Waldner v. Blachnik

• Decision Date: 10 September 1937
• Docket Number: 7975.
• Parties: WALDNER et al. v. BLACHNIK et al.
• Court: South Dakota Supreme Court

274 N.W. 837

65 S.D. 449

WALDNER et al. v. BLACHNIK et al.

No. 7975.

Supreme Court of South Dakota

September 10, 1937

Appeal from Circuit Court, Bon Homme County; A. B. Beck, Judge.

Action by Michael Waldner and others, as trustees for the Hutterische Society and Church, and the members thereof against Frank Blachnik and others. Judgment for plaintiffs and defendants appeal.

Reversed.

F. M Scoblic, of Tyndall, and H. A. Doyle and Frank Biegelmeier, both of Yankton, for appellants.

Wicks & Quinn, of Scotland, for respondents.

ROBERTS Judge.

The original survey of township 93, range 58, Bon Homme county, was made by the United States in 1861, and Bon Homme Island in the Missouri River was platted as a part of such township. The northwest portion of the island is designated as section 19. The purpose of this action is to quiet the title to certain lands described as lots 1, 2, 3, 4, and 5 and the southwest quarter of the northeast quarter and the east half of the southeast quarter of said section and accretions thereto and to recover judgment for the alleged destruction of trees by the defendants upon the accreted land.

Section 18, township 93, range 58, is on the mainland directly north of section 19, and the north branch of the Missouri River flowed between these two sections when the survey was made. Section 18 is bounded on the west by section 13, township 93, range 59. The townsite of Bon Homme in the southeast corner of section 13 was platted in 1870. A strip of land approximately 200 feet in width between the southern tier of blocks in this townsite and the meander line of the Missouri River was dedicated and conveyed to the public as a levee. In 1900 the defendant Frank Blachnik purchased from Bon Homme county blocks 1 to 5 in the southern tier of blocks. The western extremity of the island was washed away in 1881, and from that time the river by a gradual change of channel has moved to the southeast. The basis of the claim of the plaintiffs to the land in controversy rests upon an asserted right to accretions forming from a sand bar which appeared over the place where the western extremity of the island had been before it was washed away; that the encroachment of the river to the southeast eventually caused the accretions to the new island and to the mainland to meet.

The defendant Frank Blachnik contends that he is a riparian owner and is entitled to all accretions in front of his land and that he has been in open, continuous, hostile, and adverse possession of the land in controversy since 1904, and has paid taxes on such lands for more than ten years preceding the commencement of this action under claim and color of title. Plaintiff asserts that the conveyance from the county to Frank Blachnik did not vest title in him to the levee, and however narrow an intervening strip of land may be, the addition of land gradually and imperceptibly made by contiguous water cannot become an accretion to the tract to the rear. It is argued that the plat of the town of Bon Homme was made in conformity with the provisions of chapter 84, Laws Dak.1862; that this statute vested legal title and not an easement only to streets and other grounds set apart for public purposes in the municipal corporation; and that when there is an abandonment of streets and other grounds set apart for public purposes under such statutory dedication the land composing them reverts to the dedicators, their heirs or assigns and not to the abutting property owners.

The testimony discloses that the western extremity of the island reappeared; that there has been accretion to this island entirely distinct...