Welch v. Browning

• Decision Date: 05 October 1901
• Citation: 87 N.W. 430,115 Iowa 690
• Parties: WELCH v. BROWNING ET AL.
• Court: Iowa Supreme Court

115 Iowa 690

87 N.W. 430

WELCH

v.BROWNING ET AL.

Supreme Court of Iowa.

Oct. 5, 1901.

Appeal from district court, Muscatine county; W. F. Brannan, Judge.

Action of right to recover possession of real estate. Defendants denied plaintiff's title, and also pleaded a counterclaim for deficiency in a tract of land purchased of plaintiff. Trial to a jury. Verdict and judgment for defendants, and plaintiff appeals. Affirmed.Jayne & Hoffman, for appellant.

Carskaddan & Burk, for appellees.

DEEMER, J.

Plaintiff sold to defendants a tract of land abutting on the Mississippi river at the agreed price of $125 per acre. The description was by metes and bounds, and the south line was meandered. This is added to the description: “Said tract last described containing 64 15/100 acres, the intention being to convey the west 60 acres thereof.” This action is to recover the east 184 feet of the tract. Defendants plead that they are the owners of the tract in virtue of the conveyance to them; that they purchased 60 acres of land at so much per acre; that, instead of there being 60 acres in the tract, there were but 57.95 acres, and they ask judgment for the deficiency. As the land lies along the Mississippi river, the sole question in the case is, where is the southern boundary of the tract sold to the defendants? Defendants contend that the boundaries as given in the deed included about six acres of land lying in the bed of the river between high and low water mark. The case turns almost entirely on this one point, where in the tract conveyed was high-water mark? The jury found in accord with defendants' contention, and returned a verdict for them on their counterclaim. The case was tried as at law, and comes to us on assignments of error, and to such of them as are argued we will now turn our attention. The Chicago, Rock Island & Pacific Railroad track runs through the tract, and near, if not at, high-water mark on the south side. The jury found in answer to a special interrogatory that but 1 1/4 acres of land south of the railway right of way were above high-water mark. This is made the ground of special complaint, for, according to the surveys made by plaintiff's witnesses, there are from 7 to 9 acres in this tract. There is a decided conflict in the evidence regarding high-water mark, and the verdict has such support that we should not interfere for lack of evidence. The principal instructions relating to high-water mark read as follows: “(6) The question as to what in law constitutes ordinary high-water mark is the leading question in this case. It therefore becomes necessary to define what the law regards as ordinaryhigh-water mark. It does not mean the height reached by unusual floods, for these usually soon disappear. Neither does it mean the line ordinarily reached by the great annual rises of the river, which cover in places lands that are valuable for agricultural purposes, since the waters brought by these annual rises do not usually remain permanently, or for any great length of time, and crops may be raised on the soil as the water subsides. Nor yet does it mean meadow land adjacent to the river, which, when the water leaves it, is adapted to and can be used for grazing or pasturing purposes. (7) The line, then, which fixes the high-water mark is that which separates what properly belongs to the river bed from that which belongs to the riparian owner,--that is, the owner of adjoining land,--and is not the line reached by unusual floods, but that which is shown by the character and condition of the soil and vegetation to be the limit to...