Berry v. Hoogendoorn
| Decision Date | 11 July 1906 |
| Citation | 133 Iowa 437,108 N.W. 923 |
| Parties | BERRY ET UX v. HOOGENDOORN. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Mahaska County; W. G. Clements, Judge.
Action to quiet title to “about two acres of accretions” formed in front of plaintiff's land, where it was originally bounded on the Des Moines river. Defendant, owning an adjoining tract of land and also bounded on the Des Moines river, claims the accretions or a portion thereof as appurtenant to his land. There was a decree establishing the boundary between the parties and quieting the title of each in a portion of the accretions claimed by the other, and both parties appeal; the appeal of defendant being first perfected. Affirmed.W. H. Keating and W. R. Nelson, for appellant.
McCoy & McCoy and J. B. Bolton, for appellee.
Government lot 3, in section 26, township 74, range 16, in Mahaska county, embraces substantially the W. 1/2 of the N. W. 1/4 of the section, so far as not included within the meander lines of the Des Moines river as shown on the following plat:
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This government lot 3 was subsequently subdivided; but we have no occasion to describe the subdivisions, further than to say that what would constitute the fractional S. W. 1/4 of the N. W. 1/4 of the section is owned in part by plaintiff and in part by defendant: their division line being indicated on the above plat by the dotted straight line between O and C, which is parallel to the north and south sectional line. It appears that at the time the first conveyances were made by which this fractional quarter section was divided, the broken line, C, D, Q, on the plat corresponded with the high-water mark of the Des Moines river, and that since that time the river has receded, so as to leave a considerable area of accretion, and the respective claims of the two parties to these accretions constitute the subject-matter of this lawsuit. It must be said, however, with reference to the foregoing plat, that it does not correspond in all its details to any plat introduced in evidence on the trial of the case. It is, in the main, a reproduction of a portion of the government plat of section 26, to which, however, as presented in the record, are added some details from a rough pencil sketch to which the witnesses referred in giving their testimony, and which is not given in the record. It has been difficult to apply the testimony given with reference to the pencil sketch to the details found on the plat with which we have been furnished. The plat above set out will illustrate, however, with sufficient accuracy, the points which we find it necessary to consider.
1. It will be noticed in the first place that the line, D, C, on the above plat, does not correspond with the meander line of the river, or with any other line purporting to represent the river bank; but it is conceded that in describing plaintiff's premises in the conveyances under which he claims the north boundary is designated as “east 12 chains (from the west section line) to the Des Moines river,” and that the succeeding clause of the description, “thence south 29 1/4 degrees east, 6 chains and 6 links,” describing the line represented on the plat as D, C, was intended to correspond with the river bank. Under this concession it is immaterial whether the line D, C, corresponds with the meander line or not, for the meander line of a government survey is not a boundary line. Kraut v. Crawford, 18 Iowa, 549, 87 Am. Dec. 414;Musser v. Hershey, 42 Iowa, 356;Ladd v. Osborne, 79 Iowa, 93, 44 N. W. 235.Dashiel v. Harshman, 113 Iowa, 283, 85 N. W. 85. This disposes of the first claim made for the defendant, which is that plaintiff can have no title beyond the boundary as described in his deed; for, if his land is bounded on a navigable stream, he is entitled to the accretions formed in front of his property. Coulthard v. Stevens, 84 Iowa, 241, 50 N. W. 983, 35 Am. St. Rep. 304;Jefferies v. East Omaha Land Co., 134 U. S. 178, 10 Sup. Ct. 518, 33 L. Ed. 872. There is no question under the evidence but that the river has gradually receded from plaintiff's property until now the high-water line is about 24 rods distant from the boundary line described in the first conveyance in his chain of title, represented on the plat by the line D, C.
2. But it is further contended for the defendant that the Des Moines river is not a navigable stream and therefore that plaintiff is not entitled to the benefit of the doctrine of accretions. Until 1870 the Des Moines river, up at least as far as the Racoon Forks, was in law a navigable river. By an act of Congress passed in that year the act of 1846 which declared it to be a navigable stream was repealed. We have held, however, that this repeal did not affect the riparian rights along its banks, and that, as the riparian owners had acquired title by the grants under which they claimed to high-water mark, their premises were still bounded by high-water mark and subject to addition by accretions, just as they would have been had the river continued in law to be a navigable stream. Steele v. Sanchez, 72 Iowa, 65, 33 N. W. 366, 2 Am. St. Rep. 233. And see Serrin v. Grefe, 67 Iowa, 196, 25 N. W. 227;Wood v. Chicago R. I. & P. R. Co., 60 Iowa, 456, 15 N. W. 284.
3. Another contention for the defendant is that at most plaintiff can only claim so much of the accretion in front of his property as necessary to make it rectangular in form, and that he will be bounded by the extensions of his north and east lines. In accordances...
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