Dudeck v. Ellis
| Decision Date | 10 January 1966 |
| Docket Number | No. 1,No. 51166,51166,1 |
| Citation | 399 S.W.2d 80 |
| Parties | Earl R. DUDECK, Robert Dudeck and William E. Courter, Daisy B. Courter, Plaintiffs, Respondents, v. LeRoy ELLIS, Defendant and Third-Party Plaintiff, Appellant, v. Pearl W. and Dorothy SCHWEIZER, Raymond G. and Ruth Schweizer, and Calvin W. and Rita Schweizer, Third-Party Defendants, Respondents |
| Court | Missouri Supreme Court |
Downs & Pierce, St. Joseph, for respondents Earl R. Dudeck and Robert dudeck.
Price Shoemaker and William L. Culver, St. Joseph, for William E. Courter and Daisy B. Courter.
Randolph & Randolph, by Lewis F. Randolph, St. Joseph, for appellant.
Ronald S. Reed, Reed & Reed, St. Joseph, for respondents, Pearl W. and Dorothy Schweizer, Raymond G. and Ruth Schweizer, and Calvin W. and Rita Schweizer.
HIGGINS, Commissioner.
Earl R. Dudeck, Robert Dudeck, Winifred Maude Bledsoe, William E. Courter, and Daisy B. Courter brought an action against LeRoy Ellis to quiet title to certain lands and in ejectment; Ellis cross petitioned to quiet title to a part of such lands and, as third-party plaintiff, brought an action against Pearl W. and Dorothy Schweizer, Raymond G. and Ruth Schweizer, and Calvin W. and Rita Schweizer to quiet title to certain other lands, to which Schweizers cross petitioned against Ellis to quiet title in them. The quiet title issues were tried to a jury and Ellis appealed from a judgment against him on those matters and, in a prior opinion, we determined jurisdiction to be in this court in that 'A part of the action directly involves title to * * * real estate,' but dismissed the appeal as premature because 'No verdicts were returned on the ejectment counts and they are not disposed of by the judgment presented on appeal.' Dudeck v. Ellis, Mo., 376 S.W.2d 197, 204.
In our previous opinion we said: '* * * the trial judge should have held the verdicts of the jury on the quiet title counts in abeyance until a final judgment could be entered disposing of the whole case, including the other counts stating causes of action.' 376 S.W.2d l. c. 204. After the appeal was dismissed the trial court sustained motions for summary judgment on behalf of Dudeck, et al., and Schweizers, and entered judgments against Ellis disposing of the remaining counts. Ellis has duly appealed from the last entry disposing of all counts and respondents' motions to dismiss the appeal are overruled.
Inasmuch as the previous opinion did not reach the merits, we will make another statement of the case.
Dudeck, et al., filed their first pleading against Ellis May 4, 1956, but went to trial on an amended petition in ejectment and to quiet title filed December 8, 1960. They alleged generally that they owned certain adjoining tracts of land in Buchanan County, Missouri, with record title and possession; that Ellis claimed an adjoining tract under a patent from Buchanan County; that he wrongfully claimed and occupied lands owned by plaintiffs because the lands so claimed by Ellis belonged to plaintiffs by accretion through action of the Missouri River. In Count I Dudecks stated their claim against Ellis in ejectment and damages for withholding possession in respect to a specifically described 16-acre tract; Count II (stricken during trial) was for damages for cutting trees; and Count III was to quiet title to the 16-acre tract described in Count I. Winifred Maude Bledsoe stated her cause of action against Ellis in Count IV for ejectment and damages in respect to a specifically described 15-acre tract in Buchanan County, Missouri, and in Count V to quiet title to said tract. Count VI was Courters' claim in ejectment and damages in respect to 11-acre and 2-acre specifically described tracts in Buchanan County, Missouri; and by Count VII they sought to quiet title to said tracts.
