DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CA02-1299

June 18, 2003

JOHN RYLES, JOHN LARRISON,

and GUY MARIS TRUST AN APPEAL FROM PULASKI COUNTY

APPELLANTS CIRCUIT COURT

v. [QT-97-24]

WAYNE RIFFLE, CHARLES HONORABLE COLLINS KILGORE,

MITCHELL, and M.R. PROPERTIES CIRCUIT JUDGE

APPELLEES

AFFIRMED

This is the third time that this quiet-title action involving an island in the Arkansas River has been before this court. Appellants John Ryles, John Larrison, and Guy Maris Trust sued to quiet title to real property known as Fourche Island, which they acquired pursuant to tax deeds from the Commissioner of State Lands in 1996. Their line of title originated with the State's issuance of a deed to Mrs. M.E. Hope in 1925. In 1994, appellees Wayne Riffle and Charles Mitchell, who do business as M.R. Properties, a partnership, purchased land in that vicinity and claimed a superior line of title that originated with a 1906 deed to H.L. Fletcher. Appellants contended that the 1906 deed in appellees' chain of title began "out of nowhere" and conveyed nothing, while appellees asserted that the State's 1925 deed was void. The judge entered an order granting summary judgment to appellees that rendered the tax deeds void and quieted title in appellees. We dismissed the first appeal forlack of an appealable order. The judge then entered another decree that resolved all of the claims and granted summary judgment to appellees. In the next appeal, we reversed the trial judge's decision and remanded for trial. On remand, a trial was held and the judge again quieted title to the land in appellees. We affirm the trial judge's decision.

This case involves Ark. Code Ann. § 22-5-403 (Repl. 1996), which provides that, when land forms in navigable water within the original boundaries of the former owner of the land, title vests in the former owner. See White v. J.H. Hamlen & Son Co., 67 Ark. App. 390, 18 S.W.3d 464 (1999). The purpose of the statute is to give title to the former owner when his land reforms as an island within the boundaries of his original grant. Id. When a stream changes its course gradually, i.e., by accretion, the boundaries of the riparian landowners change with the stream. Id. When a stream shifts suddenly, i.e., by avulsion, the boundaries of the riparian landowners do not change with the stream. Id. An avulsion is nearly always involved when an island forms spontaneously. Garrison Furniture Co. v. Southern Enters., Inc., 245 Ark. 927, 436 S.W.2d 278 (1969). In Ward v. Harwood, 239 Ark. 71, 387 S.W.2d 318 (1965), the supreme court reconciled Act 282 of 1917, codified at Ark. Code Ann. § 22-6-202 (Repl. 1996), which mandates that all islands formed in navigable streams belong to the State, with Ark. Code Ann. § 22-5-403. Construing the statutes together, the court interpreted Act 282 as applying only to islands formed within navigable streams that are not within the boundary lines of former owners.

In the second appeal, we reversed the entry of summary judgment for appellees1 because genuine issues of material fact existed as to whether the Fourche Island property common to both deeds formed by accretion to the east bank of the Arkansas River and whether appellees' 1906 deed is a "wild" deed:

We note that the parties stipulated that certain portions of the land described in the tax deeds issued to appellants overlapped land described in deeds conveyed to appellees. Appellees offered several documents, including a 1906 deed, in support of their contention that the property claimed by appellants overlapped their property. However, appellant countered that Fourche Island has always been to the west of the east bank of the river, and offered the affidavit of Robert Holloway, which stated Fourche Island was officially established in 1925, and that Fourche Island was an island formed in the Arkansas River. Holloway's affidavit also stated:

since 1925 there has been the persistent shifting of soils around the entire perimeter of Fourche Island. Accretion of soil has proceeded predominantly from the east and north shore of Fourche Island towards the left high bank, which is on the east side of the old Arkansas River Channel (the East Bank). In some places, the accretions have reached a point which is close to the East Bank, but separated from the East Bank by a drainage channel from the upland drainage area through Old River Lake and high water flows from the Arkansas River. The accretions may have reached the East Bank at the north end past the outlet from the Old River Lake where title is not in dispute.

Thus, a genuine question of fact exists as to whether Fourche Island actually formed within the boundaries of the property owned by appellees.

