Kimberly v. Presley

• Decision Date: 14 January 1952
• Docket Number: No. 1,No. 42393,42393,1
• Citation: 245 S.W.2d 72
• Parties: KIMBERLY at al. v. PRESLEY et ux
• Court: Missouri Supreme Court

Page 72

245 S.W.2d 72

KIMBERLY at al. v. PRESLEY et ux.

No. 42393.

Supreme Court of Missouri, Division No. 1.

Jan. 14, 1952.

Warren H. May, Louisiana, for appellants.

Brevator J. Creech, Troy, for respondents.

LOZIER, Commissioner.

This is an action to quiet title to real estate in Lincoln County and in ejectment. Plaintiffs-appellants Kimberly and plaintiff-appellant Melloway are the owners of abutting parcels of land on the right or west bank of the Mississippi River. Defendants-respondents are the owners of an island in the river (referred to below and herein as Presley Island). The land in dispute (herein called the accretions) lies between plaintiffs' lands and the island as it existed when defendants bought it in 1940. The trial court found for and decreed title in defendants. Plaintiffs appealed.

As the parties agree that accretions belong to the owner of the land to which they accrete, no law issues are involved. The sole question is factual--did the accretions accrete to plaintiffs' lands or to defendants' island?

Bradley Island is east and north of plaintiffs' lands. The mouth of Sandy Slough is immediately north-northwest of the north part of Bradley Island. The slough waters flowed south-southeast through a chute between the Missouri bank and Bradley Island. The river's main channel was and still is east of Bradley Island.

In 1935, the government began, and in 1937 or 1938 completed, the construction of a lock and dam across the river eastwardly from Bradley Island. The project included an embankment from the north end of that island north-northwest to the Missouri bank east of the mouth of Sandy Slough; also a roadway, on pilings, from about the center of the island west-southwest to the Missouri bank. The result of this work caused the slough waters to pass through the chute under the roadway and to enter the river below Bradley Island.

Plaintiffs' lands are on the bank of this chute, south of the embankment and the roadway and opposite the south part of Bradley Island. Kimberlys' parcel is immediately south of Melloway's. Presley Island was initially a small sand bar, formed in the river before the lock and dam project was started, some 600 or 700 feet south of the (projected) south property line of the Kimberly parcel. It contained 4.61 acres when defendants purchased it from the county in November, 1940. According to defendants' evidence. It contained 17.79 acres in December, 1949, several months before the trial of this case.

A portion of these 17.79 acres, east of plaintiffs' parcels, is the land involved in this suit. The evidence was that the accretions were silt deposited by the slough's waters and the river's floodwaters and, especially, silt resulting from the government's sand pumping and dredging operations. These operations were in the river and in the slough, both during construction and, thereafter, in the maintenance of the lock and dam area and of the slough itself for several miles upstream.

Plaintiff's contention, as stated in their brief, is that 'after the lock and dam project was completed, the water in front of plaintiffs' property, being mostly Sandy Slough, receded and left mud from the shore line on out some 300 feet, and said ground filled in rapidly by silt coming down said slough, especially in the high water of 1946 and 1947. As the water receded, plaintiffs had to put their boats farther out and had to walk across the mud or fill to the water, and this fill or accretion extends the whole length of plaintiffs' property and out therefrom east a distance of said 300 feet or more. An accretion also formed to this pumped island to the south of plaintiffs' property at the same time.'

Plaintiff Adlai Kimberly testified that: he was a commercial fisherman and had lived on his land all his life; that after the dam was built the chute 'began to fill in,' especially after the 1946 and 1947 floods; a portion of the land shown on the West survey (hereinafter mentioned) and claimed by defendants actually accreted to plaintiffs' lands; 'my bank side spread out to the island'; there were accretions to the island, more so to the north, but at the same time there were accretions to plaintiffs' lands extending eastwardly. Plaintiff Melloway, who bought from Clifford Bell in 1946, testified that: since he purchased, the chute 'kept filling in' next to plaintiffs' lands; during 1947 and 1948 it 'built up' about 18 inches. Plaintiffs' witness Bell, who had owned and lived on the Melloway parcel between 1912 and 1946, testified that: the 'new land had commenced to form' around 1932; when he sold to Melloway in 1946, the land extended out 200 feet from the banks on plaintiffs' parcels. Plaintiffs' witness Birkland testified that the land in dispute 'went both ways'; he 'would say that it formed on the bank at the same time it was forming down on the island.'

According to Adlai Kimberly, the sand bar first appeared in 1938, 1939 or 'maybe 1940.' Melloway said that its area was about 3 or 4 acres when he bought his parcel from Bell in 1946. Bell had seen the island 'form, go out and form again'; the last time it commenced to form was in 1932, when it was about an acre in size; the island was higher in 1946 the last time he saw it.

Defendant W. H. Presley had lived in the community since 1920; he first knew of the island's existence in 1932 or 1934; he had seen...