Carr v. Moore

• Decision Date: 24 January 1903
• Parties: JOHN J. CARR v. JOHN H. MOORE, AND GEORGE W. BRYAN v. JOHN H. MOORE
• Court: Iowa Supreme Court

93 N.W. 52

119 Iowa 152

JOHN J. CARR v. JOHN H. MOORE, AND GEORGE W. BRYAN v. JOHN H. MOORE

Supreme Court of Iowa, Des Moines

January 24, 1903

Appeal from Hamilton District Court.--HON. J. R. WHITAKER, Judge.

ACTIONS to quiet title in certain tracts of land, claimed as portions of the bed of a lake, added to the lands of plaintiffs respectively, by accretion or reliction. Defendant, by cross-petition in each case, asked that the tracts of land in controversy be decreed to belong to him, as owner under the swamp land grant. By decree, the court found in each case against the plaintiff as to his claim of title, and against defendant as to the claim set up in his cross-petition, and dismissed the petition and cross-petition. Each party appeals.

Affirmed.

Richard & Thompson for plaintiffs.

J. L Kamrar and Douthart & Brendecke for defendant.

OPINION

MCCLAIN, J.

The controversy relates to portions of the bed of what was at one time known as "Iowa Lake," claimed to have been a body of water situated in Hamilton county, and in extent about a mile and a half each way, of very irregular outline, with a shore line of over six miles and an area of eight hundred and eighty-five acres. When the government survey of the surrounding land was made in 1849, the so-called lake was meandered, and the two plaintiffs own lots platted by the surveyor as bordering on this meander line. The bed of the lake is now practically dry land, and plaintiffs claim portions of the bed as having been added to their adjoining lots by accretion or reliction, and ask that either the whole bed of the lake be decreed as owned in common by the adjoining proprietors in proportion to the extent of their assumed shore line, or that by lines running from the intersections of their boundaries with such assumed shore line to some point which may be found to be the center of the lake, portions of the lake bed may be set off to them in severalty. Defendant claims title to the entire bed of the so-called lake, within the meander line, under purchase of the same by his remote grantor from Hamilton county in 1896 as swamp land. As the claims of the appellants depend on the nature of the so-called lake, and the manner in which the water therein has receded or disappeared, it will be necessary to set out the facts in this respect as they appear from the record. There is practically no testimony of witnesses from personal knowledge as to the condition of the lake at the time of the government survey, but there is testimony showing substantially its condition from a time within ten years subsequent to the original survey down to the present time. About ten years after the survey, although previous to that time it had contained water, the so-called lake became practically dry during one season. Subsequently it refilled with water; but around its margins, and during some seasons throughout its entire extent, with the exception of perhaps one or two places where there was considerable depth of water (at one of these deeper points there is still a so-called pond), it was grown up with rushes and grass. It was swampy in character,--the bottom composed of prairie mud and a peaty substance. It had no definite shore line, but the ground around it sloped gradually down to and under the water. When full of water, the depth over its entire extent, with the exception of the one or two deeper places above referred to, did not exceed five or six feet, and it was shallower in the central portion; its greatest depth being along its sides. It had no springs or other subterranean sources of water supply, nor did it have any definite inlet, the water coming into it in the wet season from the general surface drainage of the surrounding country. It had a shallow outlet, called a creek, through which water flowed from it when it was filled. This remained its substantial condition, so far as observed by witnesses, for about twenty years after it had become dry, within ten years of the survey; and after this period of twenty years the water became shallower, and it was less frequently filled, until about fourteen years before the bringing of these suits, when it became practically dry. At the present time, owing to the cultivation of the surrounding country, the surface water does not drain into it. Some of the witnesses liken it to ordinary prairie sloughs or ponds, save as to its greater extent. Within the memory of witnesses, the water has never, for any length of time, at least, come out to the meander line.

With the foregoing general statement of facts in mind, we think it unnecessary to follow counsel for plaintiffs in their discussion of the law of accretion or reliction. No doubt, the riparian owner adjoining a navigable river or lake may have his land extended by imperceptible additions thereto, or by like imperceptible recession of the water therefrom; and we do not now question the correctness of the contention that the same principle is applicable to non-navigable lakes. See Boorman v. Sunnuchs, 42 Wis. 233; Warren v. Chambers, 25 Ark. 120 (91 Am. Dec. 538, 4 Am. Rep. 23). But to furnish occasion for the application of the rules of law on these subjects, there must have been in this case a lake, and the addition to plaintiffs' lands must have been gradual and imperceptible. Where the abutting proprietor owns the title to the bed of the lake, as he does in some states, it is, of course immaterial when or how the shore is enlarged or the water recedes. Railroad Co. v. Butler, 159 U.S. 87 (15 S.Ct. 991, 40 L.Ed. 85); Gouverneur v. Ice Co., 134 N.Y. 355 (31 N.E. 865, 18 L.R.A. 695, 30 Am. St. Rep. 669). But in this state the title of abutting owners on waters which are meandered is held to extend only to highwater mark, the title of the bed being in the state. Wood v. Railroad Co. 60 Iowa 456; Serrin v. Grefe, 67 Iowa 196, 25 N.W. 227; Noyes v. Collins, 92 Iowa 566, 61 N.W. 250. As to whether, under a patent from the United States, the title extends to the center of a stream or lake, or as limited to the margin thereof, is held by the United States supreme court to be dependent on the law of the state. Hardin v. Jordan, 140 U.S. 371 (11 S.Ct. 808, 35 L.Ed. 428). Therefore, unless the land held by each of the plaintiffs under title from the federal government was added to by accretion or reliction, as against the state their respective rights of ownership have not been extended beyond the boundaries fixed by the original patents.

It is enough to say in the present case that there is no evidence of accretion or reliction. It does not appear that the...