Tatum v. The City of St. Louis

• Citation: 28 S.W. 1002,125 Mo. 647
• Parties: Tatum, Trustee, Plaintiff in Error, v. The City of St. Louis
• Decision Date: 22 December 1894
• Court: United States State Supreme Court of Missouri

28 S.W. 1002

125 Mo. 647

Tatum, Trustee, Plaintiff in Error, v. The City of St. Louis

Supreme Court of Missouri, First Division

December 22, 1894

Error to St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Reversed and remanded.

Leverett Bell for plaintiffs in error.

(1) The evidence establishes that the land sued for was created by accretion to the Missouri shore of the river. Campbell v Laclede Co., 84 Mo. 372; St. Clair County v Livingston, 23 Wall. 66; St. Louis v. Railroad, 114 Mo. 13; St. Louis v. Lemp, 93 Mo. 477; Public Schools v. Risley, 40 Mo. 356; Le Beau v. Gaven, 37 Mo. 556; Smith v. Public Schools, 30 Mo. 290; Benson v. Morrow, 61 Mo. 345; Jones v. Soulard, 24 How. 41. (2) The title under the Brazeau concession extended to the Mississippi river on the east and covered all the land to the water's edge, and the city of St. Louis could not, nor could any person, by filling at the river front or by building dykes, deprive the plaintiffs of their riparian rights. Railroad v. Illinois, 146 U.S. 387; St. Louis v. Rutz, 138 U.S. 226; Wilkinson v. Dock Company, 102 Mo. 140. (3) A complete record title from the Spanish government in 1786 by inheritance and proper conveyances was shown in the plaintiffs. (4) No outstanding title was shown, nor title in the city of St. Louis. Moses v. Dock Company, 84 Mo. 242; Bartlett v. O'Donoghue, 72 Mo. 563; Goff v. Roberts, 72 Mo. 570; Hoskinson v. Adkins, 77 Mo. 537; 2 R. S. 1855, pp. 1114, 1115, sections 22, 31. (5) No question can be made on the statute of limitations. The action was commenced in 1880, and the plaintiffs were in possession in 1874. Wilkinson v. Dock Company, 102 Mo. 130; Pim v. St. Louis, 122 Mo. 654. (6) The court below erred in refusing the instruction asked by the plaintiffs and in giving the instruction given on its own motion.

W. C. Marshall for defendant in error.

(1) Defendant's instruction for a nonsuit should have been given. Inasmuch as ejectment is a possessory action, it was essential to the plaintiff's case to show that the defendant was in possession of the property at the time the action was begun. R. S. 1889, sec. 4633; Clarkson v. Stanchfield, 57 Mo. 573; Bledsoe v. Simms, 53 Mo. 305. (2) The land in controversy never was part of lot 4 of United States Survey number 3078, nor is it an accretion thereto, but is made up partly, of what was formerly Duncan's Island, and partly, by filling the east half, east of the thread, of the slough or channel which formerly separated Duncan's Island from the main land. Wilkinson v. Dock Company, 102 Mo. 130; Pim v. St. Louis, 122 Mo. 654. The land in controversy is not an accretion to plaintiff's concession and confirmation. St. Clair Co. v. Lovingston, 23 Wall. 46; St. Louis v. Railroad, 114 Mo. 21. (3) The city is entitled to an easement in the land for a public wharf by virtue of the license granted by plaintiffs to the city in 1851. Moses v. Dock Company, 84 Mo. 246. Defendant never contended that this instrument was a deed. It is a license and, as such, does not need to be acknowledged or recorded. It conveys no interest in land, but is an authority to do a particular act or series of acts upon another's land without vesting any estate therein. Cook v. Stearns, 11 Mass. 533; Thomas v. Sorrell, Vaughn, 351; Coleman v. Foster, 1 H. & N. 37; Wheeler v. Rowell, 7 N.H. 515; Harmon v. Harmon, 61 Me. 222; Railroad v. Jarrell, 60 Tex. 267; Druse v. Wheeler, 26 Mich. 189; Baker v. Railroad, 57 Mo. 265. This license has never been revoked. (4) Plaintiffs have no title to the land in controversy, but there is, as to the plaintiffs, an outstanding title in Thomas Marshall under the deed from plaintiffs to him, dated May 28, 1859. Dunlap v. Henry, 76 Mo. 106; Foster v. Evans, 51 Mo. 39; Dunn v. Miller, 75 Mo. 260. (5) This action was not begun within ten years from the date the alleged cause of action accrued.

OPINION

Macfarlane, J.

