Northstine v. Feldmann
| Decision Date | 09 April 1923 |
| Parties | ELIAS W. NORTHSTINE v. CATHERINE FELDMANN et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Cole Circuit Court. -- Hon. John G. Slate, Judge.
Reversed and remanded.
Dumm & Cook and Pearson & Pearson for appellants.
(1) The demurrer to the evidence should have been sustained, because the court was without jurisdiction of the subject-matter of this action. The real estate attempted to be described in the petition, in particular Sections 26-27, Township. 45, Range 2 west, is situated on the north side of "the middle of the main channel of the Missouri River," in Warren County; and this suit was originally instituted in the Franklin County Circuit Court. Sec. 1753, R. S. 1909; Sec 1179, R. S. 1919. (a) The statutes have defined the boundary line, between Warren County on the north and Franklin County on the south, as being "the middle of the main channel of the Missouri River." Secs. 9334-9356, R. S. 1919. And this line has been so maintained and carried as the division line between said counties, in each revision of the statutes of the State of Missouri, since and before the General Statutes of 1865. Secs. 3551, 3573, R. S. 1909; Secs. 6873 6895, R. S. 1899; Secs. 2994, 3016, R. S. 1889; Secs. 44-46, G. S. 1865. (b) For this reason "the middle of the main channel of the Missouri River" must be taken as the southern boundary line of Warren County and northern boundary line of Franklin County, at the time of the institution of this suit. Art. 4, sec. 41, Mo. Constitution. (c) The Constitution stabilized county boundary lines, and fixed the only way of changing them. Secs. 1, 3, 4, art. 9, Mo Constitution; State ex rel. v. Baker, 129 Mo. 482. The boundary line, between Warren and Franklin Counties, at the date of the adoption of the present Constitution, was "the middle of the main channel of the Missouri River." This line has never been changed, in the manner provided by the Constitution; nor in any other way. (d) The court should have taken judicial notice of the fact, that the real estate described in the petition, is north of "the center line of the main channel of the Missouri River," and within the boundaries of Warren County. The law makes it imperative upon the court to take judicial notice of the boundary lines of the counties of the state in which it is sitting. Wood v. Henry, 55 Mo. 560; State v. Pennington, 124 Mo. 388; Parker v. Burton, 172 Mo. 85; Keaton v. Hamilton, 264 Mo. 565, 573; Noble v. Coates, 230 Mo. 189, 205; Vogelsmeier v. Prendergast, 137 Mo. 271; Pool v. Brown, 98 Mo. 675; 17 Am. & Eng. Enc. Law, sec. 4, p. 912. (e) Plaintiff's petition describes the land in controversy as being in Sections 26 & 27, township 45 N., Range 2 W. The court should take judicial knowledge that these two sections are in Warren County, Missouri. Cases above. (2) The real estate attempted to be described in plaintiff's petition was no description of any land. Secs. 6992-7023, R. S. 1919; Lockwood v. Railroad, 65 Mo. 233; Morgan v. Railroad, 63 Mo. 129; Funkhouser v. Peck, 67 Mo. 19.
Irwin & Haley, Jesse H. Schaper and John W. Booth for respondent.
(1) In Missouri the owner of land bounded by a navigable stream does not own to the thread of the stream. Cooley v. Golden, 117 Mo. 33; Frank v. Goddin, 193 Mo. 390; Hahn v. Dawson, 134 Mo. 581. (2) Land formed on the bottom of a navigable river otherwise than by accretion belongs to the State -- not to the owner of land which by erosion washed away so that its site became part of the bed of the river. Vogelsmeier v. Prendergast, 137 Mo. 271. (3) When the middle of the main channel of a navigable (or other) river is by law made the boundary line of lands, and afterwards by avulsion a new channel is made, then even though the new channel becomes the main channel, the boundary line remains in the middle of the channel in which it was established, even though the waters of the river depart from that channel leaving it dry land. Missouri v. Kentucky, 11 Wall. 395. Cited in State of Washington v. State of Oregon, 211 U.S. 127 and 214 U.S. 205; State of Nebraska v. Iowa, 143 U.S. 359, and 145 U.S. 519; Missouri v. Nebraska, 196 U.S. 23. (4) The rule that boundary lines are not changed by avulsion applies alike to private and public boundaries. Citations above. (5) Change of the flow of the waters of the Missouri from one to another channel, as in this cutting off of as much as 400 acres of one county from the remaining land of that county cannot change the boundary line of the county so reduced. Sec. 3, Art. 9, Mo. Constitution.
