiff and those under whom he claims as to justify the submission of the case to the jury upon the question of a title by adverse possession. A possession for less than seven years, continuous and adverse, would not confer a title upon which ejectment may be maintained. The question is plainly one of local law, and we are constrained to follow the Tennessee rule in respect to the title necessary to maintain ejectment. The case of Sabariego v.

Maverick, 124 U. S. 261, 296, et seq., 8 Sup. Ct. 461, 31 L. Ed. 430, is therefore not controlling. The Plaintiff''s Title to La/nds on Island 37. 3. Before the plaintiff can recover the new-formed land on the margin •of the solid land composing Island 37, he must be able to establish his ownership of the bank against which the accretion has formed. Until he does this, he has no shadow of claim as a riparian proprietor. The right to accretion depends upon the contiguity of the claimant’s estate to the river. Bates v. Railroad Co., 1 Black, 204,17 L. Ed. 158; Saulet v. Shepherd, 4 Wall. 502, 18 L.

Ed. 442; Association v. Shriver, 64 N. J. Law, 550, 46 Atl. 690, 51 L. R. A. 425. Accretion is an addition to riparian land made by the water to which the land is contiguous. Posey v. James, 7 Lea, 98; St. Clair Co. v. Lovingston, 23 Wall. 46, 23 L. Ed. 59. In Tennessee it is well settled that a riparian proprietor of land upon a navigable stream owns only to ordinary low water mark. If the stream be nonnavigable, and his title call for the stream as a boundary, his title extends to the center of the stream.

The title to the lands constituting the bed of a navigable stream, in the legal sense, is in the state, which it holds for the benefit of the public. Holbert v. Edens, 5 Lea, 204, 208, 40 Am. Rep. 26; Elder v. Burrus, 6 Humph. 358; Martin v. Nance, 3 Head, 649; Goodwin v. Thompson, 15 Rea, 209, 54 Am. Rep. 410. Conceding for the purposes of this case that the plaintiff has shown a title from the state or by adverse possession to the lands conveyed by the deed of April 18, 1898, from W. J.

Caesar to him, it by no means follows that he has shown either himself or those under whom he claims to have been riparian proprietors. Plaintiff’s chain of title goes back to Robt. I. Chester, who in 1869 conveyed the lands now in question to Mrs. Martha P. Smith. While Chester’s southern boundary was that branch of the Mississippi river called “McKenzie’s Chute,” yet his eastern line was the western line of a tract of 152 acres granted to John Trigg, and this Trigg tract lay between Chester’s eastern line and the bank of the main channel of the Mississippi river. Mrs.

Smith, Chester’s vendee, was the owner when the Centennial Cut-Off occurred, and in 1889' we find her conveying the same land conveyed to her by Robt. I.

Chester to a grantee in the plaintiff’s chain of title, in which she conveys the land by the identical calls of the Chester deed, but adding these significant words: “It is hereby understood and agreed that at the present time the Mississippi river has changed its course and does not now touch any of the above-described lands, and that where said river is named as a boundary line it is understood to mean where said river once ran, which course or bed is now dry and known as ‘McKenzie’s Chute’; and it is further understood and agreed that this conveyance carries with it all accretions now formed or added to said above-described lands.” The metes and bounds of Chester’s deed and of all the intermediate conveyances are identical with those in Caesar's deed to the plaintiff, already set out in the statement of the case.

There was evidence tending to show that prior to the great flood of 1876 the greater part of this John Trigg tract of 152 acres had been washed away. When this occurred does not appear in any such conclusive way as to justify a refusal to let the question go to the jury, if a matter of any importance to the solution of the case. So there was like evidence as to the washing away of another small tract of 37 acres granted to John Trigg, lying south of Trigg’s 152-acre grant, and east of the southern part of the tract conveyed by Chester to Mrs. Smith. Both these Trigg tracts have been platted upon the Humphrey map.

