Davis v. Haines

• Decision Date: 22 October 1932
• Docket Number: No. 21057.,21057.
• Citation: 182 N.E. 718,349 Ill. 622
• Parties: DAVIS et al. v. HAINES et al.
• Court: Illinois Supreme Court

349 Ill. 622

182 N.E. 718

DAVIS et al.

v.HAINES et al.

No. 21057.

Supreme Court of Illinois.

Oct. 22, 1932.

Suit by Gordon Z. Davis and others against Aaron Haines and others. From the decree in favor of defendants, complainants appeal.

Reversed and remanded with directions.Appeal from Circuit Court, Calhoun County; Fred G. Wolfe, judge.

Sumner & Reardon, of Jerseyville, for appellants.

C. C. Worthy, of Hardin, and George C. Weaver, of Pittsfield, for appellees.

STONE, J.

Appellants seek review of a decree of the circuit court of Calhoun county denying the prayers of their bill which seek to remove certain deeds as clouds on their title and to enjoin the appellees (defendants) from trespassing upon the property involved or interfering with the use thereof by the appellants. The cause was referred to a master, who heard the evidence and reported the same to the court, and on hearing the chancellor sustained certain allegations of fact upon which appellants' contentions are based but denied the relief sought in the bill.

The land involved in the suit consists of a ‘towhead’ in the Mississippi river. The appellants by their bill claim title to the towhead by adverse possession and through riparian rights, alleging that the towhead is an accretion to an island owned by them, known as Turner Island or Island No. 55. Appellees contend that the towhead is not an accretion to Island No. 55 and that appellants have no rights therein. The right to the towhead presents the question in this case.

In 1848 one Aaron Haines entered Island No. 55 through a patent from the United States. This island at that time was surveyed and sold by the United States by a separate patent as ‘being a part of section 1 in township 12 south of range 3 west, in the district of lands subject to sale at Quincy, Illinois, containing 56.53 acres.’ At the same time Haines received a patent for the west half of the southeast quarter of section 36 in township 11 south, range 3 west, being a portion of the mainland lying east of the Mississippi river, in Calhoun county. The western boundary of that land is the Mississippi river. The original Island No. 55 lay in the northern part of section 1 of township 12 and south of the south line of section 36 of towhship 11. The island and this mainland tract were later acquired by one Levy H. Turner. In May, 1883, Turner conveyed Island No. 55 to Alanson J. Fuller and William H. Fuller. This conveyance was by the description in the patent. By the record it appears that at the time of the Fullers' purchase the island had increased in size until it extended more than a quarter of a mile north across the south line of section 36 and contained about 160 acres. In December of that year Turner conveyed the mainland tract in section 36, township 11, to one Frederick Gueck. The Fullers held Island No. 55 until 1908, when they conveyed it as containing 160 acres, more or less, to the Grafton Stave & Heading Company. In 1913 this company conveyed the island as containing 160 acres, more or less, to the appellants, who have been in possession since that time. In 1926, and since, certain persons claiming to own the west half of the southeast quarter of section 36, township 11, executed quitclaim deeds to appellees. These deeds purport to convey ‘a certain island in the Mississippi river, being a detached part of the southwest quarter of section 36, township 11 south, range 3 west 4th P. M., lying up the river from and next to what is commonly known as Turner Island.’ Appellees' claim to the towhead is based on these quitclaim deeds.

There is nothing in the record to show that the southwest quarter of section 36, township 11, was ever surveyed, platted, or patented; but appellees claim that the so-called southwest quarter lies between the shore boundary of the west half of the southeast quarter of that section and the middle thread of the Mississippi river, and that as their predecessors in title owned the portion of the southeast quarter referred to, the towhead belonged to them by their deeds given them under the riparian rights of the owners of the west half of the southeast quarter.

