Chinn v. Naylor

• Decision Date: 20 June 1904
• Citation: 182 Mo. 583,81 S.W. 1109
• Parties: CHINN v. NAYLOR.
• Court: Missouri Supreme Court

81 S.W. 1109

182 Mo. 583

CHINN v. NAYLOR.

Supreme Court of Missouri, Division No. 1.

June 20, 1904.

ACCRETION — EVIDENCE — QUESTION FOR JURY — INSTRUCTIONS — TRIAL — QUESTION ON APPEAL.

1. A general demurrer to the evidence is not available for bringing into a case in the appellate court questions not specifically called to the attention of the trial court.

2. A party, having tried a case in the trial court on the theory that the adverse party was the owner of certain land, must try it on appeal on the same theory.

3. Evidence on the issue whether a tract of land was formed as an island in a river, or as an accretion to one of its banks, examined, and held to authorize the submission of the issue to the jury.

4. On the issue whether a tract of land was formed as an island in a river or as an accretion to one of its banks, an instruction that, though the jury might believe that after an original bar was formed in the river there was deposited thereon by the waters in one season earth so as to raise the bar four or five feet higher, still that would not prevent the same from being an accretion to the shore, provided the bar as originally made was annexed to the shore, is not open to the objection that the jury was authorized to find that the land in controversy was an accretion to the shore, though they might believe that it first formed an island in the river.

5. A deed conveying land described, and "all accretions and riparian rights belonging to said land," covers land formed as an accretion to the land described.

Appeal from Circuit Court, Howard County; John A. Hockaday, Judge.

Action by E. H. Chinn against John P. Naylor. From a judgment for plaintiff, defendant appeals. Affirmed.

C. B. Crawley and Sam Major, for appellant. W. M. Williams and J. W. Jamison, for respondent.

BRACE, P. J.

This is an action in ejectment to recover possession of a tract of land in Howard county, containing 25 or 30 acres, described in the petition. The answer is a general denial. Verdict and judgment for the plaintiff, and the defendant appeals.

At the close of the plaintiff's evidence the defendant demurred thereto, and at the close of defendant's evidence the case was submitted to the jury on the following instructions:

For plaintiff:

"(1) The jury are instructed that the deeds read in evidence in behalf of plaintiff constitute color of title to the land lying on the north bank of the Missouri river immediately north of the lands described in plaintiff's petition, and if the jury believe from the evidence that plaintiff and his grantors have been in the open, notorious, peaceable, and adverse possession of said land, situate on the said north bank of said Missouri river, for a period of ten years or more next before the institution of this suit, then such possession vested in plaintiff the legal title to said premises, and also vested in him the title to all accretions made thereto; and if the jury so believe, and shall further believe that the land sued for was made to and against the said north bank by the gradual and imperceptible deposit of earth, sand, and sediment against said bank by the action of the water, and by the gradual receding of the water of said river from said north bank, then the jury must find the issues for plaintiff.

"(2) The jury are instructed that it is for them to determine as a question of fact from the evidence whether the tract of land sued for was formed as an island in the Missouri river, or as an accretion to the north bank of said river; and if the jury find from the evidence that said land was formed against the north shore by the gradual receding of the waters of the river from said shore, and the deposit of earth and other substances against said bank, then your verdict must be for the plaintiff.

"(3) Although the jury may believe from the evidence that after an original bar was formed in the river, if you find the bar was formed therein, and willows had begun to grow thereon, there was deposited upon said bar by the waters in one season earth, sand, and other substances, so as to raise the sand bar four or five feet higher than where it was first formed or made, still this will not prevent the same from being an accretion to the north shore of the river, provided the jury shall find from the evidence that the land or bar as originally made was formed against and annexed to the said north shore by the action of the waters in receding from said shore and running further south.

"(4) The jury are instructed that, notwithstanding the county of Howard caused the land sued for to be surveyed as an island and conveyed it to defendant as such, still this is not evidence that it was an island, to control the jury in this case; but the jury must determine that question from all the facts and circumstances in evidence before them.

"(5) The jury are instructed that although there may have been, since the years 1884 and 1885, a low place or wide depression between the lands described in plaintiff's deeds and the land in controversy in this action, with well-defined banks, and that waters of the Missouri river have passed through and over the same in time of overflow and high water, still, notwithstanding you shall so find, you should return a verdict for plaintiff, provided you shall further find from the evidence that the land in dispute was originally made to and against the lands described in plaintiff's deeds as an accretion.

"(6) Although the jury may believe from the evidence that the land in question first appeared above the water as a large bar, made to and against the north shore or bank of the Missouri river, after an overflow and rise of the waters of said river, still, if this bar was so made by the gradual deposit of earth, sand, and sediment by the action of the water, and by the gradual receding of the water of said river to the south, it is an accretion, and your verdict will be for plaintiff."

For defendant:

"(1) The court instructs you that before the plaintiff, E. H. Chinn, can recover in this case, he must prove by a preponderance of the testimony that he is the owner of the land in controversy, and, unless he has done so to your satisfaction, you should find for the defendant.

"(2) The court instructs the jury that under the law of this state all islands and sand bars forming in the Missouri river are the property of the county, and the county court has a perfect right to convey the same to this defendant, or any one else; and in this case, if you find that the land in controversy was an island or sand bar formed out in the Missouri river, your verdict should be for the defendant.

"(3) The court instructs you that the plaintiff, only taking title to the margin of the river, can claim in addition to the original grants only such land as may have been added thereto by the regular process of accretion or reliction. Land formed by alluvion, or the gradual and...