Ancona Realty Co. v. Frazier
| Decision Date | 05 September 1931 |
| Citation | 41 S.W.2d 820,328 Mo. 750 |
| Parties | Ancona Realty Company v. John Frazier, Appellant |
| Court | Missouri Supreme Court |
Appeal from Holt Circuit Court; Hon. Guy B. Park, Judge.
Affirmed.
H T. Alkire and Eastin & McNeely for appellant.
(1) The action is at law, and it was error for the court to overrule defendant's objection to the introduction of evidence and to deny to defendant a trial by jury. Dumm v. Cole County, 315 Mo. 568; Lee v. Conran, 213 Mo 404; Cullen v. Atchison County, 268 S.W. 93; Schneider v. Schneider, 284 Mo. 314. (2) Defendant was the riparian owner to which the land in controversy accreted. Being the owner of the main land the accretion followed and is supported by the same title. Benne v Miller, 149 Mo. 228; Doebbling v. Hall, 310 Mo. 215; DeLassers v. Flaherty, 164 Mo. 361, 58 L. R. A. 193, note p. 199. (3) The possession of the accretion by defendant was actual. The land was inclosed by his fence and had been inclosed for more than ten years, during which time defendant pastured the land and took wood from it for his own use, and sold timber to others. The plaintiff was never in possession, either actually or constructively, nor were those under whom plaintiff claims ever in possession, either actually or constructively. Even if defendant had not had the land fenced and in his actual possession, his ownership of the littoral gave him constructive possession as against everyone except a person in actual possession. Defendant had the title and this is sufficient as against every one out of possession who has not the title. The actual possession and ownership of the main land gave constructive possession to the accretion. R. S. 1919, sec. 1309; Benne v. Miller, 149 Mo. 228; Bevier v. Groves, 213 S.W. 74; Stevens v. Martin, 168 Mo. 407; Harbinson v. School District, 89 Mo. 184; Gaines v. Saunders, 87 Mo. 557; Wilkerson v. Eilers, 114 Mo. 245; 15 L. R. A. (N. S.) 1242 and note. (4) Defendant's ownership of the original land -- the island involved in Hahn v. Dawson, 134 Mo. 581, cannot be questioned. He was in possession of this land prior to the Act of April 8, 1895. He has been in continuous possession since. The twenty years fixed by this statute in which limitation would not run expired June 21, 1915. No question has ever been raised against defendant's title to this land, and no question as to defendant's title to the accretion until the institution of the present suit on January 27, 1927. Title by possession will support title to accretions as well as title by deed. Benne v. Miller, 149 Mo. 238; Stevens v. Martin, 168 Mo. 410; Bellefontaine Imp. Co. v. Niedringhaus (Ill.), 55 N.E. 184; 1 R. C. L. 235, sec. 10.
A. M. Tibbels, R. B. Bridgman, Marcy K. Brown and A. N. Adams for respondent.
(1) The petition is an equitable bill to establish title in respondent to 152 acres of land in Holt County. The petition alleges that respondent is the owner of the land in dispute and contains facts constituting estoppel in pais and equitable estoppel against appellant and also facts charging appellant with laches; contains a prayer for affirmative relief and a general prayer for such other and further relief as may be just and equitable. It was placed upon the equity docket in the court below, treated by the parties as an equity case, no demand for a jury was made, and the court did not err in trying the case as an equity case. Withers v. Ry. Co., 226 Mo. 373; Hauser v. Murray, 256 Mo. 84; Toler v. Edwards, 249 Mo. 152; Barron v. Wright, etc., Store, 292 Mo. 195, 237 S.W. 786; Deal v. Lee, 235 S.W. 1053. (2) Appellant was not the riparian owner of the land he occupied. It being undisputed that the land upon which appellant resided was of island formation, the title to the same was in the State until 1899, when it was transferred by the State to the county in which it was located. Laws 1899, p. 276. This act had a provision that the Statute of Limitations could not begin to run against the county for twenty years after 1895. Hence Holt County was the shore or riparian owner of the land to which the land in litigation accreted, if it did accrete. R. S. 1919, secs. 7029, 7032; Laws 1899, p. 276; Moore v. Farmer, 156 Mo. 33; Frank v. Godden, 193 Mo. 390; Hahn v. Dawson, 134 Mo. 581; Bleish v. Rhodes, 242 S.W. 971; Hecker v. Bleish, 3 S.W.2d 1008. (3) Holt County, being the shore or riparian owner at the time the accretions were formed and made, became the owner of all land formed, made and existing at the time it issued its patent to appellant, May 17, 1917, and had a right to convey the whole or any part thereof. Benson v. Morrow, 61 Mo. 345; Hecker v. Bleish, 3 S.W.2d 1008. (4) Appellant did not establish title to the land in litigation by adverse possession, (a) because in his application for patent to the 63.63 acres of land patented May 17, 1917, he stated that he did