De Lassus v. Faherty

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

64 S.W. 183

164 Mo. 361

De LASSUS v. FAHERTY, Appellant

Supreme Court of Missouri, First Division

June 29, 1901

Appeal from Perry Circuit Court. -- Hon. James D. Fox, Judge.

Affirmed.

Killian & Greenwell for appellant.

(1) Plaintiff must show title or right of possession in himself before he can disturb defendant's possession, and must recover, if at all, on the strength of his own title, and not on the weakness of that of defendant. Foster v Evans, 51 Mo. 39; West v. Bretelle, 115 Mo 653; Siemers v. Schrader, 14 Mo.App. 346; Dunlap v. Henry, 76 Mo. 106; Parker v. Cassingham, 130 Mo. 348; Chenault v. Quisenberry (Ky.) 57 S.W. 234. (2) The owners of land bordering on navigable waters own only to high-water mark, and the title to the bed of the stream up to high-water mark is in the public. Barney v Keokuk, 94 U.S. 324; Gould on Waters, sec. 39; Snively v. Bowlby, 152 U.S. 1. (3) A body of land surrounded by water in its flow in an ordinary stage is an island, although at some periods of the year the water may not pass. Stover v. Jack, 60 Pa. St. 339. (4) In order for a riparian owner on a navigable stream to become entitled to accretions formed on the bed of such stream, they must be formed gradually and imperceptibly, and must begin at his line at highwater mark. Barney v. Keokuk, 94 U.S. 324; Gould on Waters, sec. 39; Snively v. Bowlby, 152 U.S. 1; Adams v. St. Louis, 32 Mo. 25; Benson v. Morrow, 61 Mo. 345; Cooley v. Golden, 117 Mo. 33; R. S. 1899, art. 6, ch. 122; Rees v. McDaniel, 115 Mo. 145; Perkins v. Adams, 132 Mo. 131; Cox v. Arnold, 129 Mo. 337; Crandall v. Smith, 134 Mo. 633; Railroad v. Ramsey (Ark.) 13 S.W. 931; Wallace v. Driver (Ark.) 33 S.W. 641. (5) In all cases where a non-navigable stream becomes the boundary of a tract of land, the boundary of the land changes as the thread of such stream changes by gradual and imperceptible accretions, the law of accretions and relictions being the same as to navigable and non-navigable streams, except that in the case of non-navigable streams the thread of the stream is the boundary line, the ownership of the bed being in the adjacent owners, while in navigable streams high-water mark is the boundary line, the ownership of the bed being in the public. Benson v. Morrow, 61 Mo. 350; Primm v. Walker, 38 Mo. 98, 99; Gould on Waters, sec. 159.

Edward Robb for respondent.

(1) This court will assume that the rulings of the trial court were correct, until the contrary be made to appear; and when it tries a case like this, sitting as a jury, the appellate court will not weigh the evidence and determine whether the finding of the trial court was correct on the evidence. Minton v. Steele, 125 Mo. 190; Fahy v. Gordon, 133 Mo. 426; Bray v. Kremp, 113 Mo. 552; Rea v. Ferguson, 72 Mo. 225; In an action of ejectment, a finding of the facts has the effect of a special verdict. Freeman v. Moffit, 135 Mo. 269. The weight of the evidence is for the trial court. Hahn v. Cotton, 136 Mo. 216. The same is true where the questions of adverse possession is raised. Brown v. Brown, 106 Mo. 611. And where there are disputed boundary lines. Grant v. Moore, 128 Mo. 43. Where there are controverted facts and the evidence is contradictory, the appellate court will consider that the facts were correctly found by the trial court. Waddell v. Williams, 50 Mo. 216; Hamilton v. Boggess, 63 Mo. 233. If there is any legal evidence upholding the finding, the appellate court will not reverse. Tucker v. Railroad, 54 Mo. 177. (2) The Missouri and Mississippi rivers are in law navigable streams and a riparian proprietor owns to the water's edge, and is entitled in addition to such lands as may be formed to it by gradual and imperceptible accretions or relictions. Benson v. Morrow, 61 Mo. 345; Rees v. McDaniel, 115 Mo. 145; Cooley v. Golden, 117 Mo. 33; Crandall v. Allen, 118 Mo. 403; Naylor v. Cox, 114 Mo. 232; Cox v. Arnold, 129 Mo. 337; St. Louis v. Railroad, 114 Mo. 13; Buse v. Russell, 86 Mo. 209; Railroad v. Stock Yards, 120 Mo. 541; St. Louis v. Lemp, 93 Mo. 477; Minton v. Steele, 125 Mo. 181; Perkins v. Adams, 132 Mo. 139. (3) "Two riparian owners are entitled to share in the accretions in the proportion that the river front of each bears to the entire river front." Benne v. Miller, 149 Mo. 228. (4) "The term high-water and low-water mark can hardly be regarded as applicable to the Missouri river." Benson v. Morrow, 61 Mo. 351.

OPINION

MARSHALL, J.

This is an action in ejectment for land in Perry county and described as the fractional west half of fractional southwest quarter of section 3, in township 35 north, range 12 east, 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 66.5 degrees east, down high bank, 13 chains; thence south 72.5 degrees east, down high bank, 13 chains, thence south 55.5 degrees east, 23 chains; thence 48.5 degrees east, down high bank, 13 chains; thence south 45 degrees east, down high bank, 20 chains; thence south 56.5 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 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 ten dollars. 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. DeLassus, 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 fifty 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's 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:

[SEE ILLUSTRATION IN ORIGINAL]

[SEE ILLUSTRATION IN ORIGINAL]

Defendant's Exhibit C.

[SEE ILLUSTRATION IN ORIGINAL]

From these diagrams and this exhibit, which are supported by the testimony of the witnesses, among them the county surveyor, and expert civil engineers, it appears that at the time of the government survey in 1818, Island No. 15 (Jones's 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. DeLassus owned the land south of the Big Eddy and south of Survey 2099, extending along the bank of the Mississippi river. Sometime 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 mainland, 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 DeLassus 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 eight hundred feet wide, and in times of high water...