Higgins v. Adelson

• Decision Date: 18 December 1936
• Docket Number: 29754
• Parties: WILLIAM A. HIGGINS, APPELLANT AND CROSS-APPELLEE, v. JOHN A. ADELSON, APPELLEE AND CROSS-APPELLANT: CHARLES COSNER, APPELLEE
• Court: Nebraska Supreme Court

270 N.W. 502

131 Neb. 820

WILLIAM A. HIGGINS, APPELLANT AND CROSS-APPELLEE, v. JOHN A. ADELSON, APPELLEE AND CROSS-APPELLANT:

CHARLES COSNER, APPELLEE

No. 29754

Supreme Court of Nebraska

December 18, 1936

APPEAL from the district court for Merrick county: FREDERICK L SPEAR, JUDGE. Affirmed in part and reversed in part and dismissed.

AFFIRMED IN PART AND REVERSED IN PART.

Syllabus by the Court.

1. " While the law requires this court, in determining an appeal in an equity action involving questions of fact, to reach an independent conclusion without reference to the findings of the district court, this court will, in determining the weight of the evidence, where there is an irreconcilable conflict therein on a material issue, consider the fact that the trial court observed the witnesses and their manner of testifying." Gentry v. Burge, 129 Neb. 493, 261 N.W. 854.

2. However, " when the trial court goes upon the premises in controversy, and makes a personal examination of the topography of all of the land and water involved, his findings in reference thereto are entitled to great weight." Independent Stock Farm v. Stevens, 128 Neb. 619, 259 N.W. 647.

3. Where an island in a nonnavigable stream, prior to its conveyance by the federal government, was by it surveyed and platted as bounded by the waters of such stream, and a meander line was then employed to indicate the shore line of such island, this meander line is not a line of boundary, but one designed to point out the sinuosity of the island's shore line, and a means of ascertaining the quantity of land which was to be paid for by the purchaser thereof.

4. Where title to an island in a nonnavigable stream is conveyed to a grantee by government patent, and the land so conveyed is bounded by the waters of such stream, the grantee's ownership carries with it the bed of the river to the center or thread of each surrounding channel.

5. The thread or center of a channel, as the term is above employed, must be the line which would give the owners on either side access to the water, whatever its stage might be, and particularly at its lowest flow.

6. The right of title and possession of land formed by accretions follows the ownership of the riparian lands to which it is attached.

7. Evidence in the record examined, and held to establish the actual, continued, notorious, adverse possession of the lands in suit by defendant John Adelson as owner for more than ten years prior to the commencement of this action.

8. In the absence of any statute authorizing the court to assess damages in the injunction suit, upon the dissolution of the injunction or restraining order the court has no authority to do so; the party aggrieved must resort to an independent action upon the bond.

Appeal from District Court, Merrick County; Spear, Judge.

Action by William A. Higgins against John Adelson and another, wherein defendants filed a cross-petition. From the judgment rendered, plaintiff appeals, and named defendant cross-appeals.

Affirmed in part and reversed in part.

E. J. Patterson and Cleary, Suhr & Davis, for appellant.

H. G. Wellensiek, contra.

Heard before GOSS, C. J., GOOD, EBERLY, DAY, PAINE and CARTER, JJ., and MUNDAY, District Judge.

OPINION

EBERLY, J.

