Naylor v. Cox
| Citation | 21 S.W. 589,114 Mo. 232 |
| Parties | Naylor, by Guardian, v. Cox, Appellant |
| Decision Date | 14 February 1893 |
| Court | United States State Supreme Court of Missouri |
Appeal from Howard Circuit Court. -- Hon. J. A. Hockaday, Judge.
Affirmed.
John Cosgrove and J. H. Johnston for appellant.
(1) The newly formed land should have been divided between the owners. Benson v. Morrow, 61 Mo. 355; Lanne v Buse, 70 Mo. 463; St. Louis v. Lemp, 93 Mo 477. (2) The trial court erred in refusing to give instructions 8 and 9 asked by defendant. If the land in controversy commenced to form in the Missouri river and within the original numbers of the survey of section 4 township 48, range 15 and had since said survey washed away and again re-formed within the original boundaries of said survey, then it was the property of the defendant. Buse v. Russell, 86 Mo. 209; St. Louis v. Rutz, 138 U.S. 226; Minley v. Norton, 100 N.Y. 424. (3) The court should have given instruction number 7 for defendant and should have refused number 3 given for plaintiff.
S. C. Major and Draffen & Williams for respondent.
(1) It is too late for appellant to complain that the trial court ought to have ruled that the land between the island and main shore should have been divided equally. Tetherow v. Railroad, 98 Mo. 74; Drey v. Doyle, 99 Mo. 459; Walker v. Owen, 79 Mo. 563; Bank v. Armstrong, 92 Mo. 265. (2) Nor could such question be injected into the case by motion for a new trial. Nall v. Railroad, 97 Mo. 68. (3) But even if the principle contended for is properly before the court, there is no ground for reversal on that score. Buse v. Russell, 86 Mo. 209; Benson v. Morrow, 61 Mo. 345; City v. Lemp, 93 Mo. 477. (4) The title to lands formed by accretion is determined by the laws of the state in which the land is situated. Barney v. Keokuk, 94 U.S. 324; St. Louis v. Rutz, 138 U.S. 226. In this state "the proprietor of land on the banks of the Missouri river does not own ad filum aquoe, but only to the water's edge, though undoubtedly still entitled to whatever increment may be added to his land." Benson v. Morrow, 61 Mo. 345; Gould on Waters, [2 Ed.] sec. 73. There was no error in the refusal of instructions numbered 8 and 9 asked by defendant. Buse v. Russell, 86 Mo. 209; Wells v. Bailey, 4 N.E. 841; Gould on Waters [2 Ed.] p. 310; Nebraska v. Iowa, U.S. S.Ct. of April, 1892, p. 100. Defendant's seventh instruction was properly refused, and plaintiff's third and fourth were properly given.
This is an action of ejectment instituted in the circuit court of Howard county, Missouri, for the following described land: "Beginning at a point in the slough twelve chains east of the line between sections 25 and 26 of township 49, of range 16, and running thence south seventy-nine degrees east down said slough thirty-five chains; thence south thirty-one chains; thence west forty chains; thence north thirty-seven and fifty hundredths chains to a slough; thence south seventy-nine degrees east twelve and twenty-five hundredths 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 awhile 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 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 "tow-head." 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 one hundred 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 the 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 back water 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 the 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 roadway 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:
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