Widdecombe v. Chiles

• Citation: 173 Mo. 195,73 S.W. 444
• Parties: WIDDECOMBE v. CHILES et al.
• Decision Date: 18 March 1903
• Court: United States State Supreme Court of Missouri

73 S.W. 444

173 Mo. 195

WIDDECOMBE v. CHILES et al.

Supreme Court of Missouri, Division No. 1.

March 18, 1903.

WATER COURSES—RIPARIAN RIGHTS—TITLE BY ACCRETION.

1. Defendant was the owner of the south half of a section of land between which and the river bed there was originally a strip of 8 acres, forming the fractional north half, which had not been patented. The river changed its bed until it had washed away the 8-acre strip, and flowed through defendant's land, when it began to rebuild to defendant's land all that it had washed away, and about 200 acres additional. Plaintiff then received a patent for the fractional north half of the section as described by the original survey. Held that, the accretion being to defendant's land, plaintiff took no title by his patent.

Appeal from Circuit court, Jackson County; H. L. McCune, Judge.

Action by R. H. Widdecombe against Martha S. Chiles and others. From a judgment for plaintiff, defendants appeal. Reversed.

Paxton & Rose, for appellants. J. N. Southern, for respondent.

VALLIANT, J.

This is an action in ejectment for possession of N. E. ¼ and E. ½ N. W. ¼ section 22, township 51, range 30, in Jackson county, containing about 230 acres. The land in suit is the result of the land-building propensity of the Missouri river, and the question is whether it was an accretion to the north half of section 22, or the south half.

By the United States survey in 1826, section 22 was a fractional section, consisting of the south half, which was a full half section, and a small strip containing 8.68 acres lying along the north line of the south half and extending to the Missouri river. This strip of 8.68 acres was all there was of the north half, and it lay between the south half and the river thus:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

From 1826 to 1853 the river gradually changed its bed by cutting away its south bank until it had washed away all of the 8.68 acres forming the fractional north half of the section, and a considerable part of the south half, so that not only was the south bank of the river in the south half of the section, but the whole river flowed through the south half and converted it into a fractional half section. About 1853 the river ceased encroaching, and began to gradually rebuild where it had washed away, and this process continued until 1896, when it had not only rebuilt where it had washed away, but had added more than 200 acres, which would have been in the north half of the section if it had existed when the government survey was made in 1826.

In 1896 plaintiff's grantor obtained a patent from the United States for the fractional north half of this section, containing, in the Words of the patent, "eight acres and sixty-eight hundredths of an acre." The claim of the plaintiff is that the accretion was to the 8 68/100-acre strip, and, if that is true, he is entitled to recover. The defendants claim that the accretion was to the south half of the section, and, if that is true, the judgment should be for them. It was agreed that, if plaintiff was entitled to recover, his damages should be assessed at $1, and the rents and profits at $4 a month. The court gave peremptory instructions for the plaintiff, which resulted in a verdict and judgment in his favor, from which the defendants appeal.

The principles upon which the decision of this case must be founded have already been established by previous decisions in this court, although, perhaps, the identical question, at least the question in identical form now before us, has not been answered.

In Naylor v. Cox, 114 Mo. 232, 21 S. W. 589, the facts were that in 1817, when the government survey was made, there was an island in the river which afterwards became the property of the plaintiff. The land of the defendant in that suit was shown by that survey to be on the north bank of the river, the main channel of which ran between the island and defendant's land. The river made encroachments on defendant's land, thereby pushing its north bank farther north, and taking into its bed a portion of what has been defendant's land. After a while it changed its course, the main channel got around on the south side of the island, and accretions began to form against the north side thereof, and in the course of time these accretions extended across what had formerly been the bed of the river, and covered that space where defendant's land had been before it was washed away. The defendant in that case insisted that when the accretions reached the place where, according to the old survey, his land had been, they became his property, being in fact his land restored. But this court, per Gantt, P. J., said: "On the contrary, if, after the original survey in 1817, a part of said fractional section 4 was washed away by the river, and the main channel of the river covered the place where it originally stood, for any considerable length of time, and afterwards accretions to the island began, and gradually grew, and extended north towards the north bank until they went beyond what was originally the southern or river boundary of said section 4, said accretions thus formed to the island belonged to the owner of the island, and not to the owner of the original fractional section 4." In support of that doctrine the court cites the following cases: Welles v. Bailey, 55 Conn. 292, 10 Atl. 565, 3 Am. St. Rep. 48; Buse v. Russell, 86 Mo. 209; Nebraska v. Iowa, 143 U. S. 359, 12 Sup. Ct. 396, 36 L. Ed. 186.

The principles there laid down are that the accretions belong to the man who owns the land against which the deposits were made, and that they do not belong to the man who owns land against which such deposits were not made, although they cover a space where his land was before the river washed it away. The only difference between that case and this is that there the original lands of both parties were riparian, and neither at any time ceased to have a visible body above water and a river front, while here the original land which the plaintiff's patent calls for had been washed away entirely, and the land of the defendant did not have a river front until the 8-acre strip had been cut away by the river. Yet the principles deduced from that case are applicable here. If there had been an island in front of this 8-acre strip in 1826, when the survey was made, and if, after the strip had been cut away and the river had encroached far into the south half of the section, accretions had formed against the island and extended over the 8-acre strip and over the washed away part of the south half, the law as declared in Naylor v. Cox, would have given the title to the owner of the island, although the accretions filled the space that had once been filled by the 8-acre strip and the washed away part of the south half of the section.

The land in dispute in Naylor v. Cox became the subject of another suit between the same parties, and reached this court under the style of Cox v. Arnold, 129 Mo. 337, 31 S. W. 592, 50 Am. St. Rep. 450. In the latter case the evidence seemed to show that the made land in dispute was the result of a tow-head which had arisen out of what had been the bed of the river, and that accretions were made to the tow-head until it reached the mainland. The plaintiff in that case, who was the defendant in the Naylor suit, and was the owner of the mainland, contended that, as the new land had come up out of the bed of the river in the space where his land had been before it was washed away, it belonged to him, and not to the owner of the island. But the court held that, as he was the plaintiff in the case, it was not sufficient for him to show that the land was not an accretion to the island, or that it was an accretion to the tow-head where his land had once been, but that, before he could make his title good, he must show that it was an accretion to his mainland, and that the fact that the tow-head came up out of the bed of the river at a point where his land was, before it was washed away, did not constitute it his land restored.

The facts in the case at bar do not make it necessary for us to decide to whom the accretion would have belonged if it had grown from a...