Independent Stock Farm v. Stevens

• Decision Date: 29 March 1935
• Docket Number: 29143.
• Citation: 259 N.W. 647,128 Neb. 619
• Parties: INDEPENDENT STOCK FARM v. STEVENS ET AL.
• Court: Nebraska Supreme Court

259 N.W. 647

128 Neb. 619

INDEPENDENT STOCK FARM v. STEVENS ET AL.

No. 29143.

Supreme Court of Nebraska.

March 29, 1935

Syllabus by the Court.

1. Accretion is the process of gradual and imperceptible addition of solid material, called alluvion, thus extending the shore line out by deposits made by the contiguous waters.

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

3. When land has been definitely formed by accretion, and is permanent in character, having upon it willow and cottonwood trees, the subsequent cutting of a channel through such accretion land by a small creek does not affect the ownership thereof.

4. 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.

Appeal from District Court, Dakota County; Ryan, Judge.

Action by the Independent Stock Farm, a corporation, against W. W Stevens, first and real name unknown, and others. From a decree for plaintiff, the named defendant appeals.

Affirmed.

Geo W. Leamer, of South Sioux City, for appellant.

Sidney T. Frum, of South Sioux City, and Henderson, Hatfield & Wadden, of Sioux City, Iowa, for appellee.

Heard before ROSE, GOOD, EBERLY, PAINE, and CARTER, JJ., and THOMSEN, District Judge.

PAINE Justice.

This is a suit to quiet title to accretions to riparian lands in Dakota county, and to enjoin entry thereon. From a decree for plaintiff, the defendant appeals.

The plaintiff, a Nebraska corporation, claims that it is the owner of certain lands in Dakota county along the Missouri river, and asks that the title to these lands be quieted in it as against the claims of the defendants. It further asks that the defendants be permanently enjoined from entering upon or asserting title to said lands. A temporary injunction was issued by the district court in accordance with the prayer of the petition.

After a special appearance and certain motions had each been overruled, the defendants filed their answer, denying the allegations of plaintiff's petition, and asserting that the plaintiff has never cultivated, pastured, or been in possession of any of the lands claimed in its petition, nor made claim to such lands prior to filing its petition in this case, at which time it forcibly took possession by moving a building thereon and having an agent go upon the land, who shot at the defendants with a high-powered rifle, driving them from the land, and ask that plaintiff's petition be dismissed.

For its reply, plaintiff denies that the case of O'Connor v. Petty, 95 Neb. 727, 146 N.W. 947, involved the title or the possession of any part of the land involved in this suit, and no part of the land involved in the instant case was therein determined to be in the state of Iowa; that neither the plaintiff nor any of its grantors were parties to said suit, and are therefore not bound in any way by the decision therein.

Plaintiff further alleges that the defendants have never been in possession of any part of the land described in plaintiff's petition, except as trespassers upon a small part thereof, and plaintiff claims to be the owner and in possession of every part thereof.

To state the contentions more briefly, the pleadings set out that plaintiff claims the land in controversy in the instant case because it is accretion to its riparian land. The defendants, on the other hand, as one of their defenses, claim that this court, by the decision in O'Connor v. Petty, supra, decided that all of the land which defendants have been cultivating and pasturing is in the state of Iowa, and therefore this court has no jurisdiction thereof.

Among the errors set out by the defendants for reversal may be mentioned: That the court erred in finding it had jurisdiction over the land in controversy, and in finding that the land in controversy was accretion land to plaintiff's land, rather than to defendants' land, and in finding that plaintiff had legal title thereof.

Many references are made in the briefs to a certain Omaha creek as the dividing line between the states of Iowa and Nebraska, but we are unable to find that this creek was mentioned, or declared to be the boundary line, in our decision of O'Connor v. Petty, supra, as the defendants claim.

The Missouri river often changes its course by avulsion, as it did in 1894. This means that, suddenly, or by violent action of the elements, it leaves its old channel and creates a new one. In such cases the original thread of the stream continues to mark the limits of the two estates, and land which is so cut off can be followed and identified, and its title remains in the original owner. State of Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396, 36 L.Ed. 186; Attorney General v. Bay Boom Wild Rice & Fur Co., 172 Wis. 363, 178 N.W. 569, 570; Harper v. Holston, 119 Wash. 436, 205 P. 1062; De Long v. Olsen, 63 Neb. 327, 88 N.W. 512.

On the other hand, the land in controversy is claimed by accretion, which is a different process. The leading case upon this subject of accretion is Gifford v. Yarborough, 5 Bing. (Eng.) 163, 130 Eng. Rep. (Reprint) 1023, decided in 1828, in which the House of Lords had before it a question involving the ownership of land which had been added along the shore of the sea, which question was stated by Chief Justice Best as follows: " A certain piece of land, consisting of about 450 acres, by the slow, gradual, and imperceptible projection, alluvion subsidence, and accretion of ooze, soil, sand, and matter slowly, gradually, and imperceptibly, * * * deposited * * * in, upon, and against the outside and extremity of said demesne lands hath been formed, and hath settled, grown, and accrued upon, and against, and unto the said demesne lands. Does such piece of land so formed, settled, grown, and accrued as aforesaid, belong to the crown or to A., the owner of the said demesne lands?" After an interesting discussion of the ancient and modern law, it was held: " Land, not suddenly derelict, but formed by alluvion of the sea, imperceptible in progress, belongs to the owner of the adjoining demesne lands, and not to the crown."

It is difficult to improve the definition given in the English case referred to, and yet it must be shortened for ordinary use. Accretion is the process of gradual and imperceptible addition of solid material called alluvion, thus extending shore line by deposits made by contiguous waters. Land uncovered by a gradual subsidence of water is not an accretion, but a reliction. The same law...