The evidence tended to show, also, that McKenzie’s Chute had encroached greatly upon the lands bordering upon its northern bank prior to 1876. By the partial washing away of the Trigg 152-acre tract, the southeastern corner of Mrs. Martha P. Smith’s tract was partially washed away at some time prior to 1876,— date not shown. The plaintiff has in no way deraigned title from John Trigg to either of his small grants lying between the lands granted to his predecessors in title and the main branch of the river east of his eastern line.

From all that appears, the title to these parcels which interpose between him and the old bank of the river as it existed when the Trigg grants were issued is outstanding in Trigg’s heirs. The deeds under which plaintiff claims call for the western line of the John Trigg 152-acre grant as plaintiff’s eastern line.

If the land lying east of Trigg’s western line is to be regarded as included within the boundaries of the deed under which plaintiff holds, it is because it is included by the added words of description “This conveyance carries with it all accretions now formed or added'to said above described lands.” It is plain that these Trigg lands are not accretions to- the lands described by metes and bounds, but restorations of the submerged John Trigg lands.

But if we regard these words as mere words of description, and operative as a conveyance of the two Trigg parcels, it will, at most, make the deed mere color of title; for neither Caesar, nor any of his predecessors in title, had acquired the John Trigg title. Nor is there any evidence of any actual possession of any part of the lands included within either of the two grants to John Trigg lying east of the land conveyed by Chester to Mrs. Smith. Possession wholly within the limits of the grant to Potter, or the deed of Chester to Mrs.

Smith, would not be a possession operating to set the statute of limitations in motion as against the heirs or assigns of John Trigg, as owner of the 152-acre and '37-acra parcels. To defeat the outstanding Trigg title, the plaintiff would have to show an adverse possession for the full term of seven years within the boundaries of both these grants. Possession of some part of the John Trigg grant is necessary to oust Trigg or his heirs or assigns, and, until an actual possession of some part of those small grants is shown, there is not shown any such adverse possession ás would toll the Trigg title. Smith v.

McCall’s Heirs, 2 Humph. 163; Stewart v. Harris, 9 Humph. 715; Tilghman v. Baird, 2 Sneed, 196; Boles v. Smith, 1 Tenn. Cas. 149; Mining Co. v. Heck, 15 Lea, 497. The law gives the constructive possession to the legal title, and this constructive possession was not disturbed by a possession not within the boundaries of the grants to Trigg, although within the boundaries of a conflicting title which included the Trigg lands. As a consequence of the changed course of the river in 1876, these submerged Trigg lands have been restored, through accretion or some other process, and are now dry land.

It cannot be pretended that, because the surface of these two bodies of Trigg land was-washed off, Trigg lost his title to the land so submerged, beyond recovery. The law is otherwise. .Land lost by erosion or submergence is regained to the original owner of the fee when by reliction or accretion the water disappears and the land emerges. . It is said in Sir Matthew Hale’s De Jure Maris, republished in 16 Am.

Rep.: “If a subject hath land adjoining tbe sea, and tbe violence of tbe sea swallow it up, but so that yet there be reasonable marks to continue tbe notice of it, or tbougb tbe marks be defaced, yet, if it, by situation and extent of quantity and bounding on tbe firm land, tbe samé can be known, though the sea leave this land again, or it be by art or industry, the subject does not so lose bis property, and accordingly it was held by Cooke and Foster, M. 7 Jac. C.

B., though the inundation continue forty years.” “But if it be freely left again by the reflex and recess of the sea, the owner may have his land as before, if he can make it out where and what it was, for he can not lose his propriety of the soil, though it for a time became part of the sea.” In Mulry v. Norton, 100 N. Y. 426, 3 N. E. 581, 53 Am. Rep. 206, a beach was washed away, and afterwards restored. The original owner was held to have regained his own.

In that case the court said: “It is not, however, every disappearance of land by erosion or submergence that destroys the title of the true owner, or enables another to acquire it, for the erosion must be accompanied by a transportation of the land beyond, the owner’s boundary to effect that result, or the submergence followed by such a lapse of time as will preclude the identity of the property from being established upon its reliction. Land lost by submergence may be regained by reliction, and its disappearance by erosion may be returned by accretion, upoD which the ownership temporarily lost will be regained.

