Smith v. Leavenworth

Smith, J., delivered the opinion of the court. The sale of the land in controversy to the state for taxes in the year 1881 was void, for the reason that it was at the time assessed to the state. The two faint pencil lines, if such in fact there be, drawn through the ward “State” on the original assessment roll, cannot be held to constitute a change in the assessment, and to be the equivalent of an assessment to “Unknown,” as contended by counsel for appellee. Public records cannot be altered in such a loose and irregular manner. Appellee and his grantor have been in possession of this land for more than three years under this tax deed, and consequently appellee’s title has been perfected by section 2735, .Code 1892. Hamner v. Yazoo Delta Lumber Co. (this day decided), 56 South. 466. One of appellant’s contentions is that the alluvion formed opposite fractional section twenty-four was not embraced within the description of the land as assessed and sold. The description was as follows: “All fractional section 24, township 27, range 7 west, county of Coahoma.” In addition to this, the assessment roll, under the heading “Number of Acres Held by State for Taxes,” contains the figures 166. When fractional section twenty-four was originally surveyed and platted, it contained only 166.16 acres; the Mississippi river forming its southern and western boundary. Afterwards a large amount of alluvion formed opposite this section and section fourteen, the property of appellant lying north of it. This alluvion became the property of the owners of the mainland, constituted a part of each section to which it formed, and is included in the assessment and deed describing the land by its sectional number. Jefferies v. East Omaha Land Co., 134 U. S. 178, 10 Sup. Ct. 518, 33 L. Ed. 878; Towell v. Etter, 69 Ark. 34, 63 S. W. 53; Crill v. Hudson, 71 Ark. 390, 74 S. W. 299. The fact that the alluvion began forming north of section 24 and opposite the land of appellant is immaterial. [244] When it reached appellee'’s shore line in its southward progress, he became entitled to his portion thereof. The general rule for apportioning alluvion between coterminous landowners is to give each such proportion of the new shore line as they possessed of the former shore line before the formation of the alluvion. This rule, however, is not absolute, and there may be exceptional cases requiring the application of a different rule, as was done in the case at bar, in order that justice may be done. This however, it is unnecessary for us to decide, for the reason that the method of apportionment adopted seems to be more beneficial to appellant than the general rule, and we do not understand him to seriously complain of the method of apportionment, but of the fact that any apportionment was made at all. Affirmed. Suggestion of error filed and overruled.