State of Kansas v. Meriwether

• Decision Date: 02 June 1909
• Docket Number: 2,980.
• Citation: 171 F. 39
• Parties: STATE OF KANSAS v. MERIWETHER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

171 F. 39

STATE OF KANSAS v. MERIWETHER et al.

No. 2,980.

United States Court of Appeals, Eighth Circuit.

June 2, 1909

F. S Jackson and L. W. Keplinger (A. L. Berger, on the brief), for appellant.

R. E Ball, for appellees.

Before ADAMS, Circuit Judge, and CARLAND, District Judge.

ADAMS Circuit Judge.

This cause presents the question whether Hunter M. Meriwether or the state of Kansas is entitled to certain money resulting from the condemnation for public use of a certain tract of land in Wyandotte county, Kan., by a railroad company. Whether the one or the other is entitled to it depends upon which of them was the owner of the land at the time of the condemnation. This land is situated near the fork of the Missouri and Kansas rivers, and is conceded to have been a part of a tract originally in 1857 patented to one Armstrong from whom by mesne conveyances Meriwether deraigns title.

After issue was joined, this cause, which was in the nature of a bill of interpleader, was referred to a special master to take the evidence and report the facts and conclusions of law for the consideration of the court. In due time the master made his report, disclosing that many witnesses had testified in the case and that records of weather bureau, reports of river commissions, plats, patents, maps, deeds, and other documentary evidence had been given in evidence and considered by him, all of which he stated he returned to the court as a part of his report.

He then made certain findings of fact, and stated as a conclusion of law that the defendant Meriwether was entitled to receive the money resulting from the condemnation and appropriation of the land by the railway company. His report, with exceptions thereto, which were filed before the master and overruled by him in due time, came before the court for hearing, when the report was approved and confirmed, and the fund in question ordered paid to Meriwether. From this decree the state of Kansas alone appeals. In its praecipe for a transcript it directed the clerk of the trial court to send up the pleadings, certain orders of the court, report of the special master, exceptions of the state of Kansas, and the decree. Obeying that direction, the clerk sent nothing more than what was called for; nor even that, for we fail to find the exceptions. Neither the testimony of the witnesses nor the numerous plats, reports, maps, or other documents introduced in evidence were certified here. Practically all we have is the pleadings, findings, and conclusions of the special master and the decree of the court below confirming the same.

The master's findings of fact show that in 1857, when the land was patented to Armstrong, the southern bank of the Missouri river formed the northern boundary of the patented tract, and that the land now in controversy came to within a distance of from 300 to 600 feet from the river bank as it then was; that afterwards the Missouri river encroached upon the southern bank, overran and carried away the surface of the patented land so far southwardly as to involve the land in dispute; that steps were taken to avert its progress by riprapping the bank, which proved fairly efficacious, but that the channel of the river had before then been so diverted southwardly that it came close up to the riprap bank; that the channel continued to flow there, covering the lower strata of the land in controversy from about 1869 to 1887, when it began to recede and a sand-bar accretion began to appear; that the channel, which for years had been navigable along and close to the riprap bank, ceased to be there navigable, and soon thereafter the commercial and navigable channel had receded towards its original location northwardly several hundred feet away from the land in controversy; that as this channel receded the sand bar increased, and firm land again appeared where before there had been water covering the channel and bed of the river.

It is claimed that the special master found that the land in controversy was formed by accretion in the full legal significance of that word, and that therefore the findings support the decree, but a careful scrutiny of the findings fails to convince us that any such distinct finding was made. It is true the master says:

'The defendant and cross-petitioner Hunter M. Meriwether is the fee owner by a direct line of conveyances from Silas Armstrong, patentee from the United States, for the land bordering on the south bank of the Missouri river between the land of Jane W. Stark mentioned in the preceding finding and the state line, with all accretions thereto.'

The italicized words do not in our opinion amount to a finding that the lands in controversy were formed by accretion. The finding at best states a conclusion resulting from prior findings, and fails to show that the word 'accretions' there employed is referable to the land in dispute.

There is also a finding that an island had formed in the river on the Missouri side of the state line which became submerged at high water, and that the land in controversy now lies on the southern and descending slope of the sand formation on the west and southern side of that island. It appears to us that all the questions which are thus only vaguely referred to in the findings relating to title by accretion, whether on the island or mainland, are inextricably interwoven with the greater question whether the land was originally carried away by avulsion or by erosion; and as to this there is no finding whatsoever.

The land, as already said, originally belonged to Meriwether's grantor, and if the state ever acquired title it was because the land had for 20 years or more constituted the bed of the river, which, being navigable under well-recognized law belonged to the state. If the river by reason of a flood or other sudden inundation violently cut a new channel through and thereby submerged the...