941 City of St Louis v. Rutz

• Decision Date: 02 February 1891
• Parties: 3 4 L.Ed. 941 CITY OF ST. LOUIS v. RUTZ
• Court: U.S. Supreme Court

138 U.S. 226

11 S.Ct. 337

3 4 L.Ed. 941

CITY OF ST. LOUIS v. RUTZ.

February 2, 1891.

This is an action of ejectment, commenced January 29, 1884, by Edward Rutz against Benjamin Seeger, in the circuit court of the county of St. Clair, in the state of Illinois, to recover the possession of certain land situated in said county, described in the first count of the declaration as follows: 'Commencing the survey thereof at a point on the line between surveys one hundred and forty-eight (148) and one hundred and forty-nine, in the common fields of Prairie du Pont, from which the southernmost corner of said survey number one hundred and forty-eight, at the bluffs, bears S., 33 1/2° E., (var. 6°,) two hundred and forty-nine and 25-100 (249.25) chains; thence north, 33 1/2° W., with said line of said surveys extended, to the center thread of the Mississippi river; thence along the center thread of said river to the line between survey one hundred and fifty-six (156) and survey one hundred and fifty-seven (157) extended to said center thread of said river, making the right-angle distance between the said extended lines 34.60 chains; thence south, 33 1/2°E., along said last-mentioned extended line to a point in the line between said surveys one hundred and fifty-six (156) and one hundred and fifty-seven (157) of said common fields, from which the most southern corner of said survey one hundred and fifty-six bears south, 33 1/2° east, two hundred fifty-four chains distant; thence along the meanders of the original bank of the Mississippi river, as surveyed by the United States government in surveying said common fields, to the point of beginning, with the appurtenances.' Seeger put in a plea of the general issue; and the city of St. Louis, a municipal corporation of Missouri, and the landlord of Seeger, was made, by an order of the court, a co-defendant with Seeger, and was given the sole control and direction of the defense of the suit; and it put in a plea of the general issue. Afterwards, on the petition of the city of St. Louis and of Seeger, the suit was removed into the circuit court of the United States for the southern district of Illinois, and that court took jurisdiction of it. By a written stipulation filed, the case was tried by the court without the intervention of a jury, and the court, held by the district judge, made the following findings of fact:

'(1) That in the years 1849 and 1850 one Augustus A. Blumenthal acquired, by deeds from the parties then in actual possession of said premises as the owners thereof, the title in fee to surveys numbered 149, 150, 151, 152, 153, 154, 155, and 156 of the common fields of Prairie du Pont, in the county of St. Clair, in the state of Illinois, and that Edward Rutz, the plaintiff in this suit, acquired from said Blumenthal his said title to said land prior to the commencement of this suit.

'(2) That the map or plat made by G. F. Hilgard, county surveyor of St. Clair county, Ill., produced in evidence, and marked 'Plaintiff's Exhibit B,' is a correct map and plat of the said premises and the surveys and lines indicated thereon; which said map is hereby included in and made a part of these findings, and to which reference is made for greater certainty.

'(3) That, as appears from the evidence and plats read and produced in evidence, the said surveys numbered 149, 150, 151, 152, 155, are each one arpent (or about twelve rods) in width, and the said surveys 153 and 154 are each two arpents (or about twenty-four rods) in width, and that the said survey numbered 156 is three arpents (or about thirty-six rods) in width, and that said several surveys adjoin each other and lie side by side in the order the same are respectively numbered,—survey 149 being upon the extreme northerly, and survey 156 being upon the extreme southerly, side of the entre tract,—and that each and all of said surveys extended to and were bounded by the Mississippi river on the north-westerly ends thereof, and extend south-easterly from the Mississippi river, the average distance of about one thousand rods, to the hills or bluffs on the Illinois side of said river.

