T. L. Wright Lumber Co. v. Ripley County

• Decision Date: 20 February 1917
• Docket Number: No. 18290.,18290.
• Citation: 192 S.W. 996,270 Mo. 121
• Parties: T. L. WRIGHT LUMBER CO. v. RIPLEY COUNTY.
• Court: Missouri Supreme Court

192 S.W. 996

270 Mo. 121

T. L. WRIGHT LUMBER CO. v. RIPLEY COUNTY.

No. 18290.

Supreme Court of Missouri, Division No. 1.

February 20, 1917.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

Suit to ascertain and decree title to land by the T. L. Wright Lumber Company against Ripley County. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The plaintiff brought this suit in the circuit court of Ripley county, under section 2535, R. S. 1909, against the defendant to ascertain and decree title to the land described in the petition, the same being a small island in Current river, consisting of about 5½ acres, near the city of Doniphan, Mo. The judgment was for the defendant and the plaintiff appealed the cause to this court.

The plaintiff's evidence tended to show that the United States patented the land on January 1, 1849, to Lemuel Kitrell, and that through mesne conveyances the plaintiff, on October 27, 1906, acquired title to the same; that the island in question was in existence at the time and long prior to 1821, the date of the admission of Missouri into the Union; that it lies in said river opposite the southwest fractional quarter of the northeast fractional quarter of section 27, township 23 north, range 2 east, in Ripley county, Mo.

D. K. Ponder testified that in the year 1842 the island then existed, and that then there were trees a foot and one-half through growing on it.

Thomas Mabrey testified that the island was there in 1859 and has been there ever since.

T. L. Wright testified that he had known this island for 40 years, and that there were standing trees on it more than 200 years old, and that the timber on the island and on the adjacent land showed no difference as to age.

The photographs introduced in evidence tend to show that the island is not of recent origin.

The field notes of the survey made by the United States in 1821 do not show that this island existed, but the report of this survey when reported does not show that the meander line ran across, or up the island in the direction the river runs.

A report of a survey made by W. H. Hippolite, a civil engineer, by order of the circuit court of Ripley county in 1895, to be used in another case involving land in this same vicinity, requiring the establishment of the certain lines and corners made and established by the United States in 1821, was introduced in evidence. (While the record does not, in so many words, state that this survey was ordered made under section 10207, R. S. 1899, providing for the establishment of lost government corners, etc., yet that fact, I gather therefrom, is clearly inferable.) The report, which is quite lengthy, but in so far as it is here material, reads as follows:

"Dear Sir: As per your order of court of the April term, 1895, ordering me to make an accurate survey in the case of D. K. Ponder v. J. F. Page, beg to advise that I have this day completed said survey and made the following report of same: In company with the plaintiff and defendant in the case, together with a number of old residents of this (Ripley) county, I obtained all available information of government corners and witness trees in the vicinity, by actual research on the premises, and after getting which, began my survey for the accurate location of the east and west ¼ section line of section 26, Twp. 23 N., R. 2 east of the 5th P. M., said line being the one in dispute."

Then follows a long report of the courses, distances, corner stones, witness trees, etc., found by him, and how from those courses, distances, stones, and trees he established the section line above mentioned and the quarter section corner of the southeast corner of the southwest fractional quarter of the northeast fractional quarter of said section 27. The old corner stones, witness trees, etc., with the new ones established by Hippolite, were shown by said report, all agreeing with the contention of plaintiff in this case.

J. H. Greason testified that he was a civil engineer, and a graduate of the Missouri University; that he made the plat offered in evidence appearing on page 78 of the abstract, which is too large to be set out in this statement of the case; that he was familiar with island designated thereon; that he ran the meandering line shown on said plat, indicated by a light pencil line, passing along the island up and down the river, and through stations marked thereon 6 and 7; that he found quarter section corner of the southeast corner of the southwest fractional quarter of the northeast fractional quarter of said section 27, before mentioned, and established by Mr. Hippolite; that he had with him Hippolite's field notes, which he followed; that when he came out on the line between 26 and 27, he found at the corner a government tree, and that he ran this line, indicating, up to the northeast corner of said section 27. He then states in detail how he surveyed the river, island, and lands shown by said plat; that it was correct and corresponded in the main with that of Hippolite; that the government field notes do not show the existence of the island; that he was familiar with the rules of the government in surveying islands in rivers, lakes, etc., and produced and read them to the court; that he followed those rules in making the survey mentioned, except he showed the island in his plat.

