Biggs v. Oerly

• Decision Date: 31 December 1923
• Docket Number: 23556
• Citation: 257 S.W. 104
• Parties: BIGGS et al. v. OERLY
• Court: Missouri Supreme Court

257 S.W. 104

BIGGS et al. v. OERLY

No. 23556

Supreme Court of Missouri, First Division

December 31, 1923

W. W Kingsbury and W. G. Pendleton, both of Booneville, for appellant.

James & Shook and A. B. Hoy, all of Marshall, for respondents.

OPINION

SMALL C. I.

Appeal from the circuit court of Saline county. Suit to quiet title. The controversy is as to the ownership of certain accretions between the shore and an island in the Missouri river. Plaintiff claimed to own the shore, and that the accretions were to the shore. Defendant claimed to own the island, and that the accretions were to the island. The court, which tried the case without a jury, and without instructions asked or given, found for the plaintiff, and defendant appealed. The only error complained of here by appellant is in admitting certain deeds set out in the abstract offered by plaintiff to prove his title to the shore. The abstract however, contains no evidence showing defendant's title to the island. But the abstract recites that there was evidence offered by plaintiff that the accretions formed to the shore, and evidence offered by defendant that the accretions formed to the island.

II. Before defendant could recover, he must have shown two things: First, that he owned the island; and, second, that the accretions formed to the island. There is no evidence in the record of his title to the island, and the evidence as to whether the accretions were to the shore or the island was conflicting. There was a general finding for the plaintiff. It being a suit at law, and no instructions asked or given we are concluded by that finding. Hunter v. Weil (Mo. Sup.) 222 S.W. 472.

III. The finding of the court for the plaintiff necessarily involved a finding that the accretions were to the shore and not to the island, because a mere finding that plaintiff owned the shore would not have entitled him to a verdict unless the accretions were to the shore. This being so, they were not to the island, and defendant would not have been entitled to a verdict, although he owned the island. But there is no evidence in the record that he owned the island. Whether, therefore, the court erred or did not err in admitting the deeds complained of as to plaintiff's title to the shore is immaterial. It did not injure defendant, and need not be passed upon by us on this appeal. Wheeler v. Land Co., 193 Mo. 291, 91 S.W. 1050; Rutledge v. Presbyterian Church (Mo....