HOGUE et ux. v. STRICKER LAND & TIMBER CO.

HOGUE et ux. v. STRICKER LAND & TIMBER CO. No. 7149. Circuit Court of Appeals, Fifth Circuit. April 19, 1934. For former opinion, see 67 F.(2d) 167, which affirmed 2 F. Supp. 905. Before BRYAN, SIBLEY, and HUTCH-ESON, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. Under the principles of law which we have announced, sinee most of the accreted land described in the petition lies west of Glascock Island it is clearly in Louisiana; only that to the south of the Island could be in Mississippi. The evidence fails definitely to locate the point south of the Island at which the thread or channel of the eastern chute, as it existed when it ceased to flow and became a fixed state boundary, joined with the then thread or channel of the Mississippi river; so that it was not established that any of the accreted land south of the Island is in fact below the junction joint and therefore part of the Mississippi shore and within the territorial jurisdiction of the court. The court was for this reason justified in refusing to proceed. On the other hand, it is possible if not probable that upon fuller and more definite evidence as to the junction point it may appear that a part of the land described in the petition is below it and therefore in Mississippi. We do not think that the present junction of the depression across the accreted land with the river is necessarily the point of junction above alluded to. We are of opinion that the dismissal ought to be without prejudice to another suit for the accreted land in Mississippi if the plaintiff can better establish that there is such. The order of dismissal is therefore modified so as to be without prejudice to- another suit, and as modified it is affirmed. The motion for rehearing is denied.