Hamburg Realty Co. v. Woods

• Decision Date: 13 July 1959
• Docket Number: No. 47126,No. 1,47126,1
• Parties: HAMBURG REALTY COMPANY, a Corporation, Respondent, v. F. Pace WOODS, Olive Black Woods and Lucian Smith, Appellants, Fred Walker, Gertrude Walker, Cecil P. Walker, Olin Engleman and Maye Engleman, Defendants
• Court: Missouri Supreme Court

Page 138

327 S.W.2d 138

HAMBURG REALTY COMPANY, a Corporation, Respondent, v. F. Pace WOODS, Olive Black Woods and Lucian Smith, Appellants Fred Walker, Gertrude Walker, Cecil P. Walker, Olin Engleman and Maye Engleman, Defendants.

No. 47126.

Supreme Court of Missouri, Division No. 1.

July 13, 1959.

Rehearing Denied Sept. 14, 1959.

J. M. Gerlash, Tarkio, M. E. Ford, Maryville, for the respondent

Walter L. Mulvania, Rock Port, Moran & James, by Vantine James, Nebraska City, Neb., Martin & Wenger, by Howard B. Wenger, Hamburg, Iowa, for appellants.

HOLLINGSWORTH, Judge.

In this action plaintiff, Hamburg Realty Company, a corporation, sued in Count I of its petition to quiet its alleged fee simple record title to certain island lands situate in the Missouri River immediately south of the Iowa-Missouri state line in Atchison County, Missouri, and in Count II sought possession of said lands. Certain of the defendants, F. Pace Woods, his wife, Olive Black Woods, and Lucian Smith, denied plaintiff's ownership of that portion of the lands claimed by plaintiff which said defendants alleged were adjacent or attached to an area known as Original Woods Island, herein frequently referred to as the Woods Island tract, and affirmatively asserted title to the lands claimed by plaintiff by (1) accretion to the whole or portion of the original Woods Island tract, admittedly owned by them, and (2) by adverse possession. The other defendants, Fred Walker, Gertrude Walker, Cecil P. Walker, Olin Engleman and Maye Engleman, denied plaintiff's ownership of another portion of the lands (known and referred to herein as the Walker-Engleman Island) and asserted title thereto by adverse possession.

By agreement of all of the parties, the issue of ownership of the Woods Island tract was tried to the court and the issue of ownership of the Walker-Engleman Island tract was tried to a jury. Trial of the issue of title to the Woods Island tract resulted in a separate judgment in favor of plaintiff, from which the defendants Woods, Woods and Smith have appealed. Trial of the issue of title to the portion of Walker-Engleman Island tract lying in Missouri resulted in a separate judgment in favor of the Walker-Engleman defendants, from which plaintiff has appealed. Separate transcripts and briefs were filed in this court. Thus, two distinct cases are presented.

This opinion, in which we frequently will refer to appellants Woods, Woods and Smith as though they were the only defendants, treats only of the adjudication of the issue of title to the Woods Island tract.

Prior to the times herein mentioned, the main channel, or at least a substantial part of the main channel, of the Missouri River, as it flowed southward between Nebraska and Iowa, immediately north of the Iowa-Missouri line, coursed along the east bank. However, as the river neared the Missouri line, a number of chutes developed to the southwest, causing parts of the waters formerly flowing in the channel on the Missouri side to be diverted through these chutes westward to and thence southward toward the Nebraska side. Thus, during varying stages of the river's flow in that area, its waters coursed through the wild chutes or entirely covered in times of high stage a general bed width of more than a mile between the outer banks of the river. In order to stabilize the flow of the main channel the U. S. Government, in about 1936, began the construction of a series of dikes south of the Iowa-Missouri line which eventually tended to merge the waters flowing through the wild chutes into one channel that turned westward to the Nebraska side at a point near the Iowa-Missouri line. The channel thus created thereafter coursed along the Nebraska side for a mile or so and thence turned southeastward back toward the Missouri side, where it joined the old channel on the Missouri side. The old channel on the Missouri side thereafter became locally known and is referred to in the evidence and in plaintiff's deed as the 'Old Chute'.

As the building of the dikes progressed and the flow in the wild chutes lessened, islands formed between the chutes to the south of the new main channel as it coursed westward from the old bank on the Missouri side to the bank on the Nebraska side. In 1937, there were two of these islands, one which became known and is referred to throughout the record as Woods Island; the other which became known as Walker-Engleman Island.

