Coulthard v. McIntosh
| Decision Date | 02 July 1909 |
| Citation | 122 N.W. 233,143 Iowa 389 |
| Parties | GEORGE COULTHARD, Appellant, v. G. D. MCINTOSH and PRESS MCINTOSH, Appellees |
| Court | Iowa Supreme Court |
Appeal from Harrison District Court.--HON. W. R. GREEN, Judge.
ACTION at law to recover possession of a tract of land. Verdict and judgment for defendants, and plaintiff appeals.
Affirmed.
J. E Dewell and Roadifer & Arthur, for appellant.
S. H Cochran, for appellees.
The land in controversy is upon or near the western boundary of the state, and the dispute to be here settled is only another phase of the confusion in titles which has arisen from the frequent shiftings of the channel of the Missouri River. The land along the eastern border of the river was surveyed by the United States government in the year 1851 or 1852. That survey showed township 79 N. of range 45 W. to be less than the standard measurement of six miles square, being abbreviated to some extent on both its western and southern borders by the river. Section 34 of this township was one of the sections which were made fractional because of the river on the south. The testimony tends to show that from the date of the survey for a period of years the river, which at this point flowed in an easterly direction, gradually encroached upon the Iowa shore, until practically all of fractional section 34, with other lands on the east and west were eroded away, the river channel shifting in the same direction until its bank on that side nearly or quite coincided with the north line of said section; the stream being at ordinary stages about a half mile wide. After reaching the eastern, or rather northeastern, limit in the year 1857 the river, by some flood or avulsion, suddenly developed a new channel a mile or more to the south or southwest, leaving the old channel practically empty. About the same time a stream known as Soldier River, which had before emptied into the Missouri just to the northwest of section 34, declined to follow the Missouri in its recession to the southwest, and sent its waters along the channel abandoned by the larger stream until it joined the main river several miles further down its course. In the course of time the abandoned channel, except so far as it had been appropriated by the Soldier River, became, in part at least, dry and of value of agricultural purposes. The land now in question is part of that which was uncovered by the avulsion or sudden change in the river's course, which we have referred to as taking place in the year 1857. Some fourteen years prior to the commencement of this proceeding the defendants, or one of them, entered upon said tract under a claim of right of some nature, and have since maintained such possession. By an act of the Thirtieth General Assembly of Iowa, approved April 11, 1904, provision was made for the survey and sale of abandoned riverbeds "within the jurisdiction of the state of Iowa" (Acts 1904, chapter 185). Thereafter, on application by the plaintiff, a survey was made of the lands lying immediately south and west of the Iowa bank of the abandoned channel here in controversy. By this survey there were platted several lots, claimed to be within the area of said channel, and on the Iowa side of the central thread thereof. Of these tracts it is alleged that lot No. 8 covers in part the land occupied and claimed by the defendants. After the survey had been completed, plaintiff received from the state of Iowa a patent or deed of conveyance, which instrument, after reciting the statute, the survey, the application by the plaintiff, the appraisement of the land, and the payment by plaintiff of his accepted bid therefor, and the grant made to him in pursuance of said sale, adds thereto the following clause: "This deed or patent is for the purpose of conveying such title and interest in the above-described tracts of land as the state owns or possesses and has the right to convey." It is under this patent that plaintiff asserts title and right of possession. The defendants deny that plaintiff ever acquired any title to the tract in controversy, allege that it lies within the territory and jurisdiction of the state of Nebraska, and that they are the rightful owners thereof by adverse possession.
In submitting the case for a verdict the court, instructed the jury, in effect, that the issue between the parties turned entirely upon the question whether the land in question lies upon the Iowa side of the boundary line, and therefore within the jurisdiction and authority of the state to make title thereto to the plaintiff. As to the rule of law governing the consideration of this question the court instructed as follows:
(5) The law with reference to changes in river boundaries is this: That when the banks of a navigable stream or river, such as the Missouri, change by slow process not visible to ordinary observation, the river still continues to mark the boundaries of the respective states along its banks; but, when by some sudden avulsion of the stream what is known as a cut-off is created, so that a body of land is detached in such a way that it is capable of being identified, the boundary lines, whether they be those of the state or of property owners, remain unchanged. There is, however, this important difference to be kept in mind between the boundaries of a state and those that limit the rights of property owners, in that property owners on banks of navigable streams own only to the water's edge, whereas each state extends up to the middle thread of the stream; and, in case of such sudden avulsion of the river, the respective states--in this case the states of Iowa and Nebraska--each become the owner of the riverbed so abandoned, to the extent of the middle thread of the stream as it formerly flowed, upon its respective side thereof.
(6) The abandoned channels of riverbeds, referred to in the laws of the Thirtieth General Assembly, are not such as are created by slow and imperceptible accretions upon one side and wearing away upon the other, even though the place where the river formerly flowed may be by these processes entirely deserted by its waters. This statute refers only to riverbeds abandoned by sudden changes or avulsions of the river, such as I have before referred to.
(7) The plaintiff of necessity claims that there was such an avulsion; for, if there was no such avulsion, there would be no land to which he could claim title under this statute. The defendant also claims there was an avulsion, or sudden change in the channel of the river, about 1857, but the parties do not agree as to the time when this avulsion occurred.
(8) The state having issued to the plaintiff a patent to this land is presumptive evidence that the land conveyed thereby was part of an abandoned riverbed or channel which, under the laws above stated, belonged to the state of Iowa. But this presumption is not conclusive, and ought not to prevail if a...
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