White v. Hamlen

1 S.W.3d 464, 67 Ark. App. 390, 1999 Ark. App. LEXIS 673
CourtCourt of Appeals of Arkansas
DecidedOctober 13, 1999
DocketCA 98-1379
StatusPublished
Cited by4 cases

This text of 1 S.W.3d 464 (White v. Hamlen) 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
White v. Hamlen, 1 S.W.3d 464, 67 Ark. App. 390, 1999 Ark. App. LEXIS 673 (Ark. Ct. App. 1999).

Opinions

Andree Layton Roaf, Judge.

This appeal is from a summary judgment order quieting title to certain lands in appellee, J. H. Hamlen & Son Co. (hereinafter “Hamlen”). Appellants Vernon White and several neighboring property owners (hereinafter “White”) contend that genuine issues of material fact remain, thus making summary judgment inappropriate. We agree and reverse and remand.

The land at issue in this case is located on Hardin Island, a large island on the Arkansas River. Hamlen acquired title to a portion of the island in 1982. White and the other appellants own property located eastward and across the river from Hardin Island. However, the southeastern portion of the island claimed by appel-lee lies within the metes and bounds descriptions of appellants’ property. Appellants, or their predecessors in title, have had title to their land since the mid-1940s or early 1950s.

Hardin Island was originally a peninsula connected to the west side of the mainland. Over thirty years ago, the Arkansas River, in its southeastward movement toward the Mississippi River, took an easterly turn at a certain point in Jefferson County, meandering around Hardin peninsula before returning to its main channel. This part of the river was known as Brodie Bend. In about 1966, the river’s course was changed when the United States government condemned 3,317 acres of land, including over 300 acres on the Hardin property, to complete the Brodie Bend Cut-Off Project. The project straightened the river’s course, severing Hardin peninsula from the mainland. The peninsula thus became Hardin Island. The former river channel that had meandered around the peninsula became a slackwater. This slackwater now lies between Hardin Island to the west and White’s mainland property to the east.

On September 1, 1992, Hamlen filed suit in Jefferson County Chancery Court seeking to quiet title to the eastern shore of Hardin Island, i.e., that part of the island lying directly across the slackwater from White’s property. Hamlen alleged that, for many years prior to the Brodie Bend Cut-Off Project, the river eroded the shoreline of the eastern bank where White’s land was situated. The resulting silt and sediment were deposited along the western bank, thus becoming part of the future Hardin Island area by the process of accretion. White disputed Hamlen’s contention and counterclaimed, seeking to quiet the title to the property in himself and his neighbors.

On December 28, 1993, Hamlen filed a motion for summary judgment with six exhibits. The first five exhibits were aerial photographs taken in 1945, 1948, 1950, 1951, and 1957, and the sixth exhibit was a set of drawings prepared by Dan Robison, a registered land surveyor. Hamlen contended that these exhibits were conclusive proof that over a gradual period of time, White’s land lying east of the river bank was lost by erosion and was deposited on Hardin Island, thereby vesting title to the increased land mass in it.

White did not dispute the changes in the river’s course during the twelve-year period shown by Hamlen’s exhibits but argued that Hamlen’s proof did not establish that the portion of Hardin Island lying within the legal description of his land was caused by accretion (a slow and gradual addition or building up of lands due to the deposit of sediment eroded from upstream lands) rather than avulsion (a sudden and rapid disruption of a piece of ground due to the change in the course of a river), which would have allowed White to retain ownership. White also claimed title to the disputed lands pursuant to Ark. Code Ann. § 22-5-403 (Repl. 1996), which concerns the formation of lands in navigable waters. Further, White argued that Hamlen had not proved that the land lost by accretion from White’s property was actually deposited on Hamlen’s land. Attached to White’s response was the affidavit of an employee of the United States Corps of Engineers, Louis Kealer, asserting that the government owned 343 acres of land on Hardin Island. According to White, even if the land that had eroded from his land was deposited on Hardin Island, the accretion could have been deposited on the government’s property and not that claimed by Hamlen.

Following a hearing, the chancellor granted Hamlen’s motion for summary judgment. He concluded that: 1) Hamlen’s exhibits reflected a consistent pattern of erosion along the eastern bank of the river where White’s property is situated; 2) the change in the course of the river was a slow, gradual process; 3) there was no evidence to support White’s theory of avulsion; 4) Hamlen made a prima facie showing of entitlement to summary judgment, and the proof offered by White in response — Kealer’s affidavit — did not create a genuine issue of material fact; and 5) Ark. Code Ann. § 22-5-403 did not apply in this case. White’s appeal is brought from these rulings.

Our standard of review in summary judgment cases is well recognized. While it is no longer considered a drastic remedy, summary judgment is only appropriate when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the non-moving party is not entitled to a day in court. Guidry v. Harp’s Food Stores, Inc., 66 Ark. App. 93, 987 S.W.2d 755 (1999). The burden of sustaining a motion for summary judgment is on the moving party. Id. On appeal, we view the evidence in a light most favorable to the non-moving party and resolve any doubt against the moving party. Luningham v. Arkansas Poultry Fed’n Ins. Trust, 53 Ark. App. 280, 922 S.W.2d 1 (1996). Our task is to determine whether the evidentiary items presented by the moving party in support of the motion leave a material question of fact unanswered. Id.

We agree with White that material questions of fact exist regarding whether the changes in the land were brought about by accretion or avulsion. A riparian landowner is at the mercy of the river upon which his land is situated. He acquires, incident to his ownership, whatever land may be added by gradual and imperceptible accretion. See Crow v. Johnston, 209 Ark. 1053, 194 S.W.2d 193 (1946). At the same time, he assumes the risk of losing his property by its being gradually washed away by the waters of the river. Id. When a stream changes its course gradually, i.e., by accretion, the boundaries of the riparian land owners change with the stream. Goforth v. Wilson, 208 Ark. 35, 184 S.W.2d 814 (1945). When a stream shifts suddenly, i.e., by avulsion, the boundaries of the riparian landowners do not change with the stream. Id. The question of whether accretion or avulsion has occurred is generally one of fact. See Pannell v. Earls, 252 Ark. 385, 483 S.W.2d 440 (1972).

Hamlen’s theory in this case was that a gradual erosion of land occurred along White’s riparian boundary and that the land was deposited along what ultimately became Hardin Island. Hamlen sought to prove its theory by use of the aerial photographs mentioned earlier and by a set of four drawings prepared by a land surveyor.

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Bluebook (online)
1 S.W.3d 464, 67 Ark. App. 390, 1999 Ark. App. LEXIS 673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-hamlen-arkctapp-1999.