Hecker v. Bleish

• Decision Date: 31 March 1931
• Docket Number: 29964
• Citation: 37 S.W.2d 444,327 Mo. 377
• Parties: L. E. Hecker v. Abe S. Bleish, Bertha B. Eastman and Charles Giles, Appellants
• Court: Missouri Supreme Court

37 S.W.2d 444

327 Mo. 377

L. E. Hecker v. Abe S. Bleish, Bertha B. Eastman and Charles Giles, Appellants

No. 29964

Supreme Court of Missouri

March 31, 1931

Appeal from Holt Circuit Court; Hon. Guy B. Park, Judge.

Affirmed.

Randolph & Randolph, Frank Petree and Fielding P. Stapleton for appellants.

(1) The appellants were entitled to a trial by jury as to the location of the boundary. Lee v. Conran, 213 Mo 404; Frowein v. Poage, 231 Mo. 82; Kansas City v. Smith, 238 Mo. 323; Secs. 28 and 30, Art. II Constitution of Missouri. (2) The court erred in fixing the high bank of the old bed of the Missouri River as the boundary of appellants' land. The true boundary is the last thread of the stream of water (which is said to have finally dried out or been filled) between the appellants' land, and the land found to be of island formation. In other words, the owner of the island held to the water's edge. The owner of the mainland held to the water's edge; as the body of water narrowed, their respective ownerships continued until, when the water was gone, the boundary was fixed at the last thread of the water. Benson v Morrow, 61 Mo. 353; Rees v. McDaniel, 115 Mo. 153; Cooley v. Golden, 117 Mo. 48; Cox v. Arnold, 129 Mo. 337; St. L. K. & N. Ry. Co. v. Stock Yds. Co., 120 Mo. 552; Perkins v. Adams, 132 Mo. 139; Hahn v. Dawson, 134 Mo. 591. (3) The boundary as undertaken to be ascertained by the circuit court is indefinite, uncertain, and does not show whether it is at the top of the high bank, the bottom of the high bank or at the point which was the last thread of the stream. Livingston Co. v. Morris, 71 Mo. 603; Brummell v. Harris, 148 Mo. 430; Benne v. Miller, 149 Mo. 228; Bricker v. Cross, 140 Mo. 166.

E. E. Richards and Mayer, Conkling & Sprague for respondent.

(1) This appeal will not lie. After the trial court rendered judgment according to the mandate of the Supreme Court, it had no jurisdiction to permit a motion for new trial to be filed or to grant an appeal from the judgment so entered. Such proceedings were nullities, and the appeal ought to be dismissed. Powell v. Bowen, 240 S.W. 1085; Meyer v. Goldsmith, 196 S.W. 745; Scullin v. Railroad, 192 Mo. 1; Essey v. Bushakra, 304 Mo. 231. (2) Even if this appeal will lie, the only question reviewable is whether the judgment entered conformed to the directions given by this court. State ex rel. Robertson v. Kelly, 293 Mo. 297; Meyer v. Bobb, 184 S.W. 105; Stump v. Hornback, 109 Mo. 277; First National Bank v. Franklin Bank, 233 S.W. 13. The directions were strictly complied with, and the judgment entered by the trial court in pursuance of said directions ought to be affirmed. Rees v. McDaniel, 131 Mo. 681; Meyer v. Bobb, 184 S.W. 405; Scullin v. Railroad, 192 Mo. 1; Atkinson v. Dixon, 96 Mo. 577. (3) The only jurisdiction of the circuit court in this cause, after the mandate of the Supreme Court was returned to it, was to carry out the mandate of this court. Gary Realty Co. v. Swinney, 317 Mo. 687; Zeitinger v. Dry Goods Co., 309 Mo. 433, 455; Essey v. Bushakra, 304 Mo. 231; State ex rel. Carson v. Lamb, 232 S.W. 985; Scullin v. Railroad, 192 Mo. 1; Orvis v. Elliott, 147 Mo. 231. (4) Since this cause was remanded by the Supreme Court with specific directions as to further proceedings, the trial court had no authority to do anything beyond or not embraced in the specific directions. It had no power to enter any other judgment or to consider or determine other matters not included in the duty of entering the judgment as directed. All other matters, except the single one set out in those directions, were concluded by the judgment of this court. Rees v. McDaniel, 131 Mo. 681; State ex rel. Robertson v. Kelly, 293 Mo. 297; Zeitinger v. Dry Goods Co., 309 Mo. 433; First National Bank v. Franklin Bank, 233 S.W. 13; Murphy v. Barron, 286 Mo. 390; McClure v. Bank, 263 Mo. 128; Keaton v. Jorndt, 259 Mo. 179; Tourville v. Railroad, 148 Mo. 623; State ex rel. v. Edwards, 144 Mo. 467; Fanning v. Doan, 146 Mo. 100; Young v. Thrasher, 123 Mo. 312; Pitkin v. Shacklett, 117 Mo. 547; Stump v. Hornback, 109 Mo. 277; Chouteau v. Allen, 74 Mo. 59; Gamble v. Gibson, 19 Mo.App. 532.

