Brown v. Wilson

• Decision Date: 25 October 1941
• Docket Number: 36102
• Citation: 155 S.W.2d 176,348 Mo. 658
• Parties: Rose C. Brown, Appellant, v. Frank Wilson
• Court: Missouri Supreme Court

155 S.W.2d 176

348 Mo. 658

Rose C. Brown, Appellant, v. Frank Wilson

No. 36102

Supreme Court of Missouri

October 25, 1941

Appeal from Jefferson Circuit Court; Hon. Taylor Smith Judge.

Reversed and remanded (with directions).

R E. Kleinschmidt for appellant.

(1) In an action at law tried by the court, the admission of incompetent evidence is reversible error unless the appellate court is convinced that no prejudice resulted therefrom to the party appealing. Holmes v. Farris, 97 Mo.App 305; Hornsey v. DeVoto, 16 S.W.2d 630. (a) Where defendant claimed title both by deed and by adverse possession and where his grantor was dead at the time of the trial, it was error to permit defendant to testify as to the corners showed him by his said grantor. Wren v. Sturgeon, 184 S.W. 1036; Sec. 1723, R. S. 1929. (2) In ejectment case, where trial court sitting as a jury tries questions of mixed fact and law, it should give instructions (commonly called declarations of law) applicable to the case made by the evidence, in order that it may be known by the appellate court upon what theory of law the court based its judgment. Dollarhide v. Mabary, 125 Mo. 197; Suddarth v. Robertson, 118 Mo. 286; Falvey v. Hicks, 286 S.W. 385. (3) Big River, is a nonnavigable stream. The Meramec River, of which Big River is a tributary, has been definitely held to be nonnavigable. Slovensky v. O'Reilly, 223 S.W. 478. (a) It has also been held that Current River, a much larger stream than Big River, is nonnavigable, and that the courts will take judicial notice of the navigable and nonnavigable streams within the State. Wright Lbr. Co. v. Ripley, 192 S.W. 996; Greisinger v. Klinhart, 282 S.W. 473. (b) Where a nonnavigable stream forms the boundary line between two otherwise contiguous tracts, and a change in the stream is slow and gradual, forming accretions on the one side and cutting away on the other, the boundary line changes with the stream, the center or thread of which continues to be the boundary line. Bratschi v. Loesch, 51 S.W.2d 69; McCormack v. Miller, 239 Mo. 463; 9 C. J., pp. 187, 188, sec. 65, p. 195, sec. 82. (4) When the middle of a stream is the boundary line between private landowners, and an "avulsion" occurs, the boundary line does not change; but when "accretions" occur by the gradual washing away or degradation of the banks of the stream, the boundary line follows the change in the stream. An "avulsion" is a sudden and rapid change in the course of a stream, as when it forms a new course by cutting through a bend. Rees v. McDaniel, 115 Mo. 145; State ex inf. v. Huffman, 2 S.W.2d 582. (a) Accretions belong to the land in front of which they form and not to that at the side or to that which originally constituted the riparian tract. Doebbeling v. Hall, 274 S.W. 1049. (b) A "slough" is an arm of a river apart from the main channel. Dunlieth Bridge Co. v. Dubuque County, 66 Iowa 558; 7 Words & Phrases (1 Series), p. 6532; Jones v. Railroad Co., 100 S.W.2d 617. (c) To constitute an "island" in a river, the same must be of a permanent character, not merely surrounded by water when the river is high, but permanently surrounded by a channel of the river and not a sand bar subject to overflow by a rise in the river and connected with the land when the water is low. McBride v. Steinweden, 72 Kan. 508; 2 Words & Phrases (2 Series), p. 1209. (5) Proof of legal title in the plaintiff will sustain his action in ejectment and throw on the defendant relying on the Statute of Limitations the burden of proving adverse possession. Hulsey v. Wood, 55 Mo. 252; Himmelberger-Harrison Lbr. Co. v. Craig, 154 S.W. 73, 248 Mo. 319. (a) The necessary elements of title by limitation are uninterrupted possession, actual, visible, notorious, adverse and hostile, under color and claim of right for the statutory period, the word "notorious" in such connection meaning: "generally known and talked of; universally recognized; conspicious; well, widely or commonly known." Long v. Coal Co., 233 Mo. 713; Bradbury Marble Co. v. Gaslight Co., 128 Mo.App. 96; Downie v. City of Renton, 9 P.2d 372; 2 Words & Phrases (4 Series), p. 863. (6) If a landowner intends to claim only what is called for in his deed, or up to the true line, he cannot acquire title by adverse possession against his adjoining landowner. Owens v. Thomas, 98 S.W.2d 561; Courtner v. Putnam, 30 S.W.2d 126; Ackerman v. Ryder, 271 S.W. 743; Himmelberger-Harrison Lbr. Co. v. Craig, 154. S.W. 73; Welsh v. Brown, 96 S.W.2d 345; Ware v. Cheek, 201 S.W. 847. (7) The judgment, purporting to give defendant affirmative relief and to determine title to the real estate described in the petition, when defendant in his answer asked for no affirmative relief whatever but merely to be dismissed from plaintiff's suit in ejectment, a purely possessory action, was coram non judice and void. Hecker v. Bleish, 3 S.W.2d 1008; Gibbany v. Walker, 113 S.W.2d 792; Owens v. McCleary, 273 S.W. 145.

