Anderson v. Sutton

• Decision Date: 09 August 1922
• Citation: 243 S.W. 643,295 Mo. 195
• Parties: BEN M. ANDERSON, v. T. F. SUTTON, Appellant
• Court: Missouri Supreme Court

243 S.W. 643

295 Mo. 195

BEN M. ANDERSON, v. T. F. SUTTON, Appellant

Supreme Court of Missouri

August 9, 1922

Appeal from Boone Circuit Court. -- Hon. David H. Harris, Judge.

Affirmed.

E. C Anderson, H. D. Murry, D. W. Shackleford and Jeffries & Corum for appellant.

(1) The doctrine of accretion is that since every proprietor whose land is bounded by a watercourse is liable to loss by encroachment of the stream, it is but natural justice that he should own whatever is added to his shore by gradual shifting of the water line. New Orleans v. United States, 10 Pet. 717; Yearsley v. Gipple, 175 N.W. 641; Swearingen v. St. Louis, 151 Mo. 355. (2) Accretions are governed by the same rules whether the stream be navigable or non-navigable. 40 Cyc. 622; Denny v Cotton, 22 S.W. 126; Fletcher v. Phelps, 28 Vt 262; Jakaway v. Barrett, 38 Vt. 322-3; McCormick v. Miller, 239 Mo. 463. (3) A watercourse must be a stream usually flowing in a particular direction, though it need not flow continually. It must flow in a definite channel, having a bed, sides or banks, and usually discharging itself into another stream or body of water. 40 Cyc. 621; Benson v. Railroad, 78 Mo. 504; San Gabriel Valley Country Club v. Los Angeles Co., 188 P. 554. (4) The slough or creek separating the land in controversy from respondent's "high bank" was a watercourse over which accretions could not jump to attach themselves on the opposite side. "There is nothing saltatory about accretion." Crandell v. Smith, 134 Mo. 634; Buse v. Russell, 86 Mo. 214; Withers v. Railroad, 226 Mo. 404; McCormick v. Miller, 239 Mo. 463. (5) A sand bar forming out in the river and extending until it attaches itself to the main shore is not an accretion to the shore. 40 Cyc. 553; Hahn v. Davidson, 134 Mo. 590; Crandell v. Smith, 134 Mo. 633. (6) "It is not within the province of an appellate court to weigh the evidence or make a selection from two or more reasonable conclusions of fact presented by the evidence. Such duties belong exclusively to the triers of fact, but it is the duty of the appellate court to pronounce on the question whether the evidence adduced by a party is substantial, or whether a conclusion of fact falls within the boundaries of reason, and in the performance of that duty the appellate court is not to be controlled by the fact that a trial judge has examined the evidence and pronounced it substantial and has indulged in a conclusion the reasonableness of which is assailed. The appellate court must act in such matters on its own judgment, and if it thinks the evidence supporting the verdict and judgment has no substance, it should reverse the judgment, regardless of what others have thought of the evidence." Scroggins v. Met. St. Ry., 138 Mo.App. 220; Sexton v. Street Ry., 245 Mo. 272; Dyrcz v. Ry., 238 Mo. 47; Wray v. E. L. & W. P. Co., 68 Mo.App. 380; Zaloutuchin v. Met. St. Ry., 127 Mo.App. 484; Millinery Co. v. Ry., 177 Mo.App. 282; Nugent v. Milling Co., 131 Mo. 253. (7) The probative value of a witness's statements is very much lessened when obtained by means of leading questions which are so put that the witness merely assents to or dissents from a statement or assertion of an examing counsel put with such vocal inflection as to be a question. Burns Lbr. Co. v. Reynolds, 148 Ill.App. 361.

Irwin & Haley and L. T. Searcy for respondent.

(1) We have no violent dispute with the appellant as to the law in this case, if properly applied to the proven facts. We concede that there is nothing saltatory about an accretion which would cause it to leap a stream, yet upon the other hand respondent contends that at the time of the accretion the creek was not located as it is at present, but came to its present location by avulsion long after the accretion was formed. This was our contention in the court below, and in this we are supported by ample evidence and a favorable finding by the trial court.

This case is almost parallel with the case of DeLassus v. Faherty, 164 Mo. 361, except the facts in this case are much stronger than in that case. The case of Miller v. Bufton, 275 Mo. 35, cites with approval the case of DeLassus v. Faherty, in a case where the facts are quite similar to those in the case at bar. (2) The testimoney of witnesses that there is a five-acre tract of high land, covered with large timber along the northern boundary and west of the old bed of Bonne Femme Creek, which was never washed away and which formed a part of Anderson's original tract, is alone sufficient evidence to support the verdict of the court. (3) Counsel for appellant complains that respondent's counsel asked leading questions. The case was tried before the court and any error in this respect was harmless. Besides no exception was taken as to the adverse ruling of the court.

