Crandall v. Smith
| Decision Date | 15 June 1896 |
| Parties | Crandall et al. v. Smith, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cole Circuit Court. -- Hon. D. W. Shackleford, Judge.
The following are the plats and surveys referred to in the opinion:
EXHIBIT F.
Township 45 north, range 12 west, of the fifth principal meridian south of Missouri.
[SEE ILLUSTRATION IN ORIGINAL]
[SEE ILLUSTRATION IN ORIGINAL]
EXHIBIT D.
Crandall land -- Plat of fractional sections numbers 16, 21, and 22 as surveyed by me, and accretions to said sections, surveyed April 10, 1891. In township 45 north, range 12 west, fifth principal meridian. B. C. Bond, surveyor of Cole county Missouri.
[SEE ILLUSTRATION IN ORIGINAL].
Reversed and remanded.
Silver & Brown for appellant.
(1) The court erred in not sustaining defendant's demurrer to plaintiff's evidence; also, in not sustaining the demurrer asked by defendant to the whole evidence. The evidence showed conclusively that the land sued for was not an accretion to the mainland, and that it is a part of government surveyed island number 45, to which defendant has the title. Either of the above propositions being true plaintiffs can not recover. Cooley v. Golden, 117 Mo. 33; Rees v. McDaniel, 115 Mo. 145; Naylor v. Cox, 114 Mo. 232; Buse v. Russell, 86 Mo. 209; Benson v. Morrow, 61 Mo. 347; Railroad v. Stock Yards, 120 Mo. 541. (2) The land sued for being in the bed of the river, plaintiffs have no title -- it being well settled in this state that the riparian proprietor on a navigable stream only owns to the water's edge. Railroad v. Stock Yards, 120 Mo. 541, and authorities. (3) The slough is the dividing line between the mainland and the island; even if it were completely filled up, the point of contact between the accretions to the mainland and the slough would be the dividing line. Buse v. Russell, 86 Mo. 209. Where an island washes away in whole or in part, and reforms on the same bed, the original owner retains the title thereto. Buse v. Russell, supra.
Pope & Waldecker and J. R. Edwards for respondents.
The evidence all shows that the land in dispute was made land, and the question before the court, and the only question, was whether the accretion belonged to plaintiff or to an island that once existed in the river. The court tried the case on this theory, and tried it correctly, and its verdict is conclusive. Crandall v. Allen, 118 Mo. 403; Naylor v. Cox, 114 Mo. 232, and authorities cited. There was abundant evidence to authorize the court to make the finding it did, and this court will affirm the judgment; the law having been correctly declared, there being no exceptions or objections to any evidence, unless the court refused to give some declaration of law to which defendant was entitled. Naylor v. Cox, 114 Mo. 233. Sloughs and swales are not regarded in law as water courses. Jones v. Railroad, 18 Mo.App. 251; McCormick v. Railroad, 57 Mo. 433; Railroad v. Schneider, 30 Mo.App. 620; Abbott v. Railroad, 83 Mo. 271. Ordinary flow of surface water does not constitute a water course. Benson v. Railroad, 78 Mo. 504. The court declared the law in appellant's favor as fully as he was entitled to.
OPINION
In Banc.
This is an action of ejectment for certain lands in Cole county, Missouri, described by metes and bounds. Plaintiffs claim the same as accretions to the north half of section 21 and fractional section 16, in township 45, range 12. A reference to the accompanying surveys and plats will serve to indicate the particular land which plaintiffs seek to recover. Exhibit "D" is a survey by Mr. Bond, surveyor of Cole county, April 10, 1891. Sloughs B and C were the old main channel of the Missouri river. Slough A connects the present channel of the river with slough C, slough A being the result of accretions above it which forced the slough channel (now slough A) down to its present position as it appears in the exhibit "D," leaving slough B as a mere depression. Sloughs A and C vary in width from forty to sixty yards and have water running through them at certain seasons of the year sufficiently deep for navigation purposes. It appears that these sloughs have always Exhibits D and F pictured here. been located as indicated on the plat and are still so located except that slough "A" has been forced down the river by accretions above it but continues to be the connecting channel between the river and slough "C."
Plaintiffs claim in their petition all the land east of slough "B" and above the middle line of section 21, and, also, seventy and forty-one hundredths acres above or west of slough "A," as indicated in exhibit "D."
Defendant, in his answer, disclaims all title or possession of this seventy and forty-one hundredths acres west of slough "A;" admits he is in possession of the land east of or below slough "A;" avers that the same is an accretion to United States surveyed island number 45 and denies generally that plaintiffs are entitled to possession.
The cause was tried to the court without a jury and a finding and judgment rendered for plaintiffs.
It will be at once seen that plaintiffs claim this land as an accretion to their lands in fractional section 16 and the north half of section 21, whereas defendant claims, first, that the land described in the petition except the seventy and forty-one hundredths acres is not an accretion at all; that it is separated from plaintiffs' lands by a well defined slough or arm of the river; and, second, that it is really an accretion to surveyed island number 45, to which defendant has title.
The several surveys show beyond all dispute that the United States government, about the year 1816 or 1817, surveyed and marked upon its plats of public lands island number 45. That island lay in the Missouri river opposite section 21 township 45, range 12,...
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