Bouvier v. Stricklett

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

40 Neb. 792

59 N.W. 550

BOUVIER

v.STRICKLETT.

Supreme Court of Nebraska.

June 5, 1894.

Syllabus by the Court.

1. An exception must be taken to the giving of instructions in a civil case, in order to review them in this court. Darner v. Daggett, 53 N. W. 608, 35 Neb. 696.

2. The action of the trial court in admitting certain evidence over objections of plaintiff in error considered, and held not erroneous.

3. The ruling of the court in excluding a certain portion of the testimony offered on behalf of plaintiff in error examined, and held that, if erroneous, it was not prejudicial.

4. Where the middle of the channel of a stream of water constitutes the boundary line of a tract of land, and the water undermines the banks, and the soil “caves in,” and mixes with the water, and is washed away, the owner of the land must stand the loss; and the middle of the new channel formed for the river by such process, if a new channel is thus formed, will constitute the boundary line of the tract of land.

5. Where a stream of water is the boundary line of a tract of land, and it suddenly abandons its channel, and makes for itself a new course or bed, by cutting across a neck or bend, as it did in the case at bar, the middle of the old channel or bed of the stream still constitutes the boundary line of the tract of land, although it may be dry, or no water flowing therein.

Error to district court, Washington county; Clarkson, Judge.

Ejectment by Oliver Bouvier against Lewis Stricklett. Judgment for defendant, and plaintiff brings error. Affirmed.John Lothrop, for plaintiff in error.

W. C. Walton and Jesse T. Davis, for defendant in error.

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 twenty-one, in township eighteen north, range twelve 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 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 court the case was tried to the court and a jury. The jury rendered a verdict for the defendant, as follows: “We, the jury, 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 the 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 rulings 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 was 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 to 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 corners of the land, it was situated at the time of the survey; but, as will develop in 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, 30 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 30 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 afterwards 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 S. E. 1/4 of section 21, in township 18 N., of range 12 E., of the sixth P. M. The land in controversy is the N. 1/2 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 S. E. 1/4 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 of the 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...