Buse v. Russell

• Citation: 86 Mo. 209
• Parties: BUSE v. RUSSELL et al., Appellants.
• Decision Date: 30 April 1885
• Court: United States State Supreme Court of Missouri

86 Mo. 209

BUSE

v.RUSSELL et al., Appellants.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Franklin Circuit Court.--HON. A. J. SEAY, Judge.

AFFIRMED.

Crews & Booth for appellants.

(1) The third instruction given by the court for plaintiff was erroneous. There was no evidence tending to show that said arm of the river or slough simply filled from the bottom without forming accretions on either side. The words “simply filled up from the bottom or by deposits within the bed of the slough,” as used in said instruction, were calculated to lead the jury to suppose that all land formed within the original limits of the slough and resting on that bottom were to be divided equally between the island and survey. (2) Plaintiff's fourth instruction was also erroneous. There was no evidence tending to show that Island Seventy-three did wash entirely away or that an island reformed on the bed of the river where an island once existed. (3) The court erred in giving the fifth instruction asked by plaintiff; because the technical term “accretions,” as used there, was not explained in that or any other instruction. The jury was left to determine for itself, what, within the meaning of that instruction, would be accretions to Island Seventy-three, and what to said survey. (4) The verdict is insufficient to support a judgment. It is merely a finding for plaintiff “to the center of the first depression next to survey 1922.” This does not conform to the pleadings. (5) The verdict was against the evidence. (6) The court erred in rendering judgment for plaintiff for recovery of all the land lying to the north of the railroad, when the verdict did not find for plaintiff as to all of said lands, and there was no evidence of any pretense of right in plaintiff to about fifteen acres of said land, lying between said railroad and the original river line of survey 1922. The judgment was in excess of both verdict and evidence.

L. F. Parker for respondent.

The instructions given for plaintiff are strictly in accordance with the law governing the rights of owners of lands along the Missouri River, as laid down in Benson v. Morrow et al., 61 Mo. 345. The term accretion, which is criticized at such great length by counsel for defendants, is the very word used in the instructions approved in that case. And an instruction giving the technical definition of that term was condemned. The giving of the instruction asked by defendants, though erroneous in being too favorable to them, is not an error of which they can complain. The point that the judgment includes a small strip of land between the railroad and the slough, or first depression, which strip the evidence tends to show may belong to survey number 1922, has no merit, as this error, if error it was, has been cured by a remittitur in this court. That such a course is the proper remedy, see McQuiddy v. Ware, 67 Mo. 64.

BLACK, J.

This was ejectment for Island Seventy-three in the Missouri river. The island was surveyed and numbered when the public lands were surveyed. It was patented to the state as swamp land, and by the state to the county of Franklin, and by the latter sold to plaintiff. The plat of the public surveys, certified from the surveyor general's office, shows that the island was, at the date of the survey, located near the left bank of the Missouri river. This is one of a number of islands, surveyed and unsurveyed, in the same locality. The main channel of the river, it would seem, is, and always has been, to the north and east of these islands. On the main land nearest to the island, is located survey 1922. Between this island and the survey, the plat shows an arm of the river, or slough as it is called. At the present time and since 1868, or thereabouts, the island and survey have been connected by land. In going from the old survey to the present river bank, there are two depressions in the soil. The first begins with well defined banks, at or near the old river line of the survey, and is several yards in width. Then passing over higher land the next depression is reached, and again higher land to the river bank. The first of these depressions is clearly the place of the old slough. The form of the island is easily traceable by the survey.

The court, at the request of the plaintiff, gave the following instructions:

“3. If the jury believe from the evidence that a slough, or arm of the Missouri river run between Island Seventy-three and survey 1922, at the time of making the United States survey, and that since that time the same has been filled up so as to connect the island with the main land, and make the island and survey one continuous tract of land, then the adjacent owners of Island Seventy-three and survey 1922, are entitled to the accretions to their respective lands, but if the slough simply filled up from the bottom, or by deposits within the bed of said slough, and said accretions did not form on the one side or the other, then the center of the slough as it was before the water deserted it, is the boundary between said survey and said island.”

“4. That although the jury may believe that Island Seventy-three, section six, township forty-four, range one, west, at any time washed away entirely, or in part, after the same was surveyed and patented by the United States government, yet if they further find that the land in controversy is a reformation of said island on the bed of the river where such island formerly existed, then plaintiff is entitled to recover in this action, if it be shown that the defendant unlawfully detained the same.”

“5. The court instructs the jury that if they believe from the evidence that the land and premises described in plaintiff's petition, and of which the defendants were in possession at the time of the institution of this suit were, and are not within the boundary line of survey 1922, nor are any part thereof, nor are any accretion thereto, but that t...