Naylor v. Cox

• Decision Date: 14 February 1892
• Citation: 21 S.W. 589,114 Mo. 232
• Parties: NAYLOR v. COX.
• Court: Missouri Supreme Court

21 S.W. 589

114 Mo. 232

NAYLOR v. COX.

Supreme Court of Missouri, Division No. 2.

February 14, 1892.

RIPARIAN RIGHTS — ACCRETION — EJECTMENT — INSTRUCTIONS — REVIEW ON APPEAL.

1. Where, in ejectment, the only issue raised at the trial is whether the land in controversy, formed by the action of a river, was an accretion to plaintiff's land or to defendant's land, defendant cannot contend on appeal that the land should be equally divided between them.

2. In an action of ejectment it appeared that plaintiff was the owner of an island in the Missouri river; that defendant was the owner of the land opposite the island on the north; that at the original survey of both tracts in 1817 the main channel of the river ran between the island and defendant's land; that in 1844 the river changed its course, and ran to the south of the island; that the space between the island and defendant's land filled up, thus forming the land the title to which was at issue. Held, that it was proper to refuse an instruction requested by defendant that if, after the original survey, a portion of defendant's land was washed away, and afterwards the land was reformed within the limits of such survey, then all the land so formed became the land of defendant, even though it should consist of accretions to plaintiff's land, as such accretions belonged to plaintiff if they began upon his land.

3. The refusal of a requested instruction is proper where it appears that there were no such facts in issue as those upon which the instruction was predicated.

4. Error cannot be predicated on the refusal of certain requested instructions where it appears that the court had already charged on the issues covered by such instructions.

Appeal from circuit court, Howard county; John A. Hockaday, Judge.

Ejectment by J. W. Naylor, by his guardian, John P. Naylor, against George Cox. From a judgment for plaintiff, defendant appeals. Affirmed.

John Cosgrove and J. H. Johnston, for appellant. S. C. Major and Draffen & Williams, for respondent.

GANTT, P. J.

This is an action of ejectment, instituted in the circuit court of Howard county, Mo., for the following described land: "Beginning at a point in the slough, 12 chains east of the line between sections 25 and 26, of township 49, of range 16, and running thence south, 79 degrees east, down said slough 35 chains; thence south 31 chains; thence west 40 chains; thence north 37.50 chains, to a slough; thence south, 79 degrees east, 12.25 chains to the beginning." The answer was a general denial. The plaintiff is the owner of an island known as "Naylor's Island," and the defendant has title to a tract of land opposite said island, on the north bank of the river. The land in controversy was formed after the original survey by the government in 1817, between the island and the tract on shore, now owned by the defendant. When the government survey was made the main channel of the river ran north of the island, and between it and the land now owned by the defendant there was only a slough, through which a body of water ran, between the island and the river bank on the south. The island was surveyed in connection with the land on the south side of the river, being placed in sections 25, 26, and 27, township 49, range 16. The United States surveyors, in surveying the land from the south, stopped on the north bank of the island as it then existed, and ran around the island, and its original shape, as shown by the field notes, is now easily traced by the formation of the ground and the growth of the timber. The land now belonging to defendant was surveyed with that on the north side of the river, and is in section 4, township 48, range 15. The space occupied by the principal part of the land in controversy was then the main channel of the Missouri river and between the southern boundary of the original survey of section 4 township 48, range 15, and the northern boundary of sections 25, 26, and 27, of township 49, range 16. The north bank of the river, as it existed in 1817, washed away, however, and the river for a while encroached upon the land upon the north bank, and ran further north than it did at the time of the original survey. The accretions subsequently formed now extend further north than the bank of the river as it existed in 1817, as shown by the field notes. The plaintiff's title to the island was conceded, and the defendant's ownership of the land claimed by him, on the north bank of the river, in section 4, township 48, range 15, was undisputed. It was not denied that the land in controversy was alluvion. The sole question tried below was as to whether or not the accretion was to the island or to the main land.

The plaintiff's evidence tended to show that in 1844 the main current of the river turned south of the island, leaving a body of water, however, still running between the island and the north bank of the river, upon which the defendant's land is situated; that steamboats, sometimes, after this change of the river, went up the channel north of the island, but they generally passed up and down on the south side; that the main body of water, north of the island, was next to the bank on the Howard county side, and of the island was next to the north bank of the river, or the Howard shore, and that the last stream of water that ran north of the island was next to the bank on the Howard county side, and between the land in controversy and the tract owned by the defendant; that while this stream of water was between the land sued for and the tract owned by the defendant there was no water between it and the island; that the original formation of the island could be plainly distinguished by the formation of the ground and the timber growing thereon; that from the island north the timber gradually became smaller and smaller, until, after proceeding some distance, there was a low place or depression, which some of defendant's witnesses called a slough, and proceeding from there north the timber grew larger up to a certain elevated place in the land in controversy, which some of the witnesses called a "towhead." The timber then grew smaller going north, until the slough was reached through which the water last ran. In this slough there was no timber. Its width was variously estimated from 100 yards upwards, and the bottom of this slough was several feet lower than any other point in the made land. Its banks were well defined. This slough was immediately adjoining the north bank of the river, and between the land in controversy and the tract belonging to defendant. The plaintiff's testimony showed that there was a steep bank at the north boundary of the slough, which was the old river bank, and that this slough formed the channel of the last body of water that ran north of the island; that the land was gradually made to the island as the water receded therefrom, and ran further and further towards the north, until finally there was nothing but the slough, which was between the land sued for and defendant's land. The slough finally filled up, and the island and main land became connected. The plaintiff's evidence further showed that the depression, or "south slough," as some of defendant's witnesses called it, did not connect with the river above the island, and had no outlet except to the river below the island, and that when there was water in it it was on account of backwater from below, or water left standing therein after an overflow. The plaintiff also showed that the defendant was in possession of the land in controversy, a part of which had at one time been in possession of the plaintiff's father or his tenants. He also proved the rents and profits, and then rested.

The evidence upon defendant's part tended to prove that there were two sloughs between the island and defendant's tract of land, — one designated by the witnesses as the "south slough," called by the plaintiff's witnesses a "depression or low place in the land," and the other the "north slough;" that the former was between the land in controversy and defendant's land. In other words, that the land in controversy was between two sloughs, and separated by one from the island, and by the other from the main land. There was also some evidence that the land began to form out in the river, and not adjoining either the island or the main land. One of the plaintiff's witnesses, on cross-examination, stated that plaintiff's father built a road way about a foot or a foot and a half high across the depression or south slough, about a half mile below the head of the island, to enable him to drive across the slough or depression, and that this helped to fill up the depression or slough.

The court, at the plaintiff's instance, gave instructions in substance as follows: (1) That, if the land in controversy was...