Cox v. Arnold

• Decision Date: 18 June 1895
• Citation: 31 S.W. 592,129 Mo. 337
• Parties: Cox, Appellant, v. Arnold et al
• Court: Missouri Supreme Court

31 S.W. 592

129 Mo. 337

Cox, Appellant, v. Arnold et al

Supreme Court of Missouri

June 18, 1895

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

Affirmed.

R. C Clark and John Cosgrove for appellant.

(1) Parts of fractional quarter of section 4, town-ship 48, range 15, were never submerged, and when the water receded from the submerged portion the rest of it, with all accretions thereto, could be identified and its boundary ascertained. Buse v. Russell, 86 Mo. 209; Murly v Norton, 100 N.Y. 426; Gould on Waters [2 Ed.], sec. 158; Cooley v. Golden, 117 Mo. 48; St. Louis v. Rutz, 138 U.S. 245. (2) By the undisputed facts it was conceded that the space between the island and the main shore gradually filled with earth as the water receded. Under these circumstances the land so formed between the two riparian owners, belonged to one or the other of them, and the trial court should have submitted this question to the jury, under proper instructions. It was error for the court to declare as a matter of law, that appellant had no right to the land so reformed. Buse v. Russell, 86 Mo. 209; Benson v. Morrow, 61 Mo. 350; Cooley v. Golden, 117 Mo. 48; St. Louis v. Rutz, 138 U.S. 245; Judge Brace's dissenting opinion in Cooley v. Golden, 117 Mo. 59, and cases cited.

Draffen & Williams for respondents.

(1) The demurrer to the evidence was properly sustained. The plaintiff could only recover upon the strength of his own title. Unless the evidence tended to show that the land was his, there was nothing to submit to the jury. It was wholly immaterial whether defendants had any title or not. Ford v. French, 72 Mo. 250. (2) The settled law of this state is, that a riparian proprietor, where the stream is navigable, only owns to the water's edge. His boundary recedes as the river encroaches upon him and cuts away and destroys the land. He does not have any ownership in the bed of the channel of the river. Naylor v. Cox, 114 Mo. 232; Crandall v. Allen, 118 Mo. 403; Cooley v. Golden, 117 Mo. 33; Rees v. McDaniel, 115 Mo. 145; Railroad v. Stock Yards, 120 Mo. 541; Buse v. Russell, 86 Mo. 209; Benson v. Morrow, 61 Mo. 345. (3) The rights of these parties to the land in controversy and the legal principles upon which those rights depend have been once fully considered and declared by this court. The action of the lower court was in conformity with the rules of law announced in that case, and this court will not, upon a second appeal, reopen questions then settled. Conroy v. Iron Works, 75 Mo. 651; Bank v. Taylor, 62 Mo. 338.

Burgess J. Brace, C. J., dissents.

OPINION

In Banc.

Burgess, J.

Ejectment for a tract of land in Howard county, Missouri, described as follows: South-west fractional quarter of section 4, township 48, range 15, beginning at the quarter section corner on the west side of said section 4, as established by E. E. Dunaway; thence running south seventeen chains to a point on the original bank of the Missouri river; thence south to the middle of the old channel of said river; thence down said channel to the line between George B. Cox and H. Walters; thence north to said Walters' north-west corner; thence north seventy-two and one half degrees east along said Walters' north line to the middle line dividing said section running east and west; thence west to the point of beginning, containing one hundred and thirty-seven acres, more or less. The petition was in the usual form, and the answer a general denial.

The land formed in the Missouri river after the government survey in 1816, between an island known as "Naylor's Island" and said southwest fractional quarter section 4, which lies on the north bank of the river opposite said island. The land in question is the same that was in controversy in Naylor v. Cox, 114 Mo. 232, 21 S.W. 589. The defendants Arnold, Arnold and Ray are tenants of the defendant Naylor.

It was admitted upon the trial that the southwest fractional quarter of said section 4 was patented to Charles B. O'Neill in 1837. Plaintiff showed a regular chain of title from O'Neill to himself. It was also admitted, that at the time of the original survey, and the date of said patent, the main body of water of the Missouri river ran along the southern boundary of said fractional quarter, and between it and "Naylor's Island," lying immediately south of it; that said island belongs to defendant Naylor, and that defendants were at the time of the commencement of this suit in possession of said island, and of the land in question.

The evidence tended to show that after said quarter section was patented to O'Neill a large portion of it was washed away by the action of the waters of the river, which gradually cut away its bank, the river moving further north until its main channel was within the boundaries of said quarter section, the river bed covering a large portion of the area that was formerly within the boundary of said quarter, the waters of the river continuing to run over this area for a number of years; that what was called by the witnesses a "towhead" formed in 1871, in the main channel of the river, between plaintiff's land and "Naylor's Island," but at the time of the government survey in 1816 was within the boundaries of said quarter; that at the time of the trial the amount of water of the main channel of the river, that passed between the main land and the "towhead" was about equal to that between Naylor's Island and the "towhead;" that land was gradually formed to the "towhead" and extended toward the island and also toward the main land, and that the land sued for was not formed against or added to plaintiff's land by accretion, but began to be formed where the "towhead" first made its appearance, which was within the original boundaries of said quarter section as originally surveyed. There was also evidence on cross-examination of the witnesses going to show that the land was formed by accretion to Naylor's Island.

At the conclusion of all the evidence defendants interposed a demurrer thereto, which was sustained. Plaintiff then took a nonsuit with leave to move to set the same aside,...