Ferguson, C. Seddon and Sturgis, CC., concur.

OPINION

FERGUSON

This is an action in ejectment begun in the Circuit Court of Holt County in 1923. The cause was tried by the court without a jury. The record recites a waiver of a jury by the parties. Judgment was for plaintiff for possession of lands therein described, and defendants appealed. In an able opinion by Seddon, C., in Division One of this court, adopted as the opinion of the court and reported in 319 Mo. 178, 3 S.W.2d 1008, the cause was reversed and remanded with specific directions to the trial court to ascertain and determine certain boundaries and to enter a corrected judgment for plaintiff in conformity with such finding, which order we hereinafter set out in full.

For a proper approach to and disposition of the instant appeal, it is necessary that an understanding be had of the matters and issues involved and finally adjudicated and determined on the first appeal, and to that end we refer to the opinion by Commissioner Seddon -- the following quotations being excerpts therefrom:

"Plaintiff grounds his claim of title and right to possession of the land in controversy upon a patent from Holt County, conveying to him certain 'lands of island formation.'

"Plaintiff claims that the land in controversy is a part of made or river-bed land which first formed as an island in the Missouri River, and that the island, by reason of accretions attaching thereto, gradually grew larger, and after a considerable time extended to the east shore line or high bank of the Missouri River, and thereby filled up and closed a channel of the Missouri River which had existed for some years between the island and the east shore line or high bank of the river. Defendants claim, and they sought to show, that no island ever formed or existed in the vicinity of the land in controversy, but that the land in controversy is, and always has been, a distinguishable and integral part of lands which had been owned in fee simple by defendants' predecessors in title since the issuance of a patent therefor by the State of Missouri in 1848 and which had been deeded to defendants, or that the land in controversy had accreted to defendants' deeded lands. Hence the main issue tried was whether the land in controversy is of island or river-bed formation, or accretion thereto, or whether such land always was an integral, distinguishable and discernible part of defendants' deeded lands.

"The land in controversy, . . . is in the northwest quarter of Section 24, Township 63, Range 41, and embraces all of said quarter section, except a small triangular tract of land in the northeast corner of said quarter section of about one acre in area, to which triangular tract plaintiff apparently concedes in his brief, and conceded on the trial, he makes no claim to possession. This small triangular tract of approximately one acre is bounded on the north by the north line of Section 24, or the boundary line between Atchison and Holt counties, and on the east by the north-and-south center line of Section 24, and the hypotenuse of the triangle extending from the northwest to the southeast, is variously denominated by the witnesses as the 'high bank,' 'left high erosion bank,' 'east bank,' 'old original bank,' and 'old erosion bank,' of the Missouri River. But by whatever name it is called by the witnesses, the evidence tends to show that it marks the location of the extreme easterly shore line or bank to which the Missouri River had extended, or cut in, since the Government survey of 1839. . . . According to the testimony of many of the witnesses, the 'old high bank' of the Missouri River, which separates or divides the land in controversy from the small triangular corner, is today quite distinguishable, or was at the time of the trial of this cause.

"Plaintiff's evidence tended to show that, about the year 1881, a sand bar or island formed in the bed or channel of the Missouri River, and on the Missouri side of the main river channel; that the island gradually grew larger; . . . that the main or larger channel of the Missouri River ran on the westerly side of the island, and another and smaller channel of the Missouri River ran on the easterly side of the island for several years, thereby separating the island from the 'east high erosion bank' or east shore line of the river; that the waters of the easterly channel of the Missouri River flowed with a perceptible current between the island and the 'east high erosion bank' until 1891, 1892 or 1893; . . . that thereafter the easterly channel of the Missouri River gradually filled with mud and sediment brought down from the hills and uplands by the Nishnabotna River and by two creeks, known as Rock and Mill creeks, and the sediment was discharged by those streams into the waters of the easterly channel of the Missouri River; that the sediment thus discharged into the waters of the easterly channel of the Missouri River was deposited against the northerly and easterly sides of the island; and that the island formation gradually grew larger and extended toward the east until it completely filled the easterly channel, and eventually became joined to the 'old high erosion bank.'

"The trial court, in finding the issues for plaintiff, thereby found the fact to be that the land in controversy was not a part of the original land embraced in the Government survey of 1839, or accretion to such land, . . . and that the land in controversy was remade in the bed or channel of the Missouri River and took form as an island which sprang up in the river bed and which...