Stoner v. Royar
| Decision Date | 22 December 1906 |
| Citation | 98 S.W. 601,200 Mo. 444 |
| Parties | STONER v. ROYAR, Appellant |
| Court | Missouri Supreme Court |
Appeal from Saline Circuit Court. -- Hon. Samuel Davis, Judge.
Affirmed.
Robert M. Reynolds, S. J. Wheeler and Harry Parsons for appellant.
(1) Under the pleadings and evidence, plaintiff could not recover, and this being true, no error upon the trial of the cause would be ground for a new trial. Bartley v Railroad, 148 Mo. 125; Homuth v. Railroad, 129 Mo. 642; Vogg v. Railroad, 138 Mo. 180. (a) Plaintiff must have the legal title in ejectment. Claggett v. Robertson, 149 Mo. 153. (b) Respondent bases his chain of title upon a patent from the United States Government, to lands in section 11, issued in 1855. At that time the United States had parted with its title, and had granted the same by act of Congress, to the State of Missouri, and had no title which it could grant to respondent or his predecessors. Sec. 15, R. S. U.S. vol. 2, p. 747. (c) Respondent's color of title did not extend to the land in suit, even though it was an accretion to the island. He had no deed to the island, as an island, and hence his actual possession of a portion of the same, with a deed to only a portion of the same, did not by virtue of his color of title extend to all of said island, but only to that portion embraced within his deed. Gordon v. Eans, 97 Mo 589; Pharis v. Jones, 122 Mo. 125; Heinneman v Bennett, 144 Mo. 113. (d) If respondent's deeds or chain of title had called for the entire island as an island, and if this land was an accretion to the island, then it might be that his color of title would extend to it; but here his deed is for certain lots upon an island, in section 11, and there is nothing to show that the lots ever extended to the water's edge, and were entitled to any accretions that may have been made to the island, or to any lands in section 12. (e) Certainly if these lots did not originally extend to the water's edge and form a portion of the shore of the island, there could be no accretion to them, and the mere fact that they were laid out upon an island, does not raise an inference even that they extended to the water's edge. The accretions go to the land against which they were made. Sweringen v. St. Louis, 151 Mo. 348; Benne v. Miller, 149 Mo. 248. (f) Mere claim to land without possession, will not ripen into title. Goltermann v. Schiermeyer, 125 Mo. 291. (g) And where possession is a mere naked one, without color of title, the disseizin does not extend to any land not actually occupied. Chapman v. Templeton, 53 Mo. 463. We therefore respectfully submit that respondent has not shown any title to this property, and appellant's refused instructions should have been given. (2) Upon the facts, without reference to the question of title, the verdict was for the right party, and where this is the case, it should not be set aside, even though error might have been committed upon the trial in the giving of instructions or otherwise. Homuth v. Railroad, 129 Mo. 642; Kelly v. Railroad, 88 Mo. 534; Ellerbe v. Bank, 109 Mo. 445.
John A. Dunlap and D. D. Duggins for respondent.
