De Long v. Olsen
|18 December 1901
|DE LONG v. OLSEN ET AL.
|Nebraska Supreme Court
1. The objection that an action which is begun in equity should have been in ejectment, and tried by a jury, must be made before trial. It is too late to raise that question for the first time after the cause has been appealed to this court.
2. A deed which describes land conveyed as “all accretions of lands and parcels of lands belonging to government lot number ten (10) in section number one (1) in township number fifteen (15) north, range number thirteen (13) east; said accretions lying south of the meander line of the state of Nebraska, according to the government survey,”--is not void for uncertainty of description.
3. The law of accretion applies to the Missouri river, notwithstanding that, owing to the swiftness of its current and the softness of its banks, the changes are more rapid and extensive than in most other rivers. Nebraska v. Iowa, 12 Sup. Ct. 396, 143 U. S. 359, 36 L. Ed. 186.
4. Where the official plat of the survey of government lands shows a river as one boundary of a certain lot, a subsequent patent for the lot, describing it by number, and referring to the plat, on which it is marked as containing a certain amount, and deeds describing the lot by number, pass all accretions to the lot up to their respective dates. Jefferies v. Land Co., 10 Sup. Ct. 518, 134 U. S. 178, 33 L. Ed. 872.
Commissioners' opinion. Department No. 2. Appeal from district court, Douglas county; Fawcett, Judge.
Action by Alfred D. De Long, receiver of the East Omaha Land Company, against Alfred Olsen and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.Silas Cobb, for appellants.
Charles J. Greene, for appellee.
This action was begun by this plaintiff in the district court of Douglas county to determine its title and right of possession of certain lands in Douglas county which it alleges are accretions of land and parcels of land to government lots 10 and 11 in section 1, and government lot 1 in section 12, township 15, range 13 E. of the sixth P. M., and to quiet plaintiff's title in the lands, and cancel certain deeds which the defendants have obtained, purporting to convey the same. The petition alleges that on July 5, 1859, the government of the United States patented lots 10 and 11 to one Francis Smith, and in 1863 patented lot 1 to one Byron Reed; that in 1856 the government made a survey and established a meander line of the west bank of the Missouri river across said sections 1 and 12, and that the said meander line formed a boundary on one side of the said lots 10, 11, and 1, and that the bank of the river at that place remained substantially the same until the lots were patented by the government as before stated, and that afterwards, by washings of the river, large accretions were formed to the said lots from year to year, and afterwards, in 1886, this plaintiff, through mesne conveyances from the said Francis Smith and Byron Reed, became the owner of all accretions to the said lots, and that plaintiff, upon obtaining the title to the said accretions, took possession of the same, and has made valuable improvements thereon at an expense of a million dollars, and has held possession uninterruptedly until these defendants wrongfully and forcibly took possession on the 23d day of August, 1889; and that in 1889 one Maddocks took possession of a part of the lands upon said accretions, and afterwards abandoned such possession, and in July, 1889, quitclaimed the land in dispute to the defendant Olsen, who subsequently conveyed certain interests in the land to his codefendants herein, and the defendants are claiming and occupying the lands. The defendants admit the alleged patent from the government and the conveyances alleged in the petition, but deny that the lands claimed and occupied by the defendants are accretions to the said lots 10, 11, and 1, and deny that any accretions passed with the lots by said conveyances. The district court entered a decree in favor of the plaintiff, confirming and quieting its title, and enjoining the defendants from interfering with the land. From this decree the defendants have appealed to this court.
The defendants insist that the plaintiff cannot maintain this action in equity, but its proper remedy, if it has any, would be by suit in ejectment. There is no merit in this contention. Accretions to real estate are not within the record of description of the land to which they accrued. The owner must establish his title by evidence outside of the public record. He must show the changes of the river by which the accretions were formed, and establish the description and limits of the land claimed, and equity affords his only adequate remedy. Moreover, the defendants did not raise this question in their answer, and they cannot raise it for the first time in this court. Snowden v. Tyler, 21 Neb. 199, 31 N. W. 661.
It is insisted that two of the deeds under which the plaintiff claims are void for uncertainty. The description in one of the deeds is as follows: “All accretions of lands and parcels of lands belonging to government lot number ten (10) in section number one (1) in township number fifteen (15) north, range number thirteen (13) east; said accretions lying south of the meander line of the state of Nebraska, according to the government survey.” When this lot was surveyed and platted by the United States government, the Missouri river constituted its southern boundary, and after a time a body of land had been formed against its...
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