Frederitzie v. Boeker

• Decision Date: 22 February 1906
• Parties: FREDERITZIE v. BOEKER, Appellant
• Court: Missouri Supreme Court

92 S.W. 227

193 Mo. 228

FREDERITZIE v. BOEKER, Appellant

Supreme Court of Missouri, Division One

February 22, 1906

Appeal from St. Louis County Circuit Court. -- Hon John W McElhinney, Judge.

Affirmed.

Benj. J. Klene and R. L. Johnston for appellant.

(1) Under the law plaintiff's accretions could never extend beyond the section and range lines at his southeast corner. Shelton v. Maupin, 16 Mo. 124. (2) Where the shore line of two or more bodies of land, divided by a water course, receive accretions until they come together, the line of contact will be the dividing line. Buse v Russell, 86 Mo. 209. (3) Plaintiff failed to make a showing that the accretions he is claiming were formed against land. Therefore, the court erred in its finding and judgment for him because "the accretions belong to the man who owns the land against which the deposits were made and they do not belong to the man who owns the land against which such deposits were not made, although they cover the place where his land was before the river washed it away." Widdicomb v. Chiles, 173 Mo. 195. But here there were no accretions to plaintiff's land. Price v. Hallett, 138 Mo. 561; Hahn v. Dawson, 134 Mo. 581. (4) The government surveys of plaintiff's lands, which cannot be changed, made plaintiff's lands a limited field. He is, hence, not entitled to recover any accretions, if any, along and against said arbitrary lines. Smith v. Public Schools, 30 Mo. 290; Elinger v. Railroad, 112 Mo. 527; Sweringen v. St. Louis, 151 Mo. 348.

J. C. Kiskaddon for respondent.

(1) Where a deed conveys fractional quarter sections which were originally bounded by the river, it carries all accretions, and the grantee's right to such accretions cannot be affected because the deed describes the land as the "southeast fractional quarter of section 13." Gorton v. Rice, 153 Mo. 683. (2) The instructions of the court dividing the accretions proportionately between the coterminous proprietors are correct. Benne v. Miller, 149 Mo. 243; Crandall v. Allen, 118 Mo. 411; Deerfield v. Arms, 17 Pick. 41. (3) In dividing accretion no attention is to be paid to the side lines of the coterminous proprietors, but the accretions are to be divided so as to give each riparian owner his proportion of the accretions. Crandall v. Allen, 118 Mo. 413; DeLassus v. Faherty, 164 Mo. 372.

OPINION

BRACE, P. J.

This is an appeal by the defendant from a judgment and decree of the St. Louis County Circuit Court in favor of the plaintiff.

The petition is in two counts. The first count is ejectment for the recovery of a small tract of land, described in the petition and judgment by metes and bounds, and which it is alleged is an accretion to plaintiff's land from the Meramec river. The second count is for injunction to restrain the defendant from erecting or maintaining an embankment or causeway across said tract of land whereby plaintiff's access to said river would be cut off. On the filing of the petition a temporary injunction was granted as prayed for in the second count of the petition, and, in due course, the cause coming on to be heard on both counts, was submitted to the court without a jury, and the following judgment and decree rendered therein:

"Now at this day come the parties in the above-entitled cause by their respective attorneys and a jury being waived the cause is submitted to the court on both causes of action stated in the petition, and the court having heard the evidence, and the argument of counsel, doth find that plaintiff, under the first cause of action stated in the amended petition, is entitled to recover of the defendant the possession of the real estate sued for in said first cause of action, which real estate is described as follows, to-wit: Commencing at a stake set for and at the original corner of the range line between ranges five and six east, it being the original corner on the bank of the Meramec river to the southeast fractional quarter of section thirteen, in township forty-three, of range five east; thence south thirty-seven degrees and thirty-two minutes west along the original bank of said Meramec river, four chains and five and three-fourth links to a stake set for and at the original corner on the section line between fractional section thirteen and twenty-four, in township forty-three, of range five east, it being the original corner on the bank of the Meramec river to the said southeast fractional quarter of section thirteen, in township forty-three, of range five east; thence south eleven degrees and fourteen minutes east, two chains and ninety-seven links to the bank of said Meramec river; thence down the said Meramec river with meanderings thereof north forty-three degrees and forty-eight minutes west, four chains and twenty-two links to a point on said bank; thence north eighteen degrees and sixteen minutes west three chains and twenty-five links to the place of beginning, said tract of land being situated in St. Louis County, Missouri, and being an accretion to the said southeast fractional quarter of section thirteen, in township forty-three of range five east, formed by the action of said Meramec river depositing earth, sand, soil and other substances to, along and against said fractional quarter section; and also under said first cause of action to recover of the defendant the sum of one dollar damages for the unlawfully withholding the possession of said real estate from plaintiff, and also one cent per month for monthly rents and profits of said real estate from the rendition of this judgment until possession of said real estate is delivered to plaintiff. And the court doth further find the issues for the plaintiff on the second cause of action stated both in the original and amended petition, and that at the commencement of this action defendant, his agents and servants were engaged in doing and threatening...