Perkins v. Adams
Decision Date | 21 January 1896 |
Citation | 33 S.W. 778,132 Mo. 131 |
Parties | Perkins v. Adams, Appellant |
Court | Missouri Supreme Court |
Appeal from Holt Circuit Court. -- Hon. C. A. Anthony, Judge.
Reversed and remanded.
Samuel O'Fallon and L. R. Knowles for appellant.
(1) The riparian owner is not the owner of the soil in the bed of the Missouri river, but owns only to the water's edge plaintiff only taking title to the margin of the river can claim in addition to the original grant only such land as may have been added thereto by the regular process of accretion or reliction. Benson v. Morrow, 61 Mo. 345; Naylor v. Cox, 114 Mo. 232; Rees v McDaniel, 115 Mo. 145; Cooley v. Golden, 117 Mo. 33. (2) Instruction number 4 given for the plaintiff does not correctly define an accretion. The riparian owner can only claim as accretions such lands as are added by the gradual and imperceptible washings of the river. The formation or reliction must be imperceptible and must be made to the contiguous land so as to change the position of the water's edge. Gould on Waters [1 Ed.], sec. 155; Cooley v. Golden, 117 Mo. 33. (3) Instruction number 1 given by the court of its own motion, and over objections of the defendant, is clearly erroneous. It conforms to the theory of the law advanced in plaintiff's instructions that the riparian owner took title to all lands formed in the Missouri river to the center of the main channel.
E. J. Kellogg, J. W. Stokes, and John Kennish for respondent.
This is an action for certain lands described by metes and bounds as accretions to fractional section 10 in township 61, range 40, in Holt county, Missouri.
The evidence tended to show title in plaintiff to said section 10 and such accretions thereto. On the part of defendant the evidence tended to show that between the years 1866 and 1876 an island formed in the Missouri river, opposite said fractional section 10, and extended up and down the river. Its first appearance was a sand bar which increased from year to year and willows and cottonwood of considerable size grew thereon. Steamboats passed up and down the river, sometimes on one side of this bar or island and sometimes on the other. Finally the waters of the river withdrew entirely to the west, or Nebraska, side of the river, leaving a deep, wide slough between the island and the shore on the Missouri side.
The plaintiff claimed the lands in controversy to the middle of the slough as accretions to his lands in said fractional section 10 on the Missouri shore, while defendant claimed that the lands in suit were not accretions to plaintiff's lands but an island or sand bar in the river which was not an accretion to plaintiff's land, and of which he had possession. This constituted the only issue. There was evidence tending to sustain each of these contentions. Upon this state of facts the court gave the following instructions:
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