Sweringen v. St. Louis
| Decision Date | 03 July 1899 |
| Parties | Sweringen v. St. Louis et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. John M. Wood Judge.
Reversed.
B Schnurmacher and Chas. Claflin Allen for appellants.
(1) The Labeaume patent, under which plaintiff claims title, does not make the Mississippi river the boundary of the grant therefore, the property therein embraced was not riparian, and was not entitled to the accretions made by the river. Smith v. Public Schools, 21 Mo. 36; Cook v. McClure, 58 N.Y. 437; Dunlap v. Stetson, 4 Mason 349; Child v. Starr, 4 Hill 369; Bradford v. Cressey, 45 Me. 9; Daniels v. Railroad, 20 N.H. 85; Healey v. McCormick, 3 Kernan 296. (2) Even on the assumption that plaintiff was a riparian owner, and that she was entitled to accretions between extended side lines, she has shown no continuous seizin or possession of any property east of her original lots, so as to connect the same by continuous accretions with the property in controversy, and establish a basis for recovery. (3) The city having expended large sums of money for building dykes and revetments in order to construct a great public wharf under ordinance 5403, providing a complete wharf system for the entire river front of the city; having granted a license to the railroad company to use a part of the unimproved wharf thus formed; having leased a part to defendant, Joy; and the railroad company having also expended large amounts for the connection of its great railway system; and plaintiff, having stood by for years in silence, and having permitted these public improvements to be made, is estopped from maintaining ejectment against either the city or the railway company. Dodd v. Railroad, 108 Mo. 581; Provolt v. Railroad, 57 Mo. 256; Masterson v. Railroad, 72 Mo. 633; Kanaga v. Railroad, 81 Mo. 126; McClellan v. Railroad, 103 Mo. 295; Railroad v. Town Site Co., 103 Mo. 466; Avery v. Railroad, 113 Mo. 561; Webster v. Railroad, 116 Mo. 117; Scarrett v. Railroad, 127 Mo. 298; St. Joseph v. Landis, 54 Mo.App. 326; Planet Property and Financial Co. v. Railroad, 115 Mo. 613; House v. Montgomery, 19 Mo.App. 170; Gibson v. St. L. A. & M. Ass'n, 33 Mo.App. 165; School Dist. v. Lindsay, 47 Mo.App. 134. (4) Several streets intervened between plaintiff's lots and the river, thereby effectually preventing accretions from attaching themselves to these lots. Smith v. Public Schools, 21 Mo. 36; Smith v. Public Schools, 30 Mo. 290; St. Louis v. Lemp, 93 Mo. 437; Ellenger v. Railroad, 112 Mo. 526; Tatum v. St. Louis, 125 Mo. 657; St. Louis v. Railroad, 114 Mo. 13. (5) The defendant having created the land in controversy for the express purposes of a wharf, and having held open, notorious, continuous, adverse and peaceable possession for more than ten years before the bringing of this action, title is in defendant, the city of St. Louis. Mather v. Walsh, 107 Mo. 121; White v. Keller, 114 Mo. 479; Wilkerson v. Eilers, 114 Mo. 245; Sherwood v. Baker, 105 Mo. 472; Long v. Stock Yards Co., 107 Mo. 304; Allen v. Mansfield, 82 Mo. 693.
E. P. Johnson and Thos. A. Russell for respondent.
(1) Aside from the other statements in the Labeaume patent in connection with the Soulard survey, in regard to accretions, by which the patent clearly conveyed such accretions as had formed, in express terms, and by mentioning the fact that they were rapidly advancing, clearly manifested in intention to secure to the grantees such as should thereafter form, the call in it, "From the corner F, down the right bank of the Mississippi river, with the meanders thereof, between high and low water mark, . . . to the beginning corner," which was "a stake set on the right bank of the Mississippi river between high and low water mark," constituted the grantees named in it riparian owners. Lebeau v. Gaven, 37 Mo. 556; Perkins v. Adams, 132 Mo. 131; Minton v. Steele, 125 Mo. 181; Tatum v. St. Louis, 125 Mo. 647; Railroad v. St. Louis Union Stock Yards, 120 Mo. 552; Crandall v. Allen, 118 Mo. 403; Cooley v. Golden, 117 Mo. 33; Naylor v. Cox, 114 Mo. 232; St. Louis v. Railroad, 114 Mo. 13; City v. Lemp, 93 Mo. 477; Campbell v. Laclede Gas Light Co., 84 Mo. 352; Meyers v. St. Louis, 82 Mo. 374; s. c., 113 U.S. 566; Gould on Waters, secs. 194-197. (2) The plat of the Soulard survey is embraced in this patent and there is no question but what it extended to the river. The plat of U. S. survey No. 3333, is also embraced in it and delineated the river, and although a sand beach is marked on it with the surveyed eastern line between it and the river bank, this sand beach is clearly marked as the Mississippi river, but if this mark were not on the sand beach, this plat, especially with the dotted line extending the northern line of it across the sand beach, beyond question goes to the river, and it is conclusive that the premises embraced in the patent extend to the river. Gould on Waters, sec. 69; Bates v. Railroad, 66 U.S. 204; Railroad v. Schurmeir, 74 U.S. 284; Jourdan v. Barrett, 45 U.S. 169; Lindsey v. Hawes, 67 U.S. 554; Church v. Grundy, 5 Dana (Ky.) 100; Houck v. Yates, 82 Ill. 179; Washington Ice Co. v. Shortall, 101 Ill. 46; Middleton v. Pritchard, 4 Ill. 510; Shelton v. Maupin, 16 Mo. 124.
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 9th, 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 sixty feet north of Dock street and extending ninety 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 conveyance from Louis Labeaume, it is an indispensable prerequisite that she show that Labeaume himself was a riparian owner.
[SEE PLAT NO. 1 IN ORIGINAL]
The patent to Louis Labeaume from the United States is dated March 25, 1852, and recites a confirmation of Survey No. 3333 containing thirty-three and sixty-eight one-hundredths acres, and contains a plat which accompanies this opinion, on which the Labeaume survey is indicated within certain pink lines.
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." . . . (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 street, 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...
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