The action is ejectment to recover possession of a parcel of land in the city of St. Louis fronting three hundred and ninety-eight feet on the Mississippi river, and having a depth back of three hundred and seven feet. The land is claimed by the city as part of its public wharf. The answer was a general denial and a plea of the statutes of limitation. The case was tried to the court without a jury, and a verdict and judgment was rendered for defendant, and plaintiff appealed.

Plaintiff claims title through concessions made to Joseph Brazeau, and confirmation thereof by act of congress in 1836. These concessions were bounded on the east by the Mississippi river, making a frontage on the river of twelve arpens. Plaintiff, who sues as trustee for Mrs. Virginia Lynch, claims title to the land in question as being accretions to the land so conceded and confirmed.

Without tracing the title from Brazeau, as was done on the trial, it will be sufficient to say that, in 1836, the original concessions were divided into five lots, each of which fronted three hundred and ninety-eight and one half feet on the Carondelet road, now avenue, and extended east to the river, and John B. Douchouquette about that time became the owner of lot 4 of said division. At this time the distance from Carondelet avenue to the river was about eighteen hundred feet, while at the trial it was about twenty-eight hundred feet. There was, consequently, about one thousand feet between the east line of the lot, which was then the river bank, and the river bank as it is at present. The land in dispute is a part of this added land. In 1839 the west half of all five of these lots was subdivided into an addition to the city. Columbus street running north and south through the center of these lots formed the eastern boundary of the addition. In 1850 the title of that part of lot 4 lying between Columbus street and the river was vested as follows: Mrs. Lynch held an estate for life in the whole and an undivided one fourth of the remainder in fee; and Victoria Douchouquette, now Victoria Whyte, an undivided three fourths of the remainder in fee. On May 17, 1870, by proper deeds, the title of Mrs. Lynch was vested in Joseph T. Tatum as trustee for her. Since the commencement of this suit the interest of Mrs. Lynch has been assigned to Mrs. Whyte, who has been substituted as plaintiff.

The evidence showed that as early as 1845 an island, known as Duncan's island, formed in the river opposite the land comprising the original Brazeau concession, but it is conflicting as to whether the southern end thereof extended as far south as the lot in question. Originally, a part, at least, of the channel of the river flowed between the island and the Missouri shore. This part of the channel subsequently became a mere slough and dykes were run out from the main shore connecting it with the island. It does not appear that any of these dykes were built as far south as said lot 4. The slough was subsequently filled entirely and the river bank was changed to the east side of the island. As has been said, the land thus formed extended east from plaintiff's original boundary about one thousand feet. Main street was established over this new-made land and the river front was declared by an ordinance of the city to be a public wharf. The land claimed in this suit is a part of that dedicated by the city as a wharf, but the evidence fails to show any improvement as such.

Much evidence was introduced for the purpose of proving that the slough between the island and the shore was filled, and the new land formed, by means of the obstruction of the water by the dykes, by the construction of the Iron Mountain railroad on trestles along the slough, by filling with dirt taken from other portions of the road, by filling by the city and constructing the wharf.

Defendant claims on this appeal that: First. It was not shown on the trial that defendant was in possession of the land sued for. Second. That the action is barred by the statutes of limitation. Third. That the land is not an accretion to plaintiff's original tract. Fourth. That the city is entitled to an easement in the land for a public wharf by virtue of a license conferred upon it by the plaintiffs in 1851. Fifth. That an outstanding title in Thomas Marshall was shown.

I. At the conclusion of plaintiff's evidence in chief, defendant prayed the court to nonsuit him, for the reason that there was no evidence that it was in possession of the property at the commencement of the suit. This prayer was properly denied, for the reason that the possession of defendant was, by the plea of the statute of limitation, substantially admitted. By this plea defendant states "that it has been in open, notorious, continuous, peaceable and adverse possession of the premises described in the petition since, to wit, 1850, claiming to be the owner thereof, against the plaintiffs and all other persons." Under this plea, possession at the commencement of the suit must be taken as admitted and proof thereof was unnecessary.

II. At the conclusion of the evidence the court made this finding or declaration of law: "The proposition that the land in question was formed by natural accretions to plaintiff's land on the main shore is not proven by the evidence." No other declarations of law were asked by either party, or given by the court.

The ground upon which the court reached its conclusion is not left in doubt. Plaintiff's only claim of title to the land was that it was formed by accretions to his original tract. The finding of the court, as stated, involved this proposition of law: If the land in question was not formed by natural accretions to his land on the main shore, plaintiff could not recover. If this declaration announced a correct principle of law, and there was substantial evidence tending to...