dissenting. I disagree with the reliance upon the testimony of Spillers to reverse the trial court’s finding.
The undisputed fact here is that the main chanel of the Mississippi River, until the Tarpley cut-off in 1935, was along the right descending bank of the river and had been along the right descending bank in the area of Spanish Moss Bend as long as records have been kept. Another undisputed fact is that the main channel of the river was west of Luna Bar according to the first maps that depicted its existence. It is also undisputed that in the years of 1879-80 the Mississippi River Commission caused its Chart No. 39 to be made under the supervision of First Lieutenant Smith S. Leach, U. S. A., and that on this chart Luna Bar is shown as a sand bar. Furthermore, the highway maps of both Mississippi and Arkansas indicated the boundaries between the two states as being in the main channel along the right descending bank of the Mississippi River until sometime after the Tarpley cut-off in 1935.
Austin Smith, a potomologist, testified that he began his study of the Spanish Moss Bend problem with an 1821 map (prepared by Young) that accompanied an 1822 report to Congress and that that map showed snags in the channel of the Mississippi River. (The purpose of the report was to improve navigation and snags were a menace to navigation.) He pointed out that for the river to have made a cut-off as described by Mr. Spillers, the new channel would have had to make a circuit around Luna Bar and back into the old channel at least three miles long and all of the silt, sand and vegetation would haye to go in the river. In all the studies he had made there was no indication of deposition of this large land mass downstream from Luna Bar. It was his opinion that if such a large amount of material had been deposited downstream, it would have been recorded and he was able to find no such record.
Mr. Smith pointed out that following the 1822 survey, the federal government began to remove snags and has continued that practice down to date of trial. According to an 1894 government survey the bore holes of Spillers, locating the cypress stump, would have been in the deepest part of the river channel when the 1894 survey was made. Smith’s analysis of the charts and the information obtained by Spillers’ bore was that the alluvium on Luna Bar was of recent origin and within the boundaries of the State of Mississippi.
Mr. Smith explained the presence of the cypress stumps because of the common practice on the river for dredges to pull logs from the river, cut away the timber portion of the tree and then drop the roots and stumps back in the river.
Mr. Spillers, in contending that the stumps had grown in place, admitted that when Exhibit 13 was overlaid on his Exhibit 42, the cypress stump would be close to the right descending bank in the river. According to Spillers, a concave bank caves in a slipoff manner — the river undercuts the bank and it slips in, letting the vegetation fall in the river. He stated that when caving occurs, he would expect a tree on the top to rotate and lean and that the cypress tree he found did lean (record 351 to 353). From the boring made, the age of the cypress stump, and the topography of the land Mr. Spillers concluded that the Mississippi did not cut and erode to its 1935 position but that it encircled Luna Bar leaving the land mass intact.
Mr. Spillers’ opinion, based upon evidence that now appears, cannot be reconciled with the recorded observations of First Lieutenant Smith S. Leach in the years • 1879-80 to the effect that the area in question was a sand bar. Furthermore, his expectation that a tree on a caving concave bank would rotate and lean and remain in place shows to me that he knows nothing about a caving concave bank.
It is not the water that makes a bank cave into a river. It is the force and movement of the water, much like the modern air drill used by dentists, that cuts under the terra firma and through any root formations (and also pilings) that caves away the alluvium banks of our rivers. When the force and movement is such as to move the terra firma in that manner, it also moves away any vegetation, including the massive oak and cypress that abound on such streams. Who has observed a caving concave bank on the Mississippi with leaning stumps or trees along the edge of the water next to the concave bank? The answer is obvious, because all such banks are well and cleanly scoured.
Mr. Spillers’ testimony does not preponderate against the trial court’s finding for still another reason —i. e., there is no record of an avulsion having occurred in this area even though all of the charts introduced and relied on by both sides show signs of civilization in the area in the nature of towns or communities carrying popular names. In this we must remember that the testimony here is that it would have taken a three mile cut into the Arkansas bank of the river for the river to have encircled Luna Bar and left it in place. In Dartmouth College v. Rose, 257 Iowa 533, 133 N. W. 2d 687 (1965), the Iowa court held:
“There is a presumption of accretion as against an avulsion. . ..
In addition to the presumption against the happening of an avulsion in the summer of 1937 as contended by the intervenor, no witness testified to such an event. We repeat what is said in Bone v. May, supra, 208 Iowa 1094, 1097; ‘A sudden change of the course of the Missouri River, affecting 600 or more acres of land, would, we think, attract considerable attention. Ii is altogether likely that it would have been known by everybody living in that territory, for miles around.’ ”
Considerable force is added to the foregoing proposition since part of Spillers’ hypothesis is that Luna Bar shows the remnants of an identifiable levee on the Arkansas side of the main channel of the river before the 1935 Tarpley cut-off.
For these reasons, I would affirm the trial court.
Harris, C. J. and Holt, J. join in this dissent.