Frowein v. Poage

• Decision Date: 29 November 1910
• Parties: FROWEIN v. POAGE.
• Court: Missouri Supreme Court

132 S.W. 241

231 Mo. 82

FROWEIN v. POAGE.

Supreme Court of Missouri, Division No. 2.

November 29, 1910.

1. JURY (§ 13)—RIGHT TO JURY TRIAL—ISSUES.

Where the sole issue was whether land in controversy was an accretion to plaintiff's land or an accretion to defendant's land, and no equities were involved, defendant was entitled to a jury trial.

2. JUDGMENT (§ 259)—ARREST—GROUNDS.

The error in refusing a jury trial as guaranteed by Const. art. 2, § 28 (Ann. St. 1906, p. 162), and Rev. St. 1899, § 691 (Ann. St. 1906, p. 700), and not waived in the manner prescribed by section 693 (page 703), is one of record and may be taken advantage of by motion in arrest of judgment.

3. APPEAL AND ERROR (§ 238)—QUESTIONS REVIEWABLE—ERRORS OF RECORD.

Under Rev. St. 1899, § 866 (Ann. St. 1906, p. 815), requiring the Supreme Court on appeal or writ of error to examine the record and award a new trial, the refusal to award a jury trial, when the pleadings presented a case for a jury and a demand for a jury was made, may be taken advantage of on appeal without motion in arrest of judgment.

Appeal from Circuit Court, Marion County; David H. Eby, Judge.

Action by John A. Frowein against Theodore F. Poage. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

W. M. Boulware and F. L. Scofield, for appellant. Reuben F. Roy, for respondent.

GANTT, P. J.

This action was brought under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667). In substance, the petition avers that the plaintiff is the owner in fee of the tract of land, described therein, as an accretion to other lands belonging to him on the west shore or bank of the Mississippi river in Marion county. The specific tract to which plaintiff asserted title is about 50 acres; the southern boundary thereof being the road embankment from the old bank of said river to the bank or shore line of Goose Island, the northern line thereof being a dike made by the United States government, the western line being the old bank of the said river, and the eastern line thereof being the said Goose Island and the Mississippi river. The petition prayed the court to ascertain and determine the title or estate of plaintiff and defendant respectively in said tract, and to adjudge and decree the same. There is no allegation as to the possession of the land. The answer, after specific denials of the facts alleged in the petition, states that defendant is in the actual possession and occupancy of the east half of said tract claiming title thereto, and that his title therein and possession thereof cannot be litigated or adjudicated in this proceeding. Defendant further states: That he is the owner in fee of Island No. 7 in the Mississippi river, commonly called "Goose Island"; that the effect of the building of the several dikes and dams therein mentioned by the United States government was the bed of the arm of the said river running between said Goose Island, or Island No. 7, and the Missouri shore, and that part around and above the head or northern end of said island gradually filled up over the entire extent thereof by the gradual and continuous deposits therein made by the water until said island and shore became connected, and by reason thereof the eastern half of said new-made land extending the full length thereof became attached to and formed a part of said island and is owned by the defendant. That the persons under whom plaintiff claims title to the Missouri shore line only asserted title to themselves in the west half of said new-made land and disclaimed title to the east half thereof, and defendant erected a fence on the division line and has ever since maintained the same. The reply was a general denial. When the cause was reached for trial, the defendant filed his written motion, wherein he requested the court to declare the law to be that, under the pleadings, the title to said tract could not be tried under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667); second, that under the Constitution and laws of this state defendant was entitled to a trial of the question of his title by a jury, which motion the court overruled and denied a jury to try the question, and defendant duly excepted. Thereupon plaintiff and defendant agreed in open court: First, that at the time of bringing this suit plaintiff was and is now the owner of and in possession of fractional sections 2 and 11 in township No. 59, range 5 west, in Marion county, Mo., and that the east line of said sections was and is the west shore line or bank of the Mississippi river as originally surveyed by the United States government. Second, that defendant is and was the owner of and in possession of Island No. 7, or Goose Island, in the Mississippi river, according to the government survey of the United States; the same being in section No. 11 if the same were extended into the river. Thereupon counsel for plaintiff announced to the court that plaintiff would not and did not claim title to any land south of a line running from the north point of Goose Island or Island No. 7, west, to the old bank of the Mississippi river, but claimed and would claim title to the new-made land north of said line and abandoned all claim to the new-made land lying south of said line and between said line and the roadway mentioned. Each party then offered and introduced evidence tending to establish his claim to said new-made land, the tract in controversy; the plaintiff's evidence tending to show that it was an accretion to his fractional sections 2 and 11 in township 59, range 5, and defendant's evidence was directed to showing said tract was an accretion to his Island No. 7, or Goose Island. It was on this ground the battle was waged.

There were no equities pleaded, either in the plaintiff's petition and reply or the defendant's answer, nor did the evidence tend to show a right in equity on either side. It was a plain contest at law, a question of fact, as to which tract the new-made land in controversy herein was an accretion. In a word, the issue was one of accretion alone: Was it an accretion to plaintiff's lands on the west shore of the river, or was it an accretion to defendant's island? In the face of these undeniable facts, there can, we...