Benecke v. Welch
| Decision Date | 29 March 1902 |
| Parties | BENECKE, Appellant, v. WELCH et al |
| Court | Missouri Supreme Court |
Appeal from Chariton Circuit Court. -- Hon. Jno. P. Butler, Judge.
Reversed and remanded (with directions).
Kinley & Kinley and F. C. Sasse for appellants.
(1) Every fact pleaded in plaintiffs' petition was admitted by the demurrer to be true, hence, the only question is, did the petition state sufficient facts, which, if true, would entitle plaintiffs to the relief prayed. Dodson v Lomax, 113 Mo. 555; McKinzie v. Matthews, 59 Mo. 99; Butler v. Lawson, 72 Mo. 227. (2) The lands described in plaintiffs' petition and designated by numbers are alleged to belong to plaintiffs and to be in their possession; the other lands, the sale of which is asked to be enjoined, are averred to be lands that have formed by accretion to the lands belonging to plaintiffs, and it follows that the accretions take the same character of title as the lands to which they are accreted. Campbell v. Gas Co., 84 Mo. 353. Besides, the petition alleges that the plaintiffs own all these lands which includes the accretions and that they are now and have for the past thirteen years been in the actual, open, notorious and adverse possession of all said lands; these facts being conceded, plaintiffs have the right to prevent a cloud being cast on their title. (3) The threatened sale of real estate under apparent legal proceedings, by which a cloud would be cast on the real title to said land, and to remove which would require evidence dehors the record, can be prevented by injunction. Sayer v. Thompson, 23 Mo. 443; Lockwood v. St. Louis, 24 Mo. 47; Fowler v. St. Joseph, 37 Mo. 228; Leslie v. St. Louis, 47 Mo. 474; Vogler v Montgomery, 54 Mo. 577; Harrington v. Utterback, 57 Mo. 519; Martin v. Jones, 59 Mo. 183; s. c., 72 Mo. 26; Bank v. Kansas City, 73 Mo. 555; Warrensburg v. Miller, 77 Mo. 56; Bank v. Davidson, 40 Mo.App. 421.
Dempsey & DeMoss for respondents.
(1) In seeking to enjoin respondents in the discharge of an official duty, appellants are required to recite facts sufficient to entitle them to the relief demanded. Perkins v. Adams, 132 Mo. 131; Naylor v. Cox, 114 Mo. 232; Rees v. McDaniel, 115 Mo. 145; Kahn v. Dawson, 134 Mo. 581; Cox v. Arnold, 129 Mo. 337; Cooley v. Golden, 117 Mo. 33; McBaine v. Johnson, 155 Mo. 191; Moore v. Farmer, 156 Mo. 33. (2) When appellants went into possession of said lands they are presumed to have known that the title to same was vested in the State, for the use and benefit of the public schools. The statutes of limitations do not apply to the State holding lands in trust for a public use. Adkinson v. Tomlinson, 121 Mo. 487; Wilkerson v. Eider, 114 Mo. 225; Crispen v. Hannaven, 50 Mo. 536; R. S. 1899, secs. 67, 72; Ins. Co. v. St. Louis, 98 Mo. 422. (3) Appellants are contending for legal rights. This contention must be settled at law. 20 Conn. 532; 54 Pa. St. 183. Party must exhaust his remedies at law before injunction will lie. 42 Mo.App. 77; 31 Mo.App. 421; 103 Mo. 314.
This is a suit in equity to enjoin defendants from taking certain threatened action which plaintiff alleges will cast a cloud on his title to certain land and involve him in a multitude of lawsuits.
The petition shows that plaintiff, in his own right, and as surviving partner of a firm, is the owner and in possession of certain lands fronting the Missouri which were formerly in Saline county, but which by action of the river were cut off from Saline and attached to Chariton county, "and that there was formed and attached to the north and east side of said lands a large body of land by gradual and imperceptible accretion, extending over and across the former bed of the Missouri river, and the said original land, together with the accretions thereto, were for more than ten years prior to the bringing of this suit, "and still are, in the open and notorious possession of plaintiff," etc. Then the petition goes on to say that the defendants are the judges of the county court of Chariton county, and assuming authority under an act of the General Assembly entitled "An Act to grant certain lake and river-bed lands to the counties in which they are located for school purposes," approved April 8, 1895, have caused surveys to be made of the lands embraced in the accretions and are threatening to sell the same to divers persons, thereby casting a cloud on plaintiff's title and involving him in many lawsuits.
Upon the filing of the petition a temporary injunction was granted, but at the return term of the court the defendants filed a demurrer to the petition, which was by the court sustained, and plaintiff declining to plead further, final judgment was rendered for the defendants, from which the plaintiff appeals. There were nine grounds assigned for the demurrer, that is, the grounds for demurrer were enumerated under nine specifications, but they were all assignments in varying forms of only one ground, that is, that the plaintiff's remedy was at law and not in equity.
In the brief for respondents it is assigned as objection to the petition that it states conclusions and not facts, that it does not state facts from which it can be determined whether there was a gradual reliction and imperceptible receding of the river from its bed, or avulsion, or that the riparian lands were extended by gradual accretions, or that the riparian lands were an island in the river and extended by reliction, or that would justify...
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