Kitteridge v. Ritter

• Decision Date: 09 April 1915
• Docket Number: No. 30004.,30004.
• Citation: 172 Iowa 55,151 N.W. 1097
• Parties: KITTERIDGE v. RITTER.
• Court: Iowa Supreme Court

172 Iowa 55

151 N.W. 1097

KITTERIDGE

v.RITTER.

No. 30004.

Supreme Court of Iowa.

April 9, 1915.

Appeal from District Court, Harrison County; A. B. Thornell, Judge.

Action to quiet title and for a writ of possession. There was a decree for the plaintiff, and the defendant appeals. Affirmed.Cochran & Barrett, of Logan, for appellant.

Roadifer & Roadifer, of Logan, and J. S. Dewell, of Missouri Valley, for appellee.

EVANS, J.

The lands involved are located upon the bottoms of the Missouri river. The plaintiff claims the lands as accretions to other lands included in the original government survey, and now owned by plaintiff as alleged. The defendant claims the lands under alleged tax title in pursuance of a purchase at tax sale in Washington county, Neb. The controlling question in the case is whether these lands are a part of Washington county, Neb., or whether they are a part of Harrison county, Iowa. If the former, the defendant should prevail; if the latter, the plaintiff should prevail. The parties present no material dispute over legal propositions. The controversy is one of fact.

[1][2] The Missouri river is concededly a navigable stream. This river is the original boundary line between Iowa and Nebraska. The jurisdiction of each state extended to the middle thread of the stream. Riparian owners on either side held title to the water's edge. It is the law that, if by gradual and slow process the channel of the stream be changed, the boundaries of the respective states will change accordingly; that is to say, the stream will still be deemed the boundary between the states notwithstanding the change in the channel. On the other hand, if there be some sudden avulsion of the stream whereby it suddenly changes its channel in such a way as to cut off a body of land, and the body of land so detached is capable of being identified as such, then the boundary lines either of the respective states or of riparian property owners will not be changed by such avulsion or cut-off.

The land in dispute herein is concededly on the east side of the Missouri river. At the time of the original government survey in the 50's much of this land, and perhaps all of it, was not existent in Iowa. Its location under the sky--that is to say, its points of latitude and longitude--were within the boundaries of Nebraska. The question therefore is whether this land was thrown up as accretion on the east side of the river by the gradual recession of the river towards the west, or whether there was a sudden avulsion of the river whereby the body of land upon this location was cut off from the state of Nebraska in such a manner that it can be identified as a body of land existing in Nebraska before such avulsion. If the latter be the fact, then such detached body of land would still be deemed within the boundaries of Nebraska. The former owner's title thereto would still continue. In so far as such detached body of land extended to the water's edge upon the eastern bank of the river, it would become riparian, and future accretions would attach thereto.

The contention for the defendant is that this is what occurred. Turning now to the salient facts, the lands in dispute (if in Iowa) are in Cincinnati township, Harrison county. They are in section 5, 6, and 7. Cincinnati township extends to the Missouri river. Northerly and westerly from Cincinnati township is Clay township; that is to say, Clay township is partly coterminous with the north line of Cincinnati township. The east line of Cincinnati township is 3 1/2 miles further east than the east line of Clay township. Clay township is also upon the river. Previous cases which have been before us, and which will be referred to later, involved lands in Clay township. When the original government survey was made, the east meander line of the river extended in a southwesterly course across the northwestern part of section 5. It cut off the greater part of section 6, so as to leave a triangle in the southeast part thereof. It also cut off a part of section 7. The survey laid off certain lots upon such meander line as follows: 1, 2, 3, 5, 6, 7, and 8 in section 5; 1, 2, and 3 in section 6; 1 and 2 in section 7. The plaintiff exhibits paper title to lots 2, 3, 7, and 8 in section 5, and to all the lots named in sections 6 and 7. The testimony for plaintiff, however, shows that after the government survey the river gradually pushed east for some distance beyond these lots, and they were all eaten up in the process; that thereafter the river receded toward the south and west, and rebuilt the land upon the same locations, and that it continued to recede to its present position, leaving accretions, of course, behind every recession.

We may note here that the question of whether the owner of the original lots, after their destruction, had any right to assert ownership in the new ground later appearing upon the same location, or whether such new ground should be deemed accretion to the riparian lands upon the uttermost eastern bank--this question is not in the case. It is enough for the purpose of this case that he did assert such ownership and went into possession and continued his possession for 20 years, and his right was never challenged by such riparian owners. It also appears that, as between the riparian owners, they have agreed among themselves upon a division of the accretions, so that we have no controversy of that kind before us.

[3][4] On behalf of defendant it is claimed that in 1881 there was a sudden avulsion whereby the channel of the river was changed so as to cut off a body of land which had theretofore been upon the west side of the river, and that the land in question is a part of such detached body. We have only to do, therefore, with the weight of the evidence as bearing upon these two contentions. There are two or three important presumptions which aid the plaintiff greatly, and which impose a considerable burden upon the defendant: (1) The land, being concededly on the east side of the Missouri river, is presumed to be in Iowa. (2) Inasmuch as the land concededly lies between the riparian lots as surveyed by the government and the present east bank of the Missouri river, it is presumed to be the result of accretion, and not of avulsion. Coulthard v. McIntosh, 143 Iowa, 389, 122 N. W. 233;Coulthard v. Stevens, 84 Iowa, 241, 50 N. W. 983, 35 Am. St. Rep. 304;Jefferis v. East Omaha Land Co., 134 U. S. 178, 10 Sup. Ct. 518, 33 L. Ed. 872;Mitchell v. Smale, 140 U. S. 406, 11 Sup. Ct. 819, 840, 35 L. Ed. 442;Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 838, 35 L. Ed. 428;Nebraska v. Iowa, 145 U. S. 519, 12 Sup. Ct. 976, 36 L. Ed. 798;State of Iowa v. Illinois, 147 U. S. 1, 13 Sup. Ct....