Cooley v. Golden

• Decision Date: 19 June 1893
• Citation: 117 Mo. 33,23 S.W. 100
• Parties: COOLEY v. GOLDEN.
• Court: Missouri Supreme Court

23 S.W. 100

117 Mo. 33

COOLEY v. GOLDEN.

Supreme Court of Missouri.

June 19, 1893.

RIPARIAN RIGHTS — NAVIGABLE RIVERS — GRANTS FROM THE UNITED STATES — ISLANDS — ACCRETION.

1. A grant from the United States of land on a large river like the Missouri, navigable in fact, though not subject to the ebb and flow of the tide, will, even when containing no reservation or condition, pass to the grantee title only to the water's edge, but will vest in the state title to the land beneath the water, though the state has adopted the common law.

2. Where an island springs up in a navigable river, and by accretion to the shores of the island and the mainland they are united, the owner of the mainland is not entitled to the island, but only to such accretion as formed on his land.

3. Where a navigable river suddenly changes its course, the owner of the shore does not acquire title to the abandoned channel.

Brace, J., dissenting.

In banc. Appeal from circuit court, Atchison county; Cyrus A. Anthony, Judge.

Ejectment by Millard F. Cooley against James F. Golden. Judgment for defendant. Plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by BRACE, J.:

This is an action in ejectment brought by Millard F. Cooley, lessee of the Hamilton Land Company, against James F. Golden, for the recovery of a tract of about 270 acres of unsurveyed lands lying south of fractional S. E. ¼ of section 32, and fractional S. W. ¼ of section 33, in township 67, of range 42, and south and west of fractional sections 3, 4, and 10, in township 66, of range 42, all west of the fifth P. M., in Atchison county, in this state, composed partly of an island called "Pole Island," and a triangular tract of ground of about 100 acres of relicted land in the old bed of the Missouri river. The answer was a general denial and a plea of statute of limitations. Title emanated from the government to the aforesaid surveyed lands at various times from 1850 to 1856. It is not disputed that the plaintiff's lessor has acquired that title through various mesne conveyances, its immediate grantors being J. P. and A. H. Allen. The lands were surveyed about the year 1846. As riparian owner of these surveyed lands, plaintiff's lessor claims the land in controversy. The location of these lands by such survey with reference to the then existing bed of the Missouri river is shown by the following plat. [See opposite page.]

As will be observed, they are on the north shore of the river. The evidence tends to show that at the time of the government survey the current of the river washed this shore; that at some time previous a bar had formed in the river opposite these surveyed lands; that, in navigating the stream, boats passed between this bar and the north shore until about the year 1854, when the current changed, and afterwards ran, and boats passed, south of it. At the time of the survey

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this sand bar had been in existence for some years. It was a long, narrow strip, containing perhaps 100 acres or more, upon which young cottonwood and willows had grown to the height of 50 or 60 feet, and became known as "Pole Island." It was not noticed in any way in the government survey. After the current changed in 1854, the water way between it and the main shore began to fill up, and it soon became so united to the main shore, to the northwest of it, that in an ordinary stage of water persons could cross to it with teams by throwing in a little brush in the depressions between the island and the main shore. The water of an independent stream, called "Willow Slough," flowing into the old channel from the north, however, separated the principal part of the island from the mainland to the north and northeast of it. On the 5th day of July, 1867, the Missouri river, being at a very high stage of water, suddenly cut through the narrow neck of land between sections 18 and 30, township 66, range 42, and run all its water through said newly-made cut, and abandoned its old bed in the bend, fifteen miles long, and from three-fourths of a mile to one mile wide, as shown in plat A. The peninsula of land so cut off by said avulsion and thrown east of the Missouri river is called "McKissick Island," and continues to be a portion of Nebraska. This relicted territory was at first and for a year or two stagnant ponds of water. Gradually, however, by drainage and evaporation, it became comparatively dry, except water standing in a few low places. Occasionally, when the Missouri river was high, it would overflow this ground, as well as the surrounding country, and deposit sediment on said low ground. In time vegetation commenced to grow on it, trees appeared, and about 1881, 1882, and 1883 much of it became fit for pasture and cultivation. It is still much lower than the surveyed lands surrounding it on the Missouri and Nebraska shores, and has in many places deep sloughs and depressions, in which water rests a good portion of the year. It is, as a general rule, higher in the center than it is next the shore, and there is a deep depression all along the main shore between this relicted land and the originally surveyed lands, leaving the border of the originally surveyed shore higher than the relicted lands all around. From a point on the Missouri shore 77 chains east of the northwest corner of section 5, township 66, range 42, runs a public road due south, crossing the west end of Pole island across the aforesaid relicted land to that portion of the Nebraska shore called "McKissick Island," and the land in controversy and claimed by appellant is that portion of Pole island lying east of said road and a portion of said reliction in a triangular shape lying south of said island. The condition of the old bed of the river at the time this suit was brought, and the situation of the land in controversy, and the respective claims of the parties, are illustrated by the following plat. [See opposite page.]

