Collins v. State

3 Tex. Ct. App. 323

• Court: Court of Appeals of Texas
• Decided: July 1, 1877
• Status: Published

Opinion

Ector, P. J.

The defendant, Tyler Collins, was tried and convicted by the County-Court of Bowie County for malicious mischief, and his punishment assessed at $300. The information charges that the defendant, on May 1, 1875, in the county of Bowie, did willfully kill a certain bay mare, the property of one W. A. Shaw, with the intent to injure the owner, and that by said killing the said W. A. Shaw was damaged $100.

There is no proof of venue as charged in the information. The evidence not only fails to show that the offense was committed in Bowie County, but does show that the mare was killed in the Choctaw Nation. The evidence shows that a bay mare belonging to W. A. Shaw was killed about the time mentioned in the indictment.

Sidney Hughes, the first witness introduced by the state, testified that the defendant said, “ Mr. Shaw killed a hog of mine, and I took my gun and killed two of his best mares.” The defendant did not say where he killed them.

The proof shows that a bay mare, the property of W. A. Shaw, was found dead in the spring of 1875. She had been shot just behind the shoulder-blade, and, from the appearances on the ground, seemed to have dropped dead instantly. She was lying four feet from the top of the bank of the old river, in the cut-off known as that portion of the Choctaw Nation which was cut off by a change of the channel of Red River. There are about 150 acres of land in the cut-off. There is nothing now but a lake where the old river used to run. The trees in the old river-bed had. grown up to be large saplings. The old river was originally the boundary between Bowie County, Texas, and the Choctaw Nation.

This whole case depends upon the present boundary-line of Bowie County, or as to whether the place where the mare was killed is in Bowie County or in the Choctaw Nation.

If the course of a river is suddenly changed, the relicted soil remains according to the former bounds. When a deed calls for a line along the bank of a river, and after the date of the deed the bank of the river is changed by excessive floods or high water producing violent or visible alterations, the boundary-line will not shift according to the changes of the river, but will be where the bank was at the time of the date of the deed. But, if a river by degrees gains upon the land of a person on one side, and thereby leaves the other dry, the owner who loses his ground has no remedy. Ang. on Watercourses, 52, sec. 57; 2 Bla. Com. 362.

In the case of Holbrook v. Moore, 4 Neb. 437, the court holds that a change in the main channel of the Missouri Biver does not alter the boundary-line between Iowa and Nebraska as established by Congress. It remains as before, in the old abandoned river-bed. The land lying in the “ cut-off” between the old river and the new channel, as testified to by the witnesses in this case, is in the Choctaw Nation, and the old river-bed is the boundary-line between Texas and the Choctaw Nation at that point.

The judgment of the County Court is reversed and the cause dismissed.

Reversed and dismissed.