Moore v. Rone

Decision Date16 March 1962
Docket NumberNo. 8002,8002
Citation355 S.W.2d 398
PartiesJack R. MOORE, George T. Glozier and Mary Ida Glozier, Plaintiffs-Appellants, v. George W. (Son) RONE, Jr., Dora Rone, Donald Rone and Cletus Eugene Rone, Defendants-Respondents.
CourtMissouri Court of Appeals

Raymond A. Klemp, Caruthersville, for plaintiffs-appellants.

Ford & Ford, Kennett, for defendants-respondents.

STONE, Presiding Judge.

Averring that on November 18, 1957, 'they (plaintiffs) were the owners of and legally entitled to the possession of' certain land described by metes and bounds and identified as an island 'containing 550 acres, more or less,' in the Mississippi River and within the boundaries of Pemiscot County, Missouri, but alleging that defendants entered into possession of the island on or about June 2, 1958, and thereafter unlawfully withheld possession thereof to plaintiffs' damage in the sum of $4,000 [Rule 89.04, Sec. 524,060], 1 plaintiffs instituted this action in ejectment in the Circuit Court of Pemiscot County on September 18, 1958. In due time, defendants moved to dismiss the petition with prejudice for the reason, among others, that the court had no jurisdiction over the subject matter of the action. As subsequently developed in an extended hearing upon this motion in the Circuit Court of Mississippi County, to which the cause was transferred on change of venue, defendants' contention was (as it still is) that the island in controversy formed about 1939 on the Tennessee side of the middle of the main navigable channel of the Mississippi River, and that such island then was situate, and at all times thereafter remained, in the State of Tennessee and wholly outside Pemiscot County, Missouri. So finding, the trial court sustained defendants' motion and dismissed the petition with prejudice.

Plaintiffs appealed to the Supreme Court because, in the oversimplified language of their brief, 'the title of land is involved.' Art. 5, Sec. 3, Mo.Const. of 1945, 2 V.A.M.S. This was nothing more than a bare conclusion, utterly insufficient and equally ineffective as a jurisdictional statement. Rule 83.05(b); Schoenhals v. Pahler, Mo., 272 S.W.2d 228, 229(1); Jones v. Williams, 357 Mo. 531, 532, 209 S.W.2d 907, 908(1). Ejectment is a possessory action [Wood v. Gregory, Mo., 155 S.W.2d 168, 170(3), 138 A.L.R. 142; Levee Dist. No. 4 of Dunklin County v. Small, Mo.App., 281 S.W.2d 614, 615(1)]; and, 'in an ordinary, simple, straight action in ejectment in which no title relief is sought or granted' [Cantrell v. City of Caruthersville, 359 Mo. 282, 290, 221 S.W.2d 471, 476], title to real estate is involved incidentally or collaterally but not directly in an appellate jurisdictional sense. 2 Thus, by order dated April 21, 1961, the Supreme Court transferred the cause to us.

At the threshold, we are confronted with defendants'-respondents' motion to dismiss the appeal for the alleged failure of plaintiff'-appellants' brief to comply with the minimum essentials detailed in Rule 83.05. This motion is not without merit. Plaintiffs' statement of the facts is incomplete and inaccurate in important respects and falls far short of the 'fair and concise statement' without argument contemplated by subdivisions (a)(2) and (d) of Rule 83.05. Three averments of error appear beneath the caption 'Points Relied On For Reversal' but without citation of authorities thereunder as required by subdivision (a)(3) of Rule 83.05. In the final section captioned 'Brief And Citation Of Authorities,' plaintiffs set out four abstract statements of law with cases cited thereto but 'without showing how they are related to any action or ruling of the Court.' Rule 83.05, subd. (e). There is no 'argument' which, as subdivision (a)(4) of Rule 83.05 provides, 'shall substantially follow the order of 'Points Relied On." In the entire brief, we find only one specific page reference to the transcript on appeal. Rule 83.05, subd. (d). In short, plaintiffs' brief affords scant evidence that it was prepared with Rule 83.05 in mind, and dismissal of the appeal for flagrant violations of that rule would be justified and supported by abundant authority. 3 However, mindful that 'our primary duty is to litigants rather than to counsel who represent them' [Ambrose v. M. F. A. Cooperative Ass'n of St. Elizabeth, Mo., 266 S.W.2d 647, 650; Songer v. Brittain, Mo.App., 272 S.W.2d 16, 18], and believing that in the interests of justice this appeal should be resolved on its merits [Rule 83.09; Sebree v. Rosen, Mo., 349 S.W.2d 865, 870(2)], we have concluded, albeit with some hesitancy, to overrule defendants' motion to dismiss the appeal, still confessing our wonderment that capable counsel so frequently assume such not inconsiderable but obviously unnecessary risks in dealing with the interests of their clients. Thompson v. Jenkins, Mo., 330 S.W.2d 802, 803; Steckler v. Steckler, Mo.App., 293 S.W.2d 129, 131.