ELDER, J. Woodson, Graves, Higbee and David E. Blair, JJ., concur; James T. Blair, C. J., not sitting; Walker, J., absent.

OPINION

In Banc.

ELDER J.

This is an action to determine title to approximately 320 acres of land in Sections 21, 22, 27 and 28, Township 46, Range 13, Boone County, Missouri.

The petition alleges that plaintiff is the owner of said land in fee and that defendant claims adversely thereto. The answer denies the ownership of plaintiff, avers that defendant is the owner in fee, and alleges that he is in possession.

The cause was tried by the court, resulting in a judgment in favor of plaintiff. No instructions were asked or given, and the court made no findings of fact. From the adverse judgment rendered, defendant has appealed.

The respective contentions can best be understood by reference to plaintiff's Exhibits "A" and "D" and defenadnt's Exhibit 6, which are found on pages 200, 201, and 202, following.

As will be observed, plaintiff's exhibit "A" is a Government survey made in October, 1916. Plaintiff's Exhibit "D" was taken as to topography mainly from a survey of 1879, and as to shore line from a survey of 1890. Defendant's Exhibit 6 was constructed by P. S. Quinn, County Surveyor of Boone County. He testified that he made the survey therefor in April, 1895, taking notes "from the original Government notes on file here." The land in controversy comprises part of the 110-acre tract and the 262-acre tract shown in the lower left hand corner of defendant's Exhibit 6.

Plaintiff claims by virtue of accretion to the shore line of lands purchased by him from one John Girard in 1896. Defendant rests his claim upon deeds from Boone County and from one Conley and wife, both executed in 1912.

It is admitted that plaintiff owns all that part of New Madrid Survey No. 97 which lies north and east of what is designated in the testimony as the slough or creek. (See defendant's Exhibit 6, tract marked "Anderson.") Subsequent to 1817 an island, commonly known as "Johnson's Island," also designated on some of the Government [SEE EXHIBIT IN ORIGINAL] [SEE EXHIBIT IN ORIGINAL] [SEE EXHIBIT IN ORIGINAL] surveys as "One Thousand Island," formed in sections 9, 16 and 21. A number of small bars and islands united to form this island, among them being islands 33, 34 and 40 shown at the top of defendant's exhibit 6. (Also see plaintiff's Exhibit "D.") Some time in the '80s another island, sometimes referred to as Wright's Island and sometimes as Edward's Island, was formed to the west and south of Johnson's Island. (See defendant's Exhibit 6, also plaintiff's Exhibit "D.") This island was surveyed by Quinn, the county surveyor, in 1895. The county court sold the northern part of this land to E. D. Johnson, the middle portion to H. T Wright and the southern portion to P. Edwards. (See defendant's exhibit 6). About the year 1883 or 1884 the Missouri River cut into what is designated on defendant's exhibit 6 as "Bonne Femme Creek," at a point some hundred yards or somewhat less than a quarter of a mile north of the northern line of plaintiff's land. At that point the waters of the creek thereafter emptied directly into the river, departing from the old channel, and from thence onward the waters of the river and creek mingled. Defendant claims that the confluent waters of the river and creek washed away all of plaintiff's land which lay west of the old bed of Bonne Femme Creek. According to the witness Girard, who was one of the original owners of plaintiff's land (having purchased the same in 1883 and having lived thereon since 1877), all of plaintiff's land was not washed away, but a small triangular tract was left untouched. The witness Cauthorn spoke of this tract as a high bar of five acres lying "west of the old creek bed." As we gather from the argument and briefs, it is the contention of plaintiff that the river reached its most eastern shore line about the year 1884, that it then receded to the west and refilled the entire eastern shore line, causing accretions to form to the triangular tract which was not washed away and adding land to the shore line all along plaintiff's front, as well as to the west and south ends of the so-called Wright's or Edward's Island. It is the contention of defendant that all of New Madrid Survey No. 97 to the west and south of what is designated on defendant's exhibit 6 as the "high bank" was carried away by the river, that after a few years, bars began to form in the river within the former boundaries of the said survey, and that as these bars grew and spread they pushed the main channel of the river west and south. The real question then is whether the newly formed land to the west and south of the so-called slough or old creek bed, within the former boundaries of New Madrid Survey No. 97, is an accretion to plaintiff's land lying north and east of the slough or creek. This question must be determined in the light of the evidence, bearing in...