McFerrin v. Wiltse
| Decision Date | 23 June 1930 |
| Docket Number | 39733 |
| Citation | 231 N.W. 438,210 Iowa 627 |
| Parties | E. E. MCFERRIN, Appellee, v. GEORGE WILTSE et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Harrison District Court.--H. J. MANTZ, Judge.
Action in equity against several defendants, to quiet title to real estate. Decree in favor of plaintiff, as prayed. The defendants George and David Wiltse alone appeal.
Reversed.
C. W Kellogg, for appellants.
R. J Organ, for appellee.
STEVENS J. MORLING, C. J., and FAVILLE, DE GRAFF, ALBERT, and WAGNER, JJ., concur.
The respective parties to this appeal each assert title to some portion of the land in controversy, which is fully described in the pleadings. There is a dispute as to whether it is located in Washington County, Nebraska, or Harrison County, Iowa. All of the land in controversy is described as being located in Township 78, Range 46.
Appellants rely upon two propositions for reversal: (1) that the disputed land is all located in Washington County, Nebraska, and that, therefore, the district court of Harrison County did not have jurisdiction of the subject-matter; and (2) that appellee wholly failed to prove his alleged title to any portion of the land claimed by appellants. We shall, for the purpose of this case only, and without so holding, assume that the land, which is on the east side of the Missouri River, is in Harrison County.
The second proposition of appellants may not, however, be thus summarily disposed of. All of the land in controversy and in the immediate vicinity is Missouri River bottom land, situated near the river, and formerly a part of the river bed. At least, the record so indicates. Originally, the land in question was unoccupied Missouri bottom land, largely covered with willows and other timber usually to be found along the river.
It appears that, in August, 1918, appellee caused a survey of all of the lands which he claimed to own in the vicinity, including the land in question, which he claims as accretions, to be made, and a plat thereof to be filed in the office of the county auditor of Harrison County. The plat includes large tracts of land north of that in controversy. Prior to 1918, and for two or three years, appellee paid taxes in Washington County, Nebraska, on the land in controversy. Since the making of the survey and the recording of the plat, he has paid taxes thereon in Harrison County.
Appellee claims title to the land as accretions to Lot 1 of Section 1 described in his petition, and also asserts title thereto by adverse possession, under color of title and claim of right. In order for him to claim title to the land as accretions, the burden was on him to show that the land was formed slowly, gradually, and imperceptibly to the shore line, as the water in the river receded. Coulthard v. Stevens, 84 Iowa 241, 50 N.W. 983; Noyes v. Collins, 92 Iowa 566, 61 N.W. 250; Holman v. Hodges, 112 Iowa 714, 84 N.W. 950; East Omaha Land Co. v. Hanson, 117 Iowa 96, 90 N.W. 705; Payne v. Hall, 192 Iowa 780, 185 N.W. 912.
The most that the evidence shows in this case is that sand bars formed in the bed of the stream beyond high-water mark, which became visible as the water of the river receded. We find nothing in the record from which the conclusion may be drawn that Lot 1 of Section 1 was formed by accretion to the shore line of appellee's tract, nor does the record disclose the manner in which the land in dispute was formed. In other words, the evidence does not disclose whether the tract was formed by slow, gradual, and imperceptible additions to Lot 1 or whether it began as sand bars, attached only to the river bed. There is a complete absence of evidence at this point, showing that Lot 1 of Section 1, or the land in controversy, became so attached to land owned by him, in the form of accretions. Appellee does not claim color of title by grant of any kind. We assume that color of title is claimed on the theory that the land in dispute was formed as accretions commencing at his shore line, and that his title to such shore line is sufficient to constitute color of title thereto. If the land was in fact formed as accretions to his shore line, he became the owner thereof, and distinct color of title thereto is not necessary. If he failed, however, to prove title to the land as accretions, the decree below can be sustained only if appellee was in continuous adverse possession thereof for more than ten years under claim of right, as asserted by him.
It appears from the evidence that the Missouri River at one time flowed to the north, and across Lots 11 and 12, owned by appellee, and not involved in this action, and that it has now changed its course to the west, and that it has receded a considerable distance from its former course. After the river receded to the west, or away from the land in controversy, there was left a lake or slough, known and referred to in the evidence as Boyd Lake. The water from this lake has since so far disappeared that the bed at some seasons of the year...
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