Widdicombe v. Rosemiller

• Decision Date: 21 October 1902
• Docket Number: 2,255.,2,254,2,253
• Citation: 118 F. 295
• Parties: WIDDICOMBE v. ROSEMILLER et al. (two cases). SAME v. MURPHY et al.
• Court: U.S. District Court — Western District of Missouri

118 F. 295

WIDDICOMBE v. ROSEMILLER et al. (two cases).

SAME v. MURPHY et al.

Nos. 2,253, 2,254, 2,255.

United States Circuit Court, W.D. Missouri, Central Division.

October 21, 1902

John Cosgrove, W. S. Pope, C. D. Corum, and John Montgomery, Jr. for plaintiff.

Moore &amp Williams and W. M. Williams, for defendants Rosemiller and others.

Silver & Brown and Eli Penter, for defendants Murphy and others.

These are three separate actions of ejectment for the recovery of Island No. 42 in the Missouri river, located in section 19 township 46, range 13 W. of the fifth P.M., containing 48.62 acres, according to the United States survey thereof made in 1820. The defendants owned the land bordering on the west bank of the river in range 14; Fred Rosemiller owning the quarter section farthest north; the defendant Henry G Rosemiller, the quarter section next south; and the defendant Hugh M. Murphy, the quarter section farthest south. The quarter section owned by Henry G. Rosemiller lay immediately west of the island. The river boundary line thereof at the time of the survey of the island was about 200 yards west of the island. Between 1870 and 1880 the channel of the river began to change about a mile and a half north of the Fred Rosemiller tract, over to the Boone county side, and, by process of erosion, cut into the Boone county shore until its course turned eastward, and then southeast, and then southwest, until it re-entered the old channel of the river, south of the Hugh M. Murphy tract, forming what is known as 'Eureka Bend'; making a complete crescent, the apex of which was a mile and a half east of the original channel; thus forming in this crescent a body of land containing about 1,100 acres, the whole of which the plaintiff claims as an accretion to Island No. 42; the defendants claiming it as an accretion to their lands, respectively. The plaintiff entered this island in 1896, and obtained from the government therefor a patent. The defendants' contention, inter alia, is that this island was washed away by the floods of the Missouri river between 1870 and 1880, so that the channel of the river ran over it for such a length of time that it should be regarded as a part of the bed of the river, and that the reappearance of the dry land therein after the change in the channel of the river became the property of the state, and the alluvion forming over the same, being an accretion from the shore line, belonged to the riparian proprietors; the contention of the plaintiff being that the island, as such, was never obliterated, but a considerable integral part thereof remained intact, and, though overflowed in times of great floods in the river, on the retrocession of the high waters a large portion of the island reappeared as dry land, and that the accreted lands belonged to the owner of the island. A jury being waived, the cause was submitted to the court, which made a special finding of facts, which is too voluminous for publication. Sufficient of them will appear in the following opinion for a proper understanding of the facts found, and the principles of law applied thereto.

PHILIPS, District Judge (after stating the facts as above).

As both parties to this controversy claim the lands between the original surveys and the present river front as accretions, and the court being of the opinion that said new lands outside of Island No. 42 in front of the Fred Rosemiller tract and the Hugh M. Murphy tract are accretions thereto, and the only claim asserted thereto by the plaintiff is that they are an accretion to Island No. 42, the issues as between the plaintiff and Fred Rosemiller and Hugh M. Murphy must be for the defendants as to said accredited lands. The rule of law, as I understand it, is aptly expressed by Chief Justice Ruger in Mulry v. Norton, 100 N.Y. 426, 3 N.E. 581, 53 Am.Rep. 206, the substance of which is that the riparian proprietor is entitled to the lands made by accretion or reliction in front of his property, and contiguous thereto, according to his shore line:

'However such accretions may be commenced or continued, the right of one owner of uplands to follow and appropriate them ceases when the formation passes laterally the line of his coterminous neighbor. A littoral proprietor, like a riparian proprietor, has a right to the water frontage belonging by nature to his land, although the only practical advantage of it may consist in the access thereby afforded him to the water for the purpose of using the right of navigation. This right is his, only, and exists by virtue and respect of riparian proprietorship.'

