Frank v. Goddin

• Citation: 193 Mo. 390,91 S.W. 1057
• Parties: FRANK v. GODDIN.
• Decision Date: 22 February 1906
• Court: United States State Supreme Court of Missouri

91 S.W. 1057

193 Mo. 390

FRANK v. GODDIN.

Supreme Court of Missouri. Division No. 1.

February 22, 1906.

1. NAVIGABLE WATERS — ACCRETIONS — TITLE OF STATE.

Each state of the Union has power to settle for itself the title to land formed by accretion within its boundaries.

2. BOUNDARIES—NAVIGABLE WATERS.

A riparian owner of land in Missouri owns only to low-water mark, and not the middle or thread of a navigable stream.

3. SAME.

Where a navigable river formed the south boundary of plaintiff's land north of the river, such boundary shifted with the water line, either by accretion or recession.

4. NAVIGABLE WATERS—ISLANDS—OWNERSHIP —CONVEYANCE.

Islands formed in navigable streams within the state of Missouri, and their appurtenant alluvium, belong to the respective counties within which they appear, and are subject to disposition as swamp lands for the benefit of the public schools, as provided by Rev. St. 1899, art. 6, c. 122.

5. SAME—ACCRETIONS.

Where, after an island had formed in a navigable stream, it was surveyed and conveyed to defendant as an island, though also described by metes and bounds as geometrical figure, defendant thereby acquired title to the whole island, and not merely to the land included within such boundaries, and was therefore entitled to accretions.

6. PUBLIC LANDS—PATENTS—COLLATERAL ATTACK.

Where a patent to an island was regular on its face and conveyed a tract containing "about one hundred acres" for a consideration of $125, it was not subject to collateral attack because the island in fact contained 127 acres, and was therefore conveyed for a price less than that authorized by law.

Appeal from Circuit Court, Warren County; E. M. Hughes, Judge.

Action by Fritz Frank against B. H. Goddin. From a judgment for defendant, plaintiff appeals. Affirmed.

Robert Walker, for appellant. C. E. Peers and W. S. Pope, for respondent.

LAMM, J.

The scene is laid near Loutre (alias Otter) Island, in the Missouri river, a historic spot in the early annals of Missouri. The dramatis personæ are Frank, the owner of certain shore land on said river—i. e., the riparian owner—and Goddin, an islander. Frank bases a claim to the land involved somewhat upon the ownership of the shore, but mainly upon his purchase from Warren county on December 31, 1900, and a patent issued therefor February 8, 1901, by said county under the provisions of article 6, c. 122, Rev. St. 1899, relating to "accreted lands." Goddin, in possession, claims the land as an accretion to an island off said shore, locally known as Goddin Island, which island he claims to own under a patent from the same county of date November 21, 1898, made under the provisions of an act of the Legislature in 1895 (Laws 1895, p. 207), and which act, as subsequently amended and supplemented, forms article 6, supra. As the description of the land in dispute is intricate and technical, consisting of metes, bounds, angles, degrees, and calls for distances, monuments, etc., and as such description seems not material on review, it will be omitted. From a judgment general in form in favor of Goddin and for costs, nisi, in an action brought by Frank to determine the respective interests of Frank and Goddin in, and to quiet title to, the said real estate, based on section 650, Rev. St. 1899, Frank appeals. Other essential record facts will appear further along.

1. A small part of section 29, township 46, range 4, in Warren county, has been preserved from the wasting wash of the river waters and is owned by appellant, who purchased through probate proceedings from a Stuart estate. When originally surveyed by the government, section 29 consisted of a fractional N. E. ¼, 158.9 acres, a full N. W. ¼, 160 acres, and a fractional S. ½, 39.18 acres, the river bounding it on the south. The erosion of the current ate away the larger part of this land, some of it during Frank's ownership. A few years ago there appeared in the river, partly south of Frank's shore line, a sandbar, or, in the language of rivermen, "a towhead," which grew by recession and accretion until a certain portion of the bar projected over the aforesaid survey, leaving the channel of the river split in twain; part being north of the sandbar and between that and the shore line, and part south of said bar. The bar continued to grow, not in a saltatory way, but by accretion of alluvium insensibly formed and deposited. Willows finally took root. Overflows came, leaving deposits, until some portions at highest elevations were above flood tide, at which time respondent procured his patent, entered into possession, and, struggling with recurring floods, gained a precarious foothold, and has opened a small plantation, including therein the land in controversy. We do not understand the learned counsel for appellant to contend that because some of Frank's shore land was disintegrated, held in solution by the water and carried off, pushing the north bank of the river further north, he would be entitled to new land reformed on the situs of the old, unless such new land was formed by accretion to the north shore or by recession there. His contention, as we interpret it, is rather that this condition of things created equities, springing from the natural justice of the thing, which should have some determinative force on other controverted questions in the case presently to be considered. Is this contention sound? We think not, because, in the first place, whatever be the common law or the civil law, each state of this Union may settle for itself the title to lands formed by accretions within its boundaries. Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224; St. Louis v. Rutz, 138 U. S. 226, 11 Sup. Ct. 337, 34 L. Ed. 941. In the second place, in Missouri the riparian owner does not own to the middle of the thread of a navigable river, ad filum medium aquæ (Benson v. Morrow, 61 Mo. 345), but only owns to low-water mark. Cooley v. Golden, 117 Mo. 33, 23 S. W. 100, 21 L. R. A. 300; State ex rel. v. Longfellow, 169 Mo. 109, 69 S. W. 374; and this court in Naylor v. Cox, 114 Mo., loc. cit. 243, 244, 21 S. W. 589, adopted (bad proof reading) the reasoning and rule announced in Welles v. Bailey, 55 Conn., loc. cit. 317, 10 Atl. 565, 3 Am. St. Rep. 48, thus: "All original lines submerged by the river have ceased to exist, the river is itself a natural boundary, and every changing condition of the river in relation to adjoining lands is treated as a natural relation and is not affected in any manner by the relations of the river and the land at any former period." It results from the foregoing that where the water line is the boundary, as it was of Frank's land north of the river, that boundary, no matter how far it shifted north, remained his south boundary, subject to be again shifted south by accretion or recession. In the third place, the conclusion follows, using the foregoing legal propositions as postulates, that where shore land has been washed away and the void space thus created becomes the river bed, and thereafter new land reforms in the river within the original survey, such new land does not necessarily belong to the owner of the survey, the riparian owner. If it be formed to the shore land by accretion or reliction, it will belong to the riparian owner. If, on the other hand, a sand nucleolus appears in the channel off the shore, which swells, peradventure, to a nucleus and thereafter, by reason of alluvion accreting thereto, eventually reaches the geographical dignity of an island, such island with the alluvion thereto accreted does not inure to the...