10. BOUNDARIES ON NAVIGABLE STREAM - EFFECT OF SUDDEN CHANGE OF CHANNEL.

Where, by the law of the state, as in Tennessee, lands bounded by a navigable river extend only to ordinary low-water mark, the title to the bed of the river remaining in the state in trust for public uses, land formed gradually by accretion below low-water mark becomes the property of the adjoining owner,—the low-water line remaining his boundary: but, where the stream suddenly abandons its old bed and seeks a new channel, such change works no change of boundary in the lands of adjoining owners, but the title to the land in the abandoned channel remains in the state.

11. NAVIGABLE RIVER-LAND FORMED BY SUDDEN CHANGE OF CHANNELGRANT BY STATE.

Acts Tenn. 1847, c. 20, providing for the granting by the state of “vacant lands," does not apply to the bed of the Mississippi river, which many years after the passage of the act became dry land by a sudden change in the course of the river, by cutting a new channel and abandoning the old one,-such land not being vacant land, within the meaning and purpose of the act; and a grant thereof by the land department of the state is unauthorized and void. While the title to such land remains in the state, as before the reliction, it is held for public purposes, and cannot be granted to private persons unless the legislature shall expressly so authorize.

In Error to the Circuit Court of the United States for the Western District of Tennessee.

This is an action of ejectment to recover some 1,200 acres of land described as situated in Tipton county, Tenn. The subject-matter of the suit is land lying substantially between the eastern bank and middle thread of an eld and dried-up bed of the Mississippi river. The plaintiff claims the whole of this land, as accretions to land owned by him, originally bounded by the Mississippi river, as well as under a grant from the state of Tennessee to himself for about 1,000 acres thereof, issued in 1901. The declaration sues for the land in controversy as two contiguous tracts, one containing 1,050 acres, or thereabout, and the other 131 acres, more or less. The first or larger tract, which will hereafter be described as the "Island 37 Tract," inasmuch as it is now adjacent to the plaintiff's land on Island 37, is claimed both as an accretion to land on Island 37, and by virtue of the very recent grant from the state of Tennessee mentioned above. The other or smaller tract is now part of Centennial Island, and will be hereafter called "Centennial Island Tract," and is claimed only as an accretion to the plaintiff's land on Centennial Island. The defendant relied upon the general issue of not guilty. After the evidence for both sides had been concluded, the court below instructed the jury to find for the defendant. This instruction has been assigned as error. From the observations made to the jury by the learned trial judge, we are advised that this instruction was predicated upon the supposed invalidity of the grant under which the plaintiff claimed the greater part of the premises, and upon his failure to show a perfect legal title to contiguous lands bounded by the river, to which the parcels in issue were claimed as accretions.

The premises in dispute is a body of new-made land, resulting from a remarkable change in the course of the river by the sudden formation of a new and short channel across the narrow neck of a great bend of the river, known as the "Devil's Elbow," some 30 or 40 miles above Memphis, Tenn. This cut-off channel, now known as the "Centennial Cut," occurred in a single night in March of 1876. The distance by the old channel of the river around the bend was from 15 to 20 miles. The distance across the neck, where the new channel was cut, was somewhat less than 2 miles. The general course of the river in the vicinity of this cut before the new channel was formed is very well shown by a reconnoissance survey made by the war department in 1874, which is set out opposite (Map No. 7).

THIS IRACING IS A TRUE COPY

O MAP N7, REDUCED FROM

A Reconnoissance Survey made under the direction of
May. Chas. R. SUTER, Corps of Engra USA.
1874. (Signed) Chas Levasseurs

R

N

The deep water channel of the river at the date of this map is shown by the dotted black line. The cut-off of 1876 occurred at the point on the map where the neck of the bend is narrowest, and upon which appears the name of "Massey," a then occupant of part of the land which was washed away by the river. The land claimed on the dry land of Island 37 by the plaintiff is about the point indicated by the name "Mrs. Smith," one of the remote grantors under whom plaintiff claims. The elbow cut off from the eastern shore of the old channel by the Centennial Cut-Off constituted for a time an island, and has ever since been known as "Centennial Island." This island was originally separated from Island 37 by McKenzie's Chute, being the channel mediately after the cut-off in favor of the deeper and shorter channel formed by the Centennial Cut-Off, and shown in the map above, east of Island 37. There was evidence tending to show that the main channel of the river around Island 37, as well as McKenzie's Chute, continued to be navigable for possibly one or two or three years by very small boats after this cut-off, but that both channels were substantially abandoned by navigation immediately after the formation of the new channel, and that since about 1880 both channels have gone substantially dry, except in high water; and that Centennial Island, Island 37, and the Arkansas shores constitute now substantially one body of dry land, capable of being crossed dry shod, except in high water. Much of this new land is now grown up in willows and cottonwoods from 18 inches to 2 feet in diameter, and both of the parties to this litigation claim to have fields now in cultivation within what before the cutoff was the bed of the old river.

An official survey of the river made in 1883–84, under the supervision of the Mississippi river commission, shows the new course of the river through the Centennial Cut-Off. This survey is set out opposite (Chart No. 18).

The outlines of old Island 37 are not shown on this map, as the work done by the commission did not include the surface between the northerly lines of Centennial Island, as bordered on what was McKenzie's Chute and the old Arkansas bank of the river. Island 37 is therefore represented on this map by the blank space between the Arkansas shore line and Centennial Island. But to understand the issues involved, it becomes necessary to show the relation of the riparian lands claimed by the plaintiff at the time when they were granted, and at successive periods between his remote and immediate grantors. All of the lands on both Island 37 and Centennial Island were granted by the state of Tennessee about 1823. For the purpose of showing the course and channel of the river as it is supposed to have existed at the time of the old grants under which he claimed, the plaintiff caused a map to be constructed by Mr. J. H. Humphrey, a local civil engineer, in which the banks of the river, as this engineer supposed them to have existed in 1823, are set down from data obtainable from two sources-First, the government survey and lot of the government lands on the west or Arkansas

shores; second, from the calls and plots of Tennessee surveys and grants of land on the Tennessee side of the then channel of the river. The map, in reduced form, is set out herewith (see Humphrey's map, below).