In 1887 the United States government built a dike across the east channel of the river between the island and the mainland. This dike is all in section 36, and extends in a southwesterly direction from the mainland and connects with Island No. 55 about a quarter of a mile south of the north end thereof. The towhead which has been formed lies to the north of the dividing line between sections 1 and 36 and east from the north end of Island No. 55. The chancellor found that appellants had acquired title by adverse possession to the portion of the island extending into section 36, and appellees have assigned no cross-errors on that finding. The evidence fairly shows that at the time the Fullers purchased the island, in 1883, it extended north into section 36 approximately the same distance as at the time of the hearing. The chancellor found, however, that appellants had not acquired title to the towhead. Appellants claim that they acquired title thereto not only by adverse possession but also under their riparian rights, as owners of the island, to accretions.

The evidence is undisputed that the towhead is, and for any years has been, connectedwith the island, and that at moderately low water in the Mississippi river the connection with the island is dry land. At the time of the hearing it was so connected all along the east part of the north end of the island, with the exception of a pool of water toward the south end of the towhead. The evidence shows that the towhead is an accretion to Island No. 55. The fact that it at times of high water is separated from the island does not deprive it of such character. Bellefontaine Imp. Co. v. Niedringhaus, 181 Ill. 426, 55 N. E. 184,72 Am. St. Rep. 269. Alanson J. Fuller testified that when he and his brother purchased the island, the towhead, which now contains about eleven acres, had an area of about three acres; that at times one could walk across from the island to the towhead on dry land; that they kept their stock on the island, and the stock pastured on the towhead as much as on the island. He testified that they used the towhead for pasturage and for cutting of willows used as binder poles to bind together, for shipping, the logs cut from the main portion of the island. He testified that they stopped others from cutting such poles and at one time secured a warrant for parties who were attempting to do such cutting. One William Parker, an employee of the Grafton Stave & Heading Company during the time it owned Island No. 55, testified that he had known the island since 1901 and had been in charge of it and caring for it for seventeen years; that he lived on it with his family for thirteen years, commencing in 1913; that during the time the stave company owned the island he cut willows on the towhead and sold them; and that employees of the company cut binders off the towhead for logs and took them across from the towhead to the island in log wagons. He testified that he knew that the Fullers pastured their stock on the island and towhead, and that since appellants had purchased the property about six acres on the towhead had been cleared and put in crops, first crop being in 1915. He also testified that in 1926 he had a conversation with certain of the appellees, at which time he told them that the towhead belonged to the appellants; that before that time certain of appellees and others asked permission of him to come onto the towhead to shoot during the duck-hunting season; and that in 1928, under the direction of appellants, he ordered certain of the appellees off the towhead. Appellees argue as against this testimoney that eight of their witnesses testified that in 1887 they worked on the government dike that was being built across the east branch of the river, and that the towhead was not in existence at that time but where it later formed there was then nothing but water. An examination of the abstract of the testimony of those eight witnesses discloses substantial disagreement among them as to the existence of the towhead in 1887. The record also shows that during the building of the dike the water was at a high stage, and that at times in high stages of water not only the towhead but the island was inundated. Of appellees' witnesses, John Klockenkemper testified that at the time the dike was built there was a little bar east of the island, which grew some while he was there. William Eilerman testified that at the time the dike was built there was a small bar north of the island-about four or five acres. Hollis Wineland so stated in his testimony. Charles Finney testified that at the time the dike was built a little towhead was forming at the north end of the island and that there was some timber or willows on it. Others of these witnesses testified to having some recollection of the existence of a small island or towhead there. Others testified that they could not say there was any bar at the head of the island at the time they were working there, while some testified that no bars existed there at that time.

In view of this disagreement among appellees' witnesses and the fact that the dike was built more than forty years prior to the hearing in this cause, we cannot say that the testimony of those witnesses tends to establish that there was no towhead at the time the dike was built or to rebut the positive testimony of appellants' witnesses. A map of government survey made in 1878 was introduced in evidence and shows the existence of bars east and northeast of Turner Island as it then existed.

It is further argued that even though Fuller's testimony as to his possession be believed the evidence is not sufficient to show title by adverse possession, and counsel cite the rule that an adverse claimant must prove by evidence clear and positive the facts upon which he...