Akers v. Stoner

• Decision Date: 18 May 1928
• Docket Number: No. 26670.,26670.
• Citation: 7 S.W.2d 695
• Parties: JOHN T. AKERS ET AL. v. FRANK D. STONER, Appellant.
• Court: Missouri Supreme Court

7 S.W.2d 695

JOHN T. AKERS ET AL. v. FRANK D. STONER, Appellant.

No. 26670.

Supreme Court of Missouri, Division One.

May 18, 1928.

Appeal from Clinton Circuit Court. — Hon. Guy B. Park, Judge.

REVERSED.

Milligan & Thompson, Pross T. Cross and Blackwell & Sherman for appellant.

(1) The Ray County patents to plaintiffs are void and convey no title to plaintiffs as against defendant Stoner, for the reason that the evidence fails to show that the land described in said patents which was in the possession of Stoner was a part of the bed of the river at the time of the avulsion. Secs. 7029, 7032, R.S. 1919; Schneider v. Schneider, 284 Mo. 326; Minton v. Steele, 125 Mo. 192; Benecke v. Welsh, 168 Mo. 271. (2) The bed of a river is the part between the banks worn by the regular flow of the water. Howard v. Ingersoll, 13 How. (U.S.) 426, 14 L. Ed. 189; Alabama v. Georgia, 64 U.S. (23 How.) 505, 16 L. Ed. 556; City of Peoria v. Bank, 79 N.E. 299; Haigh v. Lenfesty, 87 N.E. 964. (3) The patents issued by the County Court of Ray County are void and convey no title to plaintiffs, for the reason that all the proof shows that Stoner's land was south of the main channel of the river as it ran at the time of the avulsion. The boundary line between Ray and Lafayette counties was and is the middle of the main channel of the Missouri River as it ran at the time of the avulsion. Ray County was therefore without authority to issue these patents, as the land was not in Ray County. Secs. 9328, 9368, 9407, R.S. 1919; Constitution, Art. 9, sec. 1; Rees v. McDaniel, 115 Mo. 151; Cooley v. Golden, 117 Mo. 49; McCormack v. Miller, 239 Mo. 463; Vogelsmeier v. Prendergast, 137 Mo. 271; McBaine v. Johnson, 155 Mo. 191; Nebraska v. Iowa, 143 U.S. 367, 36 L. Ed. 189; Nebraska v. Iowa, 145 U.S. 519; Missouri v. Nebraska, 196 U.S. 36; Washington v. Oregon, 211 U.S. 121; Washington v. Oregon, 214 U.S. 205; Arkansas v. Tennessee, 246 U.S. 173; Oklahoma v. Texas, 260 U.S. 606; Arkansas v. Tennessee, 269 U.S. 151; State v. Keane, 84 Mo. App. 131; Secs. 7029, 7032, R.S. 1919. (4) Even if the court should hold that the line between Ray and Lafayette counties was the center of the main channel of the river as the same existed at the time of the adoption of the Constitution, to-wit, on November 30, 1875, still, plaintiffs are not entitled to recover herein for the reason that the evidence shows that Stoner was the owner by purchase and deed of land which was never, at any time, in the river, and that the other land in the possession of Stoner, at the time of said avulsion and at the time of the execution and delivery of said alleged patents, was land which had, through the years, been added by gradual accretion to said main land as the river cut on the Ray County side and added land on the Lafayette County side. The original accretion was to shore land and this accretion continued by pushing north and east over and beyond the channel occupied by the river at different times prior to the avulsion. Stoner is entitled to this land so formed by accretion, although part of it may now be located in Ray County, as accretions can extend over the original channel line of the river, except into another State with different laws in regard to accretions. Hahn v. Dawson, 134 Mo. 591; Benecke v. Welch, 168 Mo. 271; Widdecombe v. Chiles, 173 Mo. 203. (5) Accretion is defined as the gradual building up of land to the shore of a navigable stream. Hahn v. Dawson, 134 Mo. 581; Benne v. Miller, 149 Mo. 228; McCormack v. Miller, 239 Mo. 463; Frank v. Goddin, 193 Mo. 390; Miller v. Lloyd, 275 Mo. 35; Benson v. Marrow, 61 Mo. 350; Doebbeling v. Hall, 310 Mo. 204. (6) And accretions belong to the owner of the land against which the accretions were deposited. Campbell v. Gas Co., 84 Mo. 352; St. Louis v. Lemp, 93 Mo. 477; Minton v. Steele, 125 Mo. 181; Benne v. Miller, 149 Mo. 228; St. Louis v. Railroad Co., 248 Mo. 19; Doebbeling v. Hall, 310 Mo. 204. (7) And accretions do not belong to United States Government, nor to the State of Missouri, nor to the counties. McBaine v. Johnson, 155 Mo. 191. (8) And accretions belong to riparian owner, even though extending over the place where another owner's land was washed away. Widdecombe v. Chiles, 173 Mo. 195. (9) It is not necessary that possession of the accretion should be held for ten years. When the main land is held long enough to vest title in possessor, the title to the accretions follows, even though the deposit had been made but a year or a day. Benne v. Miller, 149 Mo. 228; McCormack v. Miller, 239 Mo. 463. (10) And whether the accretions form by deposits from the bottom of the stream, so as ultimately to blend with the bank by the recession of the waters, or first form on the sides of the bank and extend into the stream, they alike constitute part of the shore land which they join. Minton v. Steele, 125 Mo. 181.