We also hold that a genuine issue of fact exists concerning appellees' chain of title. The parties stipulated that appellants' line of title to the property originated in 1925, when the State issued a deed to Ms. M.E. Hope. The chancellor was presented with documents, including a 1906 deed, as proof by appellees that they held title to the property earlier than 1925. However, the record does not demonstrate that appellees adequately established a chain of title dating back to issuance by a sovereign. Thus, appellant's assertion that they have a superior claim of title becauseappellees' title "begins out of nowhere and winds up conveying nothing," presents a genuine issue of fact.

On remand, appellants presented the testimony of Robert Holloway, a civil engineer, and appellees called Jill Cox, a title examiner with Stewart Title of Arkansas, and Dr. Donald Williams, a professor of geography, to testify. In the decision on remand, the judge found that the island formed within the boundaries of the property owned by appellees. He stated:

The evidence presented in the form of maps and plats establishes that the river channel moved back and forth, east to west, over a period from 1827 to 1925. The [appellees] argue that the 1917 map from the Corps of Engineers shows that a chute formed on the west bank of the Arkansas River, creating an island, and that this was an avulsion. Because it was an avulsion, the [appellees] argue, the Commissioner of State Land was prohibited from declaring the property an island belonging to the State.

However, this argument does not convince the Court that the island is the result of an avulsion. Mr. Bob Holloway testified that the island formed within the river, and both he and Dr. Williams testified the west channel was originally a chute and increased in width and depth until it became the main river channel. In either case, whether by avulsion or accretion, the island formed within the boundary of the [appellees'] property description in their chain of title.

The judge also found that appellees proved their chain of title:

Second, the [appellees'] chain of title was established through the testimony of Ms. Jill Cox of Stewart Title Company. She testified the chain originated through a Patent issued by the United States of America to Archibald Gilchrist in October 1839. Although Ms. Cox acknowledged gaps in the chain of title, she testified that this was customary in title chains containing very early records, and that her title company did insure titles of this nature.

Applying Ward v. Harwood, supra, the judge held that the State could not claim and sell the island. Appellants filed a motion for reconsideration, arguing that the deeds in appellees' chain of title do not fit the description of the property owned by appellants. As an exhibit to their motion, appellants filed a copy of an 1839 patent to Archibald Gilchristthat purported to convey only forty acres. The judge denied the motion for reconsideration. The effect of these orders, from which appellants appeal, was to void appellants' title to the land in dispute.

Arguments

The only issues presented in this appeal involve two questions of fact. See Glover v. Walter, 252 Ark. 1293, 483 S.W.2d 713 (1972); McWilliams v. Schmidt, 76 Ark. App. 173, 61 S.W.3d 898 (2001); White v. J.H. Hamlen & Son Co., supra. Appellants contend that the trial judge's findings of fact that appellees established their chain of title and that the island formed within the boundaries of appellees' property are clearly erroneous.

Standard of Review

The standard that we apply when reviewing a judgment entered by a circuit judge after a bench trial is well established. We do not reverse unless we determine that the circuit judge erred as a matter of law or we decide that his findings are clearly against the preponderance of the evidence. Riffle v. United Gen. Title Ins. Co., 64 Ark. App. 185, 984 S.W.2d 47 (1998). We view the evidence in the light most favorable to the appellee, resolving all inferences in the appellee's favor. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998). The determination of the credibility of witnesses is within the province of the circuit judge, sitting as the trier of fact. Id.

Appellees' Chain of Title

Appellants argue that the copy of the 1839 patent to Archibald Gilchrist that was attached to their motion for reconsideration demonstrates that the descriptions in the deeds in appellees' chain of title do not fit the description of the property owned by appellants and,therefore, the property claimed by appellees is not the property conveyed from the State to appellants. This argument is flawed in two respects. As we noted in our decision in the second appeal, the parties stipulated in 1998 that "[c]ertain portions of the property as described in [appellants'] Correction Deed overlap the property as described in M.R. Properties' Special Warranty Deed." Additionally, the copy of the 1839 patent was not admitted into evidence.

Appellants also point out that the descriptions in some of the deeds in appellees' chain of title place the western boundary of the property at the eastern bank of the Arkansas River. In the 1888 deed from John Adams to Richard Hudgins, the description includes the following language: "[A]ll of said lands being on what is known as `The Island' and all being now East of the present channel of the Arkansas River." The Commissioner's deed to Sophronia Clark in 1903 contains the same language. Dr. Williams extensively described the changing course of the river in relation to appellees' land. According to an 1878 map, appellees' property was on the west bank of the river; however, according to an 1887 survey, the main river channel had shifted westward because of an 1883 avulsion. As a result, appellees' property became a part of the river's east bank, as shown by 1895 and 1906 maps. It is, therefore, understandable that these deeds stated that the land conveyed was, at that time, east of the river channel, considering the fact that, ten years earlier, before the river carved a new channel, the land was on the river's west side.

