Hahn v. Dawson

• Decision Date: 15 June 1896
• Citation: 36 S.W. 233,134 Mo. 581
• Parties: Hahn, Appellant, v. Dawson et al
• Court: Missouri Supreme Court

36 S.W. 233

134 Mo. 581

Hahn, Appellant, v. Dawson et al

Supreme Court of Missouri

June 15, 1896

Appeal from Holt Circuit Court. -- Hon. C. A. Anthony, Judge.

Affirmed.

T. C Dungan for appellant.

(1) The preponderance of the evidence, considered with the physical facts in this case, is so great as to imply gross partiality prejudice, or misconduct on the part of the jury. Wilson v. Albert, 89 Mo. 544, and cases cited; Hunt v Railroad, 89 Mo. 608; Deering v. Saum, 56 Mo. 479; Baker v. Stonebraker's Adm'rs, 36 Mo. 345; Powell v. Railroad, 76 Mo. 85; Spohn v. Railroad, 87 Mo. 74; Avery v. Fitzgerald, 94 Mo. 207; Henderson v. Railroad, 36 Mo.App. 114; Garrett v. Greenwell, 92 Mo. 125. Verdicts for defendants should be, and are, governed by the same rules and principles. Ackley v. Stachlin, 56 Mo. 559, and cases cited by appellant therein. Whitsett v. Ransom, 79 Mo. 258. (2) Defendants' first instruction was wrong, in that it assumes that plaintiff's legal title alone, and not her right to possession, was in controversy. It was misleading, in that it told the jury that plaintiff must recover, if at all, on the strength of her own title, thereby seeming to mean (and no doubt the jury so understood it), that plaintiff must show a legal paper title in order to recover any part of the land in controversy. (3) The defendant's second instruction was also erroneous and defective, in that it confined plaintiff's right to recover only such alluvion lands as were "made, and formed onto, and against" said lot 2, "by the deposit of sand and soil, from the washings of the Missouri river," entirely ignoring her right to lands created by reliction, that is, lands uncovered by the receding of the river from her shore lands. Railroad v. Ramsey, 13 S.W. 931; Cooley v. Golden, 117 Mo. 33. (4) Plaintiff was entitled to the land formed by accretion, to the new river bank, and by the recession of the waters of the river, from where it cut into lot 2, back to, and beyond, its original bank, and the fact that a depression, or slough might be formed, or left, on said lot 2 against, or near said new bank, or elsewhere, or said accretion be formed higher on some parts than on others, would not change plaintiff's right to the accreted, or relicted, lands. Gould on Waters, sec. 155; Benson v. Morrow, 61 Mo. 353; Naylor v. Cox, 114 Mo. 232; Cooley v. Golden, supra. (5) Defendant's third and fourth instructions were wrong as they were violative of, and ignored, the correct principle of riparian ownership -- the common law rule. The common law is in force in the state of Missouri, and has been since January 19, 1816, and we should apply its principles. See chapter 98, sec. 6561, 2 R. S. of 1889; Abbott v. Railroad, 83 Mo. 285. (6) Plaintiff owned lot 2, in fee, and by the common law, which is made the law of this state by statute, she was entitled to all lands formed by any process whatever, to the middle of the thread of the the stream, subject to the right of public navigation, secured by the acts of congress. Gould on Waters, secs. 69 and 77; Butler v. Railroad, 48 N.W. 569; Webber v. Boom Co., 62 Mich. 626; Webber v. Boom Co., 30 N.W. 469; Fletcher v. Boom Co., 51 Mich. 277; Jeffries v. East Omaha L. Co., 134 U.S. 178; St. Louis v. Rutz, 138 U.S. 245; Hardin v. Jordan, 140 U.S. 371; Smith v. Rochester, 92 N.Y. 473. Courts of last resort will reverse their own rulings when they find their former decisions are unfounded in law, or plainly mischievous in their consequences, or lead to unjust results. Chouteau v. Gibson, 76 Mo. 50; Marwin v. Bates, 13 Mo. 217; Hamilton v. Marks, 63 Mo. 172; Boogher v. Life Ass'n, 75 Mo. 319; Long v. Long, 79 Mo. 656.