RAILEY, C. Reeves and Davis, CC., concur.
This action was commenced in the Circuit Court of Franklin County, Missouri, on May 15, 1920, in two counts. In the first count plaintiff claimed to be the owner in fee simple of the following described real estate, situate in Franklin County, Missouri, to-wit:
A tract of land being part of Sections 26 and 27, Township 45 north, Range 2 west, of the Fifth Principal Meridian, as surveyed and subdivided by Jesse F. Ekey, county surveyor of said county, by Edgar Rapp, deputy, as shown by plat and field notes of survey filed in the office of the Clerk of the County Court of Franklin County, and approved by said court on April 7, 1919, and described as: Beginning at a point in the county line between Warren and Franklin Counties, according to a survey and plat thereof, marked Exhibit A, made by Benjamine F. Frick, County Surveyor of Warren County, Missouri, on May 7, 1918, and approved by the Circuit Court of St. Louis County, by an order and decree made by said circuit court of record in the case of Elias W. Northstine, plaintiff, v. Warren County, defendant, No. 29,316, in July, 1918, a certified copy of which order and decree of court is recorded in the office of the Recorder of Deeds within and for Franklin County, in Book 85, page 382, etc., said point being south 81 degrees and 13 minutes west 4.33 chains from corner No. 7 on said county line survey, thence south 81 degrees and 13 minutes west along said county line 14.54 chains to a point in east line of Meyer's claim, thence south 33 degrees west along Meyer's line 31.12 chains to an iron rod, thence due south 11 chains to a point, thence south 54 degrees and 25 minutes east 16.34 chains, thence south 53 degrees and 16 minutes east 7.63 chains, thence south 50 degrees and 36 minutes east 9.36 chains, thence south 48 degrees and 29 minutes east 6.50 chains, thence south 48 degrees and 10 minutes east 4.95 chains to a point, thence south 89 degrees and 15 minutes east 1.64 1/2 chains to the southwest corner of claim of Bocklage et al., thence north 1 degree and 38 minutes east along line of last named claim 23.80 1/2 chains to the northwest corner of Bocklage claim, thence south 89 degrees and 45 minutes east 18.62 1/2 chains to corner of Bocklage claim, thence north 45 minutes west 38.20 chains to the southeast corner of George Hellebusch claim, thence north 88 1/2 degrees west along south line of George and Benjamin Hellebusch 23.52 chains to southwest corner of Benjamin Hellebusch, thence north 1 1/2 degrees east 4.24 chains to place of beginning, containing 227.56 acres, more or less, according to plat thereof made by Jesse F. Ekey, County Surveyor of Franklin County, Missouri, by Edgar Rapp, deputy, December 16-20, 1919, recorded in Book 8, page -- Surveyor's Record of said county.
Said count then charges that defendants claim to have a title, estate or interest in said real estate. It concludes with a prayer asking that the title, estate or interest of the plaintiff and the defendants respectively in said real estate, be by the court ascertained and determined; and that the court by its judgment and decree adjudge the title, estate and interest of plaintiff and the defendants in and to said real estate.
Plaintiff charges in the second count of petition, that on April 7, 1919, he was entitled to the possession of the real estate aforesaid; that on April 8, 1919, defendants entered into possession of said premises, and unlawfully withheld from plaintiff the possession thereof to his damage in the sum of five thousand dollars; that the monthly value of the rents and profits of said premises is three hundred dollars. Said count concludes with a prayer for the recovery of said premises, and $ 5,000 damages for the unlawful withholding of same from plaintiff; and $ 300 for monthly rents and profits, from the rendition of judgment, until possession thereof is delivered to plaintiff, and for costs, etc.
The answer of said defendants to each count of said petition alleges in substance, that the boundary line dividing the counties of Warren on the north, and Franklin on the south, is "the middle of the main channel of the Missouri River;" that the real estate described in the petition is on the north side of "the main channel of the Missouri River," and is in Warren County aforesaid; that this action was commenced in Franklin County, Missouri, and the venue removed to Cole County aforesaid; that by reason of the foregoing, the Cole Circuit Court acquired no jurisdiction over the subject-matter of this action; that defendants plead the want of jurisdiction of the Cole Circuit Court, as a bar to any further procedure. Defendants further alleged in said answer, that the land attempted to be described in the petition, is indefinite and uncertain; that the calls in said description are from, and to, points and lines, local and private, without a single call for a point or line based on any public monument, line or survey; that the alleged boundary line dividing Warren and Franklin counties is erroneous, arbitrary and asserted without the semblance of authority to support said contention;...
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