Bode v. Rollwitz

• Decision Date: 01 July 1921
• Docket Number: 4343.
• Citation: Bode v. Rollwitz, 60 Mont. 481, 199 P. 688 (Mont. 1921)
• Parties: BODE v. ROLLWITZ ET AL.
• Court: Montana Supreme Court

199 P. 688

60 Mont. 481

BODE v. ROLLWITZ ET AL.

No. 4343.

Supreme Court of Montana

July 1, 1921

Appeal from District Court, Yellowstone County; Charles A. Taylor Judge.

Action by Lydia Belle Bode against Adolph Rollwitz and another. Judgment for defendants, and plaintiff appeals. Affirmed.

W. L A. Calder, of Laurel, for appellant.

Johnston & Coleman, of Billings, for respondents.

PER CURIAM.

This cause arose out of a controversy between the plaintiff and defendants over the title and the right to the possession of an irregular tract of land situated in Yellowstone county south of and adjacent to the homestead of plaintiff. The homestead is described as the north half of the southeast quarter and lots 1 and 2 of section 14 in township 2 south of range 24 east of the Montana principal meridian. The adjoined diagram, reduced copy of one made by a United States surveyor, at the time the disputed area was surveyed in April, 1916, illustrates the subject of the controversy.

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The disputed area is indicated thereon by the letters A, B, C and X and Y--that is to say, it is all the land lying between the east and west lines of the southeast quarter of section 14 and extending south to the present main channel of the Yellowstone river. The facts about which there is no controversy are the following: William Bode and plaintiff, husband and wife, made settlement on the homestead in the year 1880. Patent was issued to William Bode in 1890. In 1912 he and his wife were divorced, and upon a division of their property then made he conveyed the homestead to her. In 1878, when the township was surveyed, the main channel of the river flowed through what is designated as the high-water channel north of the area A, B, C. According to that survey, lots 1 and 2 contained an area of 35.55 acres. The south line of these lots was meandered along the north shore. No account was then taken of any island in the river, further than that it was mentioned in the field notes that there was an island south of the homestead and of the southwest quarter of section 13. Some time in the year 1885 or 1886 an ice gorge was formed in the main channel near the west boundary of the area A, B, C, with the result that it forced the water to the south side of the island, and that since that time the main channel has been on the south side. Gradually from year to year the old main channel was filled with washings of sand and gravel, particularly toward the west, until at the present time it is a shallow slough which has little or no current except when the river is at its high-water stage during the latter part of the spring or early part of the summer. The evidence leaves is somewhat in doubt whether the area A, B, C, with that lying to the east, constitutes in fact, one island, or whether it is divided into two by the "high-water channel" extending northward from the main channel. What the condition in this respect is is not now material, since the right of plaintiff to the possession of the area X and Y is not in question. The survey of the island was made under the direction of the Commissioner of the General Land Office upon the application of the defendants. Rollwitz was then occupying the area A, B, C, and Jones the part to the east and north, including the areas X and Y. Rollwitz was not himself qualified to acquire a homestead, but had made settlement upon the area A, B, C, on January 2, 1914, and improved it by erecting a residence and outbuildings thereon for the benefit of a daughter who lived with him, and intended to make entry of it as a homestead. At the time of the trial such entry had not been made. Jones had made his settlement on December 15, 1909, with the intention of acquiring title under the homestead law to the entire island area, including that occupied by Rollwitz. So far as the record shows he had never made entry. Prior to the settlement by Rollwitz and Jones, the whole island area had been known as the Bode Island and had been used by Bode and his wife for pasture and a feeding ground for stock.

