Kunkel v. Griffith, No. 27994.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Gantt
• Citation: 29 S.W.2d 64
• Decision Date: 03 June 1930
• Docket Number: No. 27994.
• Parties: ED KUNKEL v. CHARLES B. GRIFFITH, Appellant.

29 S.W.2d 64 ED KUNKEL
v.
CHARLES B. GRIFFITH, Appellant. No. 27994. Supreme Court of Missouri, Division One. June 3, 1930.

[29 S.W.2d 65]

Appeal from Buchanan Circuit Court. — Hon. L.A. Vories, Judge.

AFFIRMED.

Culver, Phillip & Voorhees, Randolph & Randolph and Frank Petree for appellant.

(1) The court erred in refusing the demurrer to the evidence and in giving plaintiff's Instruction 1. The plaintiff's sole claim to title is under a patent from Holt County. Manifestly, if Holt County had no title to convey, plaintiff acquired no interest in the land and the judgment must be reversed. To show title in the county, plaintiff introduced evidence to prove that the land in controversy was a part of an island that was formed west of the main land of Holt County by the memorable flood of 1881 in the Missouri River. The plaintiff's theory, in which the trial court concurred, is that the title to the island vested in the county, by virtue of Sec. 7029, R.S. 1919. The court refused the demurrer and gave plaintiff's instruction, that, if the land in question was a part of an island formed in the Missouri River, then the verdict should be for the plaintiff "regardless of every other fact and circumstance in the case." It was not enough that plaintiff should prove that the land was a part of an island formed in the Missouri River. The State did not and could not grant to any county the title to all islands formed in the Missouri River. The State could and did grant to the counties only the islands "belonging to the State." Sec. 7029. The State could not do the impossible; that is, it could not convey the title to lands which it did not own. It was, therefore incumbent upon the plaintiff to prove, not only that the land in controversy was part of the island formed in the Missouri River, but also that the island was located in the State and in Holt County, and was such land as belonged to the state. Because the plaintiff failed to introduce any evidence to prove that essential fact, the court erred in refusing the demurrer; and because plaintiff's instruction did not require the jury to find that essential fact, the court erred in giving it. State ex inf. Mansur v. Hoffman, 2 S.W. (2d) 582; Nothstine v. Feldman, 8 S.W. (2d) 912; Missouri v. Nebraska, 196 U.S. 23, 49 L. Ed. 372, 881; Nebraska v. Iowa, 143 U.S. 359, 36 L. Ed. 186; Reese v. McDaniels, 115 Mo. 151; Buttenuth v. Bridge Co., 123 Ill. 535. (2) There being no evidence to show that any part of the lands in controversy are situated east or northeast of the middle of the main channel of the Missouri River as it ran in 1881, before the sudden change, the court erred in refusing defendant's Instruction B, which simply declares that if the main channel before the flood of 1881 ran next to the high bank, and during the flood the main channel suddenly changed its course, and that there was an arm or branch of the river which continued to run near to the high bank and that the sand bar was formed in the newly made main channel or between said newly made channel and the arm of the river which continued to run next to the high bank, then the plaintiff could not recover, even though the land so formed was an island. The burden was upon the plaintiff to prove not only that the land formed was a part of an island, but also that the portion of the island within the boundaries of the land in controversy is in the State of Missouri. (3) The plaintiff, the privy in estate of the county of Holt, is estopped to claim title to the land since the county assessed them and collected the taxes from the defendant. Adams v. Railroad Co., 39 Iowa, 507; Simpson v. Stoddard County, 173 Mo. 465. (4) The court erred in giving plaintiff's instruction telling the jury that the opinions of the witnesses as experts are merely advisory and not binding on the jury. Spencer v. Railroad Co., 297 S.W. 357. (5) The court erred in refusing defendant's Instruction 1. The defendant was entitled to have the jury instructed that if they were unable to determine from the evidence whether the land in controversy formed as an island or as accreted land as defined by the court's instructions, then the plaintiff had not made a case. (6) Plaintiff's instruction number 3 is erroneous because it tells the jury as a matter of law that the preponderance or greater weight of the evidence did not mean the greater number of witnesses. The instruction should have read that by the preponderance or greater weight of the evidence is not necessarily meant the greater number of witnesses, etc. By that instruction, as given, the jury were instructed that in determining the preponderance of the evidence, the number of witnesses had nothing to do with the matter. (7) The court erred in permitting plaintiff's witness, Mrs. Hurst, to testify to the mental condition of her husband. Before his deposition was offered in evidence by the defendant, and while the plaintiff was introducing its testimony, the plaintiff was permitted to impeach his mental capacity.

Mayer, Conkling & Sprague for respondent.

(1) A suit to quiet title to land, wherein plaintiff claims to be absolute owner of such land as patentee from a county, to which no equitable issue as to ownership is tendered by the defense, is purely an action at law. Dumm v. Cole County, 315 Mo. 568; Cullen v. Atchison County, 268 S.W. 95. Defendant's answer raised no equitable defense. Hecker v. Bleish, 319 Mo. 166. This being an action at law, the verdict of the jury is conclusive on appeal, if there is substantial evidence to support it, and absent, also, any reversible error committed during the trial. Biondi v. Coal & Coke Co., 9 S.W. (2d) 598; Cullen v. Atchison County, 268 S.W. (Mo.) 95; Dumm v. Cole County, 315 Mo. 574; McDaniels v. Cutburth, 270 S.W. (Mo.) 357; Lee v. Conran, 213 Mo. 404; Brecker v. Fillingham, 209 Mo. 578. (2) Defendant in his answer admitted that the land in controversy lies in Missouri, hence plaintiff was not required to prove that fact. Tatum v. St. Louis, 125 Mo. 647; Grott v. Johnson Shoe Co., 2 S.W. (2d) 789; Bank v. Ragsdale, 158 Mo. 681; McKenzie v. Rys. Co., 216 Mo. 19; Pennington v. Rys. Co., 284 Mo. 1. No issue as to the location of the land in controversy having been tendered, either by the pleadings or the evidence, and the defendant having tried his case below on the theory that the land was and is in Missouri, it must be tried here on the same theory, and the defendant is estopped by his answer to contend now that the land is in Nebraska, and such an issue is not before the court on this appeal. Doebbeling v. Hall, 310 Mo. 204, 227; Grott v. Shoe Co., 2 S.W. (2d) 789; Ruckert v. Moore, 295 S.W. (Mo.) 800. (3) Holt County was not estopped from asserting title to the land by reason of the fact that county officers assessed the land and collected taxes thereon. Hecker v. Bleish, 319 Mo. 172; Senter v. Lumber Co., 255 Mo. 607; Hooke v. Chitwood, 127 Mo. 376. (4) Plaintiff's Instruction 1, was proper. If all of the land which formerly stood, at the time of the government survey of 1839, where the land in controversy now stands, was wholly washed away by the Missouri River, and the land in controversy was re-made in the Missouri River and took form as an island, plaintiff has the legal...