Chinn v. Naylor

• Decision Date: 20 June 1904
• Parties: CHINN v. NAYLOR, Appellant
• Court: Missouri Supreme Court

81 S.W. 1109

182 Mo. 583

CHINN v. NAYLOR, Appellant

Supreme Court of Missouri, First Division

June 20, 1904

Appeal from Howard Circuit Court. -- Hon. John A. Hockaday, Judge.

Affirmed.

Sam C Major for appellant.

(1) At the close of plaintiff's case the defendant offered the following demurrer: "The court instructs the jury that under the law and the evidence your verdict must be for the defendant," which was refused. I earnestly contend that the same should have been given. The plaintiff must show title in itself, and must recover, if at all, on the strength of his own title, and unless the evidence tended to show the land was his, there was nothing to submit to the jury. He attempted to prove the land had an accretion to his shore land and utterly failed to do so. Plaintiff claims the land as an accretion to the land he purchased from John White and wife. Plaintiff swears that the land was made up to the main land, but in reply to a question on cross-examination, states that the first time he ever saw the land was in 1886 or 1887. In reply to question, "When was it you first saw this very land in controversy here?" answered, "About winter of 1887. I remember that a young man was shot over there on the island, and I went over there to see him." He swore also that he had only known the land 8 or 10 years. So his statement as to how it was formed is utterly of no value; for, according to his own statements, he never saw the land until six years after it had formed, and such being the case his statement can only go to show how it was the first time he ever saw it, which was in 1887, when he himself inadvertently speaks of it as an island. The statement of a witness which, from the nature of things, could not be as said, will be treated as unsaid. Hook v. Railroad, 162 Mo. 569. If Chinn did not see it until six years after it was formed, he could not well testify as to how it formed. The next witness for plaintiff is H. C. Shields. He swears that he was never on the land in controversy. W. W. Trent the next witness, swears that he only knew how the land formed there by looking at it now, and judging how it formed by how it now appears. "I did not see the land when it was forming; I was not there when it commenced to form." I do not think the court would take a man's land from him on this evidence. (2) Land formed by alluvium or the gradual and imperceptible accretion from the water, and land gained by reliction or the gradual and imperceptible recession of the water, belongs to the owners of the contiguous land to which the addition is made; the formation or reliction must be imperceptible and must be made to the contiguous land so as to change the position of the water's edge or margin. The owner of contiguous land is not the owner of a sand bar that forms in the river and afterwards joins his land. Cooley v. Golden, 117 Mo. 33. Nor is he the owner of a river bed, or any part thereof, formed by the river changing its channel and shifting and cutting south and deserting its former bed. R. S. 1899, sec. 8346-8349. Nor is he the owner of lands created by avulsion. Where lands are created by avulsion, then, under the Act of April 8, 1895 they belong to the county. Laws 1895, p. 207; R. S. 1899 secs. 8346-8349; Benecke v. Welch, 168 Mo. 267, 67 S.W. 604. (3) Instruction 3 is erroneous for the reason that it does not properly declare the law and that it is indefinite, uncertain, and misleading. This instruction tells the jury that "although the jury may believe from the evidence that after an original bar was formed in the river, etc., 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." An instruction radically wrong, given for plaintiff, can not be cured by another free from the vice of the former. Such repugnant directions afford no guide to the jury, nor can it be presumed that the jury followed one rather than the other. Shoe Co. v. Lisman & Ramsey, 85 Mo.App. 340; Baer, Seasongood & Co. v. Lisman, 85 Mo.App. 317; Herbert v. Boot & Shoe Co., 90 Mo.App. 305; Quick v. St. Louis United Elevator Co., 126 Mo. 279.