This doctrine is approved by Mr. Justice Blatchford in St. Louis v. Rutz, 138 U.S. 226, 250, 11 Sup.Ct. 337, 346, 34 L.Ed. 941, as follows:

'The right of accretion to an island in the river cannot be extended lengthwise of the river, so as to exclude the riparian proprietors above and below such island from access to the river as such riparian proprietors.'

The real controversy in this case arises between the plaintiff and Henry Rosemiller. The contention of the plaintiff is that he is not only entitled to recover, in any event, 48.62 acres embraced in the original survey of Island No. 42, but also all the land in front of the Rosemiller tract to the present western bank of the Missouri river, as an accretion to the island. The defendant contends that said island at some time after the survey of 1820 was entirely swept away by floods or the process of erosion, so that for a considerable length of time the situs of the island was submerged and became a part of the bed of the river, and that, even if the dry land did at any time thereafter appear within the territory of Island No. 42, the plaintiff cannot claim it, nor any accretions thereto, as it became the property of the state, subject, however, to the acquisition by accretion to the lands of Henry Rosemiller, the riparian proprietor.

Without stopping here to discuss what the court finds the facts to be respecting the effect of the force of the waters in the fluctuations of the channel of the Missouri river on this island, it is to be conceded to the contention of the defendants that Judge Gantt, speaking for division 2 of the supreme court of this state, in Vogelsmeier v. Prendergast, 137 Mo. 271, 39 S.W. 83, has ruled that as to an island surveyed in a navigable river, when the surface thereof is entirely washed away, giving place to the channel of the river, and at a subsequent period new land is formed within the area of the original survey, the owner of the island does not become the owner of the new dry land, which is not an accretion, merely because it forms in the area of its original survey. I feel constrained to challenge the applicability of this ruling to the facts of this case. It was ever the settled common law of England that the seas and all navigable tributaries in which the tide ebbed and flowed, and all beneath and in them of natural creation, belonged to the crown, and that all grants of land bordering on tide water extended only to the high-tide margin. This doctrine of the common law was imported into this country, and made applicable to our inland navigable streams, established or recognized as such by congress. Accordingly the congress of the United States has provided that the navigable rivers or streams in the territory of the United States in which lands are offered for sale should be deemed to be and remain public highways. Hence Mr. Justice Clifford, in Railway Co. v. Schurmeir, 7 Wall. 272, 288, 289, 19 L.Ed. 74, said:

'Viewed in the light of these considerations, the court does not hesitate to decide that congress, in making the distinction between streams navigable and those not navigable, intended to provide that the common-law rules of riparian ownership should apply to lands bordering on the latter, but that the title to lands bordering on navigable streams should stop at the stream, and that all such streams should be deemed to be and remain public highways.'

These reservations and common-law rules were made applicable to riparian proprietors to whom concessions of the public land were made by the government. The settled doctrine of this state is that such riparian proprietor does not own to the main channel of the river, but only to the water's edge. Benson v. Morrow, 61 Mo. 347; Naylor v. Cox, 114 Mo. 232, 21 S.W. 589; Rees v. McDaniel, 115 Mo. 145, 21 S.W. 913; Cooley v. Golden, 117 Mo. 33, 23 S.W. 100, 21 L.R.A. 300. This, being the established rule of property in this state, must be recognized by the federal courts in matters of controversy respecting titles to land granted by the government, bordering on the river.

Island No. 42, in question, was surveyed by the general government and thus appropriated and reserved by it, in 1820, before the admission of the state into the Union. It and the control of the river never passed to the state under the act of admission. It continued to be the property of the United States until it was patented in 1896 to this plaintiff. While it was the property of the United States, it held it subject alone to the recognized laws and rules of the United States. In the absence of express legislation by congress, the rules of the common law applied to its ownership of this island; and, as the plaintiff obtained the patent to this island in 1896, this action should be viewed as if