Wineman v. Shannon Bros. Lumber Co.

N.D. Mississippi

Wineman v. Shannon Bros. Lumber Co.

368 F. Supp. 652, 1973 U.S. Dist. LEXIS 11839

CourtDistrict Court, N.D. Mississippi

DecidedSeptember 19, 1973

DocketNo. GC 72-24-S

StatusPublished

This text of 368 F. Supp. 652 (Wineman v. Shannon Bros. Lumber Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wineman v. Shannon Bros. Lumber Co., 368 F. Supp. 652, 1973 U.S. Dist. LEXIS 11839 (N.D. Miss. 1973).

Pincite

Opinion

MEMORANDUM OF DECISION

ORMA R. SMITH, District Judge.

This action was tried to the court at the United States Courthouse in Oxford, Mississippi on May 24, and 25, 1973. At the conclusion of the trial the court requested counsel to submit memoranda of authorities for the court’s perusal, and, this having been done, the issues are ripe for decision.

This Memorandum contains the court’s findings of fact and conclusions of law as required by Rule 52(a), F.R. Civ.P.

The plaintiffs are adult resident citizens of Washington County, Mississippi. The defendant corporation is incorporated in the State of Tennessee, where its principal place of business is situated, and is a citizen of that state. Defendant is authorized to. do and is doing business in the State of Mississippi. This action is one of a civil nature. The matter in controversy exceeds the sum or value of ten thousand dollars, exclusive of interest and costs. The court has diversity jurisdiction of the action by virtue of 28 U.S.C.A. § 1332(a)(1). Defendant is before the court on personal service of process in the manner required by law. Rule 4(d) (3), F.R.Civ.P.

Plaintiffs are the present owners of the West Half (Wy2) of Section Five (5), and all of Section Seven (7) of Township Four South (4S), Range Twelve West (12W), Tunica County, [654]*654Mississippi, together with all accretions thereto.

Defendant is the present owner of accretions to Sections Seventeen (17), Twenty (20), and Twenty-one (21), Township Two North (2N), Range Six East (6E) lying South (S) of a line running due East (E) and West (W) from the high bank of Martin Lake at its southernmost point to the Van Hook boundary on the East (E) and the Wineman boundary on the West (W), Lee County, Arkansas.

In 1874 a cutoff or avulsion occurred in the Mississippi River across the base of said Mississippi lands and the old or abandoned channel of the, river at the East (E) and Southeast (SE) has long since dried up leaving the lands of the parties hereto contiguous.

On February 6, 1919, in a proceeding in which A. G. Wineman and Sons, plaintiffs’ predecessor in title, was plaintiff, and John P. Moore, et al, defendant’s predecessors in title, were defendants, this court, acting by the Honorable Edwin R. Holmes, entered its decree fixing the Western boundary of defendant’s property and the Eastern boundary of plaintiffs’ property, as being “parallel with the original bank of Bourdeaux Island, as it now stands”.

Subsequently in 1924, in a suit entitled Moore, et al v. Jackson, et al. in the Lee County Arkansas Chancery Court, Mr. C. B. Bailey, a qualified Civil Engineer, was appointed Master and with particular reference to the 1919 decree of this court surveyed, blazed and painted this line with reference to witness trees and other monuments as running from “Point Two”, as set forth in this court’s decree, “South (S) Fifty-Three (53) degrees West (W) Eighty-Nine (89) chains, more or less, to a point on the bank of the Mississippi River.” ¹

The controversy in the action sub judice concerns the apportionment between the parties of the post-1919 accretions. Defendant, on the one hand, contends that an equitable division of the accretions is accomplished by continuing the course of and extending the line estab-. lished by the 1919 decree of this court to the present bank of the Mississippi River. The line, if established, would start at the 1919 bank and run South (S) Fifty-Three (53) degrees West (W) to the present bank. Plaintiff, on the other hand, contends that the correct or proper division line should run from the 1919 bank perpendicular, or at right angles, to the thalweg of the river as it now runs, this line from the 1919 bank running South (S) Thirty-Five (35) degrees West (W) to the thalweg of the river.² An additional contention by defendant is that the South (S) Fifty-Three (53) degree West (W) line has been recognized and used as the dividing line between the properties by the parties and their predecessors in title for such a long period of time and under such circumstances as to establish the line by prescription. Thus defendant urges the court to find that it has the superior title to the accretions in dispute by reason of adverse possession.

A graphic illustration of the accretions in controversy is shown by a copy of the Guyer 1971 Survey of the area in question, which was introduced in evidence at the trial as Plaintiffs’ Exhibit 9. The exhibit is reproduced as follows:

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