Pearson v. Heumann

• Decision Date: 16 June 1922
• Docket Number: No. 22112.,22112.
• Citation: 242 S.W. 946,294 Mo. 526
• Parties: PEARSON et al. v. HEUMANN et al.
• Court: Missouri Supreme Court

242 S.W. 946

294 Mo. 526

PEARSON et al. v. HEUMANN et al.

No. 22112.

Supreme Court of Missouri, Division No. 1.

June 16, 1922.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Suit by George G. Pearson and others against John R. Heumann and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded, with directions.

W. H. Meschede and Robert M. Reynolds, both of Marshall, for appellants.

Alf F. Rector, of Marshall, for respondents.

BROWN, C.

Suit instituted August 13, 1919, by petition filed in said court under the provisions of section 2535 of the Revised Statutes of Missouri 1609, now section 1070 of the present revision, to try title to a tract of 25 acres of land in the Missouri River bottoms in said county, of which the defendant Romine is in possession, claiming under the defendant Heumann. The land is described in the petition as follows:

"Beginning at a stone the quarter section corner to sections nineteen and thirty (19 and 30), township fifty-one (51) range eighteen (18); thence south six degrees east 1,127 feet to a stake; thence south six degrees east 150 feet to a stake; thence south sixty-four and one-half degrees east 921 feet to a stake; thence south thirty-two and one-half degrees east 500 feet to a stake; thence south thirty degrees east 1,235 feet to a stake, the beginning point and the northwest corner of said twenty-five-acre tract; thence south thirty degrees east 1,129 feet to a stake, on the bank of the Missouri river; thence north twenty degrees east up the bank of the Missouri river 450 feet to a stake; thence north twenty-five degrees east up the bank of the Missouri river 1,149 feet to a stake, in the Nolke line; thence south eighty-four degrees west along a post and wire fence 1,466 feet to the beginning point, said twenty-five-acre tract of land being accretions formed by the Missouri river to the lands formerly owned by George F. Pearson, deceased."

George F. Pearson mentioned in the above description was the ancestor of the plaintiffs, under whom they claim by descent.

The tract of land to which the plaintiff claims this accretion was formed is called in this record the Luster tract because on and before October 25, 1899, it was owned by one Josiah Luster who, with his wife, Mary, conveyed it on that date by warranty deed to one Judith Neff for $600 by the following description:

"Beginning at the southeast corner of Thomas Letty's land, thence down the channel of Fish creek to its mouth, thence up the Missouri river to an agreed line between James S. Evans and William A. Reed; thence in a northwesterly direction to the Slough bank; thence in a southwesterly direction to the place of beginning—containing forty (40) acres more or less, all of the above-described land being in section thirty (30) township fifty-one (51) range eighteen (18)."

On March 14, 1900, Judith, for the same consideration and by the same description, conveyed it to George F. Pearson, the plaintiffs' ancestor.

As appears by these descriptions, this tract of land was bounded on the south by a stream called Fish creek and on the east by the Missouri river. It is also admitted in the evidence that one Nolke acquired and owned the land fronting on the river north of the Luster tract. Fish creek, which constituted the south line of the Pearson land, afterward disappeared from that locality, so that instead of running east to the Missouri river it turned down the bluff west of that particular part of the Missouri river bottom and flowed into the river by that route, but its old bed remained plainly visible on the ground for years, the fence posts then set along its south bank being still visible.

The only question tried or submitted was whether or not the 25 acres of land in question was accretions formed against the Luster tract. If so, the judgment of the trial court was correct in awarding it to the plaintiffs; otherwise, the defendants being in possession, it was, of course, erroneous. This constitutes, as we have said, the sole issue.

The evidence shows, as set forth substantially in the respondents' statement of facts, that there were four tracts of riparian lands fronting or bordering upon the west bank of the Missouri river in the locality described in the evidence, which are more or less perfluent to this issue. These extended practically from the bluffs, eastwardly to the river, prior to the year 1900. The Nolke tract was the most northerly of these, and fronted about 80 rods upon the river; south of it lay the Luster tract, a narrow strip, which is the land owned by the plaintiffs. Adjoining this was the Will Burnett tract with 30 rods of river front at the east end. The next and most southerly of these tracts is called the E. .03. Burnett tract, now owned by the defendant Neumann, which fronted east upon the river 30 rods and is the tract to which the defendant Romine claims the 25 acres, which lie between it and the river, accreted. This accretion lies upon the river bank east of this tract, so that should it go to the plaintiffs as a part of the Luster tract it would cut off the E. E. Burnett tract from the river.

The evidence, as stated by respondents, tends to show that about 1903 the Missouri River ran south along the east end of these four tracts of land, constituting their eastern boundary; that at about or soon after that time accretions began to form in front of the Nolke tract, and gradually extended south along the river bank opposite the Luster tract throughout its entire frontage. This accretion extended to the front of the Will Burnett tract and further down the river, so as to include, as respondents asserted, the 25 acres of accreted land now in controversey, lying across the front of the E. E. Burnett tract, through the owners of which the defendant in possession now claims.

It is suggested by the respondents in their statement that there has been some arrangement by which they have become entitled to accretions to the Will Burnett tract, but they make no attempt to show any conveyance or transfer to that effect, and we will assume that it is unnecessary to give further attention to this suggestion.

Reverting now to the conduct of the Missouri river when, in its southern course, it reached and passed the mouth of Fish creek: The evidence shows that it was there diverted to the southwest, leaving a strip of the land belonging to Will Burnett between its current and Fish creek, which became known as Thornton...