Blaske v. Wehmeyer

• Decision Date: 20 December 1920
• Docket Number: No. 21268.,21268.
• Citation: 226 S.W. 868,285 Mo. 524
• Parties: BLASKE v. WEHMEYER.
• Court: Missouri Supreme Court

226 S.W. 868

285 Mo. 524

BLASKE v. WEHMEYER.

No. 21268.

Supreme Court of Missouri, Division No. 2.

December 20, 1920.

Appeal from Circuit Court, Gasconade County; William A. Davidson, Special Judge.

Action by Frank L. Blaske against Christ Wehmeyer. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

This is an action under section 2535, R. S. 1909, to determine title to land situated in Gasconade county, Mo. Trial was had in the circuit court of Gasconade county before a jury, resulting in a verdict and judgment in favor of plaintiff. Defendant has duly appealed.

Plaintiff's petition alleges that he is the owner of a certain island in the Missouri river known as Robert Miller Island, as surveyed and patented by the county of Gasconade, Mo., on November 28, 1903, to Ransom A. Bruer and J. W. Hensley, including all accretions to said island; that said island when surveyed and patented embraced certain portions of land in section 31 and section 32, all in township 46, range 6 west. The petition further alleges the amount of acreage in each portion of said sections wherein said island was located. It should be noted here that the petition does not allege that any of said island is located in section 6, township 45, range 6 west (which said section 6, as shown by the evidence, adjoins and is immediately south of said section 31; it would appear from the evidence that the land in dispute is in section 6).

Defendant, Christ Wehmeyer, filed separate answer (originally there were other defendants but plaintiff dismissed as to them during the trial), in which said answer defendant denied the allegations of the petition except to allege that he claimed title to the following described land in Gasconade county, to wit:

"Part of the northwest quarter of section 6, township 45, range 6 west, more particularly described as follows, to wit: Commencing 6.25 chains east of the northwest corner of section 6, township 45, range 6 west; thence running east 20.25 chains; thence south 29 chains to the center of Shawnee creek; thence east along said Shawnee creek up the Bailey's creek, thence in southwestern direction along said bank of Bailey's creek to the center line of section 6; thence west 21.25 chains along said center line of section 6 (running east and west) to an iron rail piece; thence north 41.04 chains to the place of beginning, containing in all 89 acres, more or less."

It will be noted that the last above described tract of land lies in section 6, which as above stated lies adjoining and immediately south of section 31 described in plaintiff's petition.

The jury returned the following verdict (formal parts omitted):

"We, the jury, find the issues in favor of the plaintiff."

Upon this verdict the court entered a judgment in part as follows:

"It is adjudged and decreed by the court that the parcel of land located north of the middle of the certain slough, in the Missouri river, next to the high bank, and located between lines running north and south respectively 6.25 and 26.50 chains east of the range line on the west side of range 6 west, in Gasconade county, Mo., is a part of a certain island in the Missouri river known as Robert Miller Island, and that plaintiff is the owner thereof, and that his title thereto is a fee-simple estate, and that defendant, Christ Wehmeyer, has no right, title, or interest in said land."

We have encountered much difficulty in interpreting the record before us, due in part to the fact that witnesses have not been accurate in their expression; the word "slough" has been used many times in the record and it has been difficult at times to ascertain which particular slough was meant; furthermore some of the witnesses were examined with reference to certain photographs marked Exhibits A and B, but these photographs do not appear in the record and do not appear to have been introduced in the evidence. Further complications arise from the fact that defendant offered in evidence Exhibit No. 2, which purports to be a survey of Miller Island. When witnesses were examined concerning this exhibit reference is made to certain blue, yellow, and black lines. The copy of the exhibit brought here shows only black lines. We have read the record twice in an attempt to learn the material facts and will state below the result of that labor.

It appears that the original government survey did not show an island located in the Missouri river at the point where Robert Miller Island is located. The island formed some time prior to 1903, and for seven or eight years prior to that time one Robert Miller lived on this island and cultivated about 50 acres of land. In June of 1903 there was a great flood in the Missouri river which washed away the house in which Miller lived and a greater portion of the island. Miller then moved from the island.

In September, 1903, the county court of Gasconade county caused Robert Miller Island to be located, surveyed, and platted as lands belonging to Gasconade county, Mo., for the use of the public schools under the act of the Legislature of Missouri of 1895. This survey was completed and by proper steps Miller Island was patented by Gasconade county and sold and the title thereto has by mesne conveyances passed to the plaintiff.

The survey which was made by the county surveyor was offered in evidence by the plaintiff and said survey shows all of Robert Miller Island lying within sections 31 and 32 mentioned in the petition.

At the time this island was surveyed defendant owned the land described in his answer, which land was in section 6 adjoining and immediately south of said section 31. At that time defendant's land was separated from Robert Miller Island by a large slough. Subsequent to 1903 and at different times portions of the north side of said island washed away and accretions formed on the south side of said island. The extent and location of these accretions on the south side of the island are not definitely given in the testimony. The nearest approach thereto is found in the testimony of Robert Miller, wherein the following question and answer appear:

"Q. What is the formation of this island; is there any sloughs or cuts through it'! A. There is no slough between the north bank of the island and the slough next to the high bank as shown by this picture."

One witness said:

"It (the island) kept moving around, working south all the time; * * * cut the bank away; it cut away from the...