This is an action in equity to restrain the defendants from alleged repeated trespasses upon that part of an island in the Platte river, which is unsurveyed (referred to in the record as "Island No. 1"), and of which plaintiff in his petition claims to be the owner by virtue of his ownership of certain riparian lands in section 7, township 14, range 4 west of the sixth P. M. in Merrick county, Nebraska. The petition also alleges that the portion of said island No. 1 claimed by plaintiff is situated south of the north shore of the Platte river and within the extended east and west lines of his riparian lands in said section 7, and at right angles from said lines with the shore line of said river and north of the thread or center line of said river, and further that he is in possession thereof at the time of the institution of this action, and had been in the actual and adverse possession thereof more than ten years prior thereto. These allegations refer to the northeast portion of island No. 1, which is situated in the Platte river opposite the lands of plaintiff. Plaintiff's petition was positively verified, and with it were filed certain affidavits. In this pleading he prayed for the issuance of a restraining order, and that thereafter, upon due hearing, a temporary injunction be allowed restraining the defendants, their agents and servants, from trespassing upon the lands the ownership of which was alleged to be in plaintiff, and that upon final hearing the temporary injunction be made permanent. Upon the filing of these pleadings a temporary restraining order, in terms as prayed, was issued and served upon the defendants. By its terms the application for a temporary injunction was set for hearing on October 9, 1934, and the defendants and their agents were duly restrained from further trespassing upon the premises in dispute until further order of the court, upon plaintiff's executing an undertaking in the sum of $ 500 as provided by law. This undertaking was duly filed and approved on October 1, 1934, and on that day the usual summons and restraining order were served upon the defendants. Thereafter on November 6, 1934, the defendants demurred to the petition generally. This demurrer, it appears, was never disposed of by the district court. On February 8, 1935, the defendants filed their answer and cross-petition, in which the ownership of plaintiff of the lands situated in section 7 north of the Platte river was admitted, and all other allegations in plaintiff's petition were denied. For their cross-petition defendants alleged their ownership of the lands in dispute by virtue of adverse possession for more than ten years, and also as accretions to island No. 1; that this island had been surveyed by authority of the United States and title by patent duly derived therefrom was vested in defendant Adelson; that defendants had been deprived of the use of the land in suit for some fifty days, to their damage in the sum of $ 1,250; and defendants prayed that the prayer of plaintiff's petition be denied; that the restraining order be dissolved; that defendant Adelson's title to the locus in quo be quieted; and "that the defendant John A. Adelson have and recover the sum of $ 1,250 with 6 per cent. interest from October 6, 1934, and costs." To this pleading plaintiff filed his reply, denying each and every allegation in said answer and cross-petition, except "such as admit allegations of the petition."

The record discloses that a hearing on the merits was had, commencing on April 15, 1935, and evidence was introduced on behalf of the parties to this action; that the cause was taken under advisement by the trial court; that thereupon the trial judge inspected the premises in suit; and that on August 7, 1935, a decree was duly entered finding for the defendants and cross-petitioners and against plaintiff; adjudging that the restraining order be dissolved, that the title to the entire premises in dispute be quieted in defendant John A. Adelson, and that defendant Adelson recover from plaintiff William A. Higgins the sum of $ 50 for damages sustained by the wrongful issuance of the restraining order. Both plaintiff and defendant Adelson thereupon filed their motions for new trial, and from the order overruling the same, plaintiff Higgins appeals, and defendant Adelson has presented his cross-appeal.

The record before us involves two questions which require consideration of conflicting evidence, viz.: (1) Claims to the legal title of accretions to island No. 1; and (2) conflicting claims of adverse possession thereof.

In this connection, it will be remembered that: "While the law requires this court, in determining an appeal in an equity action involving questions of fact, to reach an independent conclusion without reference to the findings of the district court, this court will, in determining the weight of the evidence, where there is an irreconcilable conflict therein on a material issue, consider the fact that the trial court observed the witnesses and their manner of testifying." Gentry v. Burge, 129 Neb. 493, 261 N.W. 854.

So, also, "When the trial court goes upon the premises in controversy, and makes a personal examination of the topography of all of the land and water involved, his findings in reference thereto are entitled to great weight." Independent Stock Farm v. Stevens, 128 Neb. 619, 259 N.W. 647.

It appears that island No. 1, of which the land in suit is now a part, existed and was surveyed by the United States government in 1863, as bounded by the Platte river, and platted by use of meander lines to indicate the then shore lines of that stream. The southern line of plaintiff's land in section 7, by virtue of which he bases his claim to the land in suit, is also the Platte river, likewise then platted by use of a meander line.

In Whitaker v. McBride, 197 U.S. 510, 49 L.Ed. 857, 25 S.Ct. 530, it is stated: "A meander line is not a line of boundary, but one designed to point out the sinuosity of the bank or shore, and a means of ascertaining the quantity of land in the fraction which is to be paid for by the purchaser. St. Paul & P. R. Co. v. Schurmeir, 74 U.S. 272, 7 Wall. 272, 19 L.Ed. 74; Hardin v. Jordan, 140 U.S. 371, 35 L.Ed. 428, 11 S.Ct. 808; Horne v. Smith, 159 U.S. 40, 40 L.Ed. 68, 15 S.Ct. 988." See, also, Osterman v. Central Nebraska Public Power and Irrigation District, 131 Neb. 356, 268 N.W. 334.

Both the plaintiff, as owner of section 7, and the defendant John A. Adelson,...