'(4) That said Blumenthal, under said deeds to him, whereby he acquired title to said surveys, in the year 1850 entered upon and took the actual possession of said surveys, including, as a part thereof, the accretions thereto formed on the river front of said surveys embraced within the side lines of said surveys, extended without deflection in a direct line across such accretions north-westerly to the Mississippi river, and said Blumenthal so held such possession of said premises, and paid all taxes thereon, each year from January 23, 1850, to December 23, 1873, at which said last-mentioned time said Blumenthal conveyed 500 acres off from the north-western end of said premises, by deed, to said Edward Rutz and others, whose title the plaintiff acquired in fee on and prior to the 7th day of March, 1883, and thereupon succeeded to said Blumenthal's said title to and possession of said premises; and that the said Blumenthal, from whom the plaintiff so derived such title and possession as aforesaid, and the several owners of the surveys and lands in the said Prairie du Pont common fields adjoining said surveys 149 to 156, both on the northerly and southerly sides thereof, have each, ever since the year 1850, up to the present time, claimed, possessed, fenced, inclosed, used, and occupied as a part of their said several surveys and lands, respectively, that portion of the said accretions thereto embraced within the side lines of their respective surveys extended wihout deflection in direct lines north-westerly to said river; and that ever since the year 1849 the several owners of said surveys have, by common consent, recognized and acted upon such extension of the side lines of their several surveys in a direct course across said accretions to the river, as the true and proper boundary and division lines between them, in respect to the accretions formed on the river front of said surveys.

'(5) That the premises described in the declaration and sued for are located at the present time, and were at the commencement of this suit, eastwardly of the center of the main channel of the Mississippi river, and in the county of St. Clair, in the state of Illinois.

'(6) And the court further finds that, as appears from the evidence and from the survey of said lands made by William L. Deneen, as the county surveyor of St. Clair county, Ill on November 15, 1850, produced in evidence, at that time, the dry land of said surveys numbered 149 to 156, inclusive, extended westwardly to the line indicated by the words 'River Bank, 1850, by Deneen,' on the map marked 'Plaintiff's Exhibit B;' and that the main-land of said surveys numbered 149 to 156, inclusive, in the year 1850, extended westwardly over and across, and included about sixty rods in width of, the lands described in the declaration, to-wit, that portion of said lands lying between the river bank in 1850, as indicated by said Deneen's survey, and the line marked 'Old Surveyed River Bank, 1814,' as said lines are respectively designated on said map; and that in the year 1863 the main and dry lands of the surveys 149 to 156 extended about fifteen chains or sixty rods further westward, and beyond the line of the river bank so surveyed by said Deneen in 1850, and that the eastern bank of the river in 1863 was about one-half a mile west of a certain dwelling-house hereinafter mentioned, then standing on said survey No. 151, and so continued until the year 1865.

'(7) That the greater part of the so-called 'Arsenal Island,' which now extends over and is embraced within the boundaries of the lands described in the plaintiff's declaration, is located upon the site of the dry lands of said surveys numbered 149 to 15, i nclusive, as the same existed from 1850 to 1865, and that the residue thereof (being about one-eighth of the entire width of the same) is located upon the bed of the Mississippi river as it then existed, and easterly of the thread or middle line of said river.

'(8) That between the years 1865 and 1873 the river front of the said surveys numbered 149 to 156 was washed away, so that, in July, 1873, the river front of said lands only extended to the line marked 'River Bank, 1873,' on said map, and that said river bank thereafter continued to wash away and cave in until it reached the line marked 'River Bank, 1884,' on said map.

'(9) And the court further finds, from the evidence, that such washing away of said river bank did not take place slowly and imperceptibly; but, on the contrary, the caving in and washing away of the same was rapid and perceptible in its progress; that such washing away of said river bank occurred principally at the spring rises or floods of high water in the Mississippi river, which usually occurred in the spring of the year; that such rises or floods varied in their duration, lasting from four to eight weeks, before the waters of the river would subside to its ordinary stage or level; that during each flood there was usually carried away a strip of land from off said river bank from two hundred and fifty to three hundred feet in width, which loss of land could be seen and perceived in its progress; that as much as a city block would be cut off and washed away in a day or two; that blocks or masses of earth from ten to fifteen feet in width frequently caved off and fell into the river and were carried away at one time; that, in the spring of the year 1872, Mr. Augustus A. Blumenthal, Jr., the occupant of the land at the time, lived in the dwelling-house situated on said survey No. 151, and the river had, since the year 1865, so encroached upon the land that the house was then but about four or five hundred feet back from the river bank and water's edge, as it then existed. When the spring rise or flood occurred that year, the said Blumenthal became alarmed for...