Hecker v. Bleish

Decision Date03 March 1928
Docket NumberNo. 26224.,26224.
Citation3 S.W.2d 1008
PartiesL.E. HECKER v. EMIL C. BLEISH and CHARLES GILES, Appellants.
CourtMissouri Supreme Court

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

REVERSED AND REMANDED (with directions).

Randolph & Randolph, Frank Petree and A.M. Tibbels for appellants.

(1) The land in dispute by the description used in the deeds under which defendant holds, was original land surveyed by the Government about 1840. It was therefore, absolutely indispensable to plaintiff's contention that the evidence show beyond dispute, that all of the land claimed by plaintiff was washed away, as well as all the land between the land in dispute and the river as it flowed before the flood of 1881, and that an entirely new body of land was built up in the river as an island. If any part of the original body of land remained out in the river though cut off from the mainland then any accretions thereto would belong to the original owner and neither the county or the plaintiff would have any claim thereto. Widdecombe v. Chiles, 173 Mo. 195; Myers v. Schuchmann, 182 Mo. 159. (2) It was necessary for the plaintiff to allege and prove under his claim, that the land in question was of island formation; that it was built up in the river as an island on the Missouri side of the middle of the main channel of the river as it formed the boundary between Missouri and Nebraska. That is, that it was built up from a start made on the Missouri side of the main channel. This he failed to do. Lee v. Conran, 213 Mo. 404; Northstine v. Feldmann, 298 Mo. 365. (3) It was necessary for the plaintiff to prove by competent and credible evidence, that the land in Sections 23 and 24 shown in the original Government survey was entirely washed away and that an island was built in the Missouri River thereafter and that the land in question was a part of such an island. Proof that an island was formed by the action of the river in cutting off a body of land from the main land would be wholly insufficient. The statements of witnesses that an island appeared in the river when the flood of 1881 went down does not prove either that all the land standing there when the flood came was washed away; or that an island was built while the water continued high. Widdecombe v. Chiles, 173 Mo. 195; DeLassus v. Faherty, 164 Mo. 361; Naylor v. Cox, 114 Mo. 232. (4) If the land in question was formed to the shore land and afterwards the Nishnabotna River or any other current of water cut a channel through the defendants' land, that would not confer any rights on Holt County or on the plaintiff as to the land so cut off from the main land. DeLassus v. Faherty, 164 Mo. 361; Naylor v. Cox, 114 Mo. 232. (5) A plaintiff suing to obtain land, if he succeeds at all, must succeed upon the strength of his own title. Creech v. Childers, 156 Mo. 338; Burnham v. Hitt, 143 Mo. 414. (6) The exclusion of testimony offered by the witness Hurst as to the difference between island formations and accretion formations should have been received by the court, as the witness was qualified to testify from his own experience and from his study. Eyerman v. Sheehan, 52 Mo. 221; Heinbach v. Heinbach, 274 Mo. 301; Merritt v. Telephone Co., 215 Mo. 299; State v. Patrick, 107 Mo. 147; Combs v. Const. Co., 205 Mo. 367; State v. Parker, 96 Mo. 393. (7) Limitation had begun to run in favor of the defendant before the passage of Sec. 7029, R.S. 1919, and has been completed in favor of the defendant. Baxter v. Webber, 295 Mo. 554; Himmelberger-Harrison Lumber Co. v. Craig, 248 Mo. 319; McGrath v. City, 188 Mo. 102; Hemphill Lumber Co. v. Parker, 300 Mo. 568; Hunter v. Pinnell, 193 Mo. 142. Where possession is held, under color of title, of a part of a tract of land, in the name of the whole tract, such possession is possession of the whole tract. Sec. 1309, R.S. 1919. (8) Sec. 7029, R.S. 1919, purports to grant to the county "all lands belonging to the State" formed "by the formation of islands in the navigable waters of the State." The same are to be sold, by the next section, in the same manner that the swamp lands that were acquired under the Act of Congress September 28, 1850, are to be sold. This law was passed in 1895. The sale of swamp lands is provided for in Chap. 56, Art. 5, R.S. 1919. The attempted sale of the lands in dispute by the county was not in compliance with either the letter or the spirit of the law. (9) Missouri has never acquired title to islands which formed in the river by virtue of any Act of Congress. Adams v. St. Louis, 32 Mo. 25; Benson v. Morrow, 61 Mo. 345. If these cases correctly state the law, then the State has never acquired title to islands in the Missouri River, where it forms a state boundary, no matter when formed, and the Legislature in passing Section 7029 and kindred sections, R.S. 1919, did not pass any title to the counties. State ex rel. v. Longfellow, 169 Mo. 126; Frank v. Goddin, 193 Mo. 394. If the United States has