Bouvier v. Stricklett

• Decision Date: 05 June 1894
• Docket Number: 4878
• Citation: 59 N.W. 550,40 Neb. 792
• Parties: OLIVER BOUVIER v. LEWIS STRICKLETT
• Court: Nebraska Supreme Court

59 N.W. 550

40 Neb. 792

OLIVER BOUVIER v. LEWIS STRICKLETT

No. 4878

Supreme Court of Nebraska

June 5, 1894

ERROR from the district court of Washington county. Tried below before CLARKSON, J.

AFFIRMED.

John Lothrop, for plaintiff in error.

W. C Walton and Jesse T. Davis, contra.

OPINION

HARRISON, J.

August 9, 1889, the plaintiff filed a petition in ejectment in the district court of Washington county, which was as follows "The plaintiff complains of the defendant for that said plaintiff has a legal estate in and is entitled to the possession of the following described premises, to-wit: The north half of the southeast quarter of section number 21, in township 18 north, range 12 east, in Washington county Nebraska; and said defendant, ever since the first day of April, 1888, has unlawfully kept and still keeps the plaintiff out of the possession thereof. The plaintiff therefore prays judgment for the delivery of the possession of said premises to him." To which the defendant filed the following answer:

"1. The above named defendant now comes, and for answer to plaintiff's petition filed in this cause says he denies each and every allegation in said petition contained except such facts as are hereinafter admitted to be true or otherwise answered or explained.

"2. This defendant admits that he is in possession of a tract or piece of land containing about forty acres, but denies that it is any part of the land set forth in plaintiff's petition, and this defendant denies that he unlawfully keeps the plaintiff out of the possession thereof.

"3. And this defendant, further answering, says that this court has no jurisdiction over the subject-matter of this action, for the reason that said land so occupied by this defendant and claimed by the said plaintiff is a tract or parcel of land known as Humphries island, which is now in the state of Iowa, and not within the jurisdiction of this court. Wherefore this defendant prays to be dismissed with his costs."

A jury was waived and trial had to the court, resulting in a finding and judgment for the defendant, which, on motion of plaintiff, was set aside and a new trial granted. At the next term of the court the case was tried to the court and a jury. The jury rendered a verdict for the defendant as follows: "We, the jury, duly impaneled and sworn in this cause, do find, at commencement of this action, the defendant was entitled to the possession of the north half of the southeast quarter of section 21, township 18, range 12 east of the 6th principal meridian." The plaintiff filed a motion for a new trial, which was argued, submitted, and overruled, and judgment was entered, on the verdict, for the defendant. Plaintiff brings the case to this court on petition in error. The following is a copy of the motion for a new trial:

"The plaintiff moves the court for a new trial of this cause for the following reasons:

"1. The verdict is not sustained by sufficient evidence.

"2. The verdict is contrary to law.

"3. The verdict is contrary to the fourth paragraph of the instructions given by the court.

"4. The court erred in giving the seventh paragraph of instructions.

"5. Error of law occurring at the trial and excepted to by plaintiff."

One assignment of error is to the effect that the court below erred in giving instruction No. 7. This, as will be noticed by the above copy of motion for a new trial, was presented by the motion for the ruling of the lower court; but an examination of the record shows that no exception to the giving of this instruction was noted or preserved in the district court, and, in accordance with a well settled rule of this court, the assignment will not be considered. (See Darner v. Daggett, 35 Neb. 695, 53 N.W. 608, and cases cited.)

Another assignment of error is in the following language: "The court erred in excluding from the jury page 610 of the field notes of the surveyor general, marked 'Exhibit B' in transcript, which ruling was excepted to by plaintiff." Exhibit B, referred to in this assignment, purports to be a portion of a certified copy of the field notes of the original survey of public lands in Washington county, this state, on file in the office of the surveyor general, and were probably competent evidence, but the action of the court, if erroneous, was not prejudicial, for the reason that the evidence sought to be introduced would have shown with reference to the land in the portion of section 21 covered by the notes of the survey, and its position in relation to the Missouri river as contained in the following excerpts from Exhibit B: "Intersect the right bank of the Missouri river and set a meander post for corner fractional sections 21 and 22. * * * Intersect the right bank of the Missouri river and set a meander post for corner fractional sections 20 and 21." These disclose that the section was fractional and bounded by the Missouri river on one of its lines. It was conceded by all the parties to the action, and at all times during the trial, that the river formed one of the boundary lines of this land, and the only dispute was over the question of where the true course of the river was, and these field notes did not tend in any manner to elucidate this query, or to establish the position the river occupied at any time relative to the land, except that it was one boundary line, and where, with reference to the other corners of the land, it was situated at the time of the survey, but, as will develop in the further consideration of the case, this would not determine in any degree the main proposition in the issues, and it was not therefore prejudicial error to exclude this testimony.

The next assignment of error, the sixth, is as follows: "The court erred in admitting in evidence the answer of Nathan Carter to the question of defendant, 'How often were you in the habit of seeing the river, say, from the time you first came here thirty years ago up to the summer of 1866,' under objection of plaintiff." This was a preliminary question and one by which it was sought to show the acquaintance of the witness with the river in its course, at or near the land in dispute, during the thirty years he had testified that he resided in the vicinity of it, and thus lay the foundation for the further testimony to be elicited from the witness in reference to what changes had occurred in the course or channel of the river during the time to which his attention might afterward be directed, and we think the interrogatory was a competent and proper one, and it was not erroneous to allow it to be answered.

The only other assignment of error to be considered is that the verdict was not sustained by the evidence. The plaintiff in the court below introduced deeds and other evidences of title in himself to the southeast quarter of section 21, in township 18 north, of range 12 east of the 6th principal meridian. The land in controversy is the north half of the above described tract. The plaintiff further showed that in 1857, when the government survey was made, and during several years prior thereto, this disputed tract of land was all in Nebraska, or that the Missouri river ran east of it, and that the southeast quarter of this particular section (21) was all on the Nebraska side of the river. The plaintiff Bouvier testified in regard to the changes which afterwards occurred in the course of the river, that there was a gradual recession of the water from the Iowa side or bank to the Nebraska bank and an undermining of the latter and what may be termed a "caving in" of the top soil of the bank. This commenced probably at as early a date as it is shown that any witness examined knew the land, and continued during several years, until in 1865 or 1867 the channel of the river was in what was known as the De Soto lake or De Soto channel, this being far over on the Nebraska side, and there was a formation of soil on the other side of this channel, which was called a horseshoe island, or "Humphries island," as it was designated by some of the witnesses, this land so formed being the particular tract in dispute. The situation of the channel of the river remained as above indicated until, at some date during 1870, 1871, 1872, or 1873, it was not very definitely stated by the various witnesses when, by a sudden change in the course of the river it cut off or ran across a "neck, " as it was denominated by the witnesses, and made a channel, by which this land, together with the house in which Stricklett then resided, was apparently placed on the Nebraska side of the river. By the first of these changes in the course of the Missouri river the then owner of the land suffered a loss from what may be termed a natural decretion of the land, and the riparian owner on the Iowa side gained the accretion, or formation, of land caused by the recession of the river and its deposits of soil contiguous to his land.

In the case of State of Nebraska v. State of Iowa, 12 S.Ct 396, 36 L.Ed. 186, in which the boundary line between the states of Iowa and our own state was in dispute, such boundary being the middle of the...