Duke v. Durfee

• Citation: 308 F.2d 209
• Decision Date: 11 October 1962
• Docket Number: No. 16763,16764.,16763
• Parties: Julia E. DUKE, Appellant, v. Gene DURFEE and Laura Durfee, Appellees. Gene DURFEE and Laura Durfee, Appellants, v. Julia E. DUKE, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

308 F.2d 209 (1962)

Julia E. DUKE, Appellant, v. Gene DURFEE and Laura Durfee, Appellees.

Gene DURFEE and Laura Durfee, Appellants, v. Julia E. DUKE, Appellee.

Nos. 16763, 16764.

United States Court of Appeals Eighth Circuit.

September 18, 1962.

Rehearing Denied October 11, 1962.

Robert A. Brown, of Brown, Douglas & Brown, St. Joseph, Mo., for Julia E. Duke; John H. Wiltse, of Wiltse & Wiltse, Falls City, Neb., with him on the brief.

August Ross, of Ross & O'Connor, Omaha, Neb., for Gene Durfee and another; Theodore M. Kranitz, of Kranitz & Kranitz, St. Joseph, Mo., and Alfred A. Fiedler, Omaha, Neb., with him on the brief.

Before VOGEL, BLACKMUN and RIDGE, Circuit Judges.

BLACKMUN, Circuit Judge.

This action is another chapter in a controversy over several hundred acres of land, once an island, in the Missouri River bottoms a short distance east and south of Rulo, Nebraska, and west and south of Fortesque, Missouri. It comes to us by way of appeals from a judgment dismissing the plaintiff's petition and the defendants' cross-complaint.

The basic factual situation is not untypical of these riverland title controversies yet the case admittedly presents not only simple and rather classical facts but issues which appear to possess some first impression aspects in the areas of conflict of laws and res judicata.

The middle of the main channel of the Missouri River forms the boundary between Nebraska and Missouri. Nebraska Enabling Act of April 19, 1864, 13 Stat. 47, § 2. Missouri Enabling Act of March 6, 1820, 3 Stat. 545, § 2, and the Missouri Constitution of 1820, Article I, as amended in 1834 by the Missouri Eighth General Assembly, and as affected by the Congressional Act of June 7, 1836, known as "The Platte Purchase", 5 Stat. 34, and the activating Presidential Proclamation of March 28, 1837. See St. Joseph & G. I. R. R. v. Devereux, C.C., D.Kansas, 1889, 41 F. 14, 15, and Cooley v. Golden, 1893, 52 Mo.App. 229, 232-233.

Near the land in question the river flows generally from west to east. At the present time the land lies on the north and east side of the river. However, prior to 1855, as disclosed by a survey of that year, the river's main channel was to the north and east of the land so that, if the channel still lay in that direction by 1867 when Nebraska was admitted to the Union, it was then clearly within the State of Nebraska. Patents covering the land were issued by the General Land Office of the United States in 1860 and filed some years later with the Register of Deeds of Richardson County, Nebraska.

The plaintiff, Julia E. Duke, a citizen of Missouri, claims title to the land through a Holt County, Missouri, swamp land patent issued to her in 1946 pursuant to V.A.M.S. § 241.220. The defendants, Gene Durfee and Laura, his wife, citizens of Nebraska, claim title to the land under a Richardson County, Nebraska, sheriff's tax foreclosure sale deed issued to them in 1956 pursuant to R.R. S.Nebraska 1943, § 77-1913. Julia asserts that the land is Missouri land and is thus hers by the Missouri patent. The Durfees assert that the land is Nebraska land and is thus theirs by the Nebraska sheriff's deed.

In 1956 the Durfees instituted an action to quiet title. This suit was brought in the District Court of Richardson County, Nebraska. Julia and her tenants were named as defendants. They appeared in the litigation. They filed an answer which, in addition to a general denial, contained an admission of possession, a claim of ownership, and an allegation that the land was in Missouri and not within the jurisdiction of the Nebraska court. Julia also testified in that proceeding. The Nebraska court found that it had jurisdiction of both the parties and the subject matter and that the land was in Nebraska, and quieted title in the Durfees as its owners. Julia and her tenants appealed to the Supreme Court of Nebraska. Inasmuch as the matter sounded in equity, that court tried the case de novo. R.R.S. Nebraska 1943, § 25-1925: Dartmouth College v. Rose, 1961, 172 Neb. 764, 112 N.W.2d 256, 265; Heider v. Kautz, 1957, 165 Neb. 649, 87 N.W.2d 226, 228. It affirmed the judgment for the Durfees. Durfee v. Keiffer, 1959, 168 Neb. 272, 95 N.W.2d 618. There was no attempt to bring the case to the Supreme Court of the United States.

