ON REHEARING.
Opinion delivered May 18, 1901.
Hughes, J.The facts in this case, as stated when the opinion was delivered which we are asked to reconsider, are as follows:
“The appellee, Etter, brought this suit of forcible entry and detainer against appellant Towell, to recover possession of 35 acres of land, said to be accretion to southwest quarter of section 13, .township 9 south, range 8 east, and claimed damages in the sum of $50. Thompson, being the real party in interest, was made defendant. The evidence shows that Etter bought the land in controversy March 13, 1889, and had a house upon it, and had, through his tenants, occupied it since the spring of 1889, up to about the time of the entry by Towell, claiming the exclusive ownership thereof. Thompson, the landlord of Towell, claimed title and possession under a deed made to him on February 16, 1897, by J. L. Holloway, as commissioner in chancery of the Crit-tenden county circuit court, which deed shows that at a sale of lands for levee taxes of the St. Francis Levee District Thompson had bought the southwest quarter of section 13, township 9 north, range 8 east, containing 151 acres. It seems from the evidence that Etter had been keeping a tenant in the house on the premises nearly all the time. Sometimes there would be an interval between the going out of one tenant and the coming in of another, when the house would, be unoccupied for a week or two. The house was not locked, and no one was occupying it when Towell entered. Thompson came to the house first, and put some chains in it, and locked or nailed it up. At the time the gates were closed, the fences unbroken, and the house shut up. This was about January 1, 1897. Towell, it appears, moved in about this time. * * * Thompson and Towell took possession without the consent of Etter or his son, who seems to have been in charge of the land at the time.”
We said in the opinion in this case, in substance, that no right to the accretion of 35 acres to southwest quarter section 13 passed to Thompson by virtue of his deed to said southwest quarter of section 13, because the accretion had formed before his purchase, and was above the surface of the water and susceptible of private ownership, and that, “as between vendor and vendee, the right to alluvion depends on the condition of the land at the time of the transfer of the legal title;” that a vendee is entitled to ac-eretions to land made after his purchase, but not to those made before, unless the accretions are expressly conveyed. To support this ruling, we relied mostly upon the case of Ban-re v. City of New Orleans, 22- La. An. 613, which is directly in point in support of the opinion. We said, therefore, that Thompson’s deed was no color of title to the accretion, and that, under § 3443, Sandels & Hill’s Digest, he was guilty of forcible entry and detainer. Part of that section reads as follows: “If any person shall enter into or upon any lands, tenements or other possessions, and detain or hold the same without right or claim of title, * * * in such cases every person so offending shall be deemed guilty of a forcible entry and detainer within the meaning of this act.”
We find, upon further investigation, that in the case of the Bast Omaha Land Co. v. Jeffries, 40 Fed. Rep. 386, Judge Brewer, delivering the opinion of the court, first held substantially the doctrine laid down in the opinion delivered in the case at bar, but upon a motion for reconsideration he held differently, that is to say, that a conveyance by a vendor of his land, to which there is an accretion already formed at the time of the conveyance, carries the accretion thereto, unless reserved in the deed. He holds that where a water line is the boundary of a named lot, that line remains the boundary, no matter how it shifts, and a deed describing the lot by number or name conveys the land up to that shifting line, exactly as it does up to the fixed side lines. Upon appeal to the supreme court of the United States, this decision of the motion for reconsideration was affirmed, the court holding to the same doctrine laid down by Judge Brewer. Jefferis v. Bast Omaha Land Co., 134 U. S. 178.
There seems to be no doubt that the 35 acres in controversy in this case were an accretion to southwest quarter of said section 13 bought for taxes by Thompson as aforesaid. While the land here is not described as a lot is- in the case just quoted from, by name, but is described according to the section lines, yet we apprehend the same doctrine applies in this case as in that.
The fact that the deed to Thompson is for southwest quarter 13 , 151 acres, does not limit his purchase to that number of acres. Where land is otherwise properly described, and so designated as to lead the owner to a knowledge that it is his land, a mistake in the number of acres is immaterial. Putnam v. Tyler, 117 Pa. St. 570. This would not affect the validity of an assessment or sale upon such an assessment. While there seems to be a conflict in the decisions upon the question whether accretion already formed passes to the vendee by the conveyance of the vendor of the land to which it had formed, we esteem it proper and right to approve the doctrine of East Omaha Land Co. v. Jefferis, as announced by the supreme court of the United States in 134 U. S. supra, and we adhere to that doctrine; and as to this the motion for reconsideration is sustained. While the result of the application of that doctrine in this case is not agreeable to the writer, courts cannot make decisions to relieve hardships. As it has been said, hard cases sometimes make shipwreck of the law.
There remains the question whether there was a forcible entry, as actual force is said to be the gist of the action of forcible entry and detainer. Hall v. Trucks, 38 Ark. 257. A peaceful entry, though unlawful, is not sufficient to sustain the action. Anderson v. Mills, 40 Ark. 192. According to the ruling herein made, Thompson had title to the accretion of 35 acres to southwest quarter of section 13 by virtue of his purchase of southwest quarter of 13 at tax sale. The evidence does not seem to show that he used force in making his entry, but this was a question of fact for the jury, under proper instructions by the court as to the law. The court in its instructions seems to have stated the law correctly, except in the latter clause of the third instruction. The instruction entire is as follows: “(3.) If the plaintiff had abandoned the land, and the defendant entered and took possession, their the plaintiff cannot recover in this suit, and you will find for the defendant. An abandonment, for the purpose of this suit, would mean such acts as a man usually does when a field or portion of land becomes unprofitable to cultivate, and he removes the fence, or permits it to go to decay, or to be thrown down and to waste." This is evidently incorrect. It ignores the question of actual possession of the land by the plaintiff at the time of the appellant’s entry, and also ignores the question of the use of actual force in making the entry. In Winn v. State, 55 Ark., 360, we held that “where a landlord, entitled to re-enter for condition broken, took possession peaceably in the absence of the tenants from the premises, he has the right to protect his possession by force, if necessary, as well against former tenants as any one else proposing to take possession without right.” This is to the effect that one having title and right to possession may get possession peaceably and defend his possession by force, if necessary, and if he do so he wall not be guilty of forcible entry and detainer.
For the error indicated, the judgment is reversed, and the cause is remanded for a new trial.