The land sued for is included within the lines A, B, C, D, A; the irregular line D, A, being the southwest shore of Willow slough until it reaches a point due east of point A; thence due west to said point. The old bed is 400 rods wide where the aforesaid public road crosses, but gradually narrows as we follow down the river, until it is only 100 rods wide some 2 miles below. Plaintiff's lessor owns all the surveyed lands on the Missouri shore opposite the Pole Island track, surveyed to the river's edge, and it and its grantors have held it for various periods from time of original entries, varying from 1850 to 1861 to the present time. Plaintiff's lessor also owns the surveyed lands along the opposite Nebraska shore, and its immediate grantors, (the Allens,) in 1886, fenced the lands on the Nebraska side into a pasture, extending their fences across the old bed onto the Missouri side, to a point about 124 rods north of the center of the old bed, along the road, where the drain or slough called the "Northern" or "Venable" slough runs through the old bed. The fence then followed in a southeasterly direction, down this slough, to a point where the water was deep enough to turn stock. The pasture was fenced with post and wire fences, except where the sloughs and streams were sufficient to prevent escape of cattle, and embraced about 700 or 800 acres of pasture, about 100 acres of which, being the triangular piece contained within the lines 2B, c2, in northwest part, is included in the lands in this suit. This 100 acres is the only part of the lands in controversy that was ever in actual possession of plaintiff or those under whom he claims. The Allens were the first to ever fence or use it in any way, and plaintiff had possession, first, as their tenant, and, afterwards, as tenant of the Hamilton Land Company, which succeeded to their interest. The remainder of the lands in controversy was never in plaintiff's actual possession. Defendant, in the year 1888, purchased the claim of a squatter named Mrs. Bird, who had lived on Pole island several years with her children after her husband's death. She made him a deed describing in a general way Pole island, and afterwards (after Golden had had a survey made) she executed another deed, describing a tract by metes and bounds as in plaintiff's petition. These deeds were recorded in Atchison county, and were the only ones recorded by defendant and those under whom he claims. Mrs. Bird's husband, who died in 1882, seems to have taken possession of the island in 1881, by virtue of a purchase from a man by the name of Wilcox, who had been in possession from 1868 or 1869, and who succeeded to the possession of several precedent squatters, whose

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possession ran back as far, probably, as 1860 or 1861; so that the defendant and those under whom he claims had been in the continuous adverse possession of Pole island proper for more than 10 years before this suit was instituted. Mrs. Bird's fence seems to have run to Venable slough, but she claimed and deeded to the defendant the tract as described in the petition, and the defendant has inclosed and claims the tract as then deeded. The case was tried by the court, without a jury; the law declared by way of instructions. The finding and judgment was for the defendant, and the plaintiff appeals. The foregoing statement, prepared by Judge BRACE, is adopted.

Lewis & Ramsay, for appellant. M. McKillop and J. D. Campbell, for respondent.

MACFARLANE, J.

That plaintiff owns under mesne conveyances from the government the fractional sections of the land on the margin of the waters of the Missouri river is conceded by both parties. The most important inquiry, therefore, is whether such grant from the United States, being without reservation or condition, passed to the grantee the title to the land beneath the water to the center thread of the channel, or only to...