Crandall v. Allen

• Decision Date: 07 December 1893
• Citation: 24 S.W. 172,118 Mo. 403
• Parties: Crandall et al. v. Allen, Appellant
• Court: Missouri Supreme Court

24 S.W. 172

118 Mo. 403

Crandall et al. v. Allen, Appellant

Supreme Court of Missouri, Second Division

December 7, 1893

Appeal from Cole Circuit Court. -- Hon. E. L. Edwards, Judge.

Affirmed.

Silver & Brown for appellant.

The court erred in refusing instructions numbered 1 and 2 as asked by defendant. That land formed by accretion belongs to the owner of the contiguous tract to which the accretion is made, is a fundamental principle. Land not originally riparian becomes so when the river has reached it by gradually washing away all the intervening land. Welles v. Bailey, 55 Conn. 292. And where the lot originally not riparian becomes so by such change of the river-bed there attach to it all the incidents of riparian land. Welles v. Bailey, supra. Among these incidents is that of the right of appropriating to itself gradual accretions from the river where, by a change in the movement of the bed, it begins to recede and leave soil upon its front. Naylor v. Cox, 114 Mo. 232; Welles v. Bailey, supra; Rees v McDaniel, 114 Mo. 145. And this right of appropriation does not cease when the original limits have been restored. Welles v. Bailey, supra.

W. S Pope and J. R. Edwards for respondents.

Instruction numbered 1 of defendant was rightly refused. It was not a question as to what defendant was entitled to recover. The questions in the case, which were fully submitted to the jury in the first instruction on behalf of plaintiff, were, first, that plaintiff was the owner of the land described in his petition; second, that defendant was in possession; and, third, that the land sued for accreted to the mainland of which plaintiff was the owner, and the fact that defendant was entitled, or may have been, to an accretion to the front of his land was not an issue in this case, and instruction numbered 1 should have been refused as it was.

OPINION

Gantt, P. J.

This is an action of ejectment for eight and eighteen-hundredths acres of land described by metes and bounds. Plaintiffs assert title to it as a part of the southeast fractional quarter of section 21, township 45, range 12, and defendant claims it as an accretion to lands he owns in section 28, in the same township and range, to-wit: the northwest quarter of the northeast quarter and west half of northeast quarter of northeast quarter of said section 28.

On the trial and in his answer, defendant admitted he was in possession of all the lands described in the petition, but disclaimed all title or right to "so much of said land as lies north of the line between sections 28 and 21, in township 45, range 12, and west of a line beginning at a point on said line between said sections 28 and 21, sixteen chains east of the northwest corner of the northeast quarter of said section 28 and extending north by a straight line to the slough of the Missouri river," and denied plaintiffs' right to the remainder of the land. It was admitted that plaintiffs, as the heirs-at-law of Floyd Crandall, their father, the original plaintiff in this cause, now deceased, were the owners of the southeast fractional quarter of section 21, under mesne conveyances from the original patentee to said land from the United States, and that defendant was likewise the owner of the northwest quarter and west half of the northeast quarter of the northeast quarter of section 28.

It was shown that the Missouri river borders on and constitutes the eastern boundary line of said southeast fractional quarter of section 21; that the direction of the river along the eastern side of this land is from the northwest to the southeast; that since it was originally surveyed, and patented by the government of the United States, six or seven acres of it has washed away, but has since been restored by accretion to the eastern boundary.

Defendant's evidence tended to show: First, that so much of the land sued for as lies north of the line between sections 28 and 21, township 45, range 12, and east of a line beginning at a point on said line between sections 28 and 21, sixteen chains east from the northwest corner of the northeast quarter of said section 28, and extending north by a straight line to the Missouri river, had been washed away by the Missouri river; second, that said washing and cutting in extended in on defendant's land lying south of the line between sections 21 and 28, leaving defendant's land south of said line bordering on the Missouri river; third, that afterwards land began to re-form to defendant's land so bordering on the Missouri river, and that said land so formed by degrees, that is by accretion, and gradually extended over the line between sections 21 and 28; that the land so formed, and north of said section line between sections 21 and 28, is that part of the land in suit which defendant claims; that said land is east of plaintiffs' land in section 21, and north of defendant's land in section 28; that the river runs from the northwest to the southeast.

Defendant also introduced evidence tending to show that he had known the land since 1857; that he had bought in 1880, and claimed possession of it since then, and fenced it in about four years before suit was brought.

Thereupon the court instructed the jury on behalf of the plaintiff as follows: "1. If the jury believes and finds from the evidence that the land described in plaintiff's petition was in the possession of the defendant at the commencement of this suit, and that plaintiff was the owner of the same, or that the same was formed by accretion made to the main land, of which the plaintiff was the owner, then they will find for the plaintiff, and also find for him for damages whatever the reasonable rental value of the land is worth from the second day of February, 1888, until the present time; and also the value of timber taken by defendant, and will also assess the monthly rents and profits at whatever they may believe from the evidence that such is worth, not to exceed $ 5 per month.

"2. In an instrument made either by the government or by an individual, if a boundary, such as a river, is called for, the tract must have that boundary.

"3. The call for a natural object in a deed or grant, as a river, will control both course and distance, and if the plaintiff's deeds called for the Missouri river, and that defendant had and still holds the possession thereof wrongfully from plaintiff, they will find for the plaintiff."

"5. Although the jury may believe that the portion of lands contained in the deeds to plaintiff at any time washed entirely away, or in part, after the same was surveyed and patented by the United States government, yet if they further find that the land in controversy is a re-formation of said lands on the bed of the river where said lands formerly existed, then plaintiffs are entitled to recover in this action if it be shown that the defendant unlawfully detained the same.

"6. If the jury finds that, if the plaintiffs and those under whom they claim were in possession and the owners of the land in controversy, then the fact that the lands had washed away and other lands formed on the bed thereof by accretions does not change or deprive plaintiffs of title to same."

The court gave all the foregoing instructions asked by plaintiffs and defendant objected and excepted.

The court then at request of defendant gave the following instructions:

"3. The court instructs the jury that the term accretion as used in these instructions means portions of soil added to that already in possession of the owner by gradual deposit caused by the washing of the river.

"4. The court instructs the jury that if they find for plaintiff for only a part of the land claimed by him in this suit, they will express in the verdict the part of said land plaintiff is so entitled to recover.

"5. The court instructs the jury that an accretion partakes of the character of the land by the conveyance of the latter, and it makes no difference in this case whether the alleged accretion was formed to defendant's land before or since he became the owner thereof, provided the jury find it actually did so form by way of accretion.

"6. The court instructs the jury that if they shall find and believe from the evidence that for ten years next before the bringing of this action the defendant was in the public, open and adverse possession of the land in dispute, claiming the ownership thereof, then such possession and claim of ownership constitutes a good defense for defendant, and the jury will find for him."

And refused the following also prayed by defendant:

"1. The court instructs the jury that if they believe from the evidence that the defendant is the owner of the northwest quarter of the northeast quarter, and the west half of the northeast quarter of the northeast quarter, of section 28, township 45, range 12, in Cole county, Missouri which at the time of the government survey of the same was cut off from the Missouri river by intervening land, but that said intervening land was washed away by change of the river bed until a portion of defendant's land bordered on the river, and that afterwards additions were made to defendant's land so fronting on the river by gradual and imperceptible accretions or additions thereto by the sediment or deposit of the river, then defendant is entitled to all...