Dumm v. Cole County

• Citation: 287 S.W. 445,315 Mo. 568
• Decision Date: 30 July 1926
• Docket Number: 25494
• Parties: A. T. Dumm and W. C. Irwin v. Cole County, H. B. Bode et al., Appellants
• Court: United States State Supreme Court of Missouri

287 S.W. 445

315 Mo. 568

A. T. Dumm and W. C. Irwin v. Cole County, H. B. Bode et al., Appellants

No. 25494

Supreme Court of Missouri

July 30, 1926

Motion for Rehearing Denied October 11, 1926.

Appeal from Cole Circuit Court; Hon. Henry J. Westhues Judge.

Affirmed.

N G. Sevier and T. S. Mosby for appellants.

(1) Being a suit in equity, this case is here de novo on the facts, and this court is bound to sift and weigh the whole evidence and determine what the findings of the trial court should have been upon such evidence as was competent and proper. Miller v. McCaleb, 208 Mo 575; Patterson v. Patterson, 200 Mo. 335; Turner v. Overall, 172 Mo. 287; Lins v. Lenhardt, 127 Mo. 280; Walther v. Null, 233 Mo. 104; McClure v. Bank, 263 Mo. 141; Troll v. Spencer, 238 Mo. 81; Rice v. Shipley, 159 Mo. 405; Sheridan v. Nation, 159 Mo. 41; Daudt v. Steiert, 205 S.W. 225; Davies v. Keiser, 246 S.W. 900; 4 C. J. 726, 660, 661. (2) The plaintiffs had an adequate remedy at law by suit in ejectment, and therefore injunction will not lie. Buse v. Russell, 86 Mo. 209; Minton v. Stele, 125 Mo. 181; Black v. Jackson, 177 U.S. 349; 5 Pomeroy, Eq. Rem. p. 4359; 1 High on Injunctions (4 Ed.) secs. 28, 29 and 325. (3) It was error to issue the injunction in this case without any notice to the defendants, the injunction being one to stay proceedings. Sec. 1952, R. S. 1919; State ex rel. v. Deering, 291 Mo. 169; Mills v. Prov. Life Co., 100 F. 344; 32 Cyc. 408. (4) If part of plaintiffs' land washed away, and afterwards re-formed as a sand bar and gradually extended toward plaintiffs' shore line until it united therewith, the accretion was to the new island and not to the plaintiffs' shore line. Frank v. Goddin, 193 Mo. 390; Naylor v. Cox, 114 Mo. 232; Cox v. Arnold, 129 Mo. 337; Chinn v. Naylor, 182 Mo. 583; DeLassus v. Faherty, 164 Mo. 361; Cooley v. Golden, 117 Mo. 33; McBaine v. Johnson, 155 Mo. 191; Moore v. Farmer, 156 Mo. 47; Widdecombe v. Chiles, 173 Mo. 195; State ex rel. v. Longfellow, 169 Mo. 109. (5) The owner of contiguous land is not the owner of a sand bar or towhead which forms in the river, becomes an island, and afterwards joins his land. Cooley v. Golden, 117 Mo. 33; Naylor v. Cox, 114 Mo. 232; Cox v. Arnold, 129 Mo. 327; Moore v. Farmer, 156 Mo. 33; Hahn v. Dawson, 134 Mo. 581; Perkins v. Adams, 132 Mo. 131; Benson v. Morrow, 61 Mo. 351. (6) If the slough filled up from the sides, each owner is entitled to his accretions, but if it filled from the bottom the original center line is the property line. Buse v. Russell, 86 Mo. 209; Minton v. Steele, 125 Mo. 181. (7) The right of alluvion depends upon the actual contiguity with the water front, and cannot be claimed by one whose land is separated therefrom by a well-defined slough or arm of a stream. Crandall v. Smith, 134 Mo. 633. (8) Where the shore lines of two tracts of land, divided by a watercourse, receive accretions until they come together, the line of contact will be the division line. Buse v. Russell, 86 Mo. 214. (9) Riparian landowners own only to the water's edge at low watermark. Naylor v. Cox, 114 Mo. 232; Crandall v. Allen, 118 Mo. 403; Cooley v. Golden, 117 Mo. 33; Rees v. McDaniel, 115 Mo. 145; Railroad v. Stock Yards, 120 Mo. 541; Buse v. Russell, 86 Mo. 209; Benson v. Morrow, 61 Mo. 345; State ex rel. v. Longfellow, 169 Mo. 109; Moore v. Farmer, 156 Mo. 33. (10) The right of alluvion does not apply to lands which are agri limitai, having fixed meets and bounds without reference to the water's edge. Smith v. St. Louis, 30 Mo. 290; Sweringen v. St. Louis, 151 Mo. 255; Ellinger v. Mo. Pac. Ry. Co., 112 Mo. 525; Benson v. Morrow, 61 Mo. 345; Buse v. Russell, 86 Mo. 209; Frank v. Goddin, 193 Mo. 398; St. Louis v. Lemp, 93 Mo. 477.