not parted with title to the islands in the river and which arise in the river, the act of the Legislature did not have any effect and did not confer title upon the counties. The "act of admission" of Missouri as a State designates the western boundary of the State as crossing the Missouri River at the mouth of the Kaw River, and running thence north. The old state line is the east boundary of the Platte Purchase, which embraces six counties, including Holt and Atchison counties. If there is any provision of Congress giving to the State the islands in the Missouri River formed or to arise, where it divides Missouri from Nebraska and Kansas, such law must have been passed subsequent to the "act of admission." (10) It was a fraud on the rights of the defendant for the county court to parcel out the lands of this defendant, including this tract and other tracts of land and lands of other parties, to people having no claim on the lands and no possession of them, and to require in the order apportioning the lands that this defendant and those similarly situated with him should not be permitted to procure patents by paying to the county the price it claimed as purchase price of the lands, unless they would agree not to contest with these strangers their right to take their other lands, some of them containing improvements put on by this defendant and others similarly situated. (11) The defendant having paid $5,000 in cash for this land and having purchased it in good faith, and he and his predecessors having paid taxes on it for about thirty years, he should have the preferential right, if the county has any claim whatever, to buy his peace by paying the amount fixed by the county for the land. The justice of this contention has been recognized by high authority. Cox v. Hart, 43 U.S. 154; Act of Congress, Feb. 23, 1875, c. 99, 18 Stat. 334; Act of Congress, May 18, 1898, c. 344, sec. 2, 30 Stat. 418. (12) The County of Holt was clearly estopped from claiming this land by reason of its assessing said lands, collecting the taxes, permitting the defendants to purchase the same; pay large sums of money therefor, and to put valuable improvements on the premises. A county is estopped the same as any other person or organization if their acts are inequitable and unjust and cause a person to do things and expend money that they would not expend if it were not for the action of the county with reference to the land. Authorities under Point 14. (13) The plaintiff in this case is clearly estopped, and he is chargeable with all of the knowledge of the county and is chargeable with notice of the character of the possession of the defendant. Myers v. Schuchman, 182 Mo. 159. (14) The doctrine of laches should apply to Holt County in this case. State ex rel. Polk Co. v. West, 68 Mo. 229; Locke v. Bowman, 168 Mo. App. 121; State ex rel. v. Cape Girardeau Road Co., 207 Mo. 85; Dexter v. MacDonald, 196 Mo. 373; Simpson v. Stoddard County, 173 Mo. 466; Baker v. Cunningham, 162 Mo. 134; Goodson v. Goodson, 140 Mo. 206; Wendover v. Baker, 121 Mo. 292; Dunklin Co. v. Chouteau, 120 Mo. 594; McClanahan v. West, 100 Mo. 324; Burdett v. May, 100 Mo. 18; Rollestone v. Natl. Bank, 299 Mo. 76. (15) The judgment is erroneous. (a) It embraces high land at the northeast corner of the tract, which was never interfered with by the river; lies east of the so-called high bank and contains defendant's residence, barns and other outbuildings. (b) The value of the rents, as assessed, is exorbitantly excessive and not supported by the evidence. (c) It was testified by some of plaintiff's witnesses that, what some designated as a "slough," and some as an "arm of the river" filled from both sides until the two bodies of land met. Yet the judgment includes, not only mainland, that was never in the river, but also such accretions, so described as made on the east side of such strip of water mentioned by plaintiff's witnesses. Dumm v. Cole County, 287 S.W. 448. (d) That part of the judgment, is not authorized by the petition, which reads as follows: "And the court doth further find, order, adjudge and decree that the plaintiff is vested with the fee-simple title to the real estate hereinabove described, and the court doth further find, order, adjudge and decree that the defendants, or either of them, or any one claiming under them, have no right, claim or interest in said real estate, or any title whatsoever, either legal or equitable in and to said real estate, or any lien therein." R.S. 1919, sec. 1834; Schneider v. Patton, 175 Mo. 723. The petition in this case is the statutory petition in ejectment. Ejectment is a possessory action only. R.S. 1919, sec. 1815; Rogers v. Mayes, 84 Mo. 520; Kelpe v. Kuppertz, 235 Mo. 479.

E.E. Richards, Floyd M. Sprague and Chas. H. Mayer for respondent.

(1) Respondent concedes that the burden was upon him to prove that the original land surveyed by the Government in 1839, which stood where the land in question...

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