On Motion for Rehearing.
In a very ably written motion for rehearing appellee strongly contends that this court erred in holding that the land he sought to have surveyed, that is, the abandoned bed of a navigable river, was not state land, but took on the nature of an accretion or reliction to the lands bordering the old bed upon both sides.
[3] In support of this position, after assuming that the brief statement in our former opinion of the circumstances under which the Brazos changed its course in 1832 constituted avulsion rather than the slower and more gradual result known as accretion or reliction, many widely selected cases are cited, applying the well-settled general rule that where changes in the course of rivers occur by the sudden and violent avulsive method, the property lines of abutting or riparian owners remain the same as before, among them the following: Lynch v. Allen, 20 N. C. 190, 32 Am. Dec. 671; Marks v. Sambrano, 170 S. W. 546; Cooley v. Golden, 117 Mo. 33, 23 S. W. 100, 21 L. R. A. 300; Rees v. McDaniel, 115 Mo. 145, 21 S. W. 913; Wallace v. Driver, 61 Ark. 429, 33 S. W. 641, 31 L. R. A. 317; Fowler v. Wood, 73 Kan. 511, 85 Pac. 763, 6 L. R. A. (N. S.) 162 et seq., 117 Am. St. Rep. 534; Stockley v. Cissna, 119 Tenn. 135, 104 S. W. 792; Missouri v. Nebraska, 196 U. S. 23, 25 Sup. Ct. 155, 49 L. Ed. 372; 29 Cyc. 353.
While it is true that no authorities upon this question were cited in the brief of either party, this court was aware of and considered the line of cases now presented by appellee before announcing its former opinion, but concluded that the principle therein applied did not rule the fact conditions in this instance. Appellee’s inference that our summary of the facts under which the change in beds occurred showed it to have been avul-sive may not be unjustified from the language used; but nevertheless that was not the premise from which our conclusion proceeded, because we then thought, as we still do, that the leaving of this old bed as unsub-merged land, susceptible of being surveyed as such, was gradually accomplished by the processes termed accretion or reliction, and that the record here so shows. We accordingly thus enlarge upon what was formerly, perhaps, an inadequate statement of how the actual change resulted: Although the main body of the river as a flowing stream changed channels during an overflow, as was recited in the original opinion, the undisputed proof likewise discloses that the abandoned bed did not become such all at once, nor did it suddenly emerge as dry land. Upon the other hand, all of the witnesses wno testified about that matter, either from general reputation and the statements of old settlers, or upon personal knowledge, said that the water had left the horseshoe shaped bed of old river so slowly, gradually, and intermit*1032tently that they had been able to fish in it from the time they were small hoys until a few years before this trial; that at times even yet there were lakes and sloughs of water in there, and every time the river got up the water would still flow into it through the mouth of one of these old sloughs and out again in the same way when it fell; in a word, that emergence from the water and the filling up of the old bed by deposits of sediment was so gradual and imperceptible as to make it a proportionate accretion to the adjoining lands upon both sides.
In these circumstances, while some of the authorities now cited by appellee appear to hold a contrary view, we think those referred to in our first opinion, upon better reasoning and stronger considerations, support the conclusion there reached, and feel constrained to adhere to it. In doing so, since a wealth of legal learning has illuminated the discussion of this subject in the cases referred to, conscious of inability to add anything, we have felt it unnecessary to write more, contenting ourselves with mention of the following additional authorities: Bigelow v. Hoover, 85 Iowa, 161, 52 N. W. 125, par. 2, 39 Am. St. Rep. 296 ; Buse v. Russell, 86 Mo. 209; Benson v. Morrow, 61 Mo. 345; Minton v. Steele, 125 Mo. 181, 28 S. W. 746; Ruling Case Law, vol. 1, pp. 228 and 281, pars. 3 and 5.
As his second ground for rehearing, appel-lee insists that we erred in holding the judgment should be reversed for failure to make the owners of abutting lands parties, because no such error, if error it was, had been assigned, nor was it fundamental. It may be that the answer of appellant, from which the inference as to there being other claimants of the land involved was taken, did not sufficiently set up the facts as to the ownership of the abutting lands, including the names of the claimants and the nature of their claims, to justify this court in reversing the trial court’s judgment because they were not made parties to this action. It becomes unnecessary to decide the matter, however, since the view taken upon the other question discussed necessitates a rendition anyway. The motion for rehearing has been accordingly overruled.
Overruled.