Bleish v. Rhodes

• Decision Date: 16 June 1922
• Docket Number: No. 22011.,22011.
• Citation: 242 S.W. 971
• Parties: BLEISH v. RHODES
• Court: Missouri Supreme Court

242 S.W. 971

BLEISH v. RHODES

No. 22011.

Supreme Court of Missouri, Division No. 1.

June 16, 1922.

Appeal from Circuit Court, Atchison County; John M. Dawson, Judge.

Action by Emil C. Bleish and another against Jasper Rhodes. From judgment for defendant, plaintiffs appeal. Affirmed.

Randolph & Randolph, of St. Joseph, and D. D. Ramsay, of Rockport, for appellants.

Hunt, Bailey & Hunt, of Rockport, for respondent.

JAMES T. BLAIR, C. Ejectment.

The petition describes the lands involved as "situated in Holt county, to wit, the west half of the northwest quarter of section 23, and all accretions thereto, and all of fractional section 22, and all accretions thereto, all in township 63, range 41, and all land lying west of said section 23 and bounded on the north by the county line dividing Atchison and bat counties, and on the west and south by the Missouri river, and by a line drawn directly west from the south line of said quarter section." The ouster is laid as of February 1, 1917. The answer of Jasper Rhodes admitted possession of a tract of land, but denied knowledge as to whether it was within the boundaries set out in the petition; denied appellants had any title to the land in respondent's possession; alleged that this land belonged to Holt county for school purposes, and that the entry thereon was in good faith under an arrangement with the county court of Holt county to purchase the land. Arthur Rhodes disclaimed. The reply was a general denial.

The issue tried was whether the land sued for was formed by accretions to land owned by appellants. Respondent's contention was that the land had first formed as an island in the Missouri river, and that accretions had formed thereto and had, in the course of time, closed the channel which, he says, formerly existed between the island and appellants' "deeded" land, or that such channel was closed by accretions to the island and to appellants' land, and that the junction of these accretions closed the channel. Appellants sought to show that no island had ever existed, but that the whole tract had accreted to their lands. The evidence Is in striking conflict. Testimony on both sides of this issue comes from both sides of the case. The land, however formed, is of considerable area. The questions presented by the briefs are of such character that a detailed statement of the evidence would serve no useful purpose. The instructions submit the single issue mentioned. There was a verdict and judgment for defendant.

I. In his opening statement one of respondent's counsel illustrated his remarks with a plat, subsequently introduced in evidence. Objection was made and overruled, and this ruling is assigned for error. No complaint of the ruling appears in the motion for new trial. The assignment cannot be considered.

II. Appellants insist it was error to permit respondent to "get before the jury the contention that the land in controversy was school land and was being held by defendants under some special contract with the county court." The answer set up the school fund title, and no motion to strike this out was made. The second witness offered was appellant Whitton, and he testified he was seeking "some understanding" from the county court of Holt county at the time he attempted to settle his differences with respondent. The other mentions of the county court to which appellants' brief refers as objectionable are: The testimony of W. J. Randall that he had recently been a member of the county court; an offer to prove by him that respondent had applied to the court to purchase the land and his offer had been accepted, subject to survey, made out of the hearing of the jury and excluded; the testimony of witness Beret that he was county surveyor of Holt county and concerning surveys made for several persons. No exceptions or objections appear in the record in connection with these matters. In the circumstances the assignment cannot be sustained.

The same condition of record exists with respect to the assignment that it was error to permit inquiries concerning the flood of 1881, and the same ruling must be made. It may be added that appellants first offered testimony concerning conditions in 1881 by the witness Henstorf. Further, it was perfectly competent. Appellants' witnesses testified the land appellants now claim as accretions "commenced to make" just following the high water in 1881 and continued until all the land in question was formed. It was not error to admit testimony to meet this.

III. It is urged that it was error to admit testimony concerning the conditions along the river at a point some distance above the land in question. In view of the testimony that the island, which respondent's evidence tended to prove first formed, extended up the river and far above the Atchison county line, and of the fact that there was evidence that ditching in that vicinity aided in closing the upper end of the channel respondent claimed formerly existed between the land he occupied and that owned by appellants, the testimony was competent. The same situation...