Erickson v. Greub, 44991
| Decision Date | 12 March 1956 |
| Docket Number | No. 44991,No. 2,44991,2 |
| Citation | 287 S.W.2d 873 |
| Parties | Carl D. ERICKSON and Agnes I. Erickson, Respondents, v. Walter L. GREUB, Louise Greub and Walter Eugene Greub et al., Appellants |
| Court | Missouri Supreme Court |
Mitchell & Hulse, St. Joseph, Raymond Sears, Savannah, for appellants.
Alden S. Lance, Savannah, for respondents.
BARRETT, Commissioner.
The plaintiffs, Carl D. and Agnes I. Erickson, having the legal title to a portion of a forty-acre tract of land, instituted this action to quiet the title to the entire tract. Three of the defendants, Walter, Louise and Walter Eugene Greub, the owners of an adjoining sixty-acre tract of land, by answer and cross-petition, also claimed title to the forty-acre tract by adverse possession and by accretion and sought to have the title quieted in them. The trial court found all the issues for the plaintiffs, found that they were the owners of the entire tract and that the defendants had no title or interest, either by adverse possession or accretion, and the defendants have appealed from the judgment dismissing their cross-petition and quieting the title in the plaintiffs.
This appeal, involving a case tried before the court without a jury, is reviewable in this court upon both the law and the evidence. Peterson v. Harpst, Mo., 247 S.W.2d 663. This court, however, may not set aside the judgment 'unless clearly erroneous' and 'due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' V.A.M.S. Sec. 510.310(4). The scope of our review is again noted because the limitations indicated are peculiarly applicable to this record. The resolution of this appeal is, for the most part, a problem in determining what the facts were and that question, upon this record, in many important respects, is dependent upon the credibility of the witnesses and the weight to be given their testimony, a matter, in the circumstances of this case, in which we necessarily defer to the findings of the trial court.
The tract of land involved in this controversy, as well as the adjoining land, now owned by the Greubs, as we understand the record, is all in section three, township fifty-eight, range thirty-six, in Andrew County. Originally the forty-acre tract belonged to 'the Cobb estate.' We do not know whether this was all of the land in this area belonging to the Cobb estate or how long the Cobbs had owned it, or its precise area when they did own it. There was once a house on the land and Mr. Worthwine bought the house from 'the Cobb heirs' and, presumably, moved it to another location. The trial court found that Lloyd W. Booher and Warner Woolverton, lawyers, purchased the forty acres 'at a partition suit sale' on May 6, 1932, however, all that appears from the record is that Booher and Woolverton purchased the land 'at a courthouse sale' in the 1930's. In any event, the plaintiffs, Mr. and Mrs. Erickson, for the sum of $200, purchased the land from Booher and Woolverton in November 1949, their deed then calling for 27 1/2 acres. The appellants, the Greubs, do not claim to have purchased or have had a deed to this particular tract, as we understand the record (the deeds are not in the transcript), but in 1947 they purchased and now own sixty acres of land adjoining the forty-acre tract on the west. They subsequently procured deeds from their grantors which purported to convey any land accreted to the sixty acres, which they now claim includes the forty acres in controversy. In connection with the area of the particular tract at various times, how much of it was washed away, the extent and precise point of accretions, the witnesses for all the parties were examined with reference to a chalk-drawn chart or diagram upon the courtroom floor and, of course, that plat is not in the record. An engineer surveyed the tract and made a plat of it and the witnesses were examined with reference to the plat, but the plat was not offered in evidence and so it is indeed difficult, upon this appeal, to say just what land the witnesses say was washed away by the Missouri River or where or what land subsequently accreted.
Nevertheless, the important fact is that originally, sometime when the Cobbs owned it, the land consisted of forty acres and then and now fronted upon and its west boundary line was the Missouri River. Sometime in 'the 30's,' 'around twenty-five years ago,' certainly in the early 1930's, the Missouri River started 'cutting' and washing away the forty-acre tract. Several of the witnesses said that the river washed away all of the Cobb land, for example, one witness said, 'Finally it all disappeared.' But the court found that 'one small corner of the Cobb land remained.' One witness said that 'It left a little corner down here (doubtless referring to the chalk-drawn plat) in the southeast corner, oh, probably big enough to set an automobile on.' This same witness said that when Booher and Woolverton bought the land it consisted of ten or fifteen acres and, as noted, that date was May 1932. Another witness, who had said that the entire tract disappeared, testified that when Booher bought it, 'There was a few acres down at the southeast corner that stayed until probably as late as '34 or '35--This could have been or must have been along about '31 or '32 when he made the purchase.' Mr. Greub said, 'Well, it cut back to where the high bank is, just about as indicated on the map which you have drawn there.' When asked when the river had cut back to the farthermost point, he said, 'Oh, yes, that was in 1933, when they started to work on the river.' The appellants and all the witnesses agree that when 'the government work' on the river started, the revetment and dikes constructed north of the land in question, accretion began almost...
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