Grady v. Royar

• Decision Date: 21 December 1915
• Docket Number: No. 17315.,17315.
• Parties: GRADY et al. v. ROYAR.
• Court: Missouri Supreme Court

181 S.W. 428

GRADY et al. v. ROYAR.

No. 17315.

Supreme Court of Missouri, Division No. 1.

December 21, 1915.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Action by Samuel O. Grady and another against Adolph Royar. From a judgment for defendant and order overruling plaintiffs' motion for new trial, plaintiffs appeal. Reversed and remanded.

This is an action of ejectment to recover possession of certain real estate in Saline county, Mo. The answer is a general denial. The land in litigation was formed by accretions in the Missouri river, and is described in petition as follows: That portion of lots 13 to 24, both inclusive, and all accretions thereto, situate on an island in the Missouri river in sections 1 and 2, 11 and 12, in township 52, range 22, included in the following boundaries, to wit: Beginning on the section line between sections 11 and 12, township and range aforesaid, on the north bank of a slough 36.37 chains north of the corner of sections 11, 12, 13, and 14, township and range aforesaid; thence following said slough bank in an easterly course to the line dividing the northeast quarter of the southwest quarter and the northwest quarter of the southwest quarter of section 12, which said last-mentioned point is the beginning corner of the tract of land herein intended to be described; thence following said slough bank, with the meanderings thereof, in an easterly and northeasterly course to the Missouri river; thence up said river, following the south bank thereof, to a point due north of the point of beginning; thence south to the place of beginning. Plaintiff testified that there is from 80 to 100 acres of the above-described made land involved in this suit.

Appellant claims title through patents from the United States to their remote grantors, and a succession of deeds from them and their grantees to plaintiffs, for certain lands in what was formerly known as Watson's Island in the Missouri river. In their claim of title, plaintiffs read in evidence a patent from the United States to Edwin H. Renick, which recites, among other things, that a warrant, No. 80414, for 160 acres of land had been duly located upon the northwest quarter and lots 5 and 6, of southwest quarter (all in island in Missouri river), of section 11, township and range aforesaid, subject to sale at Warsaw, Mo., and containing 159.65 acres. Plaintiffs also read in evidence a patent from the United States reciting that warrant No. 7134 for 80 acres, in favor of Joseph Brim, had been deposited in the General Land Office, with evidence that it had been duly located upon the northeast quarter of section 11, and the northwest quarter of section 12 (all in island in Missouri river), in township 52, range 22, subject to sale at Warsaw, Mo., containing 94.40 acres. It also recites that said warrant had been assigned by Joseph Brim to Richard H. Melton, and by the latter to Frederick P. Stevenson, in whose favor the patent was issued.

Upon their purchase of said island from Watson in 1891, plaintiffs took possession of the whole island, and on March 12, 1898, rented it to defendant for a period of three years. The latter, about 1891, ran a two-wire fence along the west side of the land sued for in this action.

The defendant introduced testimony tending to show that he received deeds in 1882 and 1883, for, and entered into possession of, 60 acres of land in said county about 1885, described as follows: South half of southeast quarter of northwest quarter, and northeast quarter of southwest quarter of section 12, township and range aforesaid; that he continued in the possession of said land up to the time of trial.

The main portion of the evidence introduced on both sides related to the changes made by said river in its course, and the formation of the land sued for in this action. Testimony was also introduced respecting the location and condition of certain sloughs, the action of said river in respect to the island, and defendant's land, etc. The ultimate question, however, presented to the court and jury for their determination, was whether the accretion sued for herein formed against the plaintiffs' land upon the island, or was it formed against defendant's land heretofore described? We have had great difficulty in obtaining a clear idea of some portion of the testimony, on account of the manner in which many of the questions and answers were framed. Especially was this true where the witnesses were referring to plats, surveys and measurements.