H. T. Alkire and S. F. O'Fallon for respondents.

(1) It is a well settled rule that where there is any evidence to support a verdict it will not be disturbed on the ground that it is against the weight of the evidence, unless it so preponderates against it as to show that it was the result of partiality or prejudice. Oglebay v. Corby, 96 Mo. 285; Naylor v. Cox, 114 Mo. 232; Minton v. Steele, 125 Mo. 181. (2) The defendants were in possession, and could rest upon that alone until the plaintiff exhibits a better title. When no better title than possession is shown he who is prior in time is prior in right. Large v. Fisher, 49 Mo. 307; Foster v. Evans, 51 Mo. 39; Grand Road v. Renfro, 58 Mo. 265; Duncan v. Able, 99 Mo. 188; Marvin v. Elliott, 99 Mo. 616; Mather v. Walsh, 107 Mo. 121. (3) Plaintiff, in her petition, alleges that she is the owner of lot 2, and that the lands in controversy "had been deposited, made, and accreted thereto by the action of the waters of Missouri river by slow and imperceptible degrees from time to time." Plaintiff nowhere pleads that said lands were formed by reliction. Instruction number 3 for plaintiff correctly defines the word "accretion." In instruction number 2 for plaintiff the court tells the jury that "if they find that the land sued for was formed by the receding of the said Missouri river or by deposit of debris and sand against the shore line of said land, the jury will find," etc. The said instruction submitted the question of reliction as well as accretion to the jury, and no other definition or explanation of it was necessary. The plaintiff asked no instruction defining reliction. 3 Washburn on Real Property, 451; Bouvier's Law Dictionary, title, Accretion; Benson v. Morrow, 61 Mo. 345. (4) The court properly refused plaintiff's instructions numbered 4 and 5. The common law rule does not prevail in this state, and the doctrine of the common law as to the navigability of waters has no application to large rivers in the United States. The supreme court of this state has decided in an unbroken line of decisions that the Missouri river is navigable. O'Fallon v. Daggett, 4 Mo. 343; Benson v. Morrow, 61 Mo. 345; Meyers v. St. Louis, 8 Mo.App. 266; Cooley v. Golden, 117 Mo. 33; McManus v. Carmichael, 3 Iowa 1; People v. Canal Appraisers, 33 N.Y. 461; Wood v. Fowler, 26 Kan. 682; 16 Am. and Eng. Encyclopedia of Law, 236, title, Navigable Waters, and notes and authorities cited. (5) In England the fee to the soil under the waters of navigable streams was retained in the crown, and the riparian owner only took title to the water's edge. This has become a well settled rule of property in this state and as remarked by the court in the case of Rees v. McDaniel, 115 Mo. 145, that "whatever the law may be in other jurisdictions, this rule has been too long adhered to and the rights of property acquired by reason of the rule too firmly fixed thereby to be at this late day departed from or overruled." Benson v. Morrow, 61 Mo. 345; Lamme v. Buse, 70 Mo. 463; Campbell v. Gaslight Company, 84 Mo. 352; Buse v. Russell, 86 Mo. 209; St. Louis v. Lemp, 93 Mo. 477; Meyers v. St. Louis, 8 Mo.App. 266; Naylor v. Cox, 114 Mo. 232; Rees v. McDaniel, 115 Mo. 145; Cooley v. Golden, 117 Mo. 33; Wood v. Flower, 26 Kan. 682; McManus v. Carmichael, 3 Iowa 1.

Gantt, J. Brace, C. J., Barclay, Sherwood, Macfarlane, Burgess, and Robinson, JJ., concur.

OPINION

In Banc.

Gantt J.

This is an action for certain lands formed in the original lines of the Missouri river opposite to lot 2 of the northwest quarter of section 20, township 59, range 38, in Holt county, Missouri, and alleged by plaintiff to be accretions to her land. The answer is an admission of possession but otherwise a general denial.

The evidence on the part of plaintiff tended to prove that the land sued for was an accretion to her land and on the part of defendants that it was an island or bar formed in the Missouri river running between it and the mainland for many years until the river finally abandoned this south channel altogether and by its recession plaintiff's land on the south bank became connected with this bar or island which defendants were occupying as squatters.

Without incumbering this opinion with a detailed statement of this evidence it is sufficient to say there was evidence tending to prove either theory.

For the plaintiff the court gave these three instructions: "1. If the jury believe, from the evidence, that the plaintiff was the owner of the said lot 2, of the northwest quarter of section 20, in township 59, of range 38, and that she held the same under the said deed, offered in evidence, from said Rhinehart Kleber and wife to her, and that the said Rhinehart Kleber, and the said Catharine Hahn, and those under whom they claim, had occupied and claimed the same openly, continuously, notoriously, for a period or ten years, or more, before the defendants entered into possession of said land, under color of title, or claim of right, then said plaintiff is the owner of same; and the court further instructs the jury that said deed, offered in evidence, would be, and is sufficient to convey the title of Kleber and wife, to said land, and all accretions, and additions, thereto made, and formed, to the center of the main channel of the said Missouri river, and it makes no difference whether said accretions or additions were formed in sand bars, provided the same are between said shore line of said land described, as surveyed, and the center line of the Missouri river.

"2. The court instructs the jury that defendants admit that they are in possession of said lands sued for. That the said deed offered in evidence by plaintiff, from Rhinehart Kleber and wife to said plaintiff, Catharine Hahn, dated the thirty-first day of July, A. D. 1886, for the land described therein, is sufficient to pass the title to lot 2, of the northwest quarter of section 20, in township 59, of range 38, in Holt county, Missouri, together with all lands accredited, or made thereto, to said Catharine Hahn, and if the jury find from the...