Miller v. Lloyd
| Decision Date | 04 June 1918 |
| Parties | E. H. MILLER et al. v. CORDELIA LLOYD et al.; JAMES D. BUFTON et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court. -- Hon. Frank P. Divelbiss, Judge.
Affirmed.
Martin E. Lawson, Ralph Hughes and John C. Grover for appellants.
(1) A patent to land from the United States Government conveys title to the land only from the date of the issuance of the patent. Bagnell v. Broderick, 13 Peters, 450; Monson v. Simonson, 231 U.S. 347; Langdon v Sherwood, 124 U.S. 83; Redfield v. Parks, 132 U.S. 245; Texas P. R. Co. v. Smith, 159 U.S. 68. (2) The rights of the parties to an action must be determined according to the facts existing at the time the action was commenced. The plaintiff must, therefore, recover, if at all according to the status of his rights at the time of the commencement of the action. Tobin v. McCann, 17 Mo.App. 481; Weinwick v. Bender, 33 Mo. 80; Worth v. Springfield, 22 Mo.App. 17; American Bonding Co. v. Gibson Co., 145 F. 871. (3). Accretions are not saltatory, but must gradually and imperceptibly form themselves to the mainland, and the existence of an intermediate stream of water between the accretions and the mainland makes it impossible for the accretions to attach to the mainland. DeLassus v. Faherty, 164 Mo. 361; Crandall v. Smith, 134 Mo. 640; 1 Farnham on Waters p. 328, par. 71a; Gould on Waters (3 Ed.), 313; Kinney on Irrigation and Water Rights, 929.
Simrall & Simrall and Theodore Emerson for respondents.
(1) There is nothing in the evidence involving the "saltatory doctrine of accretions" in this case, but this evidence shows that the creek flowed over the accretions, instead of the accretions jumping the creek, and the court properly refused the instruction asked by appellants. (2) That said instruction was properly refused because it would have deprived plaintiffs and other respondents of all their frontage and given some to an adjoining riparian owner, a result never allowed. Crandall v. Allen, 118 Mo. 403; see also Deerfield v. Arms, 48 Am. Dec. 277, 17 Pick. 41; Gray v. Deluce, 5 Cush. 9; Thornton v. Grant, 10 R. I. 487; Kehr v. Snyder, 114 Ill. 313; 1 Am. & Eng. Ency. Law (2 Ed.), p. 477; 29 Cyc. 350 (note); Manchester v. Iron Works, 13 R. I. 355. (3) The judgment correctly divides the accretions among the contiguous riparian owners, by dividing the new shore line in proportion to their respective rights in the old shore line and drawing lines from the points of division thus made, to the points at which the old shore line is intersected by the boundaries separating the proprietors. 29 Cyc. 353.
This is a suit to quiet title. [Sec 2535, R. S. 1909.] The dispute arises over accretions, and the attached plat presents the situation.
[SEE PLAT IN ORIGINAL]
It is admitted, subject to an objection to certain patents, that certain of the respondents own those portions of sections 30 and 31 which fronted on the old river bank as shown by the plat. It is also admitted that appellant Bufton owns those parts of sections 1 and 36, as shown by the plat, which fronted on the old river bank. That bank formerly extended from X through Y, A, B and F to Z. The new river front extends from X through D, C and E to Z. The accretions lie within these lines.
I. The suit was begun in 1912. On the trial patents issued in 1913 and 1914 were offered. These patents cover the larger part of the lands claimed by respondents. We understand it to be admitted that the patentees are persons whose title respondents have acquired by mesne conveyances. The point made by appellants is that title had not emanated from the Government until the patents issued; that these did not issue until after suit brought; therefore, that the suit cannot be maintained. The patents are not in the record. Their recitals are binding on the Government and patentee. They may have shown the patents were issued on entries properly made and prior to the institution of the suit. In aid of the judgment, the patents being before the trial court and not before us, we so assume. Such entry vests the equitable title in the entryman and such title is sufficient to support a suit under Section 2535.
II. Formerly, Big Shoal Creek flowed into the river at the point marked "Y" on the plat. The evidence tends to show that in seasons of high water accretions would form along the old river bank, near and in front of the mouth of this creek and that the creek itself would be filled with silt for some distance back of the mouth; that as the high waters receded the creek would force its way through these accumulations; sometimes in a short time and sometimes several weeks or months after the waters of the river receded; that the deposits were made from the river bank outward, in the creek and on both sides of it. The trial court found these to be the true facts. There was also evidence that the creek was always a running stream, except when and to the extent high water covered it; that at times it was almost inconsiderable in width and depth near the mouth, but that...
To continue reading
Request your trial