McBaine v. Johnson

• Decision Date: 14 March 1900
• Citation: 155 Mo. 191,55 S.W. 1031
• Parties: McBAINE v. JOHNSON.
• Court: Missouri Supreme Court

55 S.W. 1031

155 Mo. 191

McBAINE v. JOHNSON.

Supreme Court of Missouri, Division No. 1.

March 14, 1900.

WATERS AND WATER COURSES—ACCRETIONS— RIPARIAN OWNERS—EJECTMENT—TRIAL—INSTRUCTIONS — SPECIAL FINDINGS — APPEAL AND ERROR.

1. An island in the Missouri river, on the north side of the channel, formed by the gradual recession of the river towards the south, becomes the property of the riparian owner on the north shore, though at the time of his original patent from the United States for the land on the north shore the land on which the island in question formed was a part of the south shore.

2. In ejectment by a riparian owner to recover possession of an island lying in a river, the court stated in a special finding that the island was an accretion, and therefore belonged to the riparian owner. In a subsequent finding the court stated that, if the land was not an accretion, then the plaintiff was entitled to the island by virtue of a patent from the county. Held, that the two findings were not inconsistent, since the first found a fact, and the second merely declared the law if the fact were otherwise, and the result in both cases was the same.

3. In ejectment by a riparian owner to recover possession of an island, where plaintiff claimed title to the land both as an accretion and on a patent from the county in which the island lay, instructions predicating a right of recovery in case the island was an accretion on plaintiff's title as riparian owner, or, if it was not an accretion, then on the patent from the county, were not erroneous, as being inconsistent.

4. Since the dividing line between two counties separated by a river is the main channel of the river, and such dividing line changes with the gradual and imperceptible changes of the channel, an island formed by accretion in a river, on the north side of the main channel, lies within the county bordering on the north side, though the land on which it formed was originally on the south side of the channel.

5. It was not error to refuse a requested instruction which was covered by the instructions given.

6. In ejectment for possession of an island, it was not error to refuse an instruction that the land was not situated in B. county, where the court had found specially that it was situated in B. county.

7. In ejectment for possession of an island, it was not error to refuse to instruct that there was no evidence that plaintiff had actual and continuous possession of the island for 10 years, when plaintiff was not relying upon title by limitation, but simply asserting the doctrine of prior possession, accompanied by acts of ownership, to defeat defendant's possession as a trespasser.

8. In ejectment to recover an island near the north shore of the Missouri river, on the ground of its being an accretion to plaintiff's riparian property, where the undisputed evidence showed that the channel of the river had been south of the island for many years, but that during a freshet a navigable creek temporarily separated the island from plaintiff's riparian property, it was not error to modify an instruction that, if there was a navigable channel between the island and plaintiff's property, plaintiff could not recover by making the instruction read that if there was, "and continually had been," a navigable channel "of the Missouri" river between the island and plaintiff's property, he could not recover.

Appeal from circuit court, Boone county; John A. Hockaday, Judge.

Ejectment by Turner McBaine against James L. Johnson. From a judgment for plaintiff, defendant appeals. Affirmed.

Odon Guitar, Jas. C. Gillespy, W. H. Truitt, Jr., and F. M. Brown, for appellant. Ev. M. Bass and W. M. Williams, for respondent.

MARSHALL, J.

