Conran v. Girvin

Decision Date12 December 1960
Docket NumberNo. 46429,46429
Citation341 S.W.2d 75
PartiesEffie M. CONRAN (J. V. Conran, Administrator of Estate of Effie M. Conran, Deceased), O. D. Bratton, Frank A. Conkling, Joseph R. Tipton, and Jeanne B. Tipton, his wife, J. Ross Holcomb, Jr., James A. Holcomb and Nolah D. Holcomb, Appellants, v. Georgia GIRVIN, Executrix of Estate of John L. Girvin, Deceased, Respondent.
CourtMissouri Supreme Court

Blanton & Blanton, Sikeston, Wils Davis, Memphis, Tenn. Merrill Spitler, J. V. Conran, New Madrid, for Davis & Davis, Memphis, Tenn. Harry C. Blanton, Sikeston, for appellants.

Web A. Welker, Portageville, Bradley & Noble, Jones & Jones, Kennett, for respondent.

STOCKARD, Commissioner.

This is a suit for the alleged wrongful cutting of timber from the land of plaintiffs. It was tried before the circuit court of Butler County without a jury and judgment was entered for plaintiff in the amount of $42,465, representing actual damages of $14,155 which were trebled pursuant to Section 537.340 (all statutory references are to RSMo 1949, V.A.M.S., unless otherwise stated). Following the entry of this judgment, Judge Randolph H. Weber, he circuit judge who heard the case, resigned. Defendant then filed several after-trial motions including a motion for a new trial. Judge Philip S. Terry, who succeeded Judge Weber as judge of the circuit of Butler County, found and determined that the land, or a substantial portion thereof, did not lie in the county from which plaintiffs' predecessors in title had obtained a patent, and also that the 'findings and judgment of the Court rendered herein are against the weight of the evidence.' He then set aside the judgment in favor of plaintiffs and ordered a new trial. It is from this order granting a new trial that plaintiffs have appealed. We shall continue to refer to the parties as in the trial court.

Plaintiffs state that a 'new trial cannot possibly change the picture,' and since the case will ultimately reach the Supreme Court for a decision 'it might as well be decided now.' They then suggest that 'a review of the whole case is in order, to prevent a duplication of the same suit.' Neither plaintiffs nor defendant indicate that a new trial would result in any different or additional evidence. Both parties have briefed and submitted this case to this court for final determination of the issues on the record made in the trial court. After original submission of this case a tentative opinion was prepared and furnished to counsel for the parties. The court has had the benefit of supplemental briefs and reargument. There is no occasion on this review to give deference to what would appear to be the determination of any factual issue by the trial judge entering the order from which the appeal is taken because he heard no testimony. As subsequently pointed out our conclusions are based primarily on facts revealed by maps and their interpretation by expert witnesses.

Plaintiffs alleged in their petition that they are the owners of certain described land in New Madrid County, Missouri, known as Austin Island, together with its accretions, and that in 1952 and 1953 the defendant entered upon that land and wrongfully cut and carried away timber of the value of $35,000. Plaintiffs' claim of record title is based on a patent to what is 'known as Austin Island' issued by New Madrid County in 1915 to their predecessors in title. They also assert that if for any reason their record title is not valid, they own the land by adverse possession. Defendant's contentions are, in substance that he owns the land on which he cut timber because it is an accretion to his land; that there never was an island known as Austin Island in the Mississippi River at the place contended by plaintiffs and for that reason the purported patent to Austin Island from New Madrid County is void; that if such an island did exist it was not located in New Madrid County and said county could not give a valid patent to it; and that he, and not plaintiffs, owns the land in question by adverse possession.

