tracts are not connected, and the smaller one, with its accretions, is not here involved in any way. The parcel of 131 acres, which is claimed as an accretion, is not included within the specific boundaries described, but is conveyed by Allen, if at all, by operation of the added words, "and all accretions thereto." This 131-acre parcel is not an accretion to the 305-acre tract conveyed by Allen to Stockley, inasmuch as it is but a restoration of a part of the 1,500 acres conveyed by Huddleston to John Trigg, which was washed away as a first effect of the Centennial Cut-Off. But if we regard the conveyance as operating to convey this tract of new-formed land under the description of "all accretions thereto," we are then to inquire whether there was any such conclusive evidence of a continuous adverse possession for the full term of seven years by the plaintiff and those under whom he claims as would justify the court in withholding the question of title by possession from the jury, or, in the alternative, such a conflict of evidence tending to show such a continuous possession as would require the submission of the question to the jury.

There was evidence tending to show that plaintiff was in the actual possession of some part of the tract of 305 acres, and some evidence that he is also in the actual possession of some part of the accretion south of the 131-acre parcel, and south of what is called "Sandy Chute" on the Humphrey map, which accretion is not here involved. There is no evidence that he has now or ever had any actual possession of any part of the 131-acre accretion, other than that constructive possession which results from his possession of other parts of the land included in the Allen deed. We shall assume for the purposes of this case that the plaintiff's possession of the 305-acre parcel was a constructive possession of the 131-acre parcel although the two tracts may be claimed by different titles.

The contention upon this state of facts is that we must presume, and that it would have been the duty of the jury to presume if the case had been submitted to the jury, that this actual possession which is shown to have existed when the defendant entered began at the date of the deed from Allen, which was in January, 1888, and that thus the plaintiff has, through this presumption, shown an actual adverse possession for more than seven years under the deed of Allen, which at least was color of title under the Tennessee statute of limitations, and that by operation of such adverse possession he had at the commencement of this suit, in 1901, an indefeasible fee in all the lands so held by and under an instrument so purporting to convey the fee. Mill. & V. Code Tenn. § 3459; Blantin v. Whitaker, 11 Humph. 313; Belote v. White, 2 Head, 705, 712; Bleidorn v. Mining Co., 89 Tenn. 167, 15 S. W. 737. There is no legal presumption that the plaintiff's actual possession began at the date of his deed from Allen, and there is no evidence from which the jury could reasonably and legally infer that his actual possession began then, or at any other date far enough back to constitute an adverse actual possession for more than seven years before the defendant's entry. To sustain his claim that the law raises a presumption that the plaintiff took actual possession of the land conveyed to him by the deed of Allen,

he cites Lafferty v. Whitesides' Lessee, I Swan, 123-128, and Fowler v. Nixon, 7 Heisk. 719, 727. These cases fall far short of sustaining any such contention. Å deed or lease may constitute part of the evidence of possession, as showing its extent as well as charterizing it, but there is no authority for the contention that an actual adverse possession such as will start the statute of limitations is presumed from the mere fact that the plaintiff at a particular date took a deed, grant, or lease to the land in question. A title by seven years' adverse possession under a deed purporting to convey the fee requires an actual adverse occupation for the entire period of seven years, and no such evidence of a continuous adverse possession for that period by either the plaintiff or those under whom he claims was shown as to justify or require the submission of the case to the jury on that question.

But the plaintiff insists that, inasmuch as the plaintiff has shown a possession under color of title, which constructively extended to the 131-acre parcel as included within the Allen deed, and inasmuch as the defendant exhibited no paper title whatever, he is entitled to recover, as against the defendant, even though he has not shown a perfect legal title, by deraignment or otherwise. The defendant claims the premises in dispute as accessions or accretions to Dean's Island, upon which he appears to be a riparian proprietor. The land being newmade land, lying between occupants of opposite banks of the old channel of the river, each seems to have advanced claims based upon the law of accretion. True, the defendant has not shown a legal title to the old Arkansas bank. But he has taken actual possession of the res, and thus forced the plaintiff to all the hazards of an action of ejectment. The plaintiff has not chosen to resort to the Tennessee statutory action of unlawful entry. That is an action which tries only the immediate right of possession, and lies whenever there has been actual trespass, resulting in a tortious dispossession. On the contrary he has brought a straight action of ejectment, which in Tennessee is something more than a mere possessory action, inasmuch as the judgment, contrary to common law, is conclusive upon the parties, saving to persons under disability another action within three years after the removal of the disability. Shannon's Code Tenn. §§ 5000, 5001. Whatever may be the right of a plaintiff in other jurisdictions to recover in ejectment upon proof of mere possession at the time of the defendant's entry, in Tennessee the rule is well settled that the plaintiff cannot recover in ejectment unless he shows a perfect legal title, either by deraignment from the state, or by evidence of actual occupation under deeds purporting to convey the title for the full term of seven years. Polk v. Henderson, 9 Yerg. 312; Kimbrough v. Benton, 3 Humph. 129; Campbell v. Campbell, 3 Head, 325; Walker v. Fox, 85 Tenn. 154, 2 S. W. 98; Evans v. Land Co., 92 Tenn. 355, 21 S. W. 670; Hubbard v. Godfrey, 100 Tenn. 150, 156, 161, 47 S. W. 81; Stinson's Lessee v. Russell, 2 Tenn. 40.

