Crum v. James

379 S.W.3d 71, 2010 Ark. App. 531, 2010 Ark. App. LEXIS 546
CourtCourt of Appeals of Arkansas
DecidedJune 23, 2010
DocketNo. CA 09-1203
StatusPublished
Cited by6 cases

This text of 379 S.W.3d 71 (Crum v. James) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crum v. James, 379 S.W.3d 71, 2010 Ark. App. 531, 2010 Ark. App. LEXIS 546 (Ark. Ct. App. 2010).

Opinion

COURTNEY HUDSON HENRY, Judge.

| ,The Arkansas County Circuit Court established appellant John Crum’s boundaries along two sections of Crooked Creek in Arkansas County and declared that his neighbors, appellees James -and Patricia Craig, made reasonable use of the creek water. For reversal, appellant contends that the court’s decisions were clearly erroneous. We agree with appellant as to one of the boundary lines and reverse and remand on that point. We affirm the remainder of the circuit court’s order.

I. Background facts

Crooked Creek is a large, non-navigable stream that cuts a winding course through the farm land of Arkansas County. As it nears the property owned by appellant and appellees in Township 3 South, Range 6 West, the creek moves southward through the eastern part of section 28 until it approaches section 33 to the south. It then makes a sharp turn to the northwest, flows across the western line |2of section 28, loops southward, and curves back into section 33, forming a horseshoe. At that point, the creek continues northeasterly across section 33, crosses back into the southeastern part of section 28 and moves to the east. Farther south in section 33 is another winding stream, the Bayou Meto.

On July 11, 1953, the estate of Paulina Crum conveyed separate tracts of property in section 33 to Nelson Crum and A.J. Crum. Nelson received 203 acres bounded on the south by the center line of Bayou Meto and on the north by the “south high bank of Crooked Creek.” A.J.’s land encompassed sixty acres lying “north and west of the South high bank of Crooked Creek.” The conveyance to A.J., combined with his preexisting ownership of property to the north in section 28, gave him control of the northern and southern prongs of Crooked Creek’s horseshoe. In 1954, he placed earthen dams across both prongs, creating a horseshoe lake to the west called Glenwood Lake. The lake served as a source of water for irrigation, and the record shows no objection by Nelson to the dams. At the same time that A.J. built the dams, he constructed a forty-foot-wide cut-through from the northern prong to the southern prong, just east of both dams, which allowed the creek to bypass the dams and continue its flow toward the south and east.

Through a series of conveyances between the 1960s and the 1990s, appellant and appellees succeeded Nelson and A.J. as the owners of property in sections 33 and 28. In essence, appellant obtained the land between Bayou Meto on the south and the south high |sbank of Crooked Creek on the north in section 33 and the land east of the cut-off in section 28. Ap-pellees acquired the creek and the lake in section 33 and the land west of the cutoffs east bank in section 28. Appellees’ property included the dams on both prongs of the creek.

The present controversy began in 2006 when appellant cut through appellees’ southern dam and caused water to escape from Glenwood Lake into Crooked Creek. Appellees asked the circuit court to enjoin appellant’s actions, and appellant responded with a counterclaim that questioned the location of the parties’ boundaries and accused appellees of interfering with his usage of the creek water. As more fully developed at trial, appellant asserted that 1) his property along Crooked Creek in section 33 and along the cut-off in section 28 extended into the bed of each waterway, and 2) appellees’ pumping of creek water into Lake Glenwood violated Arkansas’s reasonable-use theory of riparian ownership.

The circuit court, after hearing several days of testimony and viewing numerous exhibits, declined to extend appellant’s ownership into the creek bed in either section 33 or section 28. Instead, the court relied on a 1995 survey commissioned by appellees to establish the parties’ boundaries along the south high bank of Crooked Creek, as that bank existed in 1953, and along the eastern bank of the cut-off. The court’s order effectively vested appellees with ownership of the streams in both areas. The court also ruled that appellees’ use of the creek water was reasonable. Appellant filed this timely appeal.

II. Standard of review

|4In appeals from a bench trial, we will not reverse the circuit court’s findings of fact unless they are clearly erroneous. Davenport v. Burnley, 2010 Ark. App. 385, 2010 WL 1790780. The resolution of disputed facts and the determination of witness credibility are within the province of the fact-finder. See id.

III. Property in section 33

Appellant argues first that his northern boundary in section 33 should extend to the center of Crooked Creek, or at least partway into the creek. Although the language in the deed to appellant’s predecessor, Nelson Crum, conveyed property only to the south high bank of the creek, appellant argues that, under the supreme court’s holding in Nilsson v. Latimer, 281 Ark. 325, 664 S.W.2d 447 (1984), a deed containing a call to a bank conveys title to the center of the waterway, unless there is a specific reservation of the bed by the grantor or a clear manifestation of such intent. See, e.g., Person v. Johnson, 218 Ark. 117, 235 S.W.2d 876 (1950); Gill v. Hedgecock, 207 Ark. 1079, 184 S.W.2d 262 (1944) (holding that a grant “north of’ a body of water conveyed title to the middle of the water). The circuit court in the present case acknowledged the Nilsson rule but found that the grantor-estate manifested an intent to exclude Nelson Crum from ownership of the creek bed. We cannot say that the court’s finding is clearly erroneous.

The deed to Nelson mentioned two streams, Crooked Creek and Bayou Meto. The grantor extended the southern boundary of Nelson’s property to the center thread of one of them, Bayou Meto. By contrast, the deed terminated Nelson’s northern border at the ^southern bank of Crooked Creek. Read as a whole, the conveyance demonstrates that the grantor exercised the option to convey to the center of one stream but declined to exercise that option as to the other. The deliberateness of that decision evidenced an intention to withhold ownership of the creek bed from Nelson and to reserve it for the other grantee, A.J. Furthermore, the conveyances to Nelson and A.J. involved simultaneous, interlocking deeds, one of which granted the creek in its entirety to A.J. and the other of which granted only the land south of the creek to Nelson. The transfer of the property in this manner again demonstrated a conscious choice by the grantor to invest A. J. with exclusive control of the creek. It does not defy logic for the grantor to favor A.J. with ownership of the creek in that Nelson received a greater number of acres and his property contained another water source to the south.

A similar situation occurred in Kilgo v. Cook, 174 Ark. 432, 295 S.W. 355 (1927). Kilgo’s deed described property on both sides and along the bed of War Eagle Creek. Cook acquired a subsequent deed to property that ranged “west to War Eagle Creek.” Despite Cook’s land extending “west to” the creek, the supreme court held that Cook’s ownership did not extend to the creek bed because he had notice of Kilgo’s deed granting complete ownership of the creek.

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Arkansas Attorney General Reports, 2010

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Bluebook (online)
379 S.W.3d 71, 2010 Ark. App. 531, 2010 Ark. App. LEXIS 546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crum-v-james-arkctapp-2010.