Wm. M. Andrews, a civil engineer and graduate of the University of Indiana, testified that he ran the meander line of Current river in said section 27 and surveyed the island in question, made the plat introduced in evidence, and that the meander line ran through stations 5, 6, and 7 on the plat, said stations being on said island, and that he took the measure of distances from the United States field notes and Hippolite's survey; that the plaintiff and those through whom he claims title have been in the actual, open, notorious, exclusive, and adverse possession of the island for more than 20 years just before the institution of this suit, claiming title thereto, and had paid all the taxes against the same during that period.

The evidence for the defendant tended to show the following facts: That Current river was a navigable stream; that the river runs in a southeasterly and northwesterly direction at that point, with one of the channels running on the east and one on the west side of the island. In 1821 the United States government had surveyed and platted the lands upon each bank of the river in that vicinity. As far back as the memory of man runneth not to the contrary, the island had existed at that point. That 50 years ago it was a small, narrow strip of land, covered with small brush and trees, and in 1842 the island was about a quarter of a mile in length, running up and down the river, and about 400 feet in width, but its exact size at the date of the United States survey was made is not shown. In later years the accretions to the island have increased its area to some 10 or 12 acres. That this island was not noted on the field notes in the United States survey and no representation of the island was made on the plat constructed by the government from those field notes. The island, as such, is not mentioned in the patent from the United States to Kitrell, nor in any of the mesne conveyances through which the plaintiff claims title thereto.

The defendant introduced S. P. Rodebaugh as a witness, who testified he was a surveyor and surveyed the island, ran certain meander lines, and made the plats defendant introduced in evidence; that in tracing the meander lines he did not follow those made by the United States survey, but began at a stake (presumably set by him) on the south line of said section, did not measure the distance from there to the river, nor attempt to get the correct starting point. He was asked:

"Q. I will ask you if you went into what is supposed to be the corner of the southeast quarter of section 27, the corner that was referred to by Mr. Andrews and Mr. Greason in their testimony? A. Yes, sir. Q. State to the court whether there is anything to indicate that to be the corner of section 27. A. I don't think the tree that Hippolite used is the correct tree. It stands in the wrong position. The place he calls for is too low, and there is nothing but a hold cut in the tree; that is, there are no figures. Q. There are no evidences there to which he referred on which a man could reliably locate a corner? A. No."

Chas. B. Butler, of Doniphan, for appellant. James F. Fulbright and Chas. L. Ferguson, both of Doniphan, for respondent.

WOODSON, J. (after stating the facts as above).

I. The question presented for adjudication in this case is, in a sense, similar to that of accretions, in this: An unrestricted deed conveying land on the shore of a river will also convey all accretions thereto. The same is true where the United States conveys its lands adjacent to a nonnavigable river. Where it sells and conveys such lands by the government subdivisions, its patents convey all the land between the meander line on the shore and the middle thread of the river, unless previous to the issuance of the patent it has surveyed such lands as governmental subdivisions, or has expressly reserved them when not surveyed. That proposition has been expressly decided by the Supreme Court of the United States and by this court. Jefferis v. E. Omaha Land Co., 134 U. S. 178, 10 Sup. Ct. 518, 33 L. Ed. 872; Cooley v. Golden, 117 Mo. 33, 23 S. W. 100, 21 L. R. A. 300; Stoner v. Royar, 200 Mo. 444, 98 S. W. 601.

In discussing this question, this court, in the case of Cooley v. Golden, supra, 117 Mo. on page 54, 23 S. W. on page 107, 21 L. R. A. 300, said:

"II. The next inquiry in order is: What land did plaintiff's grantors acquire from the government under their grant of the fractional section quarters, bordering on the Missouri shore of the river? These subdivisions of the side next to the river all have a common...