The precise question here involved received a full and elaborate reconsideration by Associate Justice McAlister in Hubbard v. Godfrey cited above. A judgment of the chancery court of appeals holding that the complainants might recover, although they had failed to show

a complete legal title or seven years' adverse possession, because the defendant had shown no title in himself and was a trespasser, was reversed, and the rule restated and fortified by a consideration of a long line of Tennessee decisions, constituting a well-settled part of the land law of the state. There was in the suit now under examination no evidence of such long and continuous possession under deeds purporting to convey the disputed premises by the plaintiff and those under whom he claims as to justify the submission of the case to the jury upon the question of a title by adverse possession. A possession for less than seven years, continuous and adverse, would not confer a title upon which ejectment may be maintained. The question is plainly one of local law, and we are constrained to follow the Tennessee rule in respect to the title necessary to maintain ejectment. The case of Sabariego v. Maverick, 124 U. S. 261, 296, et seq., 8 Sup. Ct. 461, 31 L. Ed. 430, is therefore not controlling.

The Plaintiff's Title to Lands on Island 37.

3. Before the plaintiff can recover the new-formed land on the margin of the solid land composing Island 37, he must be able to establish his ownership of the bank against which the accretion has formed. Until he does this, he has no shadow of claim as a riparian proprietor. The right to accretion depends upon the contiguity of the claimant's estate to the river. Bates v. Railroad Co., 1 Black, 204, 17 L. Ed. 158; Saulet v. Shepherd, 4 Wall. 502, 18 L. Ed. 442; Association v. Shriver, 64 N. J. Law, 550, 46 Atl. 690, 51 L. R. A. 425. Accretion is an addition to riparian land made by the water to which the land is contiguous. Posey v. James, 7 Lea, 98; St. Clair Co. v. Lovingston, 23 Wall. 46, 23 L. Ed. 59. In Tennessee it is well settled that a riparian proprietor of land upon a navigable stream owns only to ordinary low water mark. If the stream be nonnavigable, and his title call for the stream as a boundary, his title extends to the center of the stream. The title to the lands constituting the bed of a navigable stream, in the legal sense, is in the state, which it holds for the benefit of the public. Holbert v. Edens, 5 Lea, 204, 208, 40 Am. Rep. 26; Elder v. Burrus, 6 Humph. 358; Martin v. Nance, 3 Head, 649; Goodwin v. Thompson, 15 Lea, 209, 54 Am. Rep. 410. Conceding for the purposes of this case that the plaintiff has shown a title from the state or by adverse possession to the lands conveyed by the deed of April 18, 1898, from W. J. Cæsar to him, it by no means follows that he has shown either himself or those under whom he claims to have been riparian proprietors. Plaintiff's chain of title goes back to Robt. I. Chester, who in 1869 conveyed the lands now in question to Mrs. Martha P. Smith. While Chester's southern boundary was that branch of the Mississippi river called "McKenzie's Chute," yet his eastern line was the western line of a tract of 152 acres granted to John Trigg, and this Trigg tract lay between Chester's eastern line and the bank of the main channel of the Mississippi river. Mrs. Smith, Chester's vendee, was the owner when the Centennial Cut-Off occurred, and in 1889 we find her conveying the same land conveyed to her by Robt. I. Chester to a grantee in the plain

tiff's chain of title, in which she conveys the land by the identical calls of the Chester deed, but adding these significant words:

"It is hereby understood and agreed that at the present time the Mississippi river has changed its course and does not now touch any of the above-described lands, and that where said river is named as a boundary line it is understood to mean where said river once ran, which course or bed is now dry and known as 'McKenzie's Chute'; and it is further understood and agreed that this conveyance carries with it all accretions now formed or added to said above-described lands."

