Feight v. Hansen
| Decision Date | 27 October 1964 |
| Docket Number | No. 10112,10112 |
| Parties | Will FEIGHT, Plaintiff and Appellant, v. Hans P. M. HANSEN, Individually and as Administrator with the Will Annexed of the Estate of Anna J. Hansen, Deceased, Eldon R. Hansen, Jessine C. Lawrensen and Alma M. Ellison, Defendants and Respondents. |
| Court | South Dakota Supreme Court |
Woods, Fuller, Shultz & Smith, Sioux Falls, for plaintiff and appellant.
Bogue & Weeks, Vermillion, for defendants and respondents.
This is an action commenced in May of 1942, under SDC 37.13 and 37.15, to establish boundary lines and quiet title to accretion to Lots 1, 2, 3, and 4 of Section 16, Township 92, Range 52, in Clay County, South Dakota. In the year 1861 the original government survey was made at which time the said lots were bounded on the south by the Missouri River which formed an arc bounding the aforementioned lots on the south and certain lots in Sections 22 and 27 on generally the west. The Missouri River gradually receded forming a substantially more easterly westerly line, leaving a large area of accretion land to the south of the said Lots 1, 2, 3, and 4 of Section 16, the distance between the south boundaries of said lots according to the 1861 survey, and the Missouri River, at the time of commencment of the action, being substantially in excess of one mile.
The case was initially tried to the court below culminating in judgment entered on July 7, 1960, and came to this court on appeal. Kapp v. Hansen, 79 S.D. 279, 111 N.W.2d 333.
For the purpose of explanation the following rough sketch is made, without any attempt to make the drawing according to scale or the lines thereon shown with accuracy.
Line O represents the original meander line of the Missouri River as it existed at the time of the original government survey made in 1861, and line P-Q represents the course of the river at the time of the commencement of this action in May of 1942. The area between line O and Line P-Q consists of accretion formed by the receding of the Missouri River. The owners of the lots in Sections 22 and 27 of Vermillion Township and the owners of lots abutting line O in Norway Township were not made parties to this action, and we reversed and remanded for inclusion of indispensable parties. Kapp v. Hansen, supra.
During the long course of the litigation both before and since the former appeal to this court, the interested parties changed both by reason of death and various conveyances of interest, and by leave of court, substitution of parties was made and amendments to the pleadings allowed.
As is shown by the stipulation of the parties, supported by exhibits showing conveyances and agreements, at the time of retrial the present plaintiff, Will Feight, was the owner of Lots 1 and 2 of Section 16, Township 92, Range 52, Clay County, (Vermillion Township) and Hans P. M. Hansen and Eldon Hansen are the owners of Lots 3 and 4 of said section. The same stipulation provides that aerial photographs by the U. S. Department of Agriculture marked Exhibits A and B be offered and received in evidence; that the same are true and correct aerial representations of the land in controversy in this action, and may and all accretions to government lots in Sections 16, 22 and 27 in Vermillion Township and lots in Sections 19, 18 and 17 in Norway Township.
The sketch roughly shows the material area shown on Exhibits A and B together with the lines established by K. E. Benson a qualified civil engineer, as stipulated by the parties. By agreement between the plaintiff's predecessors and owners of lots to the west in Norway Township the boundary was established across the accretion lands to the present (1942) location of the Missouri River, and is shown on Exhibit A as line S, the same likewise being shown on the sketch as line S.
By agreement, between defendants and the owners of lots in Sections 22 and 27 in Vermillion Township, the boundary was established across the accretion lands to the present (1942) location of the Missouri River and is shown on Exhibit A as line U, the same likewise being shown on the sketch as line U. The east and west boundaries across the accretion to Lots 1, 2, 3 and 4 having thus been established, and the only dispute being as to the boundary line across the accretion to Lots 2 and 3, and the parties having stipulated that such boundary should in no event be established to the Missouri River so that it reaches the Missouri River southeast of line U, or west of line S, there are no other parties to the action. There now being no other proper or indispensable parties, the directive in our opinion in Kapp v. Hansen, supra, is eliminated.
The engineer Benson drew straight lines on Exhibits A and B marked R across the accretion land mass from the boundaries of the lots along the river under the original government survey as evidenced by line O to the Missouri River as presently located, line P-Q, in such manner as to apportion to each of said lots under the original government survey the same proportion of river frontage on the river that such lot had under the original government survey. The apportionment or division line as so drawn from the southeast corner of Lot 2 to the river runs south twenty degrees ten minutes west, and is identified by letter X on Exhibit A, and is so identified on the sketch.
The letter T as shown on the sketch marks the approximate location of a large cottonwood tree which is a landmark in this case, and was identified by and referred to by various witnesses. It is located practically due south of the south corner common to Lots 2 and 3 according to the original government survey, a distance of 194 rods.
The trial court entered findings of fact and conclusions of law. The findings insofar as the same are material to the matter before us are as follows:
'10.
'* * * That the division or boundary line across the accretions to Lots 2 and 3 of said Section 16 runs south twenty degrees ten minutes west from the southwest corner of Lot 3 to the present location of the Missouri River.
'11.
'That the plaintiff and his predecessors in interest have for more than twenty years prior to the commencement of this action maintained a fence or boundary line from the southeast corner of Lot 2 in said Section 16, south to the big cottonwood tree which is located 48.5 chains or 194 rods south of said southeast corner of said Lot 2, openly, notoriously and adversely to any rights or claims of the defendants or their predecessors in interest.
'12.
'That there were fences erected south of the cottonwood tree by either the defendants or their predecessors in interest, or the plaintiff's predecessors in interest, these fences ran generally in a southern direction from the big tree and were not in a straight line but ran from tree to tree; these fences were put in more than twenty years before the commencement of this action and were maintained and the land west thereof was pastured by plaintiff's predecessors in interest until 1942 when a new diagonal fence was put in by defendants during this action.
'13.
'That none of the accretion lands south of the big tree were used or occupied by plaintiff's predecessors in interest, continuously for more than twenty years prior to the commencement of this action.'
The trial court by its conclusions of law determined the division or boundary line between and across the accretions to Lots 2 and 2 in Section 16, Township 92, Range 52 ran from the southeast corner of Lot 2 south twenty degrees ten minutes west to the Missouri River. That the plaintiff is the owner of all accretions to Lots 1 and 2 of said Section 16 lying west of a line from the southeast corner of said Lot 2 south twenty degrees ten minutes west to the Missouri River, and that part of the accretions to Lot 3 in said Section 16 described as commencing at a point 194 rods south of the southeast corner of Lot 2 for a point of beginning, thence north to said southeast corner of said Lot 2, thence south twenty degrees ten minutes west to a point due west of said point of beginning thence east to the point of beginning (For clarity we have designated the trianguar tract of accretion to Lot 3 determined to be the property of plaintiff by the letters P T A.)
That the defendants are the owners of the accretions to Lots 3 and 4 of said Section 16 lying east of a line from the southwest corner of said Lot 3 south twenty degrees ten minutes west to the Missouri River, except that portion of said accretions to Lot 3 described as commencing at a point 194 rods south of the southeast corner of Lot 2 of said Section 16 for a point of beginning, thence north to said southeast corner of said Lot 2, thence south twenty degrees ten minutes west to a...
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