Randolph v. Moberly Hunting & Fishing Club

• Citation: 15 S.W.2d 834,321 Mo. 995
• Decision Date: 11 February 1929
• Docket Number: 28264
• Parties: A. M. Randolph v. Moberly Hunting & Fishing Club and D. C. Phillips, Appellants
• Court: United States State Supreme Court of Missouri

15 S.W.2d 834

321 Mo. 995

A. M. Randolph v. Moberly Hunting & Fishing Club and D. C. Phillips, Appellants

No. 28264

Supreme Court of Missouri

February 11, 1929

Motion for Rehearing Overruled March 27, 1929.

Appeal from Saline Circuit Court; Hon. Robert M. Reynolds Judge.

Reversed.

F C. Sasse, M. J. Lilly and Lamb & Lamb for appellant.

(1) The facts show that Saline County and its courts are estopped to assert jurisdiction over the territory in controversy. Cases involving the same principle but not boundary lines. State ex rel. v. Town of Westport, 116 Mo. 587; State ex rel. Jackson v. Town of Mansfield, 99 Mo.App. 146; State ex rel. v. Miller, 113 Mo.App 665; Stamper v. Roberts, 90 Mo. 683; Kircher v. Evans, 247 S.W. 251; People ex rel. v. Alturus Co., 44 L. R. A. 122; State of Iowa ex rel. v. Des Moines, 31 L. R. A. 186; Soule v. People ex rel., 69 N.E. 22; State ex rel. v. School District, 88 N.W. 751; Simpson v. Stoddard Co., 173 Mo. 462; Troll v. St. Louis, 257 Mo. 660; State of Indiana v. Milk, 11 F. 396; Jameson v. People, 63 Am. Dec. 306; State Bank v. Frey, 91 N.W. 241; Mullins v. Kansas City, 268 Mo. 460; State v. Leatherman, 38 Ark. 81; People v. Boyd, 132 Ill. 60; Chicago N. W. Ry. Co. v. Park Comrs., 25 L. R. A. 300; People v. Hanker, 197 Ill. 409; People v. pike, 197 Ill. 449. Cases involving boundary lines: Union Twp. v. Cotton Hill Twp., 243 S.W. 336; Michigan v. Wisconsin, 46 U.S. S.Ct. 290; Rhode Island v. Massachusetts, 4 How. (U.S.) 590; Indiana v. Kentucky, 136 U.S. 479; Virginia v. Tennessee, 148 U.S. 501; Louisiana v. Mississippi, 202 U.S. 1; Lead Co. v. City of Salem, 42 N.E. 802; Edwards Co. v. White Co., 85 Ill. 390; Ullman Bros. v. State, 79 So. 628; State v. Muncie Pulp Co., 104 S.W. 449; State ex rel. Simpson v. St. Louis Co., 134 N.W. 299; State ex rel. Reed v. Gorden Co., 170 N.W. 835; Roane Co. v. Anderson Co., 89 Tenn. 259; Franzini v. Layland, 97 L. W. 500; Maryland v. Virginia, 217 U.S. 134; State ex rel. v. Clary, 160 N.W. 107; New Mexico v. Coloraso, 267 U.S. 30. (2) It appearing that for more than forty-five years Chariton County has maintained over the land in controversy and the territory adjacent thereto a de facto, if not a de jure county government, the bringing of this suit in Saline County Circuit Court is a collateral and an ancillary attack on such