Miller, &C. v. Hepburn
| Citation | 71 Ky. 326 |
| Parties | Miller, &c. v. Hepburn. Same v. Hancock, &c. Same v. Rogers. Same v. Duncan. Same v. Pope. |
| Decision Date | 23 October 1871 |
| Court | Court of Appeals of Kentucky |
WILLIAM PRESTON, M. C. JOHNSON, JOHN MASON BROWN, For Appellees.
The appellees, claiming title as the children and representatives of William Preston, deceased, to some lots of ground in the city of Louisville, situated near the foot of Jackson Street, and between Fulton Street and the Ohio River, instituted their actions against the appellants in June, 1867, for the recovery of parts of the lots then in the defendants' possession, they owning and occupying an adjacent lot, which, with those of the plaintiffs and the interference in controversy, is shown by the diagram here inserted; the plaintiffs owning in the largest lot, No. 4, the lots in controversy, which when laid off in 1830 abutted on the then line of the river at the letter G, but now, as contended by the appellees, are in consequence of an alluvion formed in front of them, and the consequent recession of the river, prolonged to the present water-line at the letter H; while the defendants, who own the lot No. 5, claim that as the accretion was formed and the river receded their west line, which terminated originally at the letter G, was gradually extended till it reached the present water-line at the letter K, crossing each of the plaintiffs' lots extended, as claimed by them, so that the ground in dispute is that indicated by the letters G, H, I, J.
The defenses involved both a denial of the alleged title of the plaintiffs and an assertion of right in the defendants for substantially the following reasons: First, that the law continued the natural course of their side-line from the point G toward K as the river receded; second, that as the accretion was formed said line was extended and adopted by the concurrence and acquiescence of the owners and tenants in possession of the adjacent lots; third, that the plaintiffs were barred by continued adverse possession of the ground in controversy.
The court was of the opinion that plaintiffs, as riparian proprietors of their lots originally fronting on the river, were entitled to the land added thereto by accretion, to be ascertained by extending the original river frontage of the respective lots, as nearly as practicable, at right-angles with the course of the river to the thread of the stream, and rendered judgments in accordance with that conclusion, and these appeals are prosecuted for the reversal of those judgments.
The first question to be decided is, whether the rule adopted by the court for determining the extent of the plaintiffs' recovery, if they were entitled to recover at all, was correct. In the very able and ingenious argument of the counsel for the appellants in this court, the general principle is not questioned that in ascertaining the rights of a riparian proprietor no importance should be given to the quantity or figure of his entire tract, nor the course of its side lines; and we presume it unnecessary to resort to authority or illustration to prove that the appellants could not acquire title to the ground in controversy merely because of the oblique direction of the western side line of their lot with reference to the general course of the river. But it is insisted for the appellants, in substance, that the court erred in adopting an arbitrary method of determining the relative rights of the parties by extending the side lines of the plaintiffs' lots from their respective original termini on the shore as nearly as possible at right-angles with the course of the river to the center of the stream, instead of so drawing the lines as to give to each riparian proprietor such a proportion of the alluvial soil as the total extent of his front line bears to the total quantity of the alluvial soil to be divided, without regard to the general course of the river or the center of the stream; and we are referred to the cases of Deerfield v. Arms (17 Pickering, 41), Jones et al. v. Johnston, (18 Howard, 150), Johnston v. Jones et al. (1 Black, 209),...
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