A. T. Dumm and W. C. Irwin for respondents.

The suit is not one to stay "a court proceeding," but the injunction asked was ancillary to the suit to determine title; hence, no notice for injunction was necessary. State ex rel. v. Woodside, 254 Mo. 591.

Lindsay, C. Seddon, C., concurs.

OPINION

LINDSAY

The plaintiffs in their petition alleged that they were the owners of and in possession of certain lands in Cole County, and that Cole County claimed to own the same or some interest therein, and the petition set forth the nature of that claim. Plaintiffs asked for ascertainment and determination of title, and that title be adjudged in them as against defendants, and asked also that a proposed sale of the land by defendants for Cole County be restrained pending the determination of title. The petition describes nine parcels of land, but they form a contiguous body.

The claim of plaintiffs, as stated in their petition is, that the said lands in suit had accreted to other lands owned by plaintiffs. The land of plaintiffs to which it was claimed the land in suit had accreted, was spoken of as "Grider Island," in the Missouri River. The claim made for Cole County is that the land in suit is an island formed in said river, and not an accretion to plaintiffs' land, and is the property of Cole County for school purposes, under the provisions of Article VI, Chapter 56, Revised Statutes 1919; Laws of Missouri, 1895, page 207. The petition was filed on June 20, 1923, and after setting out the ownership and respective claims, it alleged that the defendants constituting the county court had ordered and caused to be advertised said lands for sale, and had directed defendant Gretlein as sheriff, to sell the same, and he had advertised the same for sale on said 20th day of June, 1923, to the highest bidder; that if said lands were sold the county court would proceed to cause deeds to be executed and delivered to purchasers; that such deed or deeds would be a cloud upon plaintiffs' title; that if the land was sold in parcels to more than one individual it would cause a multiplicity of suits in order to try and determine the title of plaintiffs; and plaintiffs asked that said sheriff, and the other defendants, be required to show cause why they should not be restrained from selling said lands, or from proceeding to cause their sale, and the delivery of deeds to the purchasers, until the title thereto should have been finally determined; and asked, that upon full hearing, defendant county court be permanently enjoined from causing said lands to be sold and conveyed.

The circuit court granted a temporary injunction restraining defendants from proceeding with the said sale until the further order of the court, and requiring them to show cause on or before July 2, 1923, why such order should not be made permanent. A bond was required of plaintiffs upon the issuance of the temporary injunction.

On July 2, 1923, defendants filed answers wherein they denied the plaintiffs' ownership and possession of the lands, denied that said lands had accreted to lands owned by plaintiffs, and alleged that said lands by being islands formed in the Missouri River, a navigable stream, belonged absolutely to Cole County under the provisions of the acts of Congress and the laws of Missouri. They further denied that the sale of said lands by defendants would cause a multiplicity of suits, and asked that title thereto be adjudged to be in Cole County. Also, on July 2, 1923, the defendants filed their motion asking that the temporary injunction be dissolved. This motion was not taken up nor acted upon by the court. The cause came on for trial on October 1, 1923, and was submitted to the court upon the evidence. Under the announcements made by the respective counsel as shown by the record there was a waiver of a jury. The court found and declared that plaintiffs were the owners of said lands and that Cole County had no right, title or interest therein, and permanently enjoined defendants from selling said lands. Upon the hearing, the sole issue was whether the lands in suit had accreted to other lands concededly owned by plaintiffs, or, whether the land constituted an independent island, formed in the Missouri River. No demurrer to the evidence was filed. There was no special finding of facts made, nor request therefor. No declarations of law were asked, and none was given.

The evidence for plaintiffs was that in 1914, Cole County conveyed to one W. D. Patterson the land known as Grider Island, containing, according to the survey, 601.79 acres. It was admitted that not long thereafter plaintiffs acquired the title of Patterson to said lands, and entered into possession of the same. The land consisted of between three and four hundred acres of high land upon which grew large trees, and of between two and three hundred acres of bar land covered with willows.

In the year 1915 there was high water, which cut away a considerable part of the bar land on the east and south parts of the tract. After that, in the years 1916 and 1917, the Government constructed a dike near the head of Grider Island, which turned the water from the island, and toward the Callaway County side of the river. Plaintiffs' evidence tended to show that as a result of the dike, a sand bar started at the head of the island, and was extended along the easterly end and around upon the south side of the island, and that this sand bar built up and extended from the shore line. Plaintiffs' evidence further tended to show that subsequent rises of the water in the river caused a drift to form on the outer rim of the sand bar, which built up the outer rim of the bar higher than some of the land intervening between the outer rim of the bar and the high land of the island. There was what was spoken of as a slough between the outer rim of the sand bar and the high land of Grider Island.

Plaintiff's evidence was that the bed of this slough was eight feet above the low watermark of the river, and that when the river...