Plaintiffs' theory of the case has been and is that the island in controversy (hereinafter sometimes called Coal Barge Island, the name in which it was entered on the records of Pemiscot County) became and was the property of Pemiscot County [Secs. 241.290 and 241.300]; that, after the island had been surveyed, Pemiscot County sold it to plaintiff Moore for $687.50, i. e., $1.25 per acre for the computed area of 550 acres [Sec. 241.160], and conveyed the island to Moore by patent executed under date of November 18, 1957; and that, by quitclaim deed of even date, plaintiff Moore (with his wife, Dama) conveyed an undivided one-half interest in the island to plaintiffs, George T. Glozier (the then County Surveyor of Pemiscot County who had surveyed the island prior to issuance of the patent) and Mary Ida Glozier, his wife. Of course, if Coal Barge Island formed, and at all times thereafter remained, in the State of Tennessee, it never belonged to the State of Missouri, title thereto was not granted and transferred to Pemiscot County by Section 241.290 or Section 241.300, Pemiscot County had no power to sell and covey the island under Section 241.310, and the patent issued by Pemiscot County to plaintiff Moore conveyed no interest in the island. Conran v. Girvin, Mo. (banc), 341 S.W.2d 75, 79, 88(13); Akers v. Stoner, 319 Mo. 1085, 1089, 7 S.W.2d 695, 696; Jacobs v. Stoner, 319 Mo. 1093, 1104, 7 S.W.2d 698, 703. And, with actions in ejectment being local to the state in which the land lies [21 C.J.S. Courts Sec. 46, p. 53; 18 Am.Jur., Ejectment, Sec. 66, loc. cit. 62] and with Section 508.030 plainly imposing the mandatory requirement [March v. Gerstenschlager, Mo., 322 S.W.2d 743, 744(1), and cases there cited] that '(s)uits for the possession of real estate . . . shall be brought in the county where such real estate, or some part thereof, is situated,' neither the Circuit Court of Pemiscot County in the first instance nor the Circuit Court of Mississippi County on change of venue had jurisdiction to entertain and determine an action in ejectment involving Coal Barge Island, if it was in the State of Tennessee. 4 Accordingly, defendants' motion to dismiss plaintiffs' petition raised and depended upon the crucial issue as to whether Coal Barge Island was in the State of Tennessee; or, as plaintiffs' counsel put it at the hearing, 'whether it (the island) is in Missouri or Tennessee is the binding thing.'

Since admittance of Missouri into the Union, the state's eastern boundary has been 'the middle of the main channel' of the Mississippi River [Enabling Act of Congress, March 6, 1820, Chap. 22, 3 U.S. Stat. 545, 4 RSMo 1959, p. 4781, 1 V.A.M.S. 63; Chap. 7, 3 V.A.M.S. 237; Mo.Const. of 1875, Art. 1, Sec. 1, 1 V.A.M.S. 167] and, of course, that has been and is the eastern boundary of Pemiscot County. Secs. 46.127 and 46.010. When 'the middle of the main channel' of a navigable river is designated as the boundary between two states, the quoted phrase refers to and means 'the middle of the main navigable channel,' 5 this construction serving the important purpose of preserving for each state the free and untrammeled use of the navigable portion of the stream as a highway of commerce; and, if there be more than one channel at any given point, 'the main navigable channel' is 'the one usually followed' [Iowa v. Illinois, 147 U.S. 1, 13, 13 S.Ct. 239, 243, 37 L.Ed. 55, 59] or 'the middle, or deepest, or most navigable channel.' (All emphasis herein is ours.) Louisiana v. Mississippi, 202 U.S. 1, 49, 26 S.Ct. 408, 421, 50 L.Ed. 913, 930; Whiteside v. Norton, 8 Cir., 205 F. 5, 9, 45 L.R.A.,N.S., 112, appeal dismissed 239 U.S. 144, 36 S.Ct. 97, 60 L.Ed. 186.

In cases of this character, not only the courts but also the litigants lean heavily upon official maps and documents of governmental agencies, 6 which, although not conclusive, usually record, preserve and reveal the vagaries of navigable streams more accureately and more reliably than the frail, fallible memories of ofttimes partisan witnesses. So it is that, with no suggestion of inaccuracy in any of the numerous maps and documents of the War Department Corps of Engineers (hereinafter referred to as the Engineers) and of the Mississippi River Commission (hereinafter referred to as the Commission) received in evidence in the instant case, we think that the material and determinative facts were established by those exhibits beyond reasonable room for argument. Coal Barge Island, spewed out of the maw of the waters of the mighty and mysterious Mississippi, first appeared in 1939 when, as plaintiffs' evidence disclosed, an 'ice gorge' hung on the island. Engineers maps dated 1933 and December 1937 showed no such island; but the January 1939 map platted this island as then being approximately one and one-half miles in length, more than one-half mile in width at its broadest point, and about equidistant from the Missouri bank to the northwest and from the Tennessee bank to the southeast, and as lying in the 'toe' of a sharp...

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