Woods Island is situate approximately midway between the east and west banks of the river. Its shape is similar to that of a plumb bob and it lies as though its upper stem were immediately south of the Iowa-Missouri line, with its lower tip pointed southward downstream. Walker-Engleman Island, lying partly in Missouri and partly in Iowa, is to the northeast of Woods Island and is separated from it by a chute. The entire area covered by the land areas and the chutes and waters separating them is bounded on the north and west by the new main channel and on the east and south by the Old Chute. Said entire area, somewhat similar to a football in shape, lies in a northeast-southwest direction. Its greatest east-west width (near its center) is some mile or more and its greatest north-south length is some two miles.

On July 12, 1939, for a consideration of $242.68, Atchison County conveyed to Clark Pace Woods (the mother of defendant F Pace Woods) 194.15 acres of land, more or less, specifically defining the boundaries thereof by precise survey designations. The deed makes no mention of 'Woods Island'. However, maps in evidence show that the land described in the deed lies on Woods Island and a plat shows it to conform to the general contour of the island as it existed at that time. In July, 1948, Clark Pace Woods (and her husband) conveyed the land to defendant F. Pace Woods and his wife, Olive Black Woods. On December 31, 1956, they conveyed an undivided one-half interest therein to defendant Lucian Smith. On the 11th day of January, 1957, they executed a second deed to Lucian Smith to 'an undivided 1/2 interest in all the land now cleared and now in cropthat is accretion to the land hereinafter described, * * *' (Here follows the original description of the 194.15 acres as described in all of the prior deeds.) Plaintiff admits that defendants, as successors in title of the original grantee in the 1939 deed, are the owners of the 194.15 acres of land specifically described therein by metes and bounds.

On June 6, 1950, Atchison County, for a consideration of $766.32 paid to it, executed and delivered to plaintiff its deed to the land to which plaintiff herein asserts title. It purported to convey to plaintiff 613.05 acres of land, more or less, south of the Iowa-Missouri line and west, south and east of the 194.15 acres theretofore conveyed to defendants' predecessor in title.

Plaintiff-respondent's contention is that prior to 1939 sandbars had risen in the river in the area around the tract known as Woods Island, especially to the west thereof, but separate from it; that by deposit of silt and soil (accentuated by dikes constructed by the U. S. Government) these sandbars and other sandbars forming to the south, east and northwest of original Woods Island became islands which, as they gradually enlarged, filled the chutes surrounding Woods Island; that as these islands grew, separate and apart from Woods Island, they became the property of Atchison County; that although they gradually enlarged in some instances until they became immediately adjacent to Woods Island, they are not accretions to it; and that title thereto is vested in plaintiff under its deed from Atchison County.

Defendant-appellants' contention, at trial and on appeal, is that plaintiff acquired no valid record title to the land claimed by it for the reasons (a) that its deed from Atchison County was not shown to have been executed by authority of the County Court and (b) said deed does not describe any ascertainable area or tract of land; that defendants, as successors in title to the original grantee of the 194.15 acre tract, acquired the title to (a) Woods Island as it originally existed and title to all lands thereafter attached thereto as lawfully accreted land and (b) all of the lands surrounding the original 194.15 acre tract (except the Walker-Engleman Island) by adverse possession. They also, on appeal, assert error in the admission of certain evidence.

In the main, the evidence herein consists of some sixty or more maps, aerial and ground photographs, numerous deeds, and the oral testimony of witnesses expressing their respective interpretations of the maps and photographs. In testifying as to locations, courses and distances shown on the maps and photographs, the witnesses were permitted, with some gratifying exceptions, to designate them by pointing to the exhibits and saying 'here', 'from here to here', 'then up (or 'down' or 'this way') to here', etc., few of which designations are shown in the record or marked on the exhibits. While it appears that the trial judge was able to follow the indications made by the witnesses, it is only by tedious and time-consuming study of the exhibits can the appellate court interpret such testimony with any degree of certainty and very considerable portions of it are wholly meaningless to a reviewing court. We set forth that portion of the evidence that can be interpreted by reference to the exhibits, realizing that much of it will be without meaning to the reader who does not have before him each of the exhibits as the testimony of each of the witnesses given in relation thereto is considered.

Plaintiff's Evidence:

Robert Johnson, President of Hamburg Realty Company, testified: The land adjacent to the 194.15 acre tract of defendants, and to which adjacent lands plaintiff claims title, lies east of the main present channel of the Missouri River. Said land is of island formation and has never been connected with the...