The evidence is somewhat voluminous, and, except as indicated above, is in sharp conflict, particularly with reference to whether the entire island area, at the time of Bode's settlement, was a well-defined and permanent body of land. There was evidence tending to show that all the area south of the homestead and of the southwest quarter of section 13 constituted one permanent body of land covered with timber and undergrowth. It further tended to show that some of the timber was of considerable size at the time the Bode settlement was made, and that during the following years, as indicated by the stumps still upon the ground, some of it had been used for fuel or lumber. Some of the trees standing at the time of the trial were 30 inches in diameter. There was also evidence to the effect that at the time the Bode settlement was made the area A, B, C, was merely a gravel bar; that it did not appear above the water except at the low water season; and that there was no timber or undergrowth at all upon it at that time.

The plaintiff claims title to the area in controversy on the theory that it is an accretion to her homestead, and that her southern boundary is the thread of the stream in its present position. The action was commenced as one in ejectment; the complaint being in the ordinary form, alleging title and right to possession in plaintiff and ouster by the defendants. The answer tendered issue by denials. It also alleged new matter in defense to which plaintiff made reply, but the issues in this connection were abandoned at the trial and do not require notice. The trial proceeded as though the action were one in equity to quiet plaintiff's title. The court submitted special interrogatories to a jury, in response to which they returned findings. Counsel for plaintiff and defendants both moved the court to reject certain of these findings and to adopt others requested by them respectively. These motions were overruled. The court adopted some of the findings by the jury, made others, and concluded that the plaintiff was not entitled to any portion of the tract in controversy. It rendered judgment in favor of the defendants, declaring Rollwitz entitled to the possession of the area A, B, C, and Jones to the possession of the area X and Y. Plaintiff has appealed from the judgment in so far as it is favorable to Rollwitz. She has attempted to appeal also from the order rejecting certain findings of the jury, adopting others, and making further and additional findings and from the conclusions of law.

The action, having been tried with acquiescence of both parties as one in equity, will be by us treated as the latter, both parties being bound by the theory adopted by the trial court, assented to by them. Moss v. Goodhart, 47 Mont. 257, 131 P. 1071.

The findings are, in brief, the following: That William Bode and his successors in interest occupied and used the tract A, B, C, up until the year 1914; that the plaintiff was occupying and using it at the time the defendant Rollwitz entered upon and took possession of it; that in 1880 the main channel of the Yellowstone river flowed through the so-called high-water channel between the Bode homestead and the so-called Bode Island (tract A, B, C); that Bode Island was a well-defined body of land in 1878, the time the township in which it is situated was surveyed; that there has been no appreciable change in the size or character of this tract since the original survey was made; that it contains from 40 to 50 acres, 15 acres of which is cultivable for the purpose of raising grain or grass, and that 15 or 20 acres produces grass which is suitable for meadow or pasture land; that the main channel of Yellowstone river changed from the north to the south side of the island at some time in the year 1885; that this change in that year was very marked because of an ice gorge in the Yellowstone river at or about the place where the channel of the river divides at the west end of the island; that this change of the channel, except as just indicated, was gradual; that the Yellowstone river at and above the island is not navigable; that the United States government, having executed and accepted a survey of both islands claimed by defendants, has evidenced its intention of claiming the same as public domain subject to entry under the land laws of the United States and as not passing to the patentee of the land north of the Yellowstone river; that the tract upon which the defendant Jones lives was a well-defined body of land at the time the township in which it was situated was surveyed; that there has been no appreciable change in the size or character of this tract since the original survey was made; that this tract contains from 110 to 120 acres, about 35 acres of which may be cultivated either for the purpose of raising grain or grass; that, when the survey of the township was made, the main channel of the Yellowstone river was north of the area claimed by the defendant Jones; that at that time no part of either island was lying between the main channel of the Yellowstone river or the thread of the stream and the Bode homestead.

From these findings the court concluded that the area claimed by defendant Rollwitz is no part of the Bode homestead, and that title to it did not pass under the patent from the United States government to William Bode; that no part of the island claimed by the defendant Jones is a part of the Bode homestead, and that title to no part of this area passed to William Bode under the patent from the United States government; that plaintiff is not entitled to recover any part of the island claimed by the defendant Rollwitz nor any part of that claimed by the defendant J...