E.A. Farris and Lavelock, Kirkpatrick, Clark & Garner for respondent.

(1) The boundary line between Ray and Lafayette counties is the center of the main channel of the Missouri River as the same existed at the time of the taking effect of the Constitution on November 30, 1875. Northstine v. Feldmann, 298 Mo. 365. (2) Under the evidence, the land in controversy was not formed as accretions to defendants' shore lands. Crandall v. Smith, 134 Mo. 633; Vogelsmeier v. Prendergast, 137 Mo. 271; Cooley v. Golden, 117 Mo. 33; Frank v. Goddin, 193 Mo. 390; Moore v. Farmer, 156 Mo. 33; Perkins v. Adams, 132 Mo. 131. (3) The Ray County patents are sufficient to convey the lands described, whether such lands were formed by the recession and abandonment of the river or as islands. Secs. 7029-7032, R.S. 1919; Frank v. Goddin, 193 Mo. 390; Sexton v. Dunklin Co., 246 S.W. 195. (4) The title to islands and abandoned river bed vests in the county where situate, and Lafayette County could not convey land not situate in that county. Last citations above. (5) A riparian owner on a navigable stream owns only to the water's edge; a sudden change in the channel does not change boundaries; and defendant can claim, as accretions, only such land as had been added to the shore land by gradual process prior to the avulsion of 1915. Citations under (2) supra. (6) The Statute of Limitations, as to the land in this case, does not begin to run until twenty years from the passage of the article on "Accreted Lands," approved April 8, 1895, and plaintiffs are not barred by limitations. Sec. 7031, R.S. 1919; Laws 1895, p. 207.

ELLISON, C.

This land controversy grows out of a sudden shifting of the channel of the Missouri River between Ray and Lafayette counties in one night, in July, 1915. The plaintiffs, named Akers, sue at law in two counts. The first count is to quiet title under Section 1970, Revised Statutes 1919, against a number of named and unknown defendants; the second count is in ejectment against three of the same defendants. All of the defendants defaulted except one, the appellant Stoner.

The land claimed by the respondents is 341.43 acres described as being in Section 25, Township 51, Range 28, Ray County. They base their title on two certain patents from the County Court of Ray County executed in March and November, 1923. The appellant resists, and claims the same land (except about fifty-nine acres) under three certain deeds from private owners severally dated in 1903, 1904 and 1914, calling for 239.14 acres of land in Sections 27, 28, 33 and 34, Township 51. Range 28, Lafayette County. He asserts the land described in these deeds, with accretions, now amounts to 736 acres more or less. The discrepancy between the four section numbers given in appellant's deeds and the section number 25 given in respondents' patents, is due to the fact that the Government surveys in Ray County and Lafayette County do not fit together. Section 25, Township 51, Range 28, extended west according to the Ray County numbering would substantially overlap the east half of section 28 and the west half of section 27 of the same township and range according to the Lafayette County numbering.

By the avulsion in 1915 the river cut off one of its loops at a place about three miles south of the territory here involved. It should be remembered from the outset that none of the evidence in this case is concerned with the present river channel. It all refers to the course of the stream around the loop before the avulsion. The respondents' title through the two Ray County patents must stand or fall on two propositions. The first is that the disputed land was a part of the bed of the Missouri River, or of an island formed in the channel, as abandoned by the avulsion in 1915. Sections 7029 and 7032, Revised Statutes 1919, first enacted by Laws 1895, page 207, provide that all such land shall belong to the counties where located, and of course it devolved on the respondents to prove the land was formed in that way. They say it was abandoned river bed.

The second proposition to be established by respondents was that the land was located in Ray County at the time of the avulsion, at the time the patents were issued, and at the time the suit was filed. If the land was not in Ray County at the time of the avulsion then title thereto was not vested in that county under Sections 7029 and 7032, supra, by the sudden recession and abandonment of the river bed; if the land was not in Ray County when respondents' patents were issued, the patents passed no title; and if the land was not in Ray County when the suit was filed the Circuit Court of Clinton County had no jurisdiction. [Sec. 1179, R.S. 1919.] It should be here explained the respondents instituted the action in Ray County on the theory that the land was in that county, and that a change of venue was taken to Clinton County, making the jurisdiction of the circuit court of the latter county wholly derivative. But all this amounts to the same thing, for wherever the county boundary line was at the time of the...