When portions of the main land have been gradually encroached upon by the ocean, so that navigable channels have been extended thereover, the people, by virtue of their sovereignty over public highways, undoubtedly succeed to the control of such channels, and the ownership of the land under them, in case of its permanent acquisition by the sea.

It is equally true, however, that when the water disappears from the land, either by its gradual retirement therefrom, or the elevation of the land by avulsion or accretion, or even the exclusion of the water by artificial means, its proprietorship returns to the original riparian owners. Ang. Tide Waters, 76, 77; Houck, Kiv. p. 258. Neither does the lapse of time during which the submergence continues bar the right of such owner to enter upon the land reclaimed, and assert his proprietorship. Ang. Tide Waters, 77-80, and cases cited.” In City of St. Louis v. Rutz, 138 U. S. 226, 246,11 Sup. Ct. 337, 34 L.

Ed. 941, a question of title to land formed by accretion to the bank of the Mississippi river arose. The plaintiff’s land on the eastern shore had been washed away and restored.

The court said: “When land was formed again on the place where the plaintiff’s land had been washed away, it became the property of the plaintiff, and, although the land thus newly formed, extended a short distance into the old bed of the river beyond the former shore line, such additional formation belonged to the plaintiff as a deposit on that part of the bed of the river which was owned by him in fee, and not to the state of Illinois or to any third party.

Otherwise the plaintiff would be cut off, without his fault, from the river front and from his riparian rights.” The locality of the Trigg lands is not a matter of dispute. It is therefore a matter of no importance how long they have been submerged. The heirs of John Trigg, or those to whom he conveyed same, are the beneficiaries of the restoration. Accretions east of the Trigg lands must be accretions to Trigg’s title as a riparian proprietor, for he did not lose this benefit because for a time his own lands were submerged or wasted by erosion.

The new land forming where his land had been inured to him by virtue of his title to the bed upon which the accretion was deposited. But if the accretion extended beyond his original shore line, it became an addition to his firm land by the slow and imperceptible movement of his boundary calling for the river. 4. Accretions to the 131-acre parcel: Accretions are apportionable •among riparian proprietors according to the lateral lines of the firm, land possessed by them. 3 Washb. Real Estate, 58; Gould, Waters, §§ 162-165; Inhabitants of Deerfield v. Arms, 17 Pick. 43, 28 Am. Dec. 276; Mulry v. Norton, 100 N.

Y. 426, 3 N. E. 581, 53 Am. Rep. 206; City of St. Louis v. Rutz, 138 U. S. 226, 250, 11 Sup. Ct. 337, 34 L. Ed. 941. The plaintiff’s right to accretions accruing to the 131-acre tract heretofore considered plainly depends upon establishment of 'his title to that parcel. This he has failed to do. Consequently he has failed to show any right to recover the accretions between its side lines extended. 5. The grant to plaintiff of 1901: This grant issued in 1901, and •after this action had been brought. It was based upon an entry made in April, 1901, just before the action was begun.

The grant relates back to the entry, and it is no objection that the grant did not issue prior to the suit, provided the action was after the entry. Bleidorn v. Mining Co., 89 Tenn. 175, 15 S. W. 737; Wood v. Elledge, 11 Heisk. 612. The grant covers the land lying between the middle of the old channel of the river as the river ran before the Centennial Cut-Off and the bank of the river, not as it was in 1823 and 1824, but as plaintiff claims the bank to have been in 1876, just prior to that cut-off, and for an indefinite time prior thereto.

It consequently includes the lands covered by the two older grants to John Trigg, ■containing, respectively, 152 and 37 acres. It does not include the 131-acre tract on Centennial Island, but bounds on that parcel. The claim of plaintiff now is that if he has not the title to the new-made land described in his declaration, as a riparian proprietor, the title was in the state of Tennessee, and has been granted regularly and lawfully to him.

