Mincke v. Skinner

• Decision Date: 31 March 1869
• Parties: GEORGE MINCKE, Respondent, v. JOHN W. SKINNER, Appellant.
• Court: Missouri Supreme Court

44 Mo. 92

GEORGE MINCKE, Respondent,

v.JOHN W. SKINNER, Appellant.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

The facts of the case sufficiently appear in the opinion of the court.

Isaac T. Wise, for appellant.

The court below erred: (I.) In granting the instruction given for plaintiff: 1. It calls for the location of the channel when the pond was exhausted, and then only. 2. It fixes on the year 1851 as the only time when the boundary channel could be ascertained, and makes the survey at that time conclusive as to its location. 3. It makes a survey, not made by a county or United States surveyor, legal evidence. (II.) In rejecting the deposition of Brown.

(I.) 1. One error manifest in the instruction given for the plaintiff is that it treats the exhaustion of the pond as a fact necessary to be found before the channel could become a boundary. The words used in the report and deeds, viz: “The middle of the natural channel of the creek in its natural bed, when the pond is exhausted,” are purely and simply, every one of them, words limiting and defining the boundary, and nothing more. Those words are used in the report of the commissioners about thirty times in bounding about twenty lots. In all, the words “when,” etc., are used in connection with words describing the boundary. The other boundary terms are purely and simply, every one of them, words limiting and defining the boundary. The presumption is strong that the men engaged in this most important work knew what they were about, and that, if they could, they would establish a boundary that would be certain to a certain intent, in every particular. The report shows that they knew where the channel was, and that they intended the boundary line of lots bordering on the pond to be the line of the lowest ground over which the creek ran before the dam was built, and over which it would naturally flow when unobstructed. With this idea in view--viz., that the line of the lowest ground in the bed of the bare creek was to be the boundary--every word will be seen to be apt, fit, appropriate, and indispensable. 2. The boundary thus defined existed in 1832. The words appear to establish a present boundary. If by “when,” etc., it was meant to limit the boundary line to the lowest part of the creek, or, what is the same, to the deepest water of the pond, then the boundary existed in 1832 as much as in 1851 or 1856. If that boundary existed in 1832, the limits and bounds of lots were then accurately and actually fixed and determined at that time and from that time. It was not necessary to have the pond exhausted of water in order to find the boundary. If the boundary was on the line of the deepest water, it was ascertained by measurement, or could be established by witnesses who had seen the channel when the bed of the channel was wholly or in part bare. It is not required by the deeds. On the contrary, the deeds require that the pond shall not be exhausted. It is provided in the very deed to Newman on the record (as in the report) that the pond never should be exhausted, but should be kept up forever to its present hight, for the benefit of the owners of the mill. When parties seek to establish the proposition that an exhaustion is necessary, they should show some direct injunction or authority for it.

2. The court erred in fixing on the year 1851 as the only one in which the boundary channel could be found. If the boundary depends on the time of the exhaustion, then this was a fact to be left to the jury, and not a fact to be ascertained by the court. By selecting this year the court excluded all other times, before or after, from the jury. Expressio unius exclusio alterius. By directing special attention to the channel found in this year, they take from the jury the consideration of any other. The court settles the whole matter, decides that it is the true channel, that there is no objection to it, and no proof of any other. We further object to the action of the court in making the channel of 1851 the boundary, inasmuch as, if the creek was in 1851 a natural stream, in its natural bed, it could not be a fixed boundary--that is, unchangeable. A natural stream is a shifting boundary. “It is by its very nature,” Judge Holmes says, “a shifting, not a fixed, landmark.” (Primm v. Walker, 38 Mo. 94.) If so, the boundary of 1851 would not do for any subsequent time.

T. T. Gantt, for respondent.

BLISS, Judge, delivered the opinion of the court.

This was an action for the possession of a parcel of land situate upon Tayon avenue, in the city of St. Louis, being a part of “Chouteau mill tract,” so called. The plaintiff shows a chain of title to lot 20 of the tract, as apportioned among the heirs of Chouteau, of which he claims the land in controversy to be a part, and the defendant shows title through the same channel to lot 3; and the question is whether the land claimed by the plaintiff belongs to lot 20 or to lot 3. These lots are on opposite sides of, and are separated by, Chouteau's mill pond. The commissioners of partition, in 1832, deeded to plaintiff's grantor said lot 20 by the following description: “Beginning at the intersection of a street eighty feet wide (Tayon avenue) with Chouteau avenue; thence along the east line of said street north 14° 15' east to the middle of the natural channel of the creek when the pond is exhausted; then continue down the creek along the middle of its channel to the intersection of the line between lots 19 and 20; thence along said line to Chouteau avenue, and thence along said avenue five chains to the beginning.” The description of the creek line in defendant's deed is substantially the same: “run to the margin of the pond and continue the...