Cooley v. Golden
| Decision Date | 19 June 1893 |
| Parties | Cooley, Appellant, v. Golden |
| Court | Missouri Supreme Court |
Appeal from Atchison Circuit Court. -- Hon. C. A. Anthony, Judge.
Affirmed.
Lewis & Ramsey for appellant.
(1) The court erred in refusing to give instruction number 1. This bar or island might fairly be considered an accretion in a state of formation begun prior to United States survey, but continuing to develop until united with the main shore. Jones v. Soulard, 24 How. 41. As appellant's lessor owned the lands along the Missouri shore to the river line, the accretions belonged to them, they passed with all conveyances, and it makes no difference that the shore lines were meandered at time of government survey. Land Co. v Jeffiries, 40 F. 386; Same case affirmed, 134 U.S. 178; County of St. Clair v. Lovingston, 23 Wall. 46. (2) As respondent only claimed to be in possession of government land and not adversely to any one, there was no statute of limitations in the case, and it was error of the court to modify plaintiff's instruction number 2 upon that question. (3) The court erred in giving instruction number 2 on part of defendant, and in refusing to give instruction number 6 asked by plaintiff. The evidence was undisputed that plaintiff had prior possession under color of right, and that defendant was a mere tresspasser as to the three-cornered or "flat-iron shaped" piece south of Pole Island tract; the instruction should have been for plaintiff as to that tract at least; and even if the instruction had been correctly given, the finding of the court was against the clear weight of the evidence, and erroneous. Norfleet v Russell, 64 Mo. 176; Bledsoe v. Simms, 53 Mo 305; Dale v. Faivre, 43 Mo. 556. (4) The court erred in giving instruction number 1 for defendant, for the reason that it ignores the manner of the accretion's growth and union to the shore, and ignores also the question as to whether it was included in the original survey. Imperfect, growing and unsurveyed islands near the shore are presumed to belong to the adjacent owner; so held in Railroad v. Schurnieir, 7 Wall. 272; Butler v. Grand Rapids, 48 N.W. 569; Chandos v. Mack, 77 Wis. 573; Chandos v. Mack, 10 L. R. A. 207; Rutz v. Seeger; 35 F. 188; same case affirmed in 138 U. S. Sup. Court Rep. The court erred in finding for the defendant upon the whole case, the instructions were not only erroneous but the finding of the court was contrary to the weight of the evidence, and upon the whole evidence the finding should have been for plaintiff. See authorities already cited.
M. McKillop for respondent.
(1) The court committed no error in refusing to give instruction numbered 1 asked by plaintiff. Where lands bordering on a navigable river are so described in the instrument of conveyance as to make the stream one or more of the boundaries the grantee takes to the middle of the stream, while, if the description does not make the stream at least one of the boundaries of such land, the grantee takes only to the water edge, but may, of course, be entitled to accretions. Railroad v. Schurnieir, 7 Wall. 272; School District v. Risley, 10 Wall. 110; Yates v. Milwaukee, 10 Wall. 504; Steel v. Sanches, 33 N.W. 366; County of St. Clair v. Lovingston, 23 Wall. 46-69; 28 Myers' Federal Decisions, 720. (2) The Missouri river is by act of congress declared a navigable stream. Benson v. Morrow, 61 Mo. 345; Lamme v. Buse, 70 Mo. 463; Granger v. Swart, 1 Woolworth, 88. (3) The court committed no error in giving instruction numbered 2 prayed for by defendant, nor in refusing number 6 as asked for by plaintiff. Lamme v. Buse, 70 Mo. 463; Norfleet v. Russell, 64 Mo. 176; Dale v. Faevre, 43 Mo. 556. (4) The court committed no error in making its finding on the whole case for the defendant. (5) It was incumbent on plaintiff to prove defendant's possession, and this he failed to do. Clarkson v. Stanchfield, 57 Mo. 573; Caldwell v. Stephens, 57 Mo. 589; Callahan v. Davis, 90 Mo. 78; Bledsoe v. Simms, 53 Mo. 305.
OPINION
In Banc
The following statement prepared by Brace, J., is adopted:
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 two hundred and seventy acres of unsurveyed lands lying south of fractional southeast quarter of section 32 and fractional southwest quarter 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 fifth principal-meridian, in Atchison county, in this state, composed partly of an island called Pole island and a triangular tract of ground of about one hundred 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 grantor being J. P., and A. H. Allen. The lands were surveyed about the year 1846. As riparian owners 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 ILLUSTRATION IN ORIGAINAL] 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 this sand bar had been in existence for some years. It was a long, narrow strip containing perhaps an hundred acres or more, upon which young cotton wood and willows had grown to the height of fifty or sixty 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 main land to the north and northeast of it.
On the fifth 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 McKissock's 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 1881-2-3, 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, seventy-seven 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 McKissock island, and the lands 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 is illustrated by the following plat:
[SEE IllUSTRATION IN ORIGINAL]
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 four hundred rods wide where the aforesaid public road crosses, but gradually narrows as we follow down the river until it is only one hundred rods wide some two miles below.
Plaintiff's lessors own all the surveyed lands on the Missouri shore opposite the Pole island tract, surveyed to the river's edge, and they and their grantors have held it for various periods from time of original entries, varying from 1850 to 1861 to the present time. Plaintiff's lessors also own the surveyed lands along the opposite Nebraska shore, and their immediate...
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