Edgar & Matthes for respondent.

(1) In actions at law, tried to the court, sitting as jury there is much liberality in the admission of testimony, and no error was committed by court in this case because of admission of testimony which appellant claims was inadmissible. Gregar v. Broadway Auto Laundry, 83 S.W.2d 142; Heart Lbr. Co. v. Wyatt Lbr. Co., 59 S.W.2d 800; U. S. F. & G. Co. v. Goodson, 54 S.W.2d 754; Laumeier v. Gehner, 110 Mo. 122. (a) Where trial is to court sitting as a jury, the presumption exists that the trial judge, in the determination of the case, considered only such testimony as was competent and relevant. Lewis v. S. & M. Frankle, 138 S.W. 64; Gregar v. Auto Laundry, 83 S.W.2d 142. (2) The appellant herein cannot complain of the failure of the trial court to state its findings of facts because he did not request court to make such findings. Sec. 952, R. S. 1929. (3) The court did not err in refusing to give what appellant designates as "declarations of law," numbered 4 and 5, since both of said offered papers, were more in the nature of findings of fact, the giving of which, under testimony in this case, would have been erroneous. Swanson v. Central Surety & Ins. Co., 121 S.W.2d 783; Monnig v. Easton Amusement Co., 27 S.W.2d 495; Platte Valley Bank v. Farmers & Traders Bank, 14 S.W.2d 12. (4) Even though the papers offered by appellant and marked No. 4 and No. 5 can be properly designated as declarations of law, the court properly refused to give them, since they were in the nature of peremptory declarations of law, and it is never error to refuse peremptory declarations of law, especially where there is conflicting evidence on different issues before the court. Central States Savings & Loan Assn. v. U. S. F. & G. Co., 66 S.W.2d 550; Tracy v. Shreeves, 20 S.W.2d 944; Jaicks Co. v. Schoellkopf, 220 S.W. 486; Vincent v. Means, 184 Mo. 327; Butler County v. Boatmen's Bank, 143 Mo. 13. (5) In an action tried to court, sitting as a jury, error is not committed in refusing declarations of law covered by given declarations of law. Union Trust Co. v. Wyatt, 58 S.W.2d 708; Reitz v. O'Neil, 2 S.W.2d 178. (6) Accretion is the process of gradual and imperceptible addition to riparian lands caused by the action of the water in washing up sand, earth, gravel and other materials. 67 C. J., sec. 229, p. 825; Bouvier's Law Dictionary (unabridged) Rawle's 3d Revision, p. 11; Black's Law Dictionary (3 Ed.), p. 29; Skelton's Boundaries & Adjacent Properties, sec. 292, p. 331. (a) Alluvion is the increase of the earth on a shore or bank of a stream by the force of the water, which is so gradual that no one can judge how much is added at each movement of time. Black's Law Dictionary (3 Ed.), p. 98; Bouvier's Law Dictionary (unabridged), Rawle's 3rd Revision, p. 181. (7) To give title to the alluvion, the accretion must begin from the land of the riparian owner claiming it, and not from some other point so as to finally reach his shore or bank. Skelton's Boundaries & Adjacent Properties, sec. 293, p. 333; Hohl v. Iowa Cent. Ry. Co., 162 Iowa 66; Wilson v. Watson, 144 Ky. 352; 1 Farnham's Waters & Water Rights, sec. 69, p. 323. (a) If the stream forming the boundary line between two different tracts of land changes its course or channel in such a manner as not to destroy the integrity of the land in controversy, and so the land can be identified, it is not accretion, and boundary line remains as before the change of channel. McCormack v. Miller, 144 S.W. 101; Bratschi v. Loesch, 51 S.W.2d 69; Crandell v. Smith, 134 Mo. 633. (8) The judgment of the trial court is binding upon appellate court in action tried by the court sitting as a jury, and such judgment must be sustained if there is any evidence in case to support judgment on any theory. Hess v. Hessel, 102 S.W.2d 729; City v. Ry. Co., 154 S.W. 55; Cronacher v. Runge, 98 S.W.2d 603; Bratschi v. Loesch, 51 S.W.2d 69; Swabey v. Boyers, 71 S.W.2d 110; Eutsler v. Mixon, 77 S.W.2d 655.

OPINION

Tipton, J.

This case was originally appealed to this court, but we allowed a stipulation of the parties and transferred it to the St. Louis Court of Appeals. That court affirmed the judgment of the trial court. [Brown v. Wilson, 131 S.W.2d 848.] Thereafter this court, in a certiorari proceeding brought by the plaintiff, as relators, held that the case was within the exclusive appellate jurisdiction of this court because title to real estate was involved within the meaning of the Constitution, and retained the case for argument and decision on the merits, which is the matter now under submission. [State ex rel. Brown v. Hughes et al., 345 Mo. 958, 137 S.W.2d 544.]

The opinion of the St. Louis Court of Appeals was written by Commissioner Bennick which clearly and properly decides the points raised on the merits...