Under the well-settled law of Tennessee, the soil below low-water mark of the navigable rivers of that state, as well as the use of the stream for purposes of navigation, belongs to the, public, and the title is vested in the state for the use of the public. Goodwin v. Thompson, 15 Lea, 209, 54 Am. Rep. 410; Elder v. Burrus, 6 Humph. 358; Martin v. Nance, 3 Head, 649; Stuart v. Clark’s Lessee, 2 Swan, 10, 58 Am. Dec. 49; Posey v. James, 7 Lea, 98.

Under this rule of property, applicable in this case, the title of John Trigg extended only to low-water mark, and the title to the submerged land under the water and below low-water mark remained in the state for the use of the public. The land previously granted to Trigg, having been regained by accretion or otherwise,—having again become dry land,—was land regained, and was not subject to grant,- as the state had parted with its title. Curle v. Barrel, 2 Sneed, 66.

Plaintiff’s grant is thérefore void as to the land previously granted to John Trigg on the bank of Island 37, and can by no reasonable suggestion be valid for any land except that which lays between low-water mark of 1824 and the middle of the old channel of the river. This strip between the two lines mentioned was, prior to the flood of 1876, submerged land, and constituted the bed of the main channel of the Mississippi river.

Although the titles of owners of land bounded by the Mississippi river extended only to low-water mark, under the well-settled law of Tennessee, yet, as we have already seen, low-water mark is an indeterminate and movable line; and if, by imperceptible additions made by the river to the shore, the area of firm land is insensibly extended, such additions are nevertheless included within the boundary of the grant or deed calling for the river as one of its boundaries. City of New Orleans v. U. S., 6 Pet. 662, 717, 9 L. Ed. 573; Jefferies v. Land Co., 134 U. S. 178, 188, 10 Sup. Ct. 518, 33 L. Ed. 872; Nebraska v.

Iowa, 143 U. S. 359, 361, 12 Sup. Ct. 396, 36 L. Ed. 186. In Jefferies v.

Land Co., cited above, the rule was thus stated: “Where a water line is the boundary of a given lot, that line, no matter how it shifts, remains the boundary; and a deed describing the lot by number or name conveys the land up to such shifting water line, exactly as it does up to the fixed side lines; so that, as long as the doctrine of accretion applies, the water line, no matter how much it may shift, if named as the boundary, continues to be the boundary, and a deed of the lot carries all the land up to the water line.” This is also the law in Tennessee, and was applied in respect to.accretions annexed to land bounded by low-water mark on the Mississippi river.

Posey v. James, 7 Lea, 98. The question as to whether the title of a riparian proprietor extends only to high-water or low-water mark, or to the center of the stream, is a question to be settled by the local law, as a rule of property. Barney v. Keokuk, 91 U. S. 324, 328, 24 L. Ed. 224; City of St. Louis v. Rutz, 138 U. S. 226, 242, 11 Sup. Ct. 337, 34 L. Ed. 941.

It must follow from these principles that if the plaintiff’s contention that the lands included in his grant, and lying between' low-water mark and the center of the river as it ran prior to 1876, is an accretion made against the bank of the river on Island 37 and Centennial Island, such accretion would constitute, when formed; an addition to the riparian titles, against which it has been built up, and within the boundaries of the grants to. John Trigg on Island 37 and the grant to' Huddleston on what is now called “Centennial Island.” If this is the case, the state had no title to grant, fory as in Posey v.

James, already cited, the accretions constituted an addition to the earlier grants calling for the river as a boundary. But it is also a well-settled rule of law that, if a river should suddenly change its course and abandon its original channel, the boundary line of lands bordering on the stream, and extending only to low-water mark, remain as they were before the desertion of the original channel. City of St. Louis v. Rutz, 138 U. S. 226, 245, 11 Sup. Ct. 337, 34 L. Ed. 941; Nebraska v. Iowa, 143 U. S. 359, 12 Sup. Ct. 396, 36 L. Ed. 186.

