State v. Dakota County, Neb.

• Decision Date: 16 December 1958
• Docket Number: No. 49579,49579
• Citation: 250 Iowa 318,93 N.W.2d 595
• Parties: STATE of Iowa, Appellant, v. DAKOTA COUNTY, Nebraska, Board of County Commissioners of Dakota County, Nebraska, Daco, Inc., John F. Kern and Nellie F. Kern, Appellees.
• Court: Iowa Supreme Court

Page 595

93 N.W.2d 595

250 Iowa 318

STATE of Iowa, Appellant, v. DAKOTA COUNTY, Nebraska, Board of County Commissioners of Dakota County, Nebraska, Daco, Inc., John F. Kern and Nellie F. Kern, Appellees.

No. 49579.

Supreme Court of Iowa.

Dec. 16, 1958.

Norman A. Erbe, Atty. Gen., C. J. Lyman, Special Asst. Atty. Gen., James E. Thomson, General Counsel for Iowa State Highway Commission, Iowa City, and A. H. Bolton, Sioux City, for appellant.

Jesse E. Marshall, Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, for appellees.

WENNERSTRUM, Justice.

Plaintiff, the State of Iowa, originally filed a petition asking specific performance of a claimed contract entered into by Dakota County, Nebraska and the State of Iowa and therein prayed for the conveyance of a tract of land located along the Missouri River and to its low water mark. The defendants, Kerns, counter-claimed and asked that title to the property in controversy be quieted in them as against the State of Iowa. The state in a reply denied title was in defendants, Kerns. Upon trial the court entered a decree favorable to John F. and Nellie F. Kern and quieted title in them and dismissed plaintiff's petition. Thereafter the plaintiff filed an application for a nunc pro tunc order thus seeking to cure what it claimed was an apparent mistake of fact and law in the decree of the court. It was therein alleged the land in question is riparian land, borders on the Missouri River, a navigable stream, and title to it below the high water mark belongs to the State of Iowa as a matter of law. The application was denied and from the decree and order as entered the plaintiff has appealed.

The plaintiff in its reply pleaded: 'Defendants, Kern, are not the unqualified owners of the land in dispute'. It was further therein pleaded: 'The State of Iowa admits there is a condemnation suit involving the land in dispute and under which the State of Iowa asks that title be determined, that compensation be paid in the event the state is not the owner of said lands'.

It is quite evident the pleadings filed on behalf of the state could have been drawn with more definiteness and particularity. However, it unquiestionably is shown the state denied the fact the Kerns, the defendants, were the unqualified owners of the land involved in this litigation. This fact is further evidenced by the reference to a condemnation action then pending and that the disputed land was claimed by the state. It may be true the question of the state's ownership of the land in question by reason of a claim to the high water mark was not definitely so pleaded yet despite that fact the state originally denied the ownership of the property by the Kerns, and, in substance, claimed it was the owner.

The pleadings in this case and the evidence presented disclose the state's original action was for specific performance of a contract by Dakota County, Nebraska wherein it asked for the conveyance of a certain tract located along the Missouri River and to the low water mark of that river. The parties named as defendants were Dakota County, Nebraska, Board of County Commissioners of Dakota County, Nebraska, Daco, Inc., John F. Kern and Nellie F. Kern. There were resolutions adopted by Dakota County, Nebraska and the Iowa Highway Commission relative to the taking title to certain lands by the State of Iowa. These resolutions were apparently considered to be a contract and it was for the specific performance of the agreement the original action was commenced. The basis of the claimed interest of the land in question by the Kerns will be commented on later. It is evident the state's action for specific performance was or has been abandoned and the sole question is who owns the land and whether the title to it was properly quieted in the Kerns.

It was stipulated the land here in dispute is shown in certain exhibits made a part of the record and that '* * * the Missouri River as originally located under government survey is shown in broken lines just south of West First Street and the Expected C. M. St. P Railway right of way'. The land in question is south of West First street and the railway right of way in Sioux City, Iowa and the prior location of the river.

Although the record is unnecessarily abbreviated we have ascertained that what has been referred to as a combination bridge was erected over the Missouri River with the Iowa terminus abutting on the south side of West First Street. Later the then corporate owner of this bridge was unable to successfully carry on its operation as a toll bridge and a receiver was appointed for the company. This official sold the bridge and all the real estate owned by it. The title to the bridge, and certain lands claimed to be owned by the original bridge company, were conveyed by reason of subsequent transactions to successive companies.

Dakota County, Nebraska was contemplating the erection of a bridge over the Missouri River but instead on January 8, 1938 the property in dispute was conveyed to the county along with the combination bridge and, according to the record, the conveyance included the '* * * right of way, easements, franchises, privileges and personal property and the southerly boundary of the realty * * *' which is stated in the deed as the low water mark of the Missouri River. The bridge was operated as toll bridge and eventually the revenue bonds issued to make possible its purchase were retired. On November 27 1951 Dakota County, Nebraska passed a resolution offering the inter-state 'Combination Bridge' to the States of Iowa and Nebraska to be operated by them as a part of their highway system. Thereafter the Iowa Highway Commission passed a resolution agreeing to accept from Dakota County Nebraska a certain tract of land easterly of the right of way of said bridge in the State of Iowa for the eventual use in the construction of ramps and approaches to said bridge. A deed was prepared by the attorney for the Iowa State Highway Commission. It did not describe the real estate here in dispute. However, it did describe the southerly boundary of the lands conveyed as the low water mark of the Missouri River. This deed was executed by Dakota County, Nebraska on December 20, 1951. On April 29, 1953 Dakota County, Nebraska deeded the land in dispute in this cause to John F. Kern and Nellie F. Kern.

In 1950 Daco, Inc., was organized. The apparent purpose for the organization of it was to hold title to certain land which Dakota County, Nebraska held in Iowa, it being the thought a question might arise as to the right of the Nebraska County to hold property in Iowa. This property to which Daco, Inc., took title from Dakota County, Nebraska is not definitely shown to be the property here in controversy due to the limited statements in the record yet it can be inferred that is the fact. It is further shown the Daco, Inc., gave Dakota County, Nebraska, its agreement that the county would receive all the proceeds of the sale of the lands conveyed to it and that the corporation would deed only as directed by Dakota County, Nebraska.

It is further shown that in the several conveyances which were made by the several parties, and particularly those made by Dakota County, Nebraska, reference is made to the low water mark. There were no pleadings filed on behalf of Dakota County, Nebraska, or its Board of Commissioners. The defendant Daco, Inc., filed a disclaimer to the land in dispute. Consequently the only defendants here concerned are John F. Kern and Nellie F. Kern.

The matter for determination is whether the State of Iowa has been divested of the title to land developed by accretion and filling south of the original Missouri River bank.

I. It is apparent the representatives of the State of Iowa sought to raise the question of the right to the land below the high water mark by its application for a nunc pro tunc order. The decree in the district court was entered on February 18, 1958. The ...