ON REHEARING.
McCulloch, C. J.On further consideration of the evidence in this case,,, we find the -facts to be that the grantor of Byers, the alleged tenant of plaintiff Elder, occupied the small .area of cleared land, claiming it as his own, for about twenty-six years, before he conveyed to Byers. This constituted a complete investiture of title, notwithstanding the mistake in getting beyond the boundary line. Hudson v. Stillwell, 80 Ark. 575.
Byers being the owner of the landj his alleged agreement to attorn to plaintiff was void and unenforcible. The note which he gave to plaintiff was also void for want of consideration. Parham v Dedman, 66 Ark. 26.
The question is therefore presented whether or not the void agreement of Byers, the owner and occupant of the small tract of cleared land, to attorn to plaintiff constituted such possession by the latter of that part of the land as to extend his possession constructively over the unoccupied land in controversy to which he had color of title, and ripen into title by limitation. We conclude that it did not. The plaintiff was never in possession of any part of the land, either actually or constructively. He had neither title nor possession nor right of possession. If the real owners of the land had made inquiry during the alleged period of limitation and ascertained the true facts, they would not have found the plaintiff in possession of any part of their land, because he was not, in fact, in possession either in person or by agent or tenant.
This conclusion is not in conflict with the doctrine announced in Wheeler v. Foote, 80 Ark. 435, for the facts of that case are clearly distinguishable from the facts in this. There, as soon as Bloomer cleared part of the tract by mistake as to boundary, and before he acquired title by lapse of time, he agreed to attorn to the plaintiff, Mrs. Eoote, and he thereafter occupied the cleared land as her tenant, and acted as her agent in keeping trespassers off the adjoining timber land. He had never acquired any title to the land when he agreed to attorn to Mrs. Eoote as his landlord, and his occupancy was notorious as her tenant and agent for a long time thereafter, until the commencement of the litigation. ,
We think, also, that the alleged attornment of Byers to plaintiff was insufficient, for another reason, to extend his possession constructively over the unoccupied land. It lacked sufficient notoriety to amount to adverse possession. The facts, as we find them to be, are that Byers did only one act before the commencement of this litigation which could be claimed as an attornment to plaintiff. That was his agreement, about three years before the commencement of the action, to pay plaintiff a small amount of rent. After the suit had been commenced, he permitted plaintiff to send a man into his field and gather about two bushels of corn, which was claimed as rent. There was no visible change of possession, and nothing was done to give notoriety to the agreement to attorn. There was nothing done to put the real owners upon notice that the actual possession of the small tract of cleared land by one who had no color of title was transferred to another person who had color of title, so as to extend the possession constructively. The injustice of permitting a secret transfer of possession to one who had color of title so as to extend his possession over the unoccupied portion of the land is manifest. The title to one and a half acres of the land had already been taken from the true owner by Byers and his vendor, through their occupancy for the full period of limitations. But they had no color of title which extended their possession beyond the limits of the actual occupancy; and in order to acquire the title to the remainder of the tract there must have been something in the nature of actual notice to the true owner or its equivalent. The element of notoriety must be added to adverse possession before it can rijien into title by limitation. Possession follows the title of the true owner until that possession is actually invaded. Haggart v. Ranney, 73 Ark. 334. We conclude, therefore, that ithe plaintiff’s claim of title by adverse possession cannot be sustained.
This conclusion makes it necessary to give attention to another feature of the case not discussed in the original opinion. The'tract of land in controversy was, at the time of the Government survey in the year 1846, within the meandered lines of Cache Lake, according to the official plat of that survey, and the plaintiff is the owner of a tract of 17.92 acres abutting on the meandered line. This gives the plaintiff the prima facie title to the center of the lake by virtue of his apparent riparian rights. Little v. Williams, 88 Ark. 37; Rhodes v. Cissell, 82 Ark. 367.
But a mistake in the survey is subject to correction by the Government. Little v. Williams, supra.
The United States Government in 1885 patented to the State of Arkansas all of the unsurveyed lands in this and certain other townships as swamp and overflowed land, and it does not appear that the Land Department ever caused another survey to be made and officially detex-mined that the area in controversy was land, instead of lake-bed, at the time of the original survey. The patent does not specifically describe the several tracts of land, but in general terms conveys “all of the unsurveyed land” in the township named. If it was in fact land, instead of lake-bed, at the time of the original survey (of which there is no direct proof in this record), the subsequent patent by the Government of unsurveyed land conveyed the title to the State of Arkansas, and the State, in turn, coxiveyed it to Jones, the defendants’ grantor. And if it be found that the Land Department of the United States has officially declared this particular tract to have been land, instead of lake-bed, at the time of the original survey, that would overturn the prima facie riparian rights of the plaintiff.
These matters are not sufficiently developed in the records for us to reach a decision as to the rights of the parties on this branch of the case. We cannot determine whether the facts of the case fall within the doctrine announced in Little v. Williams, supra, or of Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338.
The plaintiff is not entitled to an affirmance of the decree on the strength of his prima facie showing of riparian rights, for it is obvious that, if he be given that portion of the land between parallel or converging lines running to the center of the lake, he would not be entitled to all of the land in controversy; and' we cannot tell from this record how much, if any, he would be entitled to. Inasmuch as this branch of the case was not fully developed, we will leave it open for further proceedings in the chancery court, with leave to both parties to introduce further testimony. '
A rehearing is therefore granted, and the decree is remanded with directions to deny the plaintiff’s right to recover on his alleged title by adverse possession, but for further proceedings not inconsistent with the opinion on the other branch of the case.
Mr. Justice Battle concurs in the judgment and also in all of the opinion except that part which holds that the alleged attornment- of Byers to plaintiff was ineffectual to give possession of the cleared land to the latter because Byers was then in possession and was the owner of the land by limitation. He expresses no opinion on that point, ancl prefers to place the decision, as to this branch of the case, on the other ground stated in the opinion, viz: That the alleged attornment by Byers to plaintiff was not of itself an act of sufficient notoriety to constitute adverse possession in him, so as to constructively extend his possession over the unoccupied land.
Mr. Justice Frauenthal concurs in the judgment, but not in the opinion.