1. A sand bar in a river gradually increased in size, and became of such a permanent nature that it was used for gardening. At first there was a strong current in the river between it and the nearest shore. It was continuously used, and continued to grow larger for many years, and the channel of the river changed, so that only a slough separated it from the shore. Held, that the land was an island, and not an accretion to the adjoining shore.
2. Islands formed in the Missouri river in front of the property of a riparian owner do not become his property, but belong to the state, as his land only extends to the low-water mark, and he is only entitled to accretions thereto.
3. Where the channel between an island and the adjoining bank of the Missouri river is filled in by the river, the accretion becomes a part of the island, and not of the adjoining lands.
4. Under Act April 8, 1895, conveying riverbed lands to counties, the county acquires a title to islands and accretions thereto connecting the island with the bank superior to the adjacent riparian owner.
Appeal from circuit court, Callaway county.
Ejectment by M. T. Moore against L. D. Farmer. From a judgment for the defendant, the plaintiff appeals. Affirmed.
Respondent's statement of the facts in this case is as follows:
"This is an action in ejectment, brought by appellant, Moore, in the Callaway circuit court to recover possession of 55.27 acres of land in Callaway county, which had formed in the Missouri river south and west of the town or village of Cedar City, and lying across and slightly up the river from Jefferson City. In 1833 all land lying in the N. W. fractional ¼ of section 16, township 44, range 11, in Callaway county, was bought by one W. B. Scott. At that time the river ran over a large part of this quarter section, there being in fact but 69.56 acres of the 160 uncovered by the river at this time. Between the date of purchase by Scott in 1833 and the year 1871 the river further encroached upon this land until there was probably not more than 40 acres left. In this year all that part of this fractional northwest quarter section lying east of Cedar creek passed into the hands of the Cedar City Land Company, a corporation formed for the purpose of laying out and putting upon the market lands embraced within the original limits of the village of Cedar City. The village was laid out as shown by the plats attached to appellant's and respondent's abstracts. Water street, 75 feet wide, ran parallel with the river, and, so far as the evidence and the plats disclose, the outer or southern line of this street was parallel and coincident with the then north bank of the Missouri river, or at least was as nearly so as the formation and slight irregularities of the bank would permit. Lots facing the river and abutting upon Water street were sold by the town company to various persons. Afterwards — but at just what time the evidence does not disclose — the river bank at this point began to wash away until Water street was entirely gone; likewise a considerable portion of the town adjacent thereto; and the river bank had reached the point marked by the heavy dotted line on the following plat:
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
"As far back as 1866 there had been a tow head or sand bar out in the river in front or south of Cedar City. In high water this sand bar or tow head would be entirely covered with water, but afterwards it would appear in the same place, although sometimes changed in outline and extent; but during all this time a considerable portion of the river flowed between this formation of land and the main bank at Cedar City, at one time the main channel being next to the Callaway shore. Between the years 1878 and 1884 the river cut heavily on its north bank at a point some four or five miles up from Cedar City, until a union was formed with Cedar creek, the waters of which creek from that time emptied into the river at this point of contact, instead of through its old and former channel, which originally formed the western boundary of Cedar City, joining the river at that point. From this time on the tow head or sand bar in front of Cedar City grew more rapidly, caused, no doubt, by the large amount of soil and debris taken from the bank at the point up the river as above mentioned. In 1884 this tow head or sand bar was of such size and definiteness that it was called an island, and in 1885 one R. S. McDonald
took possession of it, and sowed it in turnips, crossing his teams over to it in a flat boat. From that year to the present time this island has remained a definite body of land, constantly increasing in size, extending its length up and down the river and towards the north or Callaway shore, until now it is separated from the old or former bank of the river in front of Cedar City by a slough, or deep depression, only. During these years, in very high water, this island would be submerged, but, after the water had gone down, it would reappear, increased in size, and higher above the level of the water than it had been before. Land had also begun to form up the river from Cedar City some two or three miles, at or near the old Tarleton place, and, according to the testimony of some of the witnesses, extended down the river in peninsular form until it joined the land in front of Cedar City, broken, however, by occasional `reefs' (as they were termed by the witnesses) or channels through which the waters of the river continually flowed. In 1892 and 1893 the United States government put in a system of dikes extending from the Callaway shore out into the river. Two of these dikes are shown on the plat attached hereto. At the time these dikes were constructed, the river was unusually high, permitting the government construction boats to go over the land now in controversy, except for a space of some 80 or 100 feet near the center of the land, at which point the water was too shallow, and where, as testified by some of the witnesses, the land showed dry above the water. At this very time, however, the water was very deep next to the bank in front of Cedar City, ranging in depth from 8 to 20 feet, and a portion of the current was continuously running swift and strong between the island and the shore at Cedar City. After the dikes had been completed, the growth of land out in the river was more rapid, and the space between same and the Callaway shore was narrowed by accretions to the bank of the island, until, at the time of the institution of this suit, it was nothing more than a slough or channel, through which, however, a small quantity of river water was still flowing. In front of Cedar City, and for a considerable distance up and down the river from that point, very Tittle, if any, land has accreted to the main bank on the Callaway side, and the slough or channel which marks the line between the lands formed in the river and the shore is quite close to the old or main bank, ranging in distance from a few feet to as far, possibly, in some places, as 100 feet. From 1885 down to the year 1895, R. S. McDonald was in continuous possession of the lands in controversy, getting his firewood and pasturing his cattle there, and fencing it; but it seems the trial court did not consider his possession exclusive, as he permitted others to use the lands for the same purpose. In 1895, McDonald quitclaimed his interest in the land to respondent, who then fenced it. In 1896, upon petition of citizens living in the vicinity, and under authority of an act of the 38th general assembly, entitled `An act to grant certain lake and river bed lands to the counties in which they are located for school purposes,' and approved April 8, 1895, the county court of Callaway county directed the county surveyor to locate, survey, and plat all lands in Callaway county between certain designated lines, formed by the recession from or abandonment of its old or former bed by the waters of the Missouri river. Under this order of the county court the county surveyor located, surveyed, and platted about 600 acres, including the lands now in controversy, the description of which as contained in plaintiff's (appellant's) petition is taken from said surveyor's report and plat. Subsequently all of this land so located and surveyed was sold by Callaway county, and the 55.27 acres now in controversy was bought by defendant (respondent), he paying $305, or about $6 per acre, therefor, and a patent from the county was issued to him on the 6th day of May, 1896. In 1891, appellant, Moore, was operating a steam ferry across the Missouri river at Cedar City, and about this time he obtained, in consideration of the sum of $75, a...