Appellants also contend that Ms. Cox's chain of title report was not reliable. We disagree. Ms. Cox testified that, in deraigning appellees' title back to the original 1839 government patent, she found gaps in the chain of title; however, she was not overlyconcerned because such gaps are not unusual. She said that, in spite of those gaps, it would be possible to give an opinion sufficient to issue title insurance. Ms. Cox also testified that she was confident that the original government patent included the land described in appellees' deed. She further stated that, in 1906, the title to this property was quieted in H.L. Fletcher. Her report, which sets forth the results of her title search, notes the quiet-title decree in favor of H.L. Fletcher that was rendered on February 27, 1906. Ms. Cox's credibility and the weight to be given her testimony were for the circuit judge to decide. In our view, the judge's finding that appellees sufficiently established their chain of title back to the sovereign is not clearly erroneous.

Formation of the Island

Appellants also argue that the judge's finding of fact that the island formed within the boundaries of appellees' property is clearly erroneous. They point out that Mr. Holloway testified that the island formed from the west to the east and assert that Dr. Williams testified that the island formed from the west bank of the river. Appellants cite River Land Co. v. McAlexander, 10 Ark. App. 123, 126, 661 S.W.2d 451, 453 (1983), where we stated that, when a water line is named in a property description as a boundary, the water line "remains the boundary, no matter how it shifts." That case, however, is distinguishable because the appellant's predecessor in title had acquired the property by adverse possession and the judgment recognizing that fact had included a water line named as a boundary; no prior deeds were in issue.

Also, appellants have mischaracterized Dr. Williams's testimony. Dr. Williams testified that the island formed out of the west side of the channel. He stated that, as theresult of an avulsion, a chute was created, cutting off a part of the river's west bank; the newly formed island included part of appellees' land. His testimony explaining how appellees' land was on the west side of the river in the nineteenth century and is now located on the east bank supports the judge's finding of fact that the island formed within the boundaries of appellees' property:

A very small portion of the extreme southeast corner of the property is within the channel of the river. Almost all of the property lies west of the channel at that time. This is on Appellees' Exhibit 12 in 1827. The property currently lies on the east bank of the river. The extreme southwest corner is actually in the channel of the river today. In 1827, the extreme southeast corner was in the Arkansas River and the property was on the other side from where it is now.

In this case, I was asked to do a specific thing and that was to determine whether what is known as Fourche Island formed within the boundaries of MR Properties' deed as reflected in Appellees' Exhibit 1. I concluded that the majority of the island formed within the boundaries described in that deed. The 1917 Corps of Engineers map, which is the first map that shows Fourche Island, shows an accurate and detailed survey of the river and the adjacent lands, and shows the island with respect to the public lands survey. It is possible to take the deed description and plot the boundaries of the MR Properties land on that map and, then, look to see where the island is with respect to those boundaries. On Appellees' Exhibit 13, a portion of the MR Properties land lies on the east bank of the river, some of it lies under the channel of the river, and a substantial portion of it lies on the island as is platted on this map.

....

The 1917 map is the first map that shows Fourche Island and is also an accurate map of the river. It is also the map Mr. Holloway used in this work for the Appellants....

....

The Arkansas River is a very active river. It has been controlled by the Corps of Engineers. In the 1880's there was a major change that shifted the property from a primarily west side to the east side of the river. In 1887, it was on the east side. Then the river began to cut back into that land and created Georgetown Lake. In 1917, or somewhere between 1906 and 1917, there was an avulsion that createsFourche Island in that land that had been, essentially, accreting on the west bank. Then the eastern channel closed because the western channel was the shorter channel and the water follows the shorter channel....

Although the trial judge did not agree with Dr. Williams that an avulsion occurred, he expressly found that the island formed within the boundaries of appellees' land. We believe that the evidence clearly demonstrated that the island was created as a result of an avulsion and that it continued to form with subsequent accretions over the years. Accordingly, we hold that the judge's finding that the island formed within appellees' boundaries is not clearly erroneous.

Affirmed.

Stroud, C.J., and Crabtree, J., agree.

1 Some of the parties in the earlier appeals, Thomas McNutt, Diane McNutt, William Walls, and Allene Walls, are not involved in this appeal because the judge dismissed their claims for lack of prosecution on remand.