In the case last cited, the court, after stating the effect of an insensible growth by accretion to be that the owner of the shore to which the gradual addition is made shall still hold the added soil by the same boundary, said: “It is equally well settled tliat where a stream, wiiictL is a boundary, from any cause suddenly abandons its old and seeks a new bed, sueb change of channel works no change of boundary, and that the boundary remains as it was, in the center of the old channel, although no water may be flowing therein. This sudden and rapid change of channel is termed, in the law, avulsion.

In Gould, Waters, § 159, it is said: ‘But if the change is violent and visible, and arises from a known cause, such as a freshet, or a cut through which a new channel is formed, the original thread of the stream continues to mark the limits of the two estates.’ Murry v. Sermon, 8 N. C. 56; Hagan v. Campbell, 8 Port. 9, 33 Am. Dec. 267; Academy v. Dickinson, 9 Cush. 544; Ang. Water Courses, §§ 57-59; Warren v. Chambers, 25 Ark. 120, 91 Am. Dec. 538, 4 Am. Rep. 23; 2 Bl.

Comm.l side page 262; Gould, Waters, §§ 158, 159.” If, then, the fact was that the bed of the old stream was suddenly deserted, so as to constitute a case of reliction, rather’ than the formation, of land by the slow processes of accretion, the riparian owners would not profit, for the title to the land so suddenly become dry by the stream deserting its old bed would continue in the state, in such jurisdictions as hold that the title to the submerged beds of navigable streams is in the state in trust for the public.

In the latter event the learned trial court' expressed the opinion that, under the Tennessee law providing for the granting and entering of the vacant lands belonging to the state, this deserted river bed was not open for entry and grant, and that the grant of November 26, 1901, to the plaintiff by the state, was invalid. The law under which the grant in question issued is

chapter 20 of the act of 1847 (Whitney’s Tennessee Land Laws, 303). The question as to whether the law of the state providing for the granting of “vacant lands” applies to the bed of a great navigable river, suddenly exposed by a change in the course of the river, depends upon whether such new-made dry land resulting from recession is “vacant land,” within the meaning and policy of the land law of the state. In Goodwin v. Thompson, 15 Lea, 209, 54 Am.

Rep. 410, it was held that the title to the soil under the waters of streams navigable in a legal sense could not be acquired by individuals under the general land laws of the state, and a grant which expressly covered the bed of the French Broad river was held void. The opinion of the court was by Associate Justice Cooper,—a very able and discriminating judge,—and is founded upon a consideration of the policy of the state.

In conclusion, the learned judge said: “We think 'that the public use of our navigable rivers imperatively requires that the soil under the water should be in the state in trust for the public, that the title to the soil under such streams was not intended to be secured by individuals under our general land laws, and that any person setting up a claim thereto must be able to show an express legislative grant.” The case, in its general meaning, is in accord with Morris v. U. S., 174 U. S. 196, 19 Sup. Ct. 649, 43 L. Ed. 946, and State v. Pacific Guano Co., 26 S. C. 50.

But it is said that, even if the sale and disposition of the soil below low-water mark on the navigable rivers of the state was not contemplated by

chapter 20 of the Tennessee act of 1847, if at the time the grant to plaintiff was issued the waters had so far withdrawn from the old bed of the river as to permit occupancy and cultivation they were thereby brought within the scope and meaning of the law providing for the sale of the ordinary vacant lands belonging to the state. To support this proposition, plaintiff’s attorneys cite Tatum v. Sawyer, 9 N. C. 226; Hatfield v. Grimstead, 29 N. C. 139; and Allegheny City v. Reed, 24 Pa. 39. Tatum v. Sawyer involved a grant to a salt marsh, made in 1819.

The contention was that the grant was void because it was not land, within the meaning of the North Carolina act of 1717, providing for the granting of the vacant lands of the state. It was shown “that the whole marsh on which the plaintiff’s grant lies has formed gradually since the year 1802, up to which time it was a sandy beach, always covered at flood tide and dry at ebb.” In the court below it was, among other things, insisted that the premises were not subject to the entry laws, “as it was not land when the act of 1717 regulating entries was enacted.” The trial judge held the grant valid.

