Lee v. Conran

• Decision Date: 03 July 1908
• Citation: 111 S.W. 1151,213 Mo. 404
• Parties: LEE v. CONRAN.
• Court: Missouri Supreme Court

111 S.W. 1151

213 Mo. 404

LEE v. CONRAN.

Supreme Court of Missouri, Division No. 1.

July 3, 1908.

1. JURY—RIGHT TO TRIAL BY JURY—LEGAL OR EQUITABLE ISSUES.

An issue whether land had been added to the shore line of plaintiff's land by gradual and imperceptible alluvial deposits, or whether it had been so added to an island, and purchased by defendant, is an issue as to which, by Const. 1875, art. 2, § 28 (Ann. St. 1906, p. 162), the parties are entitled to a trial by jury.

2. APPEAL AND ERROR — REVIEW—QUESTIONS OF FACT.

Where, in an action at law, there is substantial evidence supporting the findings of the court, the Supreme Court will not interfere.

3. WITNESSES — COMPETENCY OF IMPEACHING EVIDENCE.

Where, in an action under Rev. St. 1899, § 650 (Ann. St. 1906, p. 667), to determine and quiet title to land, plaintiff testified that the land in question was accretion to his land, it was error to exclude evidence that, prior to the action, he had offered to purchase the land from the county court, as the same was entitled to be considered as affecting his credibility.

Appeal from Circuit Court, New Madrid County; W. C. Russell, Special Judge.

Action by Albert Lee against M. J. Conran. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

This suit is based upon section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), to determine and quiet title to the lands described in the petition. The petition, in substance, alleges that the plaintiff is the owner of the lands in fee simple; that no one is in possession of same, except that he has, from time to time, cut and removed timber therefrom; that the defendant claims some title, estate, or interest in and to the same, the nature and character of which claim is not known to plaintiff, and for that reason it cannot be described, except that it is adverse and prejudicial to the plaintiff. Omitting the formal parts, the answer is as follows: "Now comes the defendant herein, and for amended answer to plaintiff's petition denies each and every allegation therein contained, not hereinafter admitted, and prays for judgment against plaintiff for costs. Further pleading, defendant denies that plaintiff is now or ever was the owner of the lands set out in plaintiff's petition, but expressly avers that defendant is the owner of said lands, and was at the time of the filing of plaintiff's petition herein, and that plaintiff well knew that fact. Further, defendant admits that plaintiff, at and before the filing of plaintiff's petition herein, was trespassing upon said lands, and did trespass upon said lands, and cut and remove large quantities of valuable timber therefrom. Defendant denies that plaintiff did not know the nature and character of the title, interest, and estate of defendant in and to said land, but expressly avers that plaintiff did well and truly know the exact nature and character of defendant's title, estate, and interest in and to said land. Defendant says that the land described in plaintiff's petition is located in the Mississippi river, on the west or Missouri side of the center of the main channel of said river, and in New Madrid county, Mo.; that it is an island, formed in said river long prior to April 8, 1895; that at and for a long time after its first formation or appearance as an island, it was entirely surrounded by the waters of the river, and that for many years the water flowed between said land and the Missouri bank of the said Mississippi river; that there were accretions to said island, from time to time, until it became a large body of land; that said land is and was on April 8, 1895, such land as is designated in the provisions and grant of article 6, c. 122, Rev. St. Mo. 1899 (Ann. St. 1906, pp. 3947-3950) as an act of the Legislature of Missouri, approved April 8, 1895, entitled "An act to grant certain lake and river bed lands to the counties in which they are located for school purposes" (Laws 1895, p. 207); that under said act of the Legislature said lands became the lands of New Madrid county, Mo., and that prior to the filing of plaintiff's petition herein, defendant purchased said land from said New Madrid county, and obtained from said county a patent therefor from said county, and became the true and legal owner of said lands in fee simple; that all of said facts were and are well known to said plaintiff herein, and that on the ____ day of ____, 1903, after said lands had been by the county court of New Madrid county sold to this defendant, this plaintiff made application to the county court of New Madrid county, Mo., to and for the purchase of said lands from said county, and that by said act and his pleadings herein said plaintiff is now and ought to be estopped from setting up title to said land. Defendant says that he is the true and legal owner of all of said lands in plaintiff's petition described, seised in fee of said lands, and prays judgment. The reply was a general denial of the new matter stated in the answer.

When the case was called for trial, the defendant made formal demand for a trial by jury, which demand was by the court refused, and the defendant duly excepted to the action of the court in so refusing. The witnesses were numerous, and the evidence is voluminous, covering about 150 pages. That for the plaintiff tended to prove that he was the owner, in fee simple, of certain lands situate on the Missouri side of the Mississippi river, in New Madrid county, and that the lands in suit were accretions to his said shore lands. The defendant's evidence tended to prove the allegations of his answer—that the lands in controversy had recently accreted to an island, which had existed in the Mississippi river for several years prior, and that he purchased them from the county of New Madrid, and received a patent therefor, prior to the institution of this suit. The defendant requested, and the court made, a special finding of facts, which, omitting formal parts, is as follows: "Now again come the parties in the above-styled cause, which was, at the September term, 1904, of this court, taken under advisement until this term of court, and the court, being now sufficiently advised what judgment to render, doth find: That at the time of the institution of this suit, and for a great number of years prior thereto, the plaintiff was the owner of the following described real estate, lying and being in the county of New Madrid and state of Missouri, to wit, the northeast quarter of northeast quarter and west half of the northeast quarter and the southwest fractional quarter and 51.54 acres off of the south side of the northwest fractional quarter of section 35, township 21, range 15. The court further finds that the southwest fractional quarter and the 51.54-acre tract in the northwest fractional quarter above described abut on the Missouri shore of the Mississippi river. The court further finds that there has been accreted to said lands, and within the extension of the lines thereof, the following: Commencing at the southeast corner of the northeast quarter of the southwest quarter of section 5, township 21, range 15; thence south to Winchester chute, thence west with said chute to what is known as `Dry Chute'; thence north to a line even with north line of said Albert Lee's farm, which is a dividing line between the northwest quarter of section 5, township 21, range 15; thence east on said line to the northwest corner of the said Albert Lee's farm on Donaldson's Point, in New Madrid county, Mo. The court further finds that said accretion consists of a gradual and imperceptible addition to plaintiff's river front, and that the same was built from the shore, or plaintiff's river front, into the waters...