Minton v. Steele

• Decision Date: 26 November 1894
• Citation: 125 Mo. 181,28 S.W. 746
• Parties: MINTON v. STEELE et al.
• Court: Missouri Supreme Court

28 S.W. 746

125 Mo. 181

MINTON v. STEELE et al.

Supreme Court of Missouri, Division No. 1.

November 26, 1894.

RIPARIAN RIGHTS — WASHING AWAY OF BANK — ACCRETION — EJECTMENT — TENANTS IN COMMON.

1. Where, in an action of ejectment, there is substantial evidence to support a finding, the question of its credibility is for the trial court.

2. Where one owns land along a river, and

part of it is washed away, and land again forms within his original land lines, the land so formed belongs to him, though a slough remains between the main land and the new formation.

3. Accretions to such formation also belong to the owner whose land was washed away.

4. If the slough is gradually filled by alluvial deposits, the fact that land is not first made on the sides of the slough is not material to the title of the adjacent owner, the deposits ultimately blending with the adjacent land by the action of the river.

5. Where, on a trial in ejectment, defendant claims that plaintiff has no title, he cannot complain because the trial court fails to determine whether the parties to the action are tenants in common.

6. Rev. St. 1889, § 4634, provides that, where ejectment is brought by a tenant in common against his cotenant, plaintiff must show that defendant actually ousted him, or did some act amounting to a total denial of his right as such cotenant. Held, that where defendant, before suit, refused to recognize or acknowledge any title in plaintiff, and denied in his answer that plaintiff had any title, there was a sufficient ouster to sustain the suit.

Appeal from circuit court, Holt county; C. A. Anthony, Judge.

Action of ejectment by Henry Minton against Frank Steele, John C. Hinkle, and others. Judgment was rendered for plaintiff, and defendant Hinkle appeals. Affirmed.

L. R. Knowles and Kelley & Kelley, for appellant. H. T. Alkire and T. C. Dungan, for respondent.

BARCLAY, J.

Plaintiff sued the original defendants in ejectment, December 20, 1890, to recover possession of a piece of land in Holt county. The petition follows the statutory form (Rev. St. 1889, § 4631), but proceeds further to show the nature of plaintiff's claim to possession. It alleges that plaintiff owns a tract of land adjoining that in controversy. It particularly describes both tracts, and charges that plaintiff's claim to possession of the latter tract is based on the fact that it is an accretion to the former, which originally abutted upon the Missouri river. The defendants answered by a general denial. The cause was tried before Judge Anthony, with the aid of a jury. On the plaintiff's side, testimony was given tending to prove the following facts: Plaintiff is the owner of land near the Missouri river in Holt county. The tract fronted on the shore for a considerable distance at the time the title passed from the United States government, by patent in 1849. The official survey, on which the entry of the first purchaser was based, represented the river as bounding the land on the west. So it then did, according to all accounts before us. The river then pursued a semicircular course at that point, the effect of which was to give the river line of the land the general shape of a crescent, with the points turned westward. The main land now owned by plaintiff was then near the center of that particular bend or inlet of the stream. The land of the defendant Mr. Hinkle was further north, near the top of the bend. Since the original survey and settlement of the several tracts now owned by plaintiff and Mr. Hinkle, respectively, a large formation of land has taken place in front of them. The old river bend is now completely filled with land, comprising a tract of several hundred acres, extending from the old river line westward to the present bank, more than a mile distant. The river now follows (or, rather, did follow at the last reports in this record) an irregular, but somewhat semicircular, course. The outer side of the curve was, at last accounts, towards the Kansas side. The territory involved in this case may be generally described as a strip fronting for some 1,600 feet on the river, and running thence a little northeast, to the undisputed Minton estate, on the old river bank. The strip mentioned is located near the center of a larger tract, all of which is said to have been formed by alluvial deposits in the old river bend. The defendant Mr. Hinkle admitted possession of the greater part of the tract, but denied plaintiff's right thereto. At the outset of the case, Mr. Steele, a tenant of Mr. Hinkle, was also a defendant; but, as he moved away pending the proceedings, the cause was dismissed as to him in the circuit court. The defendant offered evidence tending to negative plaintiff's case at several points, and also intended to support a claim for the same property as an accretion upon the defendant's estate, which lay near the head of the original bend. Under instructions hereafter to be again mentioned, the jury found for plaintiff for the strip of land sued for, and for damages and monthly rents. The latter items of the verdict were, however, remitted by the plaintiff, leaving the recovery and judgment standing for possession of the property only, and for costs. From that judgment defendant appealed. After following the usual course to obtain a review, the defendant's counsel have advanced several assignments of error.

1. It is first urged that plaintiff should have been forced to a nonsuit by the instruction which defendant asked, declaring that plaintiff had failed to make out a case. This contention is founded on the idea that the evidence shows that the new river bank, a the place in question, was not formed by gradual accretion. It is claimed by defendant that a great part of the tract in suit consists of a large sandbar or island in the river, formed while one channel yet ran in front of plaintiff's land, and separated it from the island or bar; and that afterwards, when the channel filled, and was replaced by solid ground, the river shifted to the western channel, suddenly. The questions which might arise on the facts just stated we need not go into at this time. They certainly do not require discussion in connection with defendant's instruction in the nature of a demurrer to the evidence; for on the plaintiff's side there was abundant testimony that the disputed land was formed by gradual and imperceptible alluvial deposit upon plaintiff's original property. If so, he had a proprietary right to the possession, as hereafter more fully indicated. Where there is substantial evidence to support the plaintiff's case, the questions of its credibility and weight are for the trial jury and court in an action of ejectment, such as that now in hand.

2. Defendant complains of the second instruction given for plaintiff, in which, among other things, it is said that if a large part of plaintiff's original tract on the river bank, as described on the government survey, was first cut away towards the east, and if the jury find "that lands were made back to and against said lands where such other lands were washed away, then, although a slough may remain against the bank of said river where the washing away of said land ceased, still the plaintiff would be entitled to all his old original lines and corners; and if accretions were by said river formed against said old lines, after the same were so made back to his said land, then the plaintiff would be entitled to all said accretions, the same as though the original lines of his said lands had never been washed away or changed by said river," etc. None of the evidence tended to show that plaintiff's whole...