The supreme court affirmed the case, saying upon this point only this: “Lands covered by navigable waters are not subject to entry under the entry law of 1777. It is the legitimate object of a particular description in a grant to designate witb more certainty and precision what the parties suppose to be vague and ambiguous in the general one; and therefore, where-ever the particular description restrains the general one to natural boundaries, upon those boundaries being shown, the general description is. confined to them.” In Hatfield v.

Grimstead the grant covered a shallow salt marsh or shoal. “These shoals,” said the court, “were not fit for any purpose, save that of hunting grounds for wild fowls that resort there in large numbers to feed on the water grass and moss.” The court held that it was subject to entry at the common law, because there was' no regular ebb and flow of the tide in Currituck Sound since the closing of the inlet, and that the provisions of the entry acts of the state directing how lands should be surveyed, or navigable waters which might have forbidden such an entry, were not in force at the date of the entry in question, and that “while those provisions were dormant the common law was alone in force.” Allegheny City v.

Reed, cited above, turned alone upon the provisions of the Pennsylvania statutes describing the character of islands which were subject to entry; the. court holding that the character of the island sought to be entered was to be ascertained at the time of the entry, and that, if the conditions prescribed then existed, the island was subject to entry. ■ The question of whether subject to entry or not was by the statute made to turn upon whether the island had a soil subject to cultivation.

None of these cases deal with the case of a sudden and extraordinary recession of the waters of a navigable stream, exposing the bed of the river as a consequence of the adoption of a new channel, which is the case now under consideration.

The well-settled law, as declared by the supreme court of the United States, is that the ownership of and dominion over lands covered by the navigable rivers and lakes of the United States within the limits of the several states belong to the several states within which they are found, and that if a state, having such title and dominion, see fit to dispose of the title to private persons, it may do so, subject only to the paramount interest of the public in such waters, and of congress to control their navigation. Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018; Morris v. U.

S., 174 U. S. 196, 236, 19 Sup. Ct. 649, 43 L. Ed. 946; Scranton v. Wheeler, 6 C. C. A. 585, 57 Fed. 803.

Nevertheless it is now settled that, although' congress has the power to grant lands below high-water mark of any navigable river within the limits of any territory of the United States, the policy of the United States has been not to do so, and that the general laws should not be construed as extending any grant below high-water mark, in the absence of an affirmative statute, and that grants by the United States of public lands within a territory, though' bordering on a river or lake, convey, of their own force, no title or right below high-water mark. Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L.

Ed. 331. In Manns v. Land Co., 153 U. S. 273, 14 Sup. Ct. 820, 38 L. Ed. 714, it was held that land scrip issued by the United States, to be located on any unoccupied and unappropriated lands, could not be located on lands covered and uncovered by the ebb and flow of the tide. In the same case it was held that the words “public lands,” in the general legislation touching the disposition of vacant lands, should not be construed as applicable to such tidewater lands. Morris v. U. S., 174 U. S. 196, 19 Sup. Ct. 649, 43 L. Ed. 946, is a case much more clearly in point than any to which our attention has been called.

The locus in quo there involved was a part of the raised lands known as the “Reclaimed Flats,” lying along the bank of the Potomac river in front .of the city of Washington. The land at the time of the cession of the District of Columbia to the United States was a part of the bed of the Potomac river.

The title to the submerged lands constituting the bed of the river .was, under the royal .charter and laws of Maryland, in the state of Maryland at the date of the cession; and this title passed to the United States at the time of cession, as well as the Maryland title to all other vacant domain of the state within the ceded district.

The acts of the state of Maryland for securing titles to vacant lands were continued in force by a resolution of the congress passed in 1839, and the secretary of the treasury, through the general land office, was required to execute them by issuing warrants and receiving pay for same according to the law of Maryland, and to complete the sale of such vacant lands under the law of Maryland in force at date of cession by issuance of patents in usual form of such patents.

