Nothstine v. Feldmann

• Decision Date: 03 July 1928
• Docket Number: No. 26352.,26352.
• Citation: 8 S.W.2d 912
• Parties: ELIAS W. NOTHSTINE, Appellant, v. CATHERINE FELDMANN ET AL.
• Court: Missouri Supreme Court

8 S.W.2d 912

ELIAS W. NOTHSTINE, Appellant, v. CATHERINE FELDMANN ET AL.

No. 26352.

Supreme Court of Missouri, Division One.

July 3, 1928.

Appeal from Cole Circuit Court. — Hon. Henry J. Westhucs, Judge.

REVERSED AND REMANDED.

John W. Booth, Wm. C. Irwin and Jesse H. Schaper for appellant.

(1) The trial court erred in refusing to give the peremptory instruction asked by plaintiff directing the jury to find in his favor, for the following reasons: (a) The undisputed evidence shows title in the plaintiff and the evidence raises no issue for the jury. (b) The prima-facie case made by plaintiff was tacitly admitted by defendants at the trial, and they did not introduce any evidence tending to disprove that prima-facie case. (c) The case involves only questions of law to be decided by the court. (2) The trial court erred in refusing to give to the jury Instruction 1 asked by plaintiff. This instruction advised the jury that no Statute of Limitation was operative against plaintiff's title. It was proper for the reasons: (a) The land in suit is a part of the grant of accreted lands by the State to Franklin County for school purposes under Laws 1895, page 207, now Secs. 7029 to 7043, R.S. 1919, and by the terms thereof (Sec. 7031) no Statute of Limitations began to run against the county until after the expiration of twenty years from the passage thereof. (b) This action was commenced on May 15, 1920, and within ten years after the expiration of the twenty years named in said statute. Laws 1895, p. 207; Sec. 7031, R.S. 1919. (3) Instruction 2 told the jury that newly-formed islands and abandoned river beds belong to the State and that the same passed by legislative enactment to the respective counties in which they are situated for school purposes and that title thereto could only be derived from the county by patents executed by the county court. This instruction was proper for the reasons: (a) The undisputed evidence in this case shows that the original lands of defendants' ancestor described in the title deeds read in evidence washed away by the waters of the Missouri River and that the land described in the petition herein is new land formed in the bed of the abandoned channel of said river within the lines or area of the original surveys embracing the original lands of defendant, but not by accretion to the remaining shore land of defendant; and that defendants now claim title to said new land under their original deeds, and not by any patent from the county, nor by accretion. (b) It was therefore error for the trial court to refuse to instruct the jury that the State owned the paramount title to such land and that its title passed to the counties and from the latter through the county courts by patents as stated in said instruction and that the title thereto can only be derived from the counties in that way. Vogelmeier v. Prendergast, 137 Mo. 271; Frank v. Goddin, 193 Mo. 204; Doebbeling v. Hall, 310 Mo. 204; Moore v. Farmer, 156 Mo. 49; Naylor v. Cox, 114 Mo. 232. (4) Instruction 3 declared that the conveyance from Franklin County to plaintiff vested a good paper title to the land in suit in case the jury found same situated south of the center of the abandoned channel of the Missouri River mentioned in Instruction 4 and in that event directed the jury to find for plaintiff notwithstanding the said land may have been formed on the bed of the river at a place which was once owned by defendants or their grantors. Instruction 4 instructed the jury that if they found that the Missouri River cut for itself a new channel through Franklin County and abandoned its former channel so that the waters of said river flowed through said new channel in said county south of the land in suit, then the change of channel did not change the boundary line between said County of Franklin and the County of Warren and the boundary line between said counties continued to be the center of the abandoned channel. Instruction 3 referred to Instruction 4 and therefore both are taken and considered together and both instructions are based on the law and the evidence in this case. It was therefore error for the trial court to refuse said instructions. Cases cited. (5) The trial court erred in giving to the jury Instruction 4 asked by defendants, which told the jury that the sole question for them to decide was where the middle of the channel of the Missouri River was on November 30, 1875, and whether the land in question was north or south thereof, and this instruction was therefore glaringly erroneous for the following reasons: (a) There was no substantial evidence in the case on which to base the instruction. (b) The Missouri River is a navigable stream and constitutes the boundary line between Warren and Franklin counties as defined and established by the statutes from the date of the organization of said counties, and the same is, and was, ratified and confirmed by the Constitution of 1875, notwithstanding the fact that the main channel of the river might be changed by imperceptible natural wear on the one side or by gradual formation of alluvions or accretions, still "the middle of the main channel," when ascertained, would be the boundary between said counties. It might be a slightly shifting line, hardly perceptible, still it would be the boundary line, and "that the waters themselves constitute the real boundary." Buttenuth v. Bridge Co., 123 Ill. 546; Nebraska v. Iowa, 143 U.S. 359; McBaine v. Johnson, 155 Mo. 191; Rees v. McDaniel, 115 Mo. 145. (c) The avulsion mentioned in the evidence in this case established a fixed boundary line between the counties of Warren and Franklin, namely, the center of the abandoned channel. Buttenuth v. Bridge Co., 123 Ill. 535; Nebraska v. Iowa, 143 U.S. 359; Rees v. McDaniel, 115 Mo. 145; Cooley v. Golden, 117 Mo. 33; Vogelsmeier v. Prendergast, 137 Mo. 288; 8 Opinions of Attorney-General of United States 175, 177. (d) The suit was properly brought in Franklin County. The middle of the main channel of the Missouri River constituted the boundary line between Warren and Franklin counties. The river gradually and imperceptibly moved north from 1817 to 1895, when it formed a new course and new main channel by cutting through a bend approximately two miles to the south. The change was by avulsion. The land sued for was formed south of the center of the abandoned channel and is and always was situated in Franklin County. R.S. 1919, sec. 9356; McBaine v. Johnson, 155 Mo. 191; Rees v. McDaniel, 115 Mo. 145; Cooley v. Golden, 117 Mo. 33; Vogelsmeier v. Prendergast, 137 Mo. 271; Naylor v. Cox, 114 Mo. 232; Buttenuth v. Bridge Co., 123 Ill. 546; Nebraska v. Iowa, 143 U.S. 359.