This is an action of ejectment to recover possession of 65.67 acres of land in Boone county. The plaintiff bases his right to recover upon three grounds, to wit: First, that the land is an accretion to land patented to William Smith, from whom he acquired title by mesne conveyances; second, that the land is an island in the Missouri river, and that he acquired title thereto by a patent from Boone county under the act of 1895; and, third, prior possession, accompanied by acts of ownership, which is good as against the defendant, who is a mere squatter or trespasser. The answer is a general denial. The case was tried by the court without the aid of a jury, and at the request of the defendant the trial court made a special finding of facts as follows: "First. That the land in controversy lies north of the main channel of the Missouri river, and is in Boone county. Second. That said land is an accretion to the main shore of the Missouri river, and the lands contiguous thereto now owned by plaintiff, through a chain of title beginning with William Smith, the original patentee from the United States government. Third. That the conveyance of Boone county to plaintiff vests him with the title to the disputed land, if the same was not an accretion to the main shore, but was formed as an island in the bed of the river, by the recession of its waters towards its south bank." At the request of the plaintiff the court gave the following instructions: "(1) If the court shall find from the evidence that the plaintiff's grantors, Marion Gilmore and Robert Carter, the parties under whom he claims, were in possession of the land described in the petition, using it as a pasture, and exercising acts of ownership over it, and claiming title thereto as an accretion to their land, and it was an accretion to their land, and that afterwards the defendant, without the consent of plaintiff's grantors, and without any claim of title, entered upon said land, and was at the time of the institution of this suit, and still is, in possession of same, then plaintiff is entitled to recover upon said prior possession and title of his grantors, and the court will so find. (2) If the court shall find from the evidence that at the time of the institution of this suit the defendant was, and still is, in possession of the land described in the petition, and shall further find that said land in controversy was, by the action of the Missouri river in gradually abandoning its old channel and running further south, imperceptibly and from time to time added to the north bank of the Missouri river, against the land patented by the United States to Wm. Smith, and the accretions thereto, then the deeds read in evidence passed the title to the land described in the petition to plaintiff, and the finding must be in his favor. (3) If the court shall find from the evidence that the defendant was at the time of the institution of this suit, and still is, in possession of the land described in the petition, and that said land was not formed to and against the north bank of the Missouri river, but in the former bed of said river, and not connected with either bank, but was formed by the river abandoning its old bed, and its waters receding therefrom and running south of its former channel, leaving this land sued for in said abandoned bed of the river, then the deed or patent from Boone county to the plaintiff passed to him the legal title to said land, and the finding must be in his favor." At the request of the defendant the court instructed the jury as follows: "(4) If the land in controversy and the lands of plaintiff's grantors were surveyed and platted by the government in 1817, and subdivided into separate tracts, and situated on opposite shores of the Missouri river, and have continued so separated by a navigable channel of said river up to the date of bringing this suit, then the ownership and possession of said lands claimed by plaintiff's grantors on the north shore of said river could constitute no color of title to the lands in question, and plaintiff cannot recover in this action under a claim of constructive possession in plaintiff and his grantors. (5) The land in question was not formed by the recession and abandonment by the waters of the old bed of the Missouri river, and the county of Boone has acquired no title thereto, and has not and could not convey any title to the plaintiff. (6) The state of Missouri has no title to the land in question, and has conveyed none to the county of Boone. (7) The federal government has no title to the land in question, and has conveyed none to the state of Missouri. (8) There was no testimony adduced in this cause tending to show title in the government to the land in question after the same was surveyed and patented. (9) There is no testimony in this cause tending to show title in the state of Missouri to the land in controversy, derived from the federal government." The court refused to give an instruction in the nature of a demurrer to the evidence, and also refused to give four other instructions asked by defendant, numbered 2, 3, 13, and 14. Those numbered 2 and 13 were exact duplicates, as were also those numbered 3 and 14. But instead thereof the court, of its own motion, gave two instructions on the same questions raised by the instructions refused, and which differed from those asked by the defendant only as to the portions embraced in the brackets and italicized, as follows: "(2) If it is shown by the evidence that there is and has been [continuously] since the land in question was surveyed, in 1817, a navigable slough or channel [of the Missouri river] between the land claimed and occupied by plaintiff's grantors, and the land in controversy, then plaintiff cannot recover said land, or any part thereof, as an accretion to the lands of plaintiff's grantors. (3) The ownership and possession by Gilmore and Carter, plaintiff's grantors, of the land on the north shore of the Missouri river, opposite the land in question, if there is [and has continuously been] a navigable slough or channel of the Missouri river between said shore land and the land in question, constituted no possession, actual or constructive, in said Gilmore...