State ex inf. Mansur v. Huffman

• Citation: 2 S.W.2d 582,318 Mo. 991
• Decision Date: 04 February 1928
• Docket Number: 27999
• Parties: The State ex inf. A. Moody Mansur, Prosecuting Attorney of Ray County, Appellant, v. Vernon Hoffman et al
• Court: United States State Supreme Court of Missouri

2 S.W.2d 582

318 Mo. 991

The State ex inf. A. Moody Mansur, Prosecuting Attorney of Ray County, Appellant, v. Vernon Hoffman et al

No. 27999

Supreme Court of Missouri

February 4, 1928

Appeal from Ray Circuit Court; Hon. Ralph Hughes, Judge.

Affirmed.

A Moody Mansur, Milligan & Thompson and John I Williamson for appellants.

(1) The consolidated school district was never legally organized because of the failure to post ten notices and five plats sufficient in law. Sec. 11258, R. S. 1919, as amended, Laws 1921, p. 654; State ex inf. Burges v. Potter, 191 S.W. 57. (2) The plats of the pretended consolidated school district as posted are insufficient, as they do not indicate the boundaries of the same and the correct sections townships and ranges of the land to be taken in with sufficient certainty to sustain the subsequent steps in its organization. The said plats described certain land as lying in Sections 27, 34 and 35, Township 50 and Range 28, Lafayette County, when in fact there are no such sections, township and range in Lafayette County, but said land so described is shown to lie north and east of the main channel of the Missouri River on November 30, 1875, and in Ray County in different sections, townships and ranges, and the evidence shows that the plats in describing the boundary line of said district called for certain points, measurements, and distances along said Sections 27, 34 and 35 in Lafayette County, when said points, distances and measurements were located in Ray County. The posting of five legal plats was a prerequisite to a valid organization of said school district. State ex rel. v. Wright, 270 Mo. 376; State ex rel. v. Curtright, 205 S.W. 248. (3) The county courts of Ray and Lafayette counties were without authority to change the boundary line between said counties by joint surveys. Secs. 1, 3 and 4, art. 9, Mo. Constitution; Northstine v. Feldmann, 298 Mo. 365. (4) The Constitution of the State fixed the main channel of the Missouri River on November 30, 1875, as the boundary line between Ray and Lafayette counties, and it could not be changed without a vote of the people. Secs. 1, 3 and 4, art. 9, Mo. Const.; Northstine v. Feldmann, 298 Mo. 365.

Lavelock & Kirkpatrick, Clark & Garner, Geo. W. Crowley and J. C. Jacobs for respondent.

OPINION

Ragland, J.

In this proceeding, which was instituted in the Circuit Court of Ray County, the State seeks to oust respondents as directors of Consolidated School District No. 4, in Ray and Lafayette counties, on the ground that said district was never legally organized or created. The circuit court denied ouster and the State appealed.

The facts are comparatively simple and they are not in dispute. The Consolidated District, which was formed on April 25, 1924, purported to embrace all the territory included within Camden Special School District, School District No. 85 and School District No. 87, all in Ray County, and School District No. 13 in Lafayette County. Prior to 1915 School District No. 13 was bounded on its west, north and east sides by the Missouri River. The form taken by the river where it made these boundaries was very much like that of an inverted letter U. In 1915, the river, suddenly and in one night, left its old channel and formed a new one along the southern boundary of the district, through which its waters have continuously flowed ever since. In 1915, and prior to the avulsion, the main channel of the river, where the river formed the three boundaries of District No. 13, was not where it was in 1875. During the period from 1875 to 1915 the channel had shifted, gradually and imperceptibly, far to the north and east. In 1922 the county courts of Ray and Lafayette counties, pursuant to the provisions of Sections 9408-9411, Revised Statutes 1919, ordered their respective county surveyors to proceed together and ascertain, survey and mark out the boundary between the two counties, which had been obliterated by the avulsion of the river in 1915. The line which these surveyors sought, surveyed, marked out and platted was that of the middle of the main channel of the river as it existed just prior to the river changing its course and as disclosed by the old abandoned river bed. A return of their proceedings was made and approved by the respective county courts and duly recorded.

In the notices and plats posted and filed in connection with the organization of the Consolidated School District the descriptions of the boundaries were based upon the hypothesis that the line marked out by the surveyors of the two counties in 1922 was the dividing line between the counties. If that hypothesis was correct the boundaries were properly described and within them all of the territory of the three school districts heretofore mentioned was embraced. If on the other hand the boundary between the two counties was where it was in 1875, the descriptions of the boundaries of the Consolidated School District contained in the notices and plats were not only erroneous, but some of them impossible. And however construed they left out of the consolidated District a small segment of District No. 13.

The sole question in the case is whether at the time of the formation of the Consolidated District the boundary between the two counties was the line marked out by the surveyors in 1922, or whether it was where the center of the main channel of the Missouri River was in 1875.

The statute in force at the time of the adoption of the Constitution of 1875) now Secs. 9328 and 9368, R. S. 1919) made "the middle of the main channel of the Missouri River" the boundary between Ray and Lafayette counties. As affecting county boundaries the Constitution (Article IX) contains these provisions:

"Sec. 1. The several counties of this State, as they now exist, are hereby recognized as legal subdivisions of the State.

"Sec. 3. . . . No county shall be divided or have any portion stricken therefrom without submitting the question to a vote of the people of the county, nor unless a majority of all the qualified voters of the county or counties thus affected, voting on the question, shall vote therefor. . . .

"Sec. 4. No part of the territory of any county shall be stricken off and added to an adjoining county without submitting the question to the qualified voters of the counties immediately interested, nor unless a majority of all the qualified voters of the county thus affected, voting on the question, shall vote therefor."

Because of the constitutional and statutory provisions just mentioned the State in all of its contentions in this case has assumed that the boundary between the two counties has never varied a hair's breadth from where the middle of the channel of the river was in 1875, notwithstanding the channel had prior to 1915 gradually and imperceptibly shifted from that place far to the east and north. Under all the authorities the assumption is clearly wrong. For there is nothing in the language of either the statute or the Constitution to indicate that the framers in the one case or the Legislature in the other intended to alter or abolish the rules of the common law relating to running water as a boundary. In dealing with questions touching such a boundary, the Supreme Court of the United States has uniformly applied those rules (which are the same as those of the civil law and the law of nations), whether the boundary was one fixed by treaty or by Act of Congress. [Missouri v. Kentucky, 11 Wall. 395; Nebraska v. Iowa, 143 U.S. 359; Missouri v. Nebraska, 196 U.S. 23; Washington v. Oregon, 211 U.S. 127.]

For a statement of the rules referred to in the preceding paragraph we cannot do better than quote from the opinion of Mr. Justice Brewer in Nebraska v. Iowa, supra, at page 360:

"It is settled law, that when grants of land border on running water, and the banks are changed by that gradual process known as accretion, the riparian owner's boundary line still remains the stream, although, during the years, by this accretion, the actual area of his possessions may vary. In New Orleans v. United States, 10 Pet. 662, 717 this court said: 'The question is well settled at common law, that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations, shall still hold by the same boundary, including accumulated soil. No other rule can be applied on just principles. ...