not hold the land adversely to Holt County; (b) he testified that he wanted the surveyor to go down and take in the land in litigation so that he could patent it from Holt County, thus recognizing Holt County as the legal owner of the land in litigation. The present suit being instituted January 27, 1927, within ten years from the date of appellant's patent, May 17, 1917, he has not established title by adverse possession. The Statute of Limitations does not run against the state; R. S. 1919, sec. 1314, which has been the law since 1866, and limitation does not run between individuals until the State conveys the land. Hamilton v. Badgett, 293 Mo. 324; Lumber Co. v. Craig, 248 Mo. 319; Thomas v. McDonald, 287 S.W. 444; Slicer v. Owens, 241 Mo. 319; Gray v. Shelton, 282 S.W. 53; Hecker v. Bleish, 3 S.W.2d 1008. (5) The Cole deed, dated March 5, 1903, conveyed to appellant no title, because Cole was a mere squatter on land of island formation, title to which was in Holt County. Hahn v. Dawson, 134 Mo. 581; Lumber Co. v. Craig, 248 Mo. 319. (6) If the land in controversy is accretions to the original lands occupied by the appellant, it became the property of Holt County, because the evidence is undisputed that this land was formed and made during the years 1901, 1902 and 1903. R. S. 1919, secs. 7029 to 7033; Laws 1895, p. 207; Moore v. Farmer, 156 Mo. 33; Frank v. Goddin, 193 Mo. 390; Benecke v. Welsh, 168 Mo. 267; Schneider v. Schneider, 284 Mo. 314, 224 S.W. 1. (7) Appellant, by applying to the county for a patent and stating in his application that he did not hold adversely to Holt County, "by that act solemnly characterized his possession as subordinate to the true title of Holt County. Lumber Co. v. Craig, 248 Mo. 330; Long v. Coal & Iron Co., 233 Mo. 740. (8) Appellant is estopped from denying plaintiff's title. Lumber Co. v. Craig, 248 Mo. 319; 21 C. J. 1061; 2 Herman on Estoppel & Res. Jud., secs. 937, 938.
Ancona Realty Company, a corporation, brought suit against John Frazier, appellant herein, to establish title to about 153 acres of land along the Missouri River in Holt County, Missouri. Its amended petition, upon which the case was tried, was filed March 8, 1927 (original petition filed January 27, 1927), and alleges that plaintiff is the owner in fee simple and in the legal possession of said land, consisting of three tracts, one containing 8.7 acres in the fractional southeast quarter of Section 19, Township 59, Range 38; another, containing 106.82 acres in the fractional southwest quarter of Section 20, said township and range; and the other, containing about 38 acres in the fractional northwest quarter of Section 29, said township and range; and that defendant claims some interest therein adverse to plaintiff's claim the nature or character of which is unknown to plaintiff. Said petition also alleges title to said lands in plaintiff through Paul T. Frye by patent from Holt County dated March 15, 1920, and by adverse possession under statutes of limitations, and invokes the doctrines of estoppel in pais, equitable estoppel and laches against defendant on matters therein pleaded. Said petition also alleges title in defendant by patent dated May 17, 1917, from Holt County to 63.63 acres of land immediately north of and adjacent to a part of plaintiff's said lands.
Defendant's answer contained a general denial, admissions that plaintiff is a corporation and that defendant claims an interest in said lands adverse to the interest of plaintiff, and allegations that he is in possession of said lands and has been in the open, notorious, exclusive and adverse possession thereof for more than ten years next before the filing of this suit, and has paid taxes thereon ever since 1918, when said lands first became taxable; that "by a decree of this court affirmed by the Supreme Court of this State in the case of Hahn v. Dawson et al., rendered on the 15th day of June, 1896, he was adjudged to be the owner of a tract of land occupying the left bank of the Missouri River as it then bordered a portion of said land; that the tract of which he was decreed to be the owner and which was involved in the litigation referred to, occupied a position on the bank of the Missouri River as it then ran and to which a large portion of the land claimed by plaintiff in this action was afterwards made as accretion; that subsequent to said decree and on the 25th day of March, 1903, he purchased from Joshua Cole a tract of land lying immediately up the river from the tract awarded to him by the judgment aforesaid, and bordering said tract on the west and north; that he secured title to said tract from the said Joshua Cole by a quitclaim deed bearing date aforesaid and recorded in Book 81 at page 561, of the deed records of Holt County, Missouri; that the said two tracts of land after the purchase aforesaid from the said Joshua Cole...
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