Hauber v. Gentry

• Decision Date: 08 November 1948
• Docket Number: No. 40887.,40887.
• Citation: 215 S.W.2d 754
• Parties: HAUBER v. GENTRY et ux.
• Court: Missouri Supreme Court

215 S.W.2d 754

HAUBER v. GENTRY et ux.

No. 40887.

Supreme Court of Missouri Division No. 2.

November 8, 1948.

Motion for Rehearing or to Transfer to Court en Banc Denied December 13, 1948.

Appeal from Circuit Court, Buchanan County; Emmett J. Crouse, Judge.

Action in ejectment by Frank Hauber against James Gentry and wife, in which defendants filed a cross-claim of ownership of the land involved. Judgment for defendants, and plaintiff appeals.

Affirmed.

Homer C. King and W. H. Utz, Jr., both of St. Joseph, attorneys for appellant.

Lewis F. Randolph, of St. Joseph, attorney for respondents.

BOHLING, Commissioner.

Frank H. Hauber instituted this action in ejectment against James and Iva Lou Gentry, husband and wife, for approximately 47 acres of land in the NE¼ of Sec. 23, Twp. 56, R. 37, Buchanan county, Missouri, described by metes and bounds in said petition. Defendants (we retain the designation of the parties in the trial court) filed an answer and also a cross claim alleging ownership and asking title be determined and decreed in them. The jury returned a verdict for the defendants and plaintiff appealed.

Plaintiff traced his record title to Isaac Peck, who owned the land eighty or more years ago. According to the testimony the Missouri river changed its course some time between 1908 and 1913 or 1915 and washed away thousands of acres of land in this vicinity, including the land in said NE¼ of Sec. 23, but left a triangular shaped piece of the Peck land of from 10 to 16 acres then owned by Sarah Peck, a daughter of Isaac Peck. Defendants assert no interest in the Peck land so remaining. After this flood the main channel (estimated by some witnesses to be 50 yards or more wide) of the Missouri river ran along this Peck land and it constituted a part of the high bank of the river for a number of years. The water was deep, had a good current, and steamboats used it. The issue was submitted on plaintiff's contention that the land in question was formed by accretion to the Peck shore, plaintiff claiming title under the law of accretion to the river bank; and on defendants' contention an island formed in the Missouri river; that the land in dispute was formed by accretion to the island and belonged to Buchanan county, and that they have title to it under a patent issued to them March 27, 1946, by Buchanan county. There was evidence to sustain each contention. We think it unnecessary to further detail this evidence and additional facts, if necessary, will be developed in the course of the opinion.

The court instructed the jury the burden was on plaintiff to prove that the land "in controversy accreted" to the bank of the Missouri river "along the Sarah Peck triangular strip of ground." No verdict was directed by this burden of proof instruction. Plaintiff, however, argues the instruction limited recovery to one theory of ownership, accretion, and precluded his recovery on the theory of ownership, for instance, by adverse possession against Buchanan county, see Sec. 12791. Statutory references are to R.S.Mo.1939 and like section numbers in Mo.R.S.A., unless otherwise stated. Defendants do not question plaintiff's right to rely upon any title the evidence might disclose under his statutory petition, Sec. 1534. St.Louis Public Schools v. Risley, 28 Mo. 415, 418, 75 Am. Dec. 131; Porter v. Gaines, 151 Mo. 560, 564, 52 S.W. 376(1). The instruction makes no mention of adverse possession and, so far as that issue may be involved, there is only nondirection, not misdirection, and no error. Nelson v. C. Heinz Stove Co., 320 Mo. 655, 661, 662, 8 S.W.2d 918, 920(3); Dingman v. St. Louis Public Service Co., Mo.App., 52 S.W.2d 584, 586(2). The instruction was proper. Peterson v. City of St. Joseph, 348 Mo. 954, 960(4), 156 S.W.2d 691, 694(10); Jamison v. Galloway, Mo., 254 S.W. 101, 105(9). We are not impressed with the further complaint covering the giving of the instruction just prior to the argument of defendants' counsel, the court stating, in effect, that he had discovered it had been inadvertently omitted and if there was to be a burden of proof instruction on one side (plaintiff secured a like instruction respecting defendants), there also should be one on the other side. The court was correcting an oversight. Furthermore, this complaint is not within the stereotyped objection of record leveled at the instruction.