organization and the legality thereof by an individual, which the law does not permit. State v. Rich, 20 Mo. 393; State v. Douglas, 50 Mo. 593; Kayser v. Trustees of Bruner, 16 Mo. 90; Fredericktown v. Fox, 84 Mo. 65; City of Billings v. Dunnaway, 54 Mo.App. 3; City of Clarence v. Patrick, 54 Mo.App. 466; City of St. Louis v. Shields, 62 Mo. 247; State v. Fuller, 96 Mo. 167; Catholic Church v. Toebin, 82 Mo. 424; Flinn v. City of Neosho, 114 Mo. 573; Bradley v. Reppel, 133 Mo. 556; Brunham v. Rodgers, 167 Mo. 21; School Dist. v. Hodgin, 189 Mo. 70; Hill v. City of Kahoka, 35 F. 34; Miller v. Irrigation Dist., 85 F. 698; Black v. Early, 208 Mo. 303; State ex rel. McBride v. Shutz, 279 Mo. 437; Clapp v. Otoe County, 104 F. 482; Ashley v. Board of Supervisors, 60 F. 62; Speer v. Board of Commrs., 88 F. 763; In re Section No. Six, 68 N.W. 323; State ex rel. Childs v. Crow Wing Commrs., 35 L. R. A. 746; State ex rel. West v. Des Moines, 31 L. R. A. 192; State Bank v. Frey, 91 N.W. 242; 28 Cyc. 174. (3) At the date of the passage of the Act of 1895, the title to the then old bed of the Missouri River between what was low-water mark on either side in 1879 between Saline and Chariton counties, was in the State of Missouri, and by the Act of 1895 the title to such river bed passed to such counties, either one or both. Laws 1895, p. 207; State ex rel. v. Longfellow, 169 Mo. 127; Frank v. Goddin, 193 Mo. 394; Cooley v. Golden, 117 Mo. 51; Edwards v. Rolley, 95 Cal. 408; 34 Cyc. 1793; Mayor v. Eslava, 33 Am. Dec. 325. Therefore respondent having failed to prove the location of the middle of the main channel of the Missouri River between the two counties at the date of the avulsion in 1879, and having failed to prove the location of the low-water mark of the river, on either side of the river at the date of the avulsion, and to show the lands sued for were north of the low-water mark on the south shore and south of the middle of the main channel of the river, appellant's demurrers should have been sustained. Jones v. Eaton, 270 S.W. 109; Benne v. Miller, 149 Mo. 245; Franklin v. Haynes, 139 Mo. 311; Howell v. Sherwood, 242 Mo. 513; Akers v. Stoner, 7 S.W.2d 695; Benecke v. Welch, 168 Mo. 267. (4) The record shows that Saline County, and this respondent, are by the doctrines of laches and equitable estoppel, estopped to assert title to the land in controversy. Schneider v. Schneider, 224 S.W. 1; Shelton v. Harell, 232 Mo. 373; Simpson v. Stoddard County, 173 Mo. 463; Troll v. St. Louis, 257 Mo. 660; Toler v. Edwards, 249 Mo. 167; Hubbard v. Slavens, 218 Mo. 598; Carson v. Lumber Co., 270 Mo. 238.