Section 241.290 provides that 'All lands belonging to the state * * * which have been found [prior to 1895] * * * by the formation of islands in the navigable waters of the state, are hereby granted and transferred to the respective counties in which such lands are located * * *.' Section 241.300 provides that 'All lands * * * and islands which may hereafter [1895] form in the navigable waters of said state, which would otherwise have become the property of the state, shall pass in the same manner as in the case of such lands already formed, to the counties in which they are situated, * * *.' Section 241.310 authorizes the sale of such lands by the county which has title thereto. On May 3, 1915, M. J. Conran and D. C. Kimes, plaintiffs' predecessors in title, applied to the county court of New Madrid County for a patent to 'what is known as Austin Island in New Madrid County, Mo., in the Mississippi River just above Stewart's landing on the Missouri side.' The county court approved the application and authorized a survey to be made at the expense of applicants. On June 22, 1915, an order was entered 'that a patent be issued to M. J. Conran and D. C. Kimes to what is known and designated as Austin Island in the Mississippi River just above Stewart's Landing on the Missouri side, as per plat and survey filed, the said Conran and Kimes having paid into the county treasury the money thereof at the rate of $1.25 per acre and also having paid all incidental expenses of survey and etc. [sic] as evidenced by receipts herewith submitted to the court.' On the same day the county court issued to the said M. J. Conran and D. C. Kimes a patent in which there was set forth, in the following arrangement, a description of the land to be thereby conveyed:

                "Acres    Description    Sec.  Twp.  Rng.)
                ------  ---------------  ----  ----  -----
                 1.19   SW corner SE SW   16    20   14  )
                17.85   Frl. SW SW        16    20   14  )
                 2.80   SE corner SE SW   17    20   14  )
                 5.52   Frl. SW SE        17    20   14  )   All
                 8.74   Frl. SE SE        17    20   14  )  Known
                                                         )    as
                40.00   NE NE             20    20   14  )  Austin
                30.69   Frl. NW NE        20    20   14  )  Island
                  .70   NE corner SW NE   20    20   14  )
                21.29   Frl. SE NE        20    20   14  )
                 1.60   NE corner NE NW   20    20   14  )
                 2.80   NW corner NE NW   21    20   14  )
                35.19   Frl. NW NW        21    20   14  )
                11.54   Frl. SW NW        21    20   14  )

in the County of New Madrid, afore--[paper is torn] containing 179.91 acres, * * *.'

If any plat and survey were filed, as recited in the order directing the issuance of the patent, they could not be located. However, a small 'daybook' was found containing notes of Mr. Francis Steele, a surveyor who was deceased at the time of the trial, and these notes indicated that on May 11, 1915, he made a survey of land in the area in question for M. J. Conran and D. C. Kimes. Plaintiffs urge that these notes were made by Mr. Steele when he made the survey of Austin Island in connection with the issuance of the patent. There is no reference in the notes to Austin Island by name, and the purpose of the survey is not disclosed therein. However, when the area is plotted from the notes the actual amount of land lying in the various sections correspond closely to the number of acres stated in the patent. We shall assume, as contended by plaintiffs, that these notes of Francis Steele describe the precise land purported to be conveyed by the patent, and that they constitute sufficient extrinsic evidence to explain and make certain the description in the patent.

Before proceeding further a general description of the area will be helpful, and to failitate this explanation we have reproduced and appended hereto 1 a sketch, identified as exhibit 65, prepared by plaintiffs' expert witness W. H. Ice from the notes of Francis Steele showing his survey of Austin Island and also his survey of Williams Island which lies immediately to the west. In our discussion we shall frequently use the term 'Austin Island,' and in doing so we have reference to that area described by metes and bounds in the notes of Francis Steele as shown on exhibit 65. However, that described area is now a part of a larger tract of land and by use of the term we do not imply that the area is or was an island in fact. Although the patent states that the land conveyed contained 179.91 acres, plaintiffs contend that they are the owners, by reason of accretions thereto, of 563 acres.

Plaintiffs assert that at the time of the issuance of the patent the area described in Steele's notes was bounded on the north by what is referred to as the high bank chute, on the east by Austin chute, on the west by Williams chute which separated Austin Island from Williams Island, and on the south by the Mississippi River. Immediately north of the high bank chute is what is referred to as the high bank. Defendant owns land approximately three-fourths of a mile in width north of the high bank and immediately north of the area described as Austin Island. To the east of his land is what is known as the Hunter-Conran land which is approximately a mile in width. East of that is what is identified as the M. J. Conran land. To the west of defendant's land is the Linda Harris Morris land which is approximately one-half mile in width. The area of Austin Island extends a little west of defendant's west line and about even with his east line north of the high bank chute. Therefore, if plaintiffs are correct that they are now the owners of Austin Island, and its accretions, defendant's land north of the high bank, which formerly was riparian land to the Mississippi River, is now either completely or substantially cut off from the...

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