Gorton v. Rice

• Decision Date: 05 February 1900
• Citation: 153 Mo. 676,55 S.W. 241
• Parties: GORTON v. RICE.
• Court: Missouri Supreme Court

55 S.W. 241

153 Mo. 676

GORTON v. RICE.

Supreme Court of Missouri, Division No. 1.

February 5, 1900.

DEED — PROPERTY CONVEYED — PAROL EVIDENCE — ACCRETIONS.

1. A deed sufficient to carry a fractional quarter of a fractional quarter section, which by accretion has become more than 40 acres, carries all the accretions thereto, though it is described and designated as containing a full 40 acres of land, "in the same manner as if it had been originally surveyed as containing such by the government."

2. Previous or contemporaneous oral conversations, agreements, or understandings are inadmissible to alter the force of a deed of a fractional quarter of a fractional quarter section to carry accretions thereto, or to restrict its terms.

3. Where a river running diagonally through the N. E. fractional ¼ and S. E. fractional ¼ of a fractional quarter section gradually recedes to the eastward, so that accretions are formed to the land, the accretions above the extension of the original land line between said quarters belong to the former quarter, and those below said line to the latter quarter, if the water frontage of each quarter is thus substantially maintained as it was when the lands were first surveyed and laid off by the government; otherwise, the right thereto is determined by drawing a line from the original eastern terminus of such land line at right angles with the present general course of the river.

Appeal from circuit court, Ray county; E. J. Broaddus, Judge.

Action by Charles L. Gorton against George N. Rice. Judgment for defendant. Plaintiff appeals. Reversed.

Garner & Divelbiss and J. L. Farris, Jr., for appellant. J. L. Farris, Sr., and Jos. E. Black, for respondent.

ROBINSON, J.

This is an action of ejectment for a strip of land of about 6½ acres, described in the petition as follows: "Beginning at a point 20 chains south of the northeast corner of section 17-50-28; thence west 6 70/100 chains; thence south 1½ degrees, west 10 chains; thence south 5 degrees, east 3 84/100 chains; thence north 38 degrees, east 9 chains; thence north 6 45/100 chains to place of beginning." The case was tried by the court without the aid of a jury, and a finding and judgment were awarded to defendant, and the case brought here on plaintiff's appeal.

Confused with much useless and irrelevant testimony upon which the case, in the main, seems to have been tried in the circuit court, and for which its judgment must be reversed, the following essential facts are to be found in the record: The present S. E. ¼ of the N. E. ¼ of section 17-50-28, and the N. E. ¼ of said N. E. ¼, now owned, respectively, by plaintiff and defendant, were at the time of the original survey of the lands of the state by the government laid off and platted as fractional 40's. The Missouri river ran almost diagonally through and past said fractional 40's, so as to leave in the south 40, now owned by plaintiff, only about 3 or 4 acres of land, and in the north 40, now owned by defendant, about 20 or 25 acres of land; and afterwards, but prior to the time all the land in said fractional N. E. ¼ of section 17 aforesaid was owned by Thaddeus W. Gorton, through whom plaintiff and defendant now claim their respective tracts, the Missouri river, while maintaining its general course and direction, had receded gradually to the eastward, and accretions had formed to the land in the original fractional 40's in the E. ½ of said original fractional N. E. ¼ of section 17, until the river line in front of said land was a quarter of a mile or more to the eastward from where it was when the land was originally surveyed by the government in 1817. The land in controversy, as shown by the testimony, as well as by the description thereof in the petition, lies south of the extended land line between the original N. E. and S. E. fractional ¼'s of said fractional N. E. ¼, and east of the original land in said fractional S. E. ¼ of fractional N. E. ¼, now owned by plaintiff. Defendant entered upon and fenced the strip in controversy in the year 1894, and has remained in possession of same ever since; and prior to the fencing of same by defendant it had been wild and unimproved land, except a small tract, of about one-half acre, that had been cleared and cultivated by one Mansell, under authority from Thaddeus W. Gorton, during his lifetime, but not fenced. There was also testimony tending to show that Thaddeus Gorton, up to the time of his death, always claimed the strip in controversy, along with all the other land that had formed and accreted in front of said fractional 40 now owned by defendant, and that on one or two occasions he cut from this strip some of the willow growing thereon, for firewood. A plat was also introduced in evidence, which seems to have been recognized as substantially correct by both plaintiff and defendant, showing the whole of fractional N. E. ¼ of section 17 aforesaid, and how the Missouri river ran through and past it at the time the land was originally surveyed by the government, making three of its quarters fractional, as well as its present course and location with reference to its then course and location, which plat also shows the extent and character of the accretions that have formed in front of all of the three fractional quarters in said original fractional N. E. ¼ of said section 17, caused by the course and change of the river. Plaintiff then took up much time in attempting to show that when his father, Thaddeus W. Gorton, sold the fractional N. E. ¼ of fractional N. E. ¼ of section 17 aforesaid, it was in connection with the N. W. ¼ of said fractional N. E. ¼, under the description, as recited in the deed, "The north half of the northeast quarter of section 17-50-28, in Ray county" (not naming or designating the quarters as fractional), and that by same description James Barger, to whom his father sold the land, reconveyed it to defendant herein in 1894. Plaintiff then sought to establish by said Barger that when he bought the land of his father it was his understanding that he was getting but 80 acres of land, and that when he resold it to defendant he conveyed to him but 80 acres, and told him that he had bought and owned but 80 acres, and that he pointed out to defendant the south boundary line of his land, and that said line is north of the strip in controversy, now held and claimed by defendant, and that the N. ½ of said original fractional N. E. ¼ of section 17, at the time it was purchased by defendant, and for a long time prior thereto, had become by accretion a full...