Roy B. McKittrick and Grover & Graves for respondent.

(1) Under the pleadings and evidence the party with the better title is entitled to judgment. Gage v. Cantwell, 191 Mo. 706; Deal v. Lee, 235 S.W. 1055; Graton v lumber Co., 189 Mo. 331; Huff v. Land Co., 157 Mo. 68; R. S. 1919, sec. 1970. (2) Where plaintiff shows a prima-facie title the burden is on defendant to show a superior right or title or a paramount outstanding title in another. 19 C. J. 1154, 202; Coulthard v. McIntosh, 143 Iowa 389. (3) The middle of the main channel of the Missouri River was fixed by the Constitution of 1875, as the boundary line between Chariton and Saline counties as of November 30, 1875. Mo. Constitution, art. 9, secs. 1, 3 and 4; 1 Wagner's Statutes 1872, pp. 375, 368; Nothstine v. Feldmann, 8 S.W.2d 916; Ackers v. Stoner, 7 S.W.2d 696; Jacobs v. Stoner 7 S.W.2d 702; Hecker v. Bleish, 3 S.W.2d 1008; Mansur v. Huffman, 2 S.W.2d 582; Nothstine v. Feldmann, 250 S.W. 593; State ex rel. Steele v. Baker, 129 Mo. 486; Alluvial Realty Co. v. Heimnel, 229 S.W. 762; 15 C. J. 396, n. 10. (4) The middle of the main channel of the Missouri River as it existed at the time of the avulsion in 1879, as contended by plaintiff in the trial of this case, is and remains the boundary between Chariton and Saline counties. Nothstine v. Feldmann, 8 S.W.2d 916; Akers v. Stoner, 7 S.W.2d 696; Jacobs v. Stoner, 7 S.W.2d 702; Hecker v. Bleish, 3 S.W.2d 1008; Mansur v. Huffman, 2 S.W.2d 582. (5) The United States holds title to the beds, below high water mark, of the navigable streams within a territory for the benefit of the whole people, and in trust for the state or states to be ultimately created out of such territory. Shively v. Bowlby, 152 U.S. 1; Weber v. State Harbor Commrs., 18 Wall. 57; Packer v. Bird, 137 U.S. 661; Knight v. United Land Assn., 142 U.S. 161; San Francisco v. Le Roy, 138 U.S. 656; McGilva v. Ross, 215 U.S. 70. (6) When Missouri was admitted to the Union in 1821 all undistributed lands in Missouri became the property of the United States, subject to patent, except the beds of navigable streams from high water mark to high water mark, which remained the property of the State. Scott v. Lattig, 227 U.S. 229; Shively v. Bowlby, 152 U.S. 1; Eldridge v. Trezevant, 160 U.S. 452; State ex rel. v. Longfellow, 169 Mo. 124; Hecker v. Bleish, 3 S.W.2d 1016; Frank v. Goddin, 193 Mo. 390. (7) All lands belonging to the State formed by the recession and abandonment of their waters of the old beds of lakes and rivers in this State, or by the formation of islands in the navigable waters of the State, were conveyed in 1895 and 1898 to the counties in which such lands were located. Secs. 7029-7032, R. S. 1919; Hecker v. Bleish, 3 S.W.2d 1915. (8) The evidence shows that the lands involved in this case were not accretions to the river banks. Crandall v. Smith, 134 Mo. 640; DeLassus v. Faherty, 164 Mo. 361; Frank v. Goddin, 193 Mo. 394; Doebbling v. Hall, 274 S.W. 1054; Dumm v. Cole County, 287 S.W. 448. (9) The facts alleged as an estoppel in pais and the facts in evidence are not sufficient to constitute an estoppel in pais. Hecker v. Bleish, 3 S.W.2d 1018; 21 C. J. 1249, n. 261; Blodgett v. Perry, 97 Mo. 272; Doe Run Lead Co. v. Maynard, 283 Mo. 677; Acton v. Dooley, 74 Mo. 67; Leckie v. Bennett, 160 Mo.App. 162; Thomas v. McDonald, 287 S.W. 445; Kinsolving v. Lumber Co., 300 S.W. 508. (a) This is a legal action. The estoppel plead is an estoppel against a county and is based upon laches; laches does not lie as a defense to a legal action. Hecker v. Bleish, 3 S.W.2d 1018; Mullins v. Kansas City, 268 Mo. 460; Hays v. Schall, 229 Mo. 124; Chilton v. Nickey, 261 Mo. 243; Willis v. Robinson, 237 S.W. 1036; Kellog v. Moore, 271 Mo. 193. (b) Assuming the allegation of the proper elements of estoppel and that laches would lie in a legal action, even then the action of Saline or Chariton county, the parties claiming title to these lands or their privies, or any other parties, has no effect on the fixed extent of these counties, as they were fixed by the Legislature and by the Constitution, and can only be changed in the manner provided by law. Hecker v. Bleish, 3 S.W.2d 1008; Nothstine v. Feldmann, 8 S.W.2d 916; Ackers v. Stoner, 7 S.W.2d 696; Jacobs v. Stoner, 7 S.W.2d 702; Mansur v. Huffman, 2 S.W.2d 582; Kinsolving v. Lumber Co., 300 S.W. 508; Thomas v. McDonald, 287 S.W. 455; Senter v. Lumber Co., 255 Mo. 605; Bartlett v. Kauder, 97 Mo. 361; St. Louis v. Gorman, 29 Mo. 599; Board of Commrs. v. Same, 143 P. 842; Steckel v. Vancil, 92 Kan. 593; Brace v. State, 95 P. 282; Russell v. C. M. Robinson Co., 153 Ala. 333; Crane v. Reeder, 25 Mich. 320; State v. Portsmouth Bank, 106 Ind. 458; Reed v. State, 74 Ind. 252; Howard Co. v. Bullis, 49 Iowa 520; Plumb v. City of Grand Rapids, 81 Mich. 393; County v. Iowa...