C. B. Crawley of counsel for appellant.

The demurrer to plaintiff's evidence should have been sustained. (1) In the first place, plaintiff failed to prove that the legal title to fractional southwest quarter of 2 or to fractional southeast quarter of 3 has ever emanated from the United States. Notation of the names "Brown & Rawlings" and "Brown & Adams" on the Government Plat Book, a copy of which was offered in evidence by plaintiff, raises no implication of a valid grant to any person whomsoever. A patent or other conveyance to "Brown & Rawlings" or "Brown & Adams," without other identification of the grantees, by their Christian names, initials, or words of description, and unaccompanied by any offer at the trial of extrinsic proof of identity, would be treated as a mere nullity; leaving the title where it was before. Arthur v. Weston, 22 Mo. 378; Riffle v. Ozark Land & Lumber Co., 81 Mo.App. 177; Jackson v. Cory, 8 Johns. 385; Hanbeck v. Westbrook, 9 Johns. 73; 1 Devlin on Deeds, sec. 51. And if, as plaintiff contends, all the intervening land to the present water-line of the river is an accretion to said fractional quarter sections, the title thereto is, of course, in the same plight. (2) There is no evidence identifying any of plaintiff's grantors, or connecting them or him in any way with "Brown & Rawlings" or "Brown & Adams." Drake v. Curtis, 88 Mo. 644. (3) The foundation of whatever supposed color of title plaintiff and James S. Rollins, his immediate grantor, ever had to said fractional quarters in sections 2 and 3 is the sheriff's deed of December 8, 1860. That deed was executed to James S. Rollins and seven other persons named therein as joint grantees with him; though there was no evidence showing what right, if any, George W. Walker, Jr., whose supposed interest was conveyed by said sheriff's deed, ever had or claimed. (4) The interest so acquired by James S. Rollins under said sheriff's deed is all that could possibly have passed to plaintiff under the executor's deed of January 19, 1895. While the evidence of plaintiff shows that "the Rollins" had possession of said original lands for many years before, and at the date of said executor's deed the law presumes, in the absence of proof to the contrary, that the possession so held by "the Rollins" and transmitted to plaintiff was held for, and in behalf of all the grantees named in said sheriff's deed, as tenants in common. So that even if the grantees in said sheriff's deed had acquired the absolute title instead of a mere color, plaintiff would only have acquired, at the utmost, an undivided one-eighth interest from said executors. Warfield v. Lindell, 38 Mo. 561; Whitaker v. Whitaker, 157 Mo. 342; Stevens v. Martin, 168 Mo. 407. (5) On January 19, 1895, the date of said executor's deed to plaintiff, said fractional southwest quarter of 2 and fractional southeast quarter of 3 were separated from the land here sued for by a strip of ground 100 feet wide previously conveyed by plaintiff's grantor to the M., K. & E. Ry. Co., as recited upon the face of plaintiff's own deed; and were also separated from the land in suit by the lands occupied and claimed by Robinson and White, who subsequently conveyed to plaintiff; and also by Salt Creek, and by the Big Slough. These intervening lands of the railway company and of Robinson and White effectually cut off said fractional quarter sections from the land in suit. Sweringen v. St. Louis, 151 Mo. 348; St. Louis v. Railroad, 114 Mo. 13; Ellinger v. Railroad, 112 Mo. 525; Gould on Waters (2 Ed.), sec. 155, note 1. Yet, not content with such simple exercises of magic as the investment of accretion with seven-league boots in which to stride across country, and causing them to pass dry shod through the depths of the Big Slough while the waters thereof stood parted upon the right hand and upon the left, opposing counsel seek to out Mose Moses himself, by endowing plaintiff's advancing host of sand with the ability to swim Salt Creek. This is certainly the limit. De Lassus v. Faherty, 164 Mo. 361; Crandall v. Smith, 131 Mo. 640. (6) Upon no theory of the case was plaintiff entitled to a verdict and judgment arbitrarily extending east and west side lines from fractional section 3. It devolved upon him to establish by the evidence the portion of alleged accretions belonging to the waterfront of said White land, and his failure to do so can not be supplied by merely adopting as true the description given in his petition. Manchester v. Iron Works, 13 R. I. 355; Kehr v. Snyder, 114 Ill. 313; Cox v. Arnold, 129 Mo. 337; Harn v. Dawson, 134 Mo. 581; Widdecombe v. Chiles, 73 S.W. 444.

W. M. Williams for respondent.

(1) The evidence is abundant in the record to show that the tract of land sued for was formed in 1881, against and added to the land now owned by the plaintiff and is an accretion to the same. This proposition requires an examination of the evidence by the court, and nothing further need be said in regard thereto. The jury, under proper instructions, found this issue for the plaintiff, and the verdict was sustained and upheld by the trial judge, who saw the witnesses and heard their testimony. (2) Plaintiff's deed, although made after the accretions were formed and notwithstanding they were not expressly described therein, was sufficient to vest the title to said accretions in him. The deed, after describing the shore land by metes and bounds, expressly states...