In 1959 Julia instituted the present title action in the Circuit Court of Holt County, Missouri. Service on the Durfees was effected by mail pursuant to V.A.M.S. § 506.160. The Durfees removed the suit to federal court. Their answer contained a general denial and asserted, as an affirmative defense, that the Nebraska proceedings were res judicata. The Durfees also filed a cross complaint alleging trespass and the harvesting of crops upon the land and seeking damages and an injunction. A petition of the State of Missouri to appear as amicus curiae was granted.

At the trial to the court the Nebraska record was introduced along with other evidence. The court wrote a memorandum in which it reviewed the applicable real property law. It concluded, contrary to the Nebraska result, that the land was in Missouri. It did so on the theory that the main channel of the river had worked its way by accretion to the south and west; that it was off to the south and west prior to the formation of the island and land in question; and that, by the time Julia acquired her Missouri patent, the land was in that state. Despite this conclusion the district court "with much reluctance" dismissed Julia's complaint on the ground that the matter was res judicata because of the earlier resolution of the identical question by the Nebraska courts. It also dismissed the cross complaint because it felt that it must fall with the main action.

The Durfee position here is that the issue before us is simply res judicata. The Durfees claim that the Nebraska litigation in which Julia actively participated involved the same parties, the same subject matter, essentially the same evidence, and the same question for determination; that the jurisdiction issue was concededly litigated there and was decided adversely to Julia; and that the principle of res judicata applies to a jurisdictional determination as well as to a non-jurisdictional one. They also point out that everyone agrees that the land was originally in Nebraska and they urge that Julia has not sustained the burden, which is hers, of showing the shifting of the Missouri River center channel, and hence the state line, to the south and west by accretion. They claim finally that their cross complaint stands on its own feet and does not fall with the main action. There is a suggestion that the Nebraska judgment is entitled to the protection and benefit of the full faith and credit clause of Article IV, § 1, of the Constitution.

Julia takes the position that the Nebraska court did not have jurisdiction of the land as subject-matter; that, even though she appeared in the Nebraska proceedings and raised and litigated the question of jurisdiction, she is not bound by the decision of the courts of that state; that, inasmuch as it is subject-matter jurisdiction, and not jurisdiction of the person, which is here involved, the Nebraska judgment is open to collateral inquiry; that in the federal trial new additional evidence was presented; and that the federal district court, having found that the land was Missouri land, must quiet its title in Julia.

It is to be noted at the outset that this case at least appears to present a conflict between two established legal principles. The first is that

"Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the parties. We see no reason why this doctrine should not apply in every case where one voluntarily appears, presents his case and is fully heard, and why he should not, in the absence of fraud, be thereafter concluded by the judgment of the tribunal to which he has submitted his cause." Baldwin v. Iowa State Traveling Men\'s Association, 1931, 283 U.S. 522, 525-526, 51 S.Ct. 517, 75 L.Ed. 1244.

The second is that

"* * * every State possesses exclusive jurisdiction and sovereignty over * * * property within its territory. * * * no State can exercise direct jurisdiction and authority over * * * property without its territory. * * * `Any exertion of authority of this sort beyond this limit,\' says Story, `is a mere nullity, and incapable of binding such * * * property in any other tribunals.\' Story, Confl. Laws, sect. 539." Pennoyer v. Neff, 1877, 95 U.S. 714, 722-723, 24 L.Ed. 565.

and that jurisdiction over real estate outside a state's boundary cannot be conferred upon a court of the state by consent of the parties.

We first dispose of the full faith and credit suggestion. Under this constitutional clause and the implementing statute, 28 U.S.C. § 1738, each state must accord to a judgment rendered in a sister state the conclusiveness that judgment enjoys in the state of rendition. This has been described by the Supreme Court as a rule of evidence, Wisconsin v. Pelican Ins. Co., 1888, 127 U.S. 265, 291-292, 8 S.Ct. 1370, 32 L.Ed. 239, and as one making "* * * the local doctrines of res judicata, speaking generally, become a part of national jurisprudence * * *". Riley v. New York Trust Co., 1942, 315 U.S. 343, 349, 62 S.Ct. 608, 86 L.Ed. 885. It is clearly established, however, that the full faith and credit clause, while foreclosing repetitious litigation of non-jurisdictional matters, does not preclude a second forum's inquiry into questions of the first court's personal or subject-matter jurisdiction. This was the holding of several early Supreme Court cases. The principle was comprehensively restated in the usually cited case of Thompson v. Whitman, 1874, 85 U.S. (18 Wall.) 457, 469, 21 L.Ed. 897, and has been perpetuated by later cases including Grover &...