Sweringen v. City of St. Louis

• Decision Date: 15 June 1899
• Citation: 52 S.W. 346,151 Mo. 348
• Parties: SWERINGEN v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

52 S.W. 346

151 Mo. 348

SWERINGEN v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri, Division No. 2.

June 15, 1899.

ACCRETIONS — ADVERSE POSSESSION — EVIDENCE.

1. Where claimant's lands are separated from accumulated accretions by the land of another, however narrow the intervening strip may be, or whatever the size of claimant's tract behind it, the accretion does not belong to the claimant.

2. The boundary of a patent was a permanent line, fixed by metes and bounds, between high and low water mark. The accompanying survey showed a tract of several acres between the boundary of the survey and the river. Held, that any accretion to such strip between the river and the survey did not belong to the owners of the survey.

3. Where plaintiff has no color of title, and there is no pretense that the land in question was ever inclosed by a fence, or that plaintiff ever had any buildings or permanent structures of any kind or character thereon, and it appeared that, when damages were assessed because of improvements over the land in a suit to which plaintiff was a party, she made no claim to the land, it is insufficient to show title by adverse possession, though plaintiff paid certain taxes upon the land, and the squatters thereon were occasionally disturbed by the person in charge of her property.

Appeal from St. Louis circuit court; John M. Wood, Judge.

Action by Mary J. Sweringen against the city of St. Louis and others. Judgment for plaintiff, and defendants appeal. Reversed.

The following are the plats to the land in controversy:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

EXHIBIT A

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

B. Schnurmacher and C. C. Allen, for appellants. E. P. Johnson and Thos. A. Russell, for respondent.

GANTT, P. J.

This is an action of ejectment for the following land in the city of St. Louis: Beginning at a point in the southern line of Buchanan street, at the northeast corner of city block No. 2544 of said city; thence southwardly, along the eastern line of said block, to the southeast corner thereof; thence westwardly, along the southern line of said block, 150 feet, to the southeast corner of city block No. 660, east of said city; thence southwardly, to the northeast corner of city block No. 661, east of said city; thence southwardly, along the eastern line of said last-named block, to the southeast corner of the same, in the northern line of Branch street; thence eastwardly, along the northern line of Branch street extended to the Mississippi river, to said river; thence northwardly, along said river, to the southern line of said Buchanan street, to said river; and thence westwardly, along the southern line of said Buchanan street extended, to said river, to the point of beginning. Ouster was laid as of April 9, 1891. As a matter of fact, the land which plaintiff seeks to recover is a part of the "North Wharf" of the city of St. Louis, beginning 60 feet north of Dock street, and extending, 90 feet wide, between parallel lines, from the western line of the said wharf eastwardly to the Mississippi river. The plaintiff claims title to the above tract as an accretion to land patented by the United States to Louis Labeaume and his heirs, in confirmation of a Spanish concession to William M. Christy, and under partition proceedings of the estate of said Christy. There are various defenses interposed by the city.

The first is predicated upon the fact that inasmuch as the plaintiff has absolutely no sort of paper title to the specific land sued for, but must recover, if at all, upon a showing that this land is an accretion formed by the Mississippi river to her title acquired by mesne conveyances from Louis Labeaume, it is an indispensable prerequisite that she show that Labeaume himself was a riparian owner. The patent to Louis Labeaume from the United States is dated March 25, 1852, and recites a confirmation of survey No. 3,333, containing 33.68 acres, and contains a plat, which accompanies this opinion, on which the Labeaume survey is indicated within certain pink lines.¹ So much of the description of the property included in said survey as indicates the eastern lines of said survey nearest the Mississippi river is as follows: "Beginning at a stake set on the right bank of the Mississippi river between high and low water mark, and on the extension line produced eastwardly from Labeaume's southern ditch, the lower and most eastern corner of this survey, and the upper and most northern corner of the survey of Joseph Brazeau, numbered three thousand three hundred and thirty-two (R. 20). * * *" The description then goes inland to the west and north, along the line marked in pink on the plat, until it reaches a point in the old bed of Rocky branch; "* * * thence north, 87 degrees and thirty minutes east, at five chains and forty-six links, a point at the mouth of the Rocky branch, the northeastern corner of this survey, and a corner to the city of St. Louis, it being the northern termination of the northwestern boundary line thereof; from this corner, which is marked `F' on the plat, the northwest corner of Second or Main street and Dock street bears south, thirty-seven degrees fifteen minutes west, distant seven chains and seventy-one links, and the point of intersection of the aforesaid city line with the southern edge of Dock street bears south, twenty-two degrees west, distant six chains and sixty-one links, which point of intersection is two chains and eight links north, sixty-nine degrees east, from the southwest corner of Dock street and Second or Main street; from the corner, F, down the right bank of the Mississippi river, with the meanders thereof, between high and low water mark, south, nine degrees east, at eight chains and sixty-six links, a stake; thence south, twenty-one degrees east, at five chains and fifty links, a point; from which offset north, seventy degrees east, one chain and eighty-three links, to the center of the water of the Rocky branch, as running through the sand beach; six chains and sixty-three links, to the bluff of the sand beach seven chains and forty-seven links, to the water's edge of the Mississippi river; return to the meandering line, at ten chains, a post from which the southeast corner of a stable bears south, forty-two degrees west, distant forty-six links, and the upper point of the entrance of the water of the Rocky branch into the Mississippi river bears south, sixty-two degrees and thirty minutes east, distant sixteen chains; thence south, thirty-four degrees east, at seven chains five links, the eastern extension of Labeaume's northern ditch, from which the corner marked `D' on the plat bears north, seventy-four degrees and thirty minutes east, distant nineteen chains and seventy-five links, at twenty-five chains, a stake; thence south, twenty-three degrees east, at thirteen chains and sixty-seven links, the northeast corner of Robertson and Patterson's sawmill; at fourteen chains and eight links, the southeast corner of said mill; at twenty chains and fifty-seven links, the southeast corner of Hendrick's flour mill; nineteen links to the right; at twenty-three chains and thirty-five links, the northeast corner of Cochran's sawmill; thirty chains and 95 links, to the beginning corner." To the introduction of this patent defendants objected, because on its face, and by the plat attached to it and made a part of it, the property thereby conveyed did not extend to the Mississippi river, but only to a well-defined and permanent boundary, which began at a fixed stake "between high and low water mark," and continued, with the meanders of the river, "between high and low water mark," from the mouth of Rocky branch, on the north, to the point of beginning, on the Braceau survey. This objection was overruled, and defendants duly excepted.

It is fundamental in the law of accretions that the lands to which they attach must be bounded by the river or stream to entitle its owner to such increase. The doctrine is one of compensation. The reason of the law is that every owner of land bounded by a stream of water is subject, by reason of the gradual changing of the course thereof, to lose a portion of his land, or have the same increased in quantity by the accumulation thereto, and, inasmuch as he is wholly without remedy if a loss occurs by the river eating away his banks, he is entitled to whatever increase, also, that is caused by the gradual accretion or reliction. In the very nature of things, then, accretions depend upon actual contiguity, without any separation of the claimant's land from the accumulated alluvion by the lands of another, however narrow the intervening strip may be, or whatever the size of the claimant's tract behind it. 1 Am. & Eng. Enc. Law (2d Ed.) 473, note 2, and cases cited; Gould, Waters, § 155, note 1; Ellinger v. Railway Co., 112 Mo. 525,...