Randolph v. Moberly Hunting & Fishing Club

• Decision Date: 11 February 1929
• Docket Number: No. 28264.,28264.
• Citation: 15 S.W.2d 834
• Parties: RANDOLPH v. MOBERLY HUNTING & FISHING CLUB et al.
• Court: Missouri Supreme Court

15 S.W.2d 834

RANDOLPH v. MOBERLY HUNTING & FISHING CLUB et al.

No. 28264.

Supreme Court of Missouri, in Banc.

February 11, 1929.

Motion for Rehearing Overruled March 27, 1929.

Appeal from Circuit Court, Saline County; R. M. Reynolds, Judge.

Action by A. M. Randolph against the Moberly Hunting & Fishing Club and another. From an adverse judgment, defendants appeal. Reversed.

F. C. Sasse, of Brunswick, M. J. Lilly, of Moberly, and Gilbert Lamb, of Salisbury, for appellants.

Roy B. McKittrick, of Salisbury, and Grover & Graves, of Kansas City, for respondent.

WHITE, C. J.

The plaintiff filed his petition in the circuit court of Saline county April 6, 1925, in two counts: The first in ejectment, and the second praying the court to determine title. The land involved is thus described: The northwest quarter of section 19, township 53, range 19; and the southeast quarter of section 24, township 53, range 20; all in Saline county.

To this petition defendant filed an amended answer setting up numerous defenses which can better be understood by first explaining the situation of the land. It lies on the north side of the Missouri river. Under the General Statutes of 1865, c. 34, §§ 11, 100, the county line between Saline county and Chariton county was fixed as the middle of the main channel of the Missouri river.

When this land was first surveyed by the United States government in 1816, the Missouri river at that point flowed in a curve around to the north in a sort of horseshoe bend, forming a peninsula extending from Saline county into Chariton county. At that time the greater part of the land in dispute was probably in the river, and possibly all south of the middle of the main channel. The peninsula within the bend extended three or four miles to the north. Some part of the north tip of the peninsula was called "Saline Point." In the course of time the force of the water gradually wore away the neck of the peninsula and widened the expanse of land towards the top. Land was taken into the river from the right and left, and accretions accrued to the land within the bend. This wearing away of the neck continued until 1879, when the river suddenly abandoned the bend and cut straight across, leaving all the land within the peninsula, including the land sued for, on the north side of the river.

Plaintiff claims title by quitclaim deed from Saline county, on the theory that the land formed by recession of the river became the property of the state and was granted to Saline county by the act of 1895 (Laws 1895, p. 207). The order to sell by the county court of Saline county and the deed to plaintiff covers 2,491 acres.

The amended answer challenges the jurisdiction of the circuit court of Saline county to entertain the case on the ground that the land is in Chariton county. It pleads laches and estoppel on the ground that, since what is called the "cut-off" in 1879, Chariton county has exercised exclusive jurisdiction over the territory north of the river including this land. Other defenses are set up in the answer, which are more or less repititions of those two. The statute of limitations is also pleaded, and still other defenses which it may not be necessary to consider.

The first government survey was made from the south while the land was on the south side of the river, in which at least one of the tracts in dispute was surveyed and described as above. A United States government survey in 1890 was made from the north side. These two surveys conflict. In 1898, 19 years after the cut-off, Chariton county caused the land to be surveyed as a part of that county. This survey agrees with the government survey of 1890. In the later surveys this land is described as lot 3, southeast quarter section 27, township 53, range 19; lot 1, northeast quarter section 34, township 53, range 19; lot 2, the southeast quarter of section 34, township 53, range 19; all in Chariton county.

The plaintiff had previously brought a suit in Chariton county against the same defendants for the same land, by the latter description. The defendant Hunting Club claims title to the land described in the petition as northwest quarter of section 19, township 53, range 19, through a patent of the United States, and mesne conveyances, to part of Island 23, with accretions to the island. It also claims, as we gather from the record, that the southeast quarter of section 24, township 53, range 20, never belonged to the state, but was partly on the mainland on the Saline county side, and partly accretions by recession of the river.

