De Lassus v. Faherty

• Decision Date: 29 June 1901
• Citation: 164 Mo. 361,64 S.W. 183
• Court: Missouri Supreme Court
• Parties: DE LASSUS v. FAHERTY.

64 S.W. 183

164 Mo. 361

DE LASSUS v. FAHERTY.

Supreme Court of Missouri, Division No. 1.

June 29, 1901.

ACCRETIONS.

Where accretions form to the mainland, and a creek then cuts through them, the part thus separated from the mainland still belongs to it.

Appeal from circuit court, Perry county; James D. Fox, Judge.

Action by Coran F. De Lassus against William P. Faherty. Judgment for plaintiff. Defendant appeals. Affirmed.

This is an action in ejectment for land in Perry county, and described as the fractional W. ½ of fractional S. W. ¼, section 3, in township No. 35 N., range No. 12 E., and also for certain other land described as follows: "Beginning at the mouth of a branch on the Mississippi river a short distance below the section line between sections 10 and 11 of fractional township 35 north, range 12 east; thence up said branch or main prong thereof to where the same intersects a north and south line passing through the center of section 10; thence north to the Mississippi river; thence down the same to the place of beginning. Also, fractional east half of fractional southwest quarter of fractional section 3, township 35 north, range 12 east. Also, north end of east half of northwest quarter of section 10, township 35 north, range 12 east. The same being the alluvion attached to said described land, and lying between the original and present shore line of said Mississippi river, a more particular description of which is the following, to wit: Beginning at a stone, the northwest corner of said fractional section 3, in township 35 north, range 12 east, as surveyed by authority of the United States government, and described in field notes as being on the bank of the Mississippi river, running thence south, 66 ½ degrees east, down high bank, 13 chains; thence south, 72½ degrees east, down high bank, 13 chains; thence south, 55½ degrees east, 23 chains; thence south, 48½ degrees east, down high bank, 13 chains; thence south, 45 degrees east, down high bank, 20 chains; thence south, 56½ degrees east, down high bank, 10 chains and 50 links; thence south, 52 degrees east, down high bank, 9 chains and 80 links, to a post in a branch; thence north, 50 degrees east, along said branch, 3 chains and 34 links, to where said branch empties into the Cape Cinque Hommes creek; thence north, 54 degrees east, across said creek, 31 chains and 7 links, to a post near the water's edge of the Mississippi river; thence up said river north 25 chains; thence north, 13 degrees east, up said river, 16 chains and 10 links, to a post near the water's edge; thence west 115 chains and 75 links to the place of beginning, — containing 347.19 acres." The ouster is laid as of March 1, 1894. The answer is a general denial. The case was tried by the court, a jury being waived, and resulted in a judgment for the plaintiff for possession, and the monthly rents and profits were fixed at $10. The defendant appealed. The plaintiff claims title by deed from Robert F. Gatewood, dated October 30, 1876, and recorded January 11, 1877, and from Anna Mauer. These grantors were purchasers at the partition sale of the estate of plaintiff's ancestor, C. E. De Lassus, and the plaintiff claims that he and his grantors have been in possession of this land ever since its formation, and of the land to which he claims this land is an accretion for about 50 years. The defendant claims title under a partition sale of the Jones estate made in April, 1884 and claims that the land here in controversy is an accretion to island No. 15 in the Mississippi river, commonly called "Jones Island." The respective contentions are easily understood by reference to diagrams Nos. 1 and 2, made by the plaintiff, and defendant's Exhibit C, which are as follows:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE From these diagrams and this exhibit, which are supported by the testimony of the witnesses, — among them the county surveyor and expert civil engineer, — it appears that at the time of the government survey, in 1818, island No. 15 (Jones Island) was a complete island, an arm or cut-off of the Mississippi river flowing between it and the Missouri shore, while the main channel of the Mississippi river ran between the island and the Illinois shore. At that time Cape Cinque Hommes creek flowed into the Mississippi river at a point between the south end of island No. 15 and the Big Eddy. De Lassus owned the land south of the Big Eddy and south of survey 2,099, extending along the bank of the Mississippi river. Some time after 1828 the cut-off between the island and the Missouri shore began to fill up, and ultimately, many years before this controversy began, it was completely filled up, the island was completely joined to the main land, and for many years there has been a cultivated field on a part of what was formerly the cut-off, and a public road on another part thereof. Afterwards the river began to cut into the bank on the Illinois shore, and land began to form on the Missouri side of the river, opposite the De Lassus property. The plaintiff's testimony tends to show that all the accretions from the Big Eddy down formed from the shore towards the thread of the river, and gradually extended towards the north and east. The formation nearest the shore was of soft mud, and that further away from the shore was sandy. Nearer the shore there were, at intervals, stagnant pools of water, or "swag," as some of the witnesses call it. The Cape Cinque Hommes creek, which formerly emptied into the river at a point north of the Big Eddy, was originally quite a stream of water, in some places as much as 800 feet wide, and in times of high water quite good-sized boats, towing barges, ran up it, and brought out cargoes of wood, etc. Now that creek is at some places not over 2½ to 3 feet wide, and is not in fact navigable except when the whole country is overflowed. What was once Big Eddy is now all filled up. As the accretions formed from the Missouri shore towards the north and east, it interfered with the mouth and course of the creek. The course of the creek has changed several times. Because the outer part of the new formation was sandy, while that nearer the shore was soft mud, the course of the creek was finally changed so that it cut a new channel through the new formation in front of the De Lassus property, and now runs as the course is shown on diagram No. 2. In this way the new formation or accretion in front of the De Lassus property is now divided into two parts by the cutting of...