(1) The court erred in excluding the deeds from plaintiff's grantors. The patent issued by the United States, even to an island in the river, is prima-facie evidence that all prerequisites of the law necessary to its issuance have been complied with. Cramer v. Keller, 98 Mo. 279; Polk v. Wendal, 9 Cranch 87; Bradshaw v. Edelen, 92 S.W. 697. A stranger to the title is not in position to challenge a patent by the Government. Johnson v. Fluetsch, 176 Mo. 452. A straight legal title from the original patentee ought not to be impeached by a person holding a deed from a stranger or through a broken chain of title. DeLassus v. Winn, 174 Mo. 636. Section 15 of the Act of Congress approved June 4, 1812, providing for the government of the Territory of Missouri provides: "That the General Assembly shall never interfere with the primary disposal of the soil of the United States in Congress assembled, nor with any regulation Congress may find necessary to make for securing the title in the bona fide purchaser." The island was surveyed by the Government, platted and found to be located in sections eleven and twelve, township fifty-two, range twenty-two. The language used by the court in the case of Widdecombe v. Rosemiller, 118 F. 295, is very applicable to the case at bar. (2) The lands sued for were undoubtedly accretions, and formed either to the island or to the mainland. If they were accretions to the island, then unquestionably, from the evidence, plaintiff should recover. Widdecombe v. Chiles, 173 Mo. 195; Benne v. Miller, 149 Mo. 228. The court fell into error by having its attention called to the law of 1895, wherein the Legislature granted the title to all islands formed in the Missouri river to the counties in which they were located. This grant does not and could not impair the title to lands surveyed and platted by the Government and reserved in the acts of Congress authorizing the organization of the Territory of Missouri. (3) The first instruction given by the court at the instance of defendant was erroneous. It assumed that defendant owned the land sued for. The whole evidence and all instructions strongly indicate that the question was, who was the owner of the land in dispute? None of the plats are copied in the record. Simply because defendant had a deed to a tract of land is not sufficient to give him the title. It is error to single out a disputed fact and call the jury's attention to such fact as being taken for granted. (4) Defendant's second instruction is erroneous, for the reason said instruction assumes controverted facts. It tells the jury that although the slough between the main land and the accretions sued for make it impossible for accretions to form and attach themselves to the mainland, yet plaintiff could recover if the accretions originally attached themselves to the mainland. Said instruction is confusing and misleading. (5) The granting of a new trial is in the sound discretion of the trial court and the appellate court will not interfere unless that discretion is abused. Bank v. Bennett, 114 Mo.App. 691; Farrell v. Railroad, 105 Mo.App. 454. Whether or not there is any conflict in the evidence, the trial judge has supervisory control over verdicts, and may, in the exercise of sound discretion, set aside the verdict in the interest of justice. Morris v. Kansas City, 92 S.W. 908; Haven v. Railroad, 155 Mo. 516; McCarthy v. Transfer Co., 192 Mo. 401; Herndon v. Lewis, 173 Mo. 119; Schuette v. Railroad, 108 Mo.App. 186; Heinzeman v. Railroad, 182 Mo. 611. The court may award a new trial of any issue, upon good cause shown, but not more than one new trial of the same issue shall be granted to any one party. Sec. 725, R. S. 1899; Lovell v. Davis, 52 Mo.App. 347; McCabe v. Lewis, 76 Mo. 301. The omission of the various plats, surveys and exhibits is a failure to comply with the rule which requires an abstract of the record to be printed, setting forth so much of the record as is necessary to a full and complete understanding of all questions presented for decision. Mitchell v. Mitchell, 90 S.W. 1147; Harrison v. Pounds, 190 Mo. 349. It will not do to cull over the record and present such evidence as appellant may think material. Reed v. Peck, 163 Mo. 336.
This is an action of ejectment to recover the possession of certain land in Saline county. The land was formed by accretions in the Missouri river. Plaintiff claims title, through patents from the United States to his remote grantors and a succession of deeds from them and their grantees to him, to certain land in an island in the river, and he claims that the land sued for is an accretion to his land covered by those patents and deeds. Defendant claims title to land on the river bank derived through a patent from the United States and deeds following, and he claims that the land sued for is an accretion to his land. The main question in the case is one of fact, but one of not very simple solution.
The patents from the United States which are the foundation of the plaintiff's paper title were issued in 1855. They call for the land patented by numbers of lots in sections, township and range, showing that they followed, or purported to follow, the descriptions in the Government survey. When these patents were offered in evidence the defendant objected on the ground that prior to 1855 the General Government had granted to the State of Missouri the title to all islands in the Missouri river; the court sustained the objection. The succeeding deeds by which the title came down from the patentees to the plaintiff were also on the same ground excluded. But later in the trial the court allowed the plaintiff to introduce his patents and deeds, not as giving title, but as giving color of title, under which the plaintiff was allowed to introduce evidence tending to prove that he had been in possession of the land described in the patents and deeds for a period long enough to give him title as by adverse possession.
The defendant offered in evidence the patent from the Government and the deeds following, bringing the title down in regular course to himself to the land he claimed on the river bank, the main shore. To these documents the plaintiff offered the general objection "incompetent, irrelevant and immaterial," which the court overruled and they were admitted.
The bulk of the evidence related to the changes made by the river in its course and the formation of the land in suit, the ultimate question being, was this land formed against the plaintiff's land on the island or was it formed against defendant's land on the main shore?
The jury found the issues...
To continue reading
Request your trial