The United States government owned all the land above low water bordering on the river; it also owned the islands. But land which occurred by the formation of islands in the river after admission of Missouri as a state in 1821 belonged to the state; lands caused by the recession of the river which did not acrrue to riparian owners belonged to the state. By the act of 1895 of the Missouri General Assembly all such lands which had been formed by the recession of waters of lakes and rivers were granted to the respective counties in which they were situated.

The facts upon which the defendant bases its defenses of laches, estoppel, and want of jurisdiction are as follows: The act of 1895, granting lands formed by the recession of waters to the counties, was 16 years after this particular land was on the north side of the river and within the territory over which Chariton county exercised exclusive jurisdiction. Chariton county thereafter continued to exercise exclusive jurisdiction over it.

The plaintiff introduced one A. F. Arrington, who, in 1898, as county surveyor for Chariton county, surveyed the land from which the waters had receded, and the plat of his survey was introduced in connection with his testimony. The land around the original bend which became dry land after the cut-off, was called "bar lands," of which the land in dispute is a part. The defendant offered depositions, and, as witnesses in court, former sheriffs of Charitan county, former clerks of the county court, deputy clerks, prosecuting attorneys, probate judge, superintendent of schools, school commissioners, treasurers, collectors, and assessors. The probate court of Chariton county had entertained jurisdiction of all estate arising on all lands placed north of the river by the cut-off. All suits concerning such lands were filed in the circuit court of Chariton county. The sheriffs of Chariton county served processes on such lands concerning such suits, arrested persons charged with crimes committed there, candidates for offices solicited votes from voters living there, and all voters voted at precincts in Chariton county. A school district was formed on that territory, called the Bar school district, and was in operation for 25 years prior to the filing of this suit.

Cases of the kind mentioned above were tried in Chariton county, with no question as to jurisdiction, and none were tried in Saline county except on change of venue. The officials of Chariton county assessed, levied, and collected taxes on all the lands included in that territory. Public roads were established and bridges were built by Chariton county in the Bar district. All this occurred during almost the entire time after the cut-off in 1879, and at no time during that period did Saline county, or any official of Saline county, attempt to exercise any official jurisdiction over that territory.

One J. E. Dempsey testified that he was deputy sheriff and sheriff of Chariton county from November, 1886, until 1897. He was familiar with the location of the bar lands. He said: "I served papers there, made arrests in that territory during all my term of office. I never knew of any crimes occurring in that territory being prosecuted in any other courts excepts the courts of Chariton county."

Then he said: "Since the river changed no offense committed on this side of the river (meaning the Chariton county side, where his testimony was taken) were ever prosecuted in Saline county. I will say if there was I do not know about it and that holds good as to civil cases. The Missouri river has been the line ever since the change was made; in fact ever since I can remember the Missouri river was considered the line between the two counties."

W. W. White, county clerk of Chariton county for 8 years, testified that township organization prevailed in Chariton county, and this territory was attached to townships of Chariton county. He said: "No officer of Saline county ever had anything to do with the assessing and collecting of taxes on these lands. No officer of Saline county ever exercised any authority on this territory so far as I know. During all the time I have known these lands the Missouri river was regarded as the boundary line between Saline and Chariton county. The matter was never disputed until the year 1925."

J. W. Grizzell, a banker, as county treasurer of Chariton county from 1905 to 1909, regularly collected taxes on this land. He said: "The Missouri river was regarded as the boundary line between Chariton and Saline county. I have never heard of any other line between the two counties. The whole business of the counties was administered with reference to this boundary."

One C. C. Parks, deputy collector, from January, 1909, to January 1, 1915, testified to collecting taxes upon this territory. He said: "While I was in office I never heard of any claim being made of any part of these lands being in Saline county. The Missouri river was regarded as the boundary line between the counties for all purposes."

W. L. Wright, former circuit clerk, testified that suits between persons in this territory were filed in the circuit court of Chariton county and tried there. He said: "The Missouri river was regarded as the boundary between these two counties."

Many statements of like nature were made by other persons who had been officials of Chariton county. The only objection to this...