Ellis alleged in his amended answer that he was the owner of 215.04 acres, more or less, of specifically described land in Buchanan County, Missouri, and that he acquired same from Buchanan County, Missouri, by patent issued and recorded October 14, 1940; that the claimed land formed as an island in the former bed of the Missouri River, or by recession from and abandonment of the bed of said river, and that it had been surveyed and sold to him for the benefit of the county school fund; that by the process of reliction an area of land was added to his alleged island between its south shore and the former south high bank of the river, and that the area had been a slough through which river water ran which filled with sediment and dirt as a result of pilings placed in the area by the United States Corps of Engineers. He claimed to own to the center of the slough and described his claim in his counterclaim and cross petition. He pleaded further that the main channel of the Missouri River ran along the west side of his land for many years but the river gradually receded northward and in the process land was added to the north side of his land by accretion which extended to the south shore line of the river; that in 1952 the Corps of Engineers changed the river so that it no longer flowed along the north and west side of his land but flowed directly south at a point 'considerably east' of his land; that after the change an area of land was added by reliction which extended to the center of the former riverbed as it existed before being cut off and that he then owned all land north and west of his original island. In addition, he denied the other claims made in the petition and suggested that some of the plaintiffs' lands may have washed into the river.
Ellis subsequently filed a first amended cross claim against plaintiffs and, as a third-party plaintiff, stated a claim against Arlene F. DuPont and Eva L. Graski (who defaulted), heirs of Winifred Bledsoe, a deceased plaintiff. By this pleading he sought to quiet title to 'Tract No. 1,' being the land mentioned in his answer which he claimed under patent from Buchanan County and now by adverse possession. He also claimed to have expended $20,000 in clearing and improving the land which he alleged he was entitled to recover if dispossessed of the land. He also sought to quiet title to 'Tract No. 2' being the land lying between the original south shoreline and the former high bank mentioned in his answer which he claimed by reliction. Exhibit A to his pleading purported to be metes and bounds descriptions of Tracts 1 and 2.
Still later Ellis, as third-party plaintiff, cross claimed against the Schweizers and one James Muff (who defaulted) to quiet title to Tracts 1 and 2. He again described his claim as first stated in his answer. He also cross claimed in ejectment for possession of Tracts 1 and 2 and prayed also for damages, rents and profits, and by a second count he claimed damage for trespass alleging that Schweizers entered upon said land and removed survey stakes on the southern boundary of Tract 2 and that they had plowed up some wheat.
Schweizers subsequently filed answer and counterclaim to Ellis's third-party cross claim in which they denied the cross petition and counterclaimed to quiet title to specifically described land lying between their property on the south and the south line of the alleged island. They alleged that their described property formerly abutted the Missouri River and that over a period of years accretions formed and were added to the tract and became a part of the tract and that they owned both the land and the accretions to it. They alleged also that the accretions consisted in part of Tract 2 described in Ellis's pleadings. Their answer also denied Ellis's claim against them in ejectment and trespass.
Ellis answered Schweizers' pleading by denying their claim to accretions (Tract 2), and he stated that he 'makes no claim of ownership to any of the land in Section Three (3) Township Fifty-seven (57) Range Thirty-six (36), lying east and south of the former high bank of the Missouri River.' He also stated that Schweizers own the south half of Tract 2 'if they own the high bank land.'
This dispute involves ownership of land in Sections 2 and 3, Township 57, Range 36, Buchanan County, Missouri, which is a part of French Bottom northwest of St. Joseph and its airport, Rosecrans Field. The center of Section 2 is the southeast corner of the Courter property which, together with the Dudeck land, was originally acquired in 1901 and 1903 by Otto Dudeck, father of the Dudeck brothers and Mrs. Courter. The present title was established upon the death of Mrs. Otto Dudeck in 1953. The Bledsoe tract lies between the Dudeck and Courter tracts and all three faced north upon the south bank of the river. The Bledsoe tract is not in controversy here because of an unappealed judgment against that ownership. The land in issue between Ellis and Schweizers lies west of, but not adjoining, the Dudeck land. The evidence shows that prior to 1915 the Missouri River ran generally from northeast to southwest by these lands and was eroding its south bank to the extent that land was being washed into the river. At this time the river flowed along the north side of plaintiffs' land and the bank there was referred to as 'the 1915 high bank' or 'second high bank.' Such bank appears as a dark line of trees on a 1940 aerial photograph in evidence. In order to prevent continued erosion in the area the Corps of Engineers in 1933 and 1934 constructed five push dikes and two trail dikes which extended from the 1915 high bank out into the main channel of the river. The push dikes were somewhat perpendicular to the bank and were used to push the current away from the south shore. The trail dikes were constructed north and south of the push dikes and they ran somewhat parallel to the shore or bank. As a result, the main channel moved to the north to a point where a new high bank was created. In 1952 the river was diverted by the Corps to a new channel east of the series of dikes, and portions of the bed of the river as it existed...
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