The same cause was here in which one Stoner, a tenant of appellants, was the plaintiff, and respondent herein, the defendant. 200 Mo. 444, 98 S. W. 601, and following. The case was submitted to the jury upon instructions given at the instance of both parties to the suit. Plaintiffs' instructions given were objected to by defendant, and those given at the instance of latter were objected to by appellants. Other objections were made, relating to the admission and rejection of testimony offered by the respective parties, and will be considered with the instructions, when necessary, in the opinion to follow. The jury returned a verdict in behalf of defendant, and judgment was entered accordingly. A motion for a new trial was filed by plaintiffs in due time, overruled, and the case brought to this court in due form by appeal.

Duggins & Duggins, of Marshall, and Perry S. Rader, of Jefferson City, for appellants. W. H. Meschede and Reynolds & James, all of Marshall, for respondent.

RAILEY, C. (after stating the facts as above).

This is an action in ejectment, and the answer is a general denial. Plaintiffs claim that the land sued for was formed by accretions made to their island by the Missouri river in Saline county, Mo. Defendant controverts this claim, and contends that the accretions described in petition were made against the 60 acres of shore land of said county, in his possession. The evidence shows that plaintiffs were the record owners, and in possession of the Watson Island at the commencement of this suit. While the evidence does not disclose a good record title in defendant to the 60 acres mentioned in the testimony, yet he introduced in evidence a warranty deed from Wm. Welch and wife to himself, dated May 14, 1883, for the expressed consideration of $200, conveying the south half of southeast quarter of northwest quarter of section 12, township 52, range 22, Saline county, Mo.; and also a warranty deed from B. F. McDaniel and wife, dated October 26, 1882, to himself, for the expressed consideration of $275, conveying the northeast quarter of southwest quarter of section 12, township and range aforesaid. The evidence in a general way tends to show that defendant went into possession of said 60 acres some time after the date of said deeds, and continued in possession thereof until the date of trial.

It is elementary law that in cases of this character, the plaintiffs must recover — if at all — on the strength of their own title, and not on the weakness of their adversary's. Hence unless the accretions involved in this litigation were made against plaintiffs' land, they would not be entitled to dispossess defendant, although he might have no record title to either the 60 acres or the accretions aforesaid.

With the above questions out of the way, we will proceed to consider the assignment of errors.

II. Appellants insist that the trial court erred in giving defendant's instruction numbered 2, which reads as follows:

"The court instructs the jury that if they believe from the evidence in this case that originally or about the year of 1885 defendant Royar was the owner of the south half of the southeast quarter of the northwest quarter of section 12, township 52, range 22, and the northeast quarter of the southwest quarter of section 12, lying immediately south thereof, and that the same was shore land lying and bordering upon the south bank of the Missouri river and extending to the water's edge, and that the Missouri river begun and gradually withdrew and receded therefrom, and as said river withdrew and receded deposits of land were gradually and imperceptibly added by the action of said river upon the north side of said lands, then defendant became the owner of all such lands so added, and his ownership continued to extend to the water's edge of the Missouri river, and including all made lands so added or deposited between said original shore land and said water's edge, and the plaintiff cannot recover herein, but the verdict must be for the defendant."

This instruction is complete within itself, and authorized the jury to return a verdict in behalf of defendant if they found certain things to be true. It is important that instructions of this character should not be misleading, and should clearly and correctly state the principles of law applicable to the facts contained in the instruction. The above declaration is, in our opinion, clearly erroneous for several reasons: First, because it did not require the jury to find that the land in litigation was added to, and became the accretions of, defendant's shore land; second, because it did not require the jury to find that the land sued for in petition was not the accretion of the old land of plaintiffs on Watson's Island; third, because it authorized a verdict for defendant, although the jury may have believed from the evidence that the "made" land north of defendant's land had become part of plaintiffs' island by accretion, before the Missouri river had changed its course, as mentioned in said instruction, in which event the plaintiffs would continue to own it, except that part, if any, taken by the river or washed away. De Lassus v. Faherty, 164 Mo. 361, 64 S. W. 183, 58 L. R. A. 193; Frank v. Goddin, 193 Mo. loc. cit. 395, 91 S. W. 1057, 112 Am. St. Rep. 493; fourth, because the jury, under the evidence, may have believed that the lands described in petition were accretions made to plaintiffs'...