Plaintiff complains of instructions Nos. 9 and 10 given at the request of defendants. So far as applicable to the facts of the instant case instruction No. 9 follows instruction No. 1 set out in Peterson v. City of St. Joseph, 348 Mo. 954, 957, 156 S.W.2d 691, 693, and instruction No. 10 is in harmony with quoted instruction No. 3 in Moore v. Farmer, 156 Mo. 33, 44, 56 S.W. 493, 496, 79 Am.St.Rep. 504. We need not detail these instructions. They directed a verdict for defendants (briefly) upon findings that an island formed in the river; that the land involved constituted such island and accretions thereto, and that the county conveyed to defendants. Plaintiff contends these instructions ignore his rights of title by adverse possession. There was no request for an instruction submitting any claim of title by adverse possession, and it was not one of the theories relied upon by plaintiff for recovery. Defendants' instructions met the only issue tendered by plaintiff's instructions. If the issue of adverse possession were in the case plaintiff took his chances with the jury without presenting it for their consideration; and in the circumstances it went out of the case as a distinct and independent ground for recovery upon appeal. Laws 1943, p. 395, Sec. 140(a), Mo. R.S.A. 847.140(a); Shumate v. Wells, 320 Mo. 536, 542, 9 S.W.2d 632, 635(2); Penney v. St. Joseph Stockyards Co., 212 Mo. 309, 326, 111 S.W. 79, 84; Steinberg v. Merchant's Bank of Kansas City, 334 Mo. 297, 306, 67 S.W.2d 63, 66; Burroughs v. Buford, Mo.App., 182 S.W.2d 628, 632(3); White v. Kentling, 345 Mo. 526, 534(5), 134 S.W.2d 39, 44(8); Benz v. Powell, 338 Mo. 1032, 1037, 93 S.W.2d 877, 879(2).

Plaintiff, in arguing the foregoing, cites Sec. 1002, providing that an action for the recovery of lands or their possession may not be maintained unless the party or his predecessor in title was seized or possessed of the premises within ten years before the commencement of the action. The argument ignores the testimony of James Gentry and others to the effect defendants had been in possession of the land for a number of years, claiming to have cleared it; and the testimony that plaintiff's predecessor in title made no claim of ownership of the land. There was evidence to sustain defendants' claim of possession and ownership. In this connection it is noted that plaintiff filed no motion for a directed verdict on defendants' cross claim.

What we have said heretofore with respect to defendants' instructions Nos. 9 and 10 applies to a like contention with respect to the interlineation by the court of the italicized words infra in plaintiff's instruction No. 5, which was to the effect that if the jury found the greater weight of the evidence established that plaintiff "is the owner by reason of accretion of the lands" involved, the verdict should be for plaintiff and against defendants. The interlineation caused this verdict directing instruction to conform with plaintiff's submitted theory of recovery. This was not error under the authorities supra.

Error is claimed in the refusal of plaintiff's instruction Y, which plaintiff says has been approved in Chinn v. Naylor, 182 Mo. 583, 596(3), 81 S.W. 1109, 1112(3), followed in Cullen v. Johnson, 325 Mo. 253, 274, 29 S.W.2d 39, 48(16). Riparian owners do not own beyond the low water mark of the Missouri river. Moore v. Farmer, 156 Mo. 33, 47, 56 S.W. 493, 497, 79 Am.St.Rep. 504; Cooley v. Golden, 117 Mo. 33, 48, 49, 23 S.W. 100, 106, 21 L.R.A. 300. "`Accretions must, as a rule, in their formation preserve uninterrupted contiguity.'" Peterson v. City of St. Joseph, 348 Mo. 954, 959, 156 S.W.2d 691, 694(7). "The doctrine of accretion will scarcely admit of jumping a slough 40 to 60 yards wide. In a word, there is nothing saltatory about accretion." Crandall v. Smith, 134 Mo. 633, 640, 36 S.W. 612, 614; De Lassus v. Faherty, 164 Mo. 361, 372(I), 64 S.W. 183, 187, 58 L.R.A. 193; Peterson v City of St. Joseph, supra. If an island by reason of accretion unites with the shore, the accretion is part of the island and not of the main land, the riparian owner's land not being extended thereby. Moore v. Farmer, supra; Cooley v. Golden, supra; Peterson v. City of St. Joseph, supra; Hahn v. Dawson, 134 Mo. 581, 590(I), 36 S.W. 233, 235(I); Perkins v. Adams, 132 Mo. 131, 139(I, III), 33 S.W. 778, 780(1, 3); 56 Am.Jur. 898, Secs. 485, 489. Upon comparison, instruction Y is broader in several respects than the instruction considered in Chinn v. Naylor, supra, not subject to the criticism that the land could be found an accretion to the shore although the jury believed it first formed as an island or sand bar out in the river, and also it was confusing if it did not misdirect. It told the jury that although they found "that after an original bar was formed in the river adjacent to the Sarah Peck land," if so, and that thereafter said bar was caused to raise, this would "not prevent it from being an accretion to the high bank of the river" if "the bar as originally made was formed to, against and as a part of said high bank "by the action of the waters gradually receding from said bank." "Objects are adjacent when they lie close to each other, but not necessarily in actual contact; as, adjacent fields, villages. They are adjoining when they meet at some line or point of junction; as, adjoining farms, estates adjoining the river. Contiguous properly applies to objects which touch...