Arnd v. Harrington

• Decision Date: 01 August 1939
• Docket Number: 44455.
• Citation: 287 N.W. 292,227 Iowa 43
• Parties: ARND et al. v. HARRINGTON et al.
• Court: Iowa Supreme Court

287 N.W. 292

227 Iowa 43

ARND et al. v. HARRINGTON et al.

No. 44455.

Supreme Court of Iowa.

August 1, 1939

Appeal from District Court, Pottawattamie County; Ernest M. Miller Judge.

Action for injunction and for damages. To plaintiffs' petition defendants filed answer and cross-petition asking decree quieting title and for injunction. Decree granting prayer of plaintiffs for injunction but refusing damages. From decree for injunction defendants appeal, and for refusal to award damages plaintiffs appeal.

Affirmed on both appeals.

J. J Ferguson, of Council Bluffs, for appellants.

John J. Hess, of Council Bluffs, for appellees.

HALE Justice.

The land involved in this controversy is situated to the east and north of the Missouri river, within the lines of Pottawatamie County, and is described as the northeast quarter of the southwest quarter, the northwest quarter of the southwest quarter, and the southwest quarter of the southwest quarter of section 24, township 74, range 44, and the northwest quarter of the northwest quarter of section 25, same township and range. Eliminating the first 40-acre tract (the northeast quarter of the southwest quarter of section 24), to which defendants expressly disavow any claim, the remainder of the land is also described throughout most of the pleadings as being in Sarpy County, Nebraska, but will hereafter for convenience be described as in Iowa. The principal controversy is as to the southwest 40-acre tract of section 24, and the northwest 40-acre tract (apparently fractional) of section 25. The southwest quarter of the southwest quarter of section 24 lies north of the land in section 25, and both lie immediately west of lands claimed to be owned by defendants. Defendants' title to their land is derived from a deed from one Batchelor, dated October 18, 1932 conveying land east of creek except the east 40 feet of the southeast quarter of the southwest quarter of section 24, together with all accretions thereto. The tract conveyed, exclusive of accretions, contained about 8 acres. Plaintiffs' title is claimed through a series of conveyances and transfers of title to the west half of southeast quarter of section 24 and northwest quarter of northwest quarter of section 25, the conveyance to plaintiffs being from Marks in 1920. Included in the record of title is a quitclaim deed from Batchelor to the Lake Manawa and Manhattan Beach Railroad Company, of " all that part of the southwest quarter of section 24-74-44 lying west and north of Mosquito Creek and lying north of the Missouri River; also that part of the southeast quarter of section 24-74-44, said tracts containing 200 acres more or less, the intention being to convey to said company said land and accretions, whether situated in Pottawattamie County, Iowa or Sarpy County, Nebraska." This deed was dated January 18, 1900.

The basis of the controversy is the right to accretions formed by the recession of the river, which for a long time has flowed west and south of the lands of plaintiffs and defendants and the accretions in dispute. The petition in this case was filed March 6, 1935, plaintiffs alleging ownership of the lands and trespass and injury by the defendants, and asking writ of injunction. Temporary injunction was granted, and afterwards temporary injunction granted to defendants on their cross-petition, which latter injunction was later dissolved. Among other proceedings, the plaintiffs, in April, 1935, filed petition in Sarpy County, Nebraska (which lies across the river to the west of Pottawattamie County, Iowa), asking injunction and decree quieting title. Whether this was done to forestall any jurisdictional claim in the Iowa case, or from uncertainty as to the state in which the land is situated, we do not know. At any rate, defendants later appeared in the Nebraska action, denied generally, pleaded lack of jurisdiction, and averred that the lands were in Iowa. Trial was had, and a decree rendered quieting title in plaintiffs and enjoining defendants from claiming any interest in, or going upon, or interfering with plaintiffs in their possession of, the land.

Petition and answer and cross-petition in the present action were amended at various times, but in substance the issues consist of the claims to the land. McGarry was substituted as party plaintiff for Arnd, and by another amendment Theodore Batchelor, Fred Schiferli, John Lewis, and Roy Lewis were made parties defendant, on the ground that they were trespassing and interfering with plaintiffs' use and occupancy. Defendants, in addition to their claim of ownership, deny jurisdiction of the Iowa court.

Defendants concede that they are occupying and using the southwest quarter of the southwest quarter of section 24, but claim right and title thereto as accretions to their land in the southeast quarter of the southwest quarter.

The pleadings are extensive, and the evidence introduced much too voluminous to undertake to set it out to any great extent in an opinion. Much of it relates to matters we do not think are essential to the disposition of the case. Some of the exhibits are not found with the record or are misplaced. But the greatest difficulty experienced in examining the evidence was that in some cases questions referred to maps and plats, but the witnesses merely indicated by pointing to the locations inquired about. It also appears from the transcript that the court was to examine the premises in question. Whether it did so or not the record does not disclose. We may assume that if it did, it was merely for the purpose of applying the testimony. But under the circumstances, caution must be exercised in reaching a different conclusion on some of the facts than the conclusion reached by the trial court, and the presumption must be indulged that the trial court performed its duty and reached a proper conclusion. Harrington v. Foster, 220 Iowa 1066, 264 N.W. 51, and cases cited.

The land in controversy and land in its vicinity have been the subject of considerable litigation in times past, but the decrees offered in evidence involved either other lands or other parties or both. The Harrington case, against one Foster, related to land in the adjoining 40 acres, and the defendant in that case was not connected in interest with the plaintiffs herein nor their predecessor in title. A case involving taxation of this tract was also offered in evidence, but could have no bearing on the rights of the parties hereto, who were not parties to such proceeding. They could not be affected by the result of that suit. Nor is it necessary to consider the effect of this other litigation. Coulthard v. McFerrin, 194 Iowa 1133, 190 N.W. 940.

Defendants' claim to ownership rests upon their title to the land deeded by Batchelor in the southeast quarter of southwest quarter. With reference to the description in the deed there was considerable evidence offered as to the location of Mosquito creek, but the weight of evidence shows that the creek, as shown on the plat offered in evidence, flows and has flowed as plaintiffs claim. In the 8 acres of the Batchelor tract there...