Ras Pearson for respondents.

(1) The second trial of this case followed the opinion, and the direction of the Supreme Court, in the case of Northstine v. Feldmann, 298 Mo. 365, 250 S.W. 589. That it was the duty of all concerned in the second trial to follow and obey the law and the instructions as given by the Supreme Court in its opinions is well recognized: that that opinion in the second trial was binding upon court, counsel and litigants needs no citation of authorities. Gracey v. St. Louis, 221 Mo. 1; McWilliams v. Drainage Dist., 236 S.W. 367. (2) It is statutory law in this State that "suits for the possession of real estate or where the title thereto may be affected or for enforcement of the lien of any special tax bill thereon shall be brought in the county where such real estate or some part of it is located." Secs. 1179, 1753, 554, R.S. 1899; Vogelsmeier v. Prendergast, 137 Mo. 271; Northstine v. Feldmann, 298 Mo. 365. If the real estate here involved is in Warren County, then the Circuit Court of Franklin County acquired no jurisdiction and this lawsuit must stop. Northstine v. Feldmann, 298 Mo. 365. (3) The constitutional, statutory and original boundary lines between Warren County on the north and Franklin County on the south was the middle of the main channel of the river as it ran from the west to the east between these two counties: This was the boundary line between these two counties as fixed by the Constitution of 1865 and 1875 and as fixed by every statute and revision thereof since Missouri became a State, Secs. 9334, 9356, R.S. 1919; Secs. 2994, 3016, R.S. 1889; Sec. 1. Art. 4, Constitution 1875; Secs. 44, 46, G.S. 1865. The law, and all the law, with reference to the boundary lines between Warren and Franklin County is fully and correctly set forth in the opinion in the Northstine case, supra. If the law with reference to the boundary lines between these two counties is as declared by the Supreme Court in the Northstine case, supra, these defendants are entitled to have this judgment affirmed. (4) Even though Division Two of the Supreme Court was in error in its opinion "in declaring that the boundary line between these two counties was fixed as of November 30, 1875," and in failing to take into consideration any changes if any in the channel of the river since that time, "by gradually and imperceptibly shifting from where it then was to the north in Warren County," still the judgment in this case should be affirmed for the following reason: (a) This being an ejectment suit the burden is on the plaintiff to prove his case; he must win, if he does win, on the strength of his own title and not on the weakness of the title of his adversary. This the plaintiff did not do. (b) The burden was on the plaintiff to prove that this real estate was located in Franklin County. This the plaintiff did not do. (c) The burden was on the plaintiff to show that the real estate here in question came within the provision of Art. VI. Chap. 56, R.S. 1919, and in, particularly. Secs. 7029 and 7032; that the real estate here in question in 1895 (that being the date of the passage of this law) belonged to the State and not otherwise appropriated under the law; that it had been formed by the recession and abandonment of...