In 1869 one Kidwell procured a patent under this resolution for a tract of 57 acres .lying in the Potomac river, and known as “Kidwell’s Meadows.” The contention of the United States was that this patent issued without authority of law, and was null and void. This claim was mainly rested upon the proposition that the land covered by the patent was exempted from the operation of the resolution of 1839, because the land was at the time of cession and at date of said resolution subject to overflow by the tides.

In reference to this the court held: First, that the resolution of congress should be construed as applying only to such vacant lands, “for securing title to which the laws of Maryland which were in force in 1801 had made provision,” but which were inoperative after the cession for want of appropriate officers and authority within the District for their execution; second, that by the terms of description in the Maryland acts these laws were intended to apply to lands susceptible of some cultivation, and that they did not contemplate a disposition of any lands covered by tide water, the natural and primary use of which was public in its nature, for highways of navigation and commerce.

It was claimed, however, that, the waters having receded from the meadows in question, the reasons for exemption from the operation of the resolution of congress had ceased. To this the court replied, saying; “It cannot, we think, be successfully claimed that even if, in 1839, the lands embraced within the Kidwell patent were exempted from the jurisdiction of the land office, yet they were brought within that jurisdiction by the fact that the waters had so far receded in 1869 as to permit some sort of possession and occupancy.

Not having been within the meaning of the resolution of 1839, they would not be brought within it by a subsequent change of physical condition, but a further declaration by congress of a desire to open them to private ownership would be necessary. Besides, the facts of the case show that congress is asserting title and dominion over these lands for public purposes.

Whether congress should exercise its power over these reserved lands by dredging, and thus restoring navigation and fishery, or by reclaiming them from the waters for wharfing purposes, or to convert them into public parks, or by subjecting them to sale, could only be determined by congress, and not by the functionaries of the land office.

If, then, there was an entire want of authority in the land office to grant these lands held for public purposes, a patent so inadvertently issued, under a mistaken notion of the law, “would plainly be void, and afford no defense to those claiming under it as against the demands of the government.” The locus in quo presents circumstances of a character quite as unusual as any which appeared in the case of Morris v. U. S. The lands included in the grant were at the time of the enactment of the law under which the grant was issued plainly and clearly not within the terms of the law.

They were not unoccupied “vacant lands,” within the meaning of the Tennessee act, as determined by the highest court of that state. They have since become dry land, capable of occupation by a most extraordinary natural phenomenon,—the sudden abandonment by a great river of its natural channel for a new and shorter one. The situation is one which could not have been reasonably contemplated by the lawmaker, when providing for the ordinary vacant lands belonging to the public domain.

The lands in question were not at the date of the act of 1847 within the meaning and purview of the makers of the law, because it was the policy, and purpose of the state to reserve for the public use the beds of such navigable rivers. Who shall say that, because by a sudden recession of -the waters, the lands thus exposed are no longer to be reserved for public purposes ? Non constat but that the river may be turned back, by congress or the state, into its old channel, or the old channel dredged so that it will continue to be a highway of commerce.

Is the state to be prohibited from converting such a body of land into a highway or public park? Not having been within the meaning of the Tennessee acts which provided for the disposition of the unoccupied and ungranted land of the state at the time these acts were passed, the locus in quo had not been brought within the terms of these acts by the subsequent extraordinary physical change which has occurred. The dry river bed is public property, held by the state for public purposes, but some further legislation by the state is necessary before such a property will become open to private ownership.

There was no such state of evidence as would justify the court in instructing the jury that the premises included in the grant below low-water mark of 1824 was an addition by accretion to the lands granted prior thereto and bounded by the river, or that the change which had occurred had been so sudden as not to be regarded as an accretion. But in either case the grant was ineffectual to give title to the plaintiff. There was therefore no error in an, instruction to find against the plaintiff. Judgment is accordingly affirmed.