Benson v. Morrow

• Decision Date: 31 October 1875
• Citation: 61 Mo. 345
• Parties: Y. BENSON, Plaintiff in Error, v. JOHN MORROW, et al., Defendants in Error.
• Court: Missouri Supreme Court

61 Mo. 345

Y. BENSON, Plaintiff in Error,

v.JOHN MORROW, et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1875.

Error to Osage County Circuit Court.

Lay & Belch, for Plaintiff in Error.

Plaintiff acquired title to all alluvion, whether formed by accretion or avulsion, if permitted to cement to plaintiff's islands. (3 Wash. Real Prop., 59; Ang. Wat. Cours., 60; Trustees, &c. vs. Dickerson, 9 Cush., 454; 5 Pet., 467; Ang. Wat. Cours., 54.)

The second instruction asked by the defendant should have been refused. Although the Missouri River is, by act of congress, declared a “common highway,” and in fact navigable, it is not in law a navigable stream. Hence, it does not follow that an unsurveyed island is the property of the United States. Nor is it true that, although this land may have been first formed by an island near those of the plaintiff's, and by gradual accretion to either or both, so as to entirely cement the two, the land so formed would belong to the government. The Government granted to plaintiff's lands bounded by waters of the Missouri river. A valuable part of this grant of property was riparian rights, and the Government could not come in and deprive these parties of this part of the grant, any more than it could of the land itself.

Ewing & Smith, for Defendants in Error.

The Missouri river at the site of the islands is a public highway. (1 U. S. Stat., 468, § 9; 3 U. S. Stat., 548, § 2; 2 U. S. Stat., 666, § 12; Id., 701, § 1.) Said enactments do away, in the United States, with the common law doctrine that rivers are not navigable except within ebb and flow of tide. All navigable rivers in this country are public highways, (10 Wal., 557; 11 Wal., 411) and the title to lands bordering on navigable water stops at the stream. Riparian owners are entitled to no rights incident thereto, except the contingent right of alluvion and derelictum. Hence, the soil formed under such streams remains forever in the United States. (R. R. Co. v. Schurman, 7 Wal., 272; S. C., 10 Minn., 82; Martin vs. Madden, 15 Pet., 367; Russell vs. Jersey Co., 15 How., 426; Patterson & Newark R. R. vs. Stephens, 10 Am. Law Reg., 165; 3 Washb. Real Prop., 55.)

The facts in this case, as we contend, are that a small island embracing a few acres of land was situate in the Missouri river; that this island had never been surveyed, numbered and put in market by the United States. The title thereto remained vested in the United States. A mile or thereabouts below this island were situate in the same river several islands that had been surveyed and numbered, and had been granted by the United States to an individual, under whom plaintiffs claim title. In the great flood in this river in 1844, the upper part of this small island belonging to the United States was carried away, and a large and extensive addition and deposit of alluvion were added to the lower end of it. This addition extended down to one of the islands claimed by plaintiffs, so that a union of the two islands was virtually effected, there remaining only a slough or low run between the upper end of plaintiff's island and the deposit added to the lower end of the island of the United States. Thus were formed many acres of land, which the plaintiffs claim now belong to them.

Alluvion never accumulates at the upper end of an island in a rapid stream like the Missouri, but always at the lower end or on the sides. Hence, the deposit was made and formed and attached to the Government island. And under the law, the alluvion occasioned by the avulsion in this navigable river, and attached to an island which was the property of the United States, also became and is the property of the public and is no more the property of the owners of Island 54 than the island itself, which is the property of the Government.

NAPTON, Judge, delivered the opinion of the court.

The plaintiffs in this ejectment suit were owners of three islands in the Missouri River, numbered 53, 54 and 55, and sued to recover possession of certain lands which were alleged to be accretions to one or two of said islands by alluvion.

The facts are not stated, nor the evidence--but it is stated that evidence was offered in support of the theories maintained by each side in the instructions offered.

The three islands, belonging to plaintiffs, were located in the river in the order of their number, No. 53 being the uppermost and No. 55 being the lowest down stream. The plaintiff's claimed that the land occupied by defendants was an accretion to island No. 55 or 54. The defendants contended that the lands they occupied were accretions to an unnumbered and unsurveyed island belonging to the United States.

The instructions given by the court at the instance of the defendants, were:

1. The term accretion as used in the instructions, means the gradual and imperceptible process of adding to land by the washings of the Missouri river, and the result of such process is termed alluvion, or made land.

2. The Missouri river is a public river, and all islands therein situate at the time the territory of this State was sectionized by the United States, and not then or subsequently surveyed and numbered, and which have not been disposed of by the United States, still remain with all accretions thereto the property of the said United States Government. And if the jury believe from the evidence that the lands occupied by defendants are an unsurveyed, unnumbered, undisposed of island, with its accretions, by the United States Government, then the title of said island and its accretion, or alluvion, is in said United States, even if the said islands, accretions, or alluvion have extended to No. 55 and connect with it--and said island and its accretions are not the plaintiff's and the jury will find for defendants.

3. If the jury believe that the lands occupied by defendants were made by the violent action of the waters of the Missouri river in 1844 and 1845, suddenly and immediately, then the same is not the property of the owners of the west or upper end of island No. 55, but is the property of the United States, although they extend down to and connect with the upper or west end of island No. 55.

4. The question submitted to the jury is, whether the lands occupied by defendants are islands No. 53, 54, and 55, described in plaintiff's petition-- or are an island, with its accretions, other than and different from said islands 53, 54 and 55.

5. It devolves upon the plaintiffs to show by evidence, that defendants are occupying the identical islands and accretions described in plaintiff's petition or some part thereof.

The court gave these instructions and two others, of its own motion, to-wit:

1. The court instructs the jury that the lands described in the petition as the S. E. fr. quarter of section 17, T. 45, R. 8 west, and all those lands described in section 16 at the time of their entry at the land office, were bounded by the Missouri river, and the same are admitted by the pleadings to belong to plaintiffs--and if the jury find from the evidence that the defendants occupied the same or any part thereof at the commencement of this action--or any lands that are the products of gradual accretion to the same, they will find for plaintiffs.

2. The court also instructs the jury that the lands described as fractional sections 19 and 20 on islands 53 and 54 were also, when entered, bounded by the waters of the same river, and are admitted to belong to the plaintiffs; and if the jury shall find from the evidence that at the time of the commencement of this action, the defendants occupied the said land or any part thereof, or any lands that are the products of gradual accretions to the same, they will find for plaintiffs.

There was a verdict and judgment for defendants.

After the acquisition of the northwest territory from Virginia, and before the purchase of Louisiana in 1804, the United States established, perhaps in '98 or thereabouts, a system of surveys of their public lands, and passed laws in regard to the Mississippi and Missouri and other navigable streams, which materially modify the applications of the common law and civil law doctrines in regard to riparian ownership. The title to nearly all the lands in Missouri depends on the laws of congress and the system of surveys adopted by congress.

I have heard it stated by an eminent lawyer, who practiced in this State long before it was admitted into the Union, that there are only one or two complete Spanish grants in this State. Our public surveys terminate on the Missouri river, and it is the same with regard to the Osage as high up as Osceola, and the Gasconade for some distance, and no doubt some other streams--but...