Ellinger v. Missouri Pacific Railway Company
| Decision Date | 06 December 1892 |
| Citation | 20 S.W. 800,112 Mo. 525 |
| Parties | Ellinger, by Guardian, et al., Appellants, v. The Missouri Pacific Railway Company |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.
Affirmed.
Stone & Slevin for appellants.
(1) Where there is any uncertainty, the monument must prevail over the description by courses and distances. Rutherford v. Tracy, 48 Mo. 329; 3 Washburn on Real Property [5 Ed.] p. 434; Railroad v. Skinner, 9 Mo.App. 199. (2) It was a question of fact for the jury to locate the boundary. Opdyke v. Stevens, 4 Dutch. 90; Tibbetts v. Estes, 52 Me. 568. (3) A plat of survey to which reference is made in a deed becomes part of the deed, and may be used in explanation of the boundaries of the land therein described. Shelton v. Maupin, 16 Mo. 124.
H. S Priest for respondent.
This suit is ejectment to recover a parcel of land in St. Louis which is occupied by the roadbed and track of defendant. This property is situate in the town of Carondelet and according to the description under which it has been conveyed fronts east on Water street. This street extends north and south parallel to the Mississippi river. The evidence tends to prove, that in the year 1832 when that part of the town of Carondelet was platted into blocks and streets, Water street was located along the margin of the river, and was designated, on the plat, "A Tow" or Water street. Since this land was platted the river banks, by natural accretion, have receded toward the east, until at this time the banks are two hundred feet, or more, east of Water street. The land, claimed in the petition, lies between that owned by plaintiff, fronting on Water street, and the present banks of the river, and consists of alluvion formed by the gradual washing of the river.
The question is whether the owner of land, the boundaries of which call for a street, which is located along the Mississippi river, is entitled, as a riparian owner, to land subsequently formed by accretions on the opposite side of the street. The question is answered in the negative by this court in the early cases of Lebeaume v. Poctlington 21 Mo. 36, and Smith v. Schools, 30 Mo. 290. These cases distinctly hold that, if a lot were bounded or limited by streets, the owner thereof would not become a riparian proprietor and entitled to the alluvion by reason of the fact that the...
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