The metes and bounds of Chester's deed and of all the intermediate conveyances are identical with those in Cæsar's deed to the plaintiff, already set out in the statement of the case. There was evidence tending to show that prior to the great flood of 1876 the greater part of this John Trigg tract of 152 acres had been washed. away. When this occurred does not appear in any such conclusive way as to justify a refusal to let the question go to the jury, if a matter of any importance to the solution of the case. So there was like evidence as to the washing away of another small tract of 37 acres granted to John Trigg, lying south of Trigg's 152-acre grant, and east of the southern part of the tract conveyed by Chester to Mrs. Smith. Both these Trigg tracts have been platted upon the Humphrey map. The evidence tended to show, also, that McKenzie's Chute had encroached greatly upon the lands bordering upon its northern bank prior to 1876. By the partial washing away of the Trigg 152-acre tract, the southeastern corner of Mrs. Martha P. Smith's tract was partially washed away at some time prior to 1876,— date not shown. The plaintiff has in no way deraigned title from John Trigg to either of his small grants lying between the lands granted to his predecessors in title and the main branch of the river east of his eastern line. From all that appears, the title to these parcels which interpose between him and the old bank of the river as it existed when the Trigg grants were issued is outstanding in Trigg's heirs.

The deeds under which plaintiff claims call for the western line of the John Trigg_152-acre grant as plaintiff's eastern line. If the land lying east of Trigg's western line is to be regarded as included. within the boundaries of the deed under which plaintiff holds, it is because it is included by the added words of description "This conveyance carries with it all accretions now formed or added to said above described lands." It is plain that these Trigg lands are not accretions to the lands described by metes and bounds, but restorations of the submerged John Trigg lands. But if we regard these words as mere words of description, and operative as a conveyance of the two Trigg parcels, it will, at most, make the deed mere color of title; for neither Cæsar, nor any of his predecessors in title, had acquired the John Trigg title. Nor is there any evidence of any actual possession of any part of the lands included within either of the two grants to John Trigg lying east of the land conveyed by Chester to Mrs. Smith. Possession wholly within the limits of the grant to Potter, or the deed of Chester to Mrs. Smith, would not be a possession operating to set the statute of limitations in motion. as against the heirs or assigns of John Trigg, as owner of the 152

acre and 37-acre parcels. To defeat the outstanding Trigg title, the plaintiff would have to show an adverse possession for_the_full term of seven years within the boundaries of both these grants. Possession of some part of the John Trigg grant is necessary to oust Trigg or his heirs or assigns, and, until an actual possession of some part of those small grants is shown, there is not shown any such adverse possession as would toll the Trigg title. Smith v. McCall's Heirs, 2 Humph. 163; Stewart v. Harris, 9 Humph. 715; Tilghman v. Baird, 2 Sneed, 196; Boles v. Smith, 1 Tenn. Cas. 149; Mining Co. v. Heck, 15 Lea, 497. The law gives the constructive possession to the legal title, and this constructive possession was not disturbed by a possession not within the boundaries of the grants to Trigg, although within the boundaries of a conflicting title which included the Trigg lands.

As a consequence of the changed course of the river in 1876, these submerged Trigg lands have been restored, through accretion or some other process, and are now dry land. It cannot be pretended that, because the surface of these two bodies of Trigg land was washed off, Trigg lost his title to the land so submerged, beyond recovery. The law is otherwise. Land lost by erosion or submergence is regained to the original owner of the fee when by reliction or accretion the water disappears and the land emerges.

It is said in Sir Matthew Hale's De Jure Maris, republished in 16 Am. Rep.:

"If a subject hath land adjoining the sea, and the violence of the sea swallow it up, but so that yet there be reasonable marks to continue the notice of it, or though the marks be defaced, yet, if it, by situation and extent of quantity and bounding on the firm land, the same can be known, though the sea leave this land again, or it be by art or industry, the subject does not so lose his property, and accordingly it was held by Cooke and Foster, M. 7 Jac. C. B., though the inundation continue forty years." "But if it be freely left again by the reflex and recess of the sea, the owner may have his land as before, if he can make it out where and what it was, for he can not lose his propriety of the soil, though it for a time became part of the sea."

In Mulry v. Norton, 100 N. Y. 426, 3 N. E. 581, 53 Am. Rep. 206, a beach was washed away, and afterwards restored. The original owner was held to have regained his own. In that case the court said: "It is not, however, every disappearance of land by erosion or submergence that destroys the title of the true owner, or enables another to acquire it, for the erosion must be accompanied by a transportation of the land beyond the owner's boundary to effect that result, or the submergence followed by such a lapse of time as will preclude the identity of the property from being established upon its reliction. Land lost by submergence may be regained by reliction, and its disappearance by erosion may be returned by accretion, upon which the ownership temporarily lost will be regained. When portions of the main land have been gradually encroached upon by the ocean, so that navigable channels have been extended thereover, the people, by virtue of their sovereignty over public highways, undoubtedly succeed to the control of such channels, and the ownership of the land under them, in case of its permanent acquisition by the sea. It is equally true, however, that when the water disappears from the land, either by its gradual retirement therefrom, or the elevation of the land by avulsion or accretion, or even the exclusion of the water by artificial means, its proprietorship returns to the original riparian owners. Ang. Tide Waters, 76, 77; Houck, Riv. p. 258. Neither does the lapse of time during which the submergence continues bar the right of such owner