Rees v. McDaniel
| Citation | 21 S.W. 913,115 Mo. 145 |
| Parties | Rees et al. v. McDaniel, Appellant |
| Decision Date | 14 March 1893 |
| Court | Missouri Supreme Court |
Appeal from Platte Circuit Court. -- Hon. James M. Sandusky, Judge.
Reversed and remanded.
Porter & Woodson for appellant.
(1) The proceedings to quiet title, the record of which was read in evidence, are void. First. Because there was no service of notice as required by law. Revised Statutes, 1889, sec. 2092. Second. Because there is no description of the land sought to be affected by the proceedings. (2) The owner of an island in the Missouri river which washes away is entitled to the land which re-forms on the original site; and if any part of the island remains he is entitled to all accretions thereto. Buse v. Russell, 86 Mo. 209. And, if entirely submerged and the surface washed away, when the water disappears from the land from any cause, the proprietorship is restored to the original owner. Mulray v. Norton, 100 N.Y. 425; Gould on Waters [2 Ed.] sec. 158, cases cited; St. Louis v. Rutz, 138 U.S. 245. (3) Changes in the boundary river between states after their admission into the union do not affect their dominion and jurisdiction. Gould on Waters [2 Ed.] sec. 158; Indiana v. Kentucky, 136 U.S. 479; State v. Young, 46 Vt. 565; St. Louis v. Rutz, 138 U.S. 245. (4) Land sued for in ejectment should in the petition and the judgment so identify it that the officers charged with the execution of a writ of possession can locate the land by the description therein contained. Livingston Co. v. Morris, 71 Mo. 603.
A. D Burnes and Jas. W. Coburn for respondents.
(1) By the judgment in the action to quiet title to the lands in suit appellant was estopped to claim them. Revised Statutes 1889, sec. 2092. (2) The description of the lands in said proceeding was sufficient. Livingston Co. v. Morris, 71 Mo. 603; McPike v. Aullman, 53 Mo. 551; Webster v. Blount, 39 Mo. 500. (3) The middle of the channel of the Missouri river is the boundary line between the states of Missouri and Kansas. Railroad v Devereux, 41 F. 14. (4) Where the middle of a stream is the boundary between states or private land owners, that boundary follows any changes in the stream which are due to a gradual accretion or degradation of its banks. Nebraska v. Iowa, 143 U.S. 359. (5) The rule that owners of land are entitled to additions to their land formed by accretions is applicable to the Missouri river, notwithstanding the peculiar character of that stream and of the soil through which it flows, whereby changes in its banks are great and rapid. Jeffries v. Omaha Land Co., 10 U. S. S.Ct. 518. (6) The law of accretion is founded upon at least two good reasons: First. The riparian owner is entitled to his water front; and, second, as he must bear the loss of his soil that is washed away, he is entitled to whatever may be added to it. Accretions extend to the water. Gould on Waters [2 Ed.] sec. 155, p. 283. (7) There is no difference between soil gained by accretion and that uncovered by reliction. Gould on Waters [2 Ed.] sec. 155, p. 283; Nebraska v. Iowa, 143 U.S. 359. Appellant's land was not submerged but was entirely washed away. "If an island in a stream be wholly washed away, the filum aquoe may run along where there had been this solid land." 3 Washburn on Real Property [4 Ed.] p. 58. "Land gradually encroached upon by navigable water ceases to belong to the former owner." Gould on Waters [1 Ed.] sec. 155, p. 283. "If a river running between two lordships by degrees gains upon the one and thereby leaves the other dry, the owner who thus loses his ground thus imperceptibly has no remedy." 2 Blackstone's Commentaries [Wendell's Ed.] p. 262. (8) The existence of a lagoon between plaintiff's property and the beach constituted no obstruction to his proprietorship of the beach, however created, within the original boundaries of his possessions, and the principle applicable to the apportionment of lands formed by accretion among the owners of contiguous uplands is applicable to the beach formed by reliction in front of his property. Mulvey v. Norton, 3 N.E. 581. A sand bar in the Missouri river, divided from the main land by a slough twenty-eight feet wide, and which at high water was entirely submerged, belonged to the riparian owner, although the acts of congress made the river a public highway at the place in question. Railroad v. Schurmeier, 7 Wall. 272.
This is a suit in ejectment for the possession of the accretions made by the Missouri river to fractional section 24, township 54, range 37, in Platte county, Missouri, owned by plaintiffs. The answer is a general denial.
It was admitted on trial that the plaintiffs were the owners of fractional section 24. It was also admitted that the land sued for was part of an island which was in the state of Kansas when that state was admitted into the union, which washed away and reappeared, and that it was the fractional northeast quarter of section 6, township 7, range 22, in Atchison county, that state. That this island was known as Cow island, to which defendants had an unbroken chain of title.
The evidence was very conflicting but tended to show that the island had entirely washed away or at least all of it except about one and one half acres at the northwest corner of the island, and that the land in controversy was remade land, but before it was reinstated by the action of the river the channel of the river which ran between section 24 and the island changed and ran where it does now on the Kansas side of the land sued for, and that by gradual accretion to plaintiffs' land, the Missouri shore, it extended entirely over what had been Cow island before it was remade. Defendant was in possession.
The cause was tried by the court sitting as a jury, and the finding and judgment were for the plaintiffs for possession. The usual motion for new trial was filed and overruled and the case is here by appeal. There was no motion in arrest.
At the April term 1890 of the circuit court of Platte county, Missouri, plaintiffs filed their petition under section 2092, Revised Statutes of 1889, against the defendants to quiet their title to the land in controversy, and thereupon an order was duly made that notice be given defendant as required by said section. In obedience to this order the clerk of the court issued an ordinary summons to the defendant returnable to the next term, containing in addition to the ordinary commands the following words, to-wit: "And show cause why you should not bring an action to try your alleged title to the land described in the petition." This summons was duly served, and at the following October term of said court defendant failing to answer, or show cause why he should not bring this suit to try his title, judgment was rendered that he be forever barred and estopped from having or claiming any right or title in said land adverse to plaintiffs.
The proceedings were read in evidence on the trial of this cause over the objections of defendant's counsel, who contend that they are absolutely void, because the order of the court was not as required by statute, that notice be given, while the clerk issued a summons, and because of the indefinite description of the land. The object of this statute was to notify the defendant that proceedings had been commenced against him and requiring him to bring suit to try his title, and, while the proceedings were not perhaps in strict conformity with section 2092, supra they were substantially sufficient to apprise defendant of the purpose and nature thereof, which would seem to be all that was necessary. If the defendant after being thus served saw proper to fold his arms and stand heedlessly by and suffer judgment to be rendered against him he is forever estopped thereby from claiming title to the premises. The defendant could not have been misled by the summons, and as the court had jurisdiction of the parties and of the subject-matter of controversy its proceedings were not void however irregular they may have been and can not now be called in question in this collateral way.
II. The description in the petition is as follows: "The accretion made by the Missouri river to section 24, which would be upon an extension of the line of the congressional survey the southeast quarter of section 24 and the northeast quarter of section 25, etc." There is no such indefiniteness or uncertainty in the description of the land as would invalidate the proceedings. Livingston Co. v Morris, 71 Mo. 603. We are therefore of the opinion that the...
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