Brecker v. Fillingham

• Decision Date: 26 February 1908
• Citation: 209 Mo. 578,108 S.W. 41
• Parties: BRECKER v. FILLINGHAM et al.
• Court: Missouri Supreme Court

108 S.W. 41

209 Mo. 578

BRECKER v. FILLINGHAM et al.

Supreme Court of Missouri, Division No. 1.

February 26, 1908.

1. APPEAL — REVIEW — FINDINGS BY COURT.

Findings of fact by the court, based on conflicting evidence, will not be set aside on appeal.

2. EVIDENCE — PUBLIC RECORDS — EXEMPLIFICATIONS — CERTIFICATE.

Rev. St. 1899, § 3098 [Ann. St. 1906, p. 1774], provides that all records and exemplifications of office books kept in any public office

of the United States shall be evidence, if attested by the keeper of the records or books and the seal of his office, if there be a seal. Held, that a certificate to a copy of a government map, reciting that the map as far as it went into detail was a correct copy of the original, was insufficient to authorize the introduction of the map in evidence; there being nothing to show what parts of the map had been omitted from the copy.

3. APPEAL — EXCLUSION OF EVIDENCE — PREJUDICE.

Defendants were not prejudiced by the exclusion of certain maps, where all the things shown by the maps were testified to by witnesses and conceded to be as testified.

4. SAME — RIGHT TO OBJECT — NECESSITY OF OFFER.

Where the record failed to show that defendants offered a map in evidence, or that the court excluded it as such, but it was shown that the map was before the court, and was seen and inspected, defendants could not object on appeal that it was erroneously excluded.

Appeal from Circuit Court; St. Louis County; J. W. McElhinney, Judge.

Action by Louis H. Brecker against Charles Fillingham and another. Judgment for plaintiff, and defendants appeal. Affirmed.

This action was brought in the circuit court of St. Louis county. The petition consists of two counts, one in ejectment and one under the provisions of section 650, Rev. St. 1899 [Ann. St. 1906, p. 667], to determine and quiet title to certain lands on what is known as "St. Charles Island" in the Missouri river. The facts disclosed by the evidence may be briefly stated as follows: The island as originally surveyed by the government contained about 385.01 acres, and consisted of parts of sections 5, 7, 8, 17, and 18, in township 56, of range 5 E. By patent, dated January 14, 1836, the Government granted this property to one George Collier. Collier and wife conveyed to Atkinson in 1847. In 1859 Atkinson conveyed to Thomas W. Cunningham, as assignee for benefit of his creditors. In 1859 Cunningham, for the purposes of sale, had the island subdivided into lots by one Theodore Bruere, county surveyor of St. Charles county, Mo. By these conveyances the plaintiffs, Brecker and Cottle, acquired title to lots 1, 2, 3, 4, and 7 of Bruere's subdivision of the island. At the point where this island is located the Missouri river runs north and south; the foot of the island being north and the head south. At the time the island was surveyed by the United States surveyors the main channel of the Missouri ran on the eastern side of the island, separating it from the St. Louis county shore, and the island being separated from the western or St. Charles county shore by a narrow slough. At some time after the survey of the island by the government surveyors the river began encroaching upon the St. Louis county shore to the east of the island, and at the same time adding by accretion to the eastern and northern parts of the island, until in 1859 it contained by actual survey 1,000 acres, instead of 385 acres, as when originally surveyed by the Government. Lots 1, 2, 3, 4, and 7 of Bruere's subdivision of the island in 1859 were situated on the extreme southern end of the island; lot 1 being the southern lot lying next to the river, lot 2 adjoining it on the north, lot 3 adjoining lot 2 on the north, lot 4 adjoining lot 3 on the north, and lot 7 lying north of lot 4. The defendants or their predecessors in title owned lands in St. Louis county and bounded by the Missouri river. At the time of Bruere's survey of the island, in 1859, the main channel of the river continued to flow between the island and the St. Louis county main shore; the main channel of the river at that time flowing between said lots 1, 2, 3, 4, and 7 on the island and the main shore lands in St. Louis county, now owned by the defendants. The main channel of the river continued to flow on the eastern or St. Louis county side of the island, thus separating the St. Louis county shore and the island, until the year 1883. In the spring or summer of 1883, during a season of very high water, the main channel of the river shifted from the eastern to the western side of the island, and at all times since the high water of 1883 the main channel of the river has continued to flow on the western side of the island; that is to say, from 1883 down to the present time the river has run between the island and the St. Charles county shore.

There is no dispute about the fact that a portion of the old original island is still standing; some bearing trees and corners and monuments noted by Bruere in his survey in 1859 being still in existence on the ground. While there is a sharp conflict in the testimony as to the exact location of the river from 1875 up to 1883, the witnesses all agree that up to the date of the change in the channel in 1883 the river flowed on the east side of the island, and that, after the channel of the river shifted to the west side of the island, what had been the channel of the river prior to the shift was left with sloughs running through it, and within a few years after the channel shifted to the western side of the island the upper or southern ends of these sloughs closed up and the river ceased to flow through them, so that the entire river ran and has continued to flow on the western side of the island. At the date of the trial, and for a number of years prior thereto, the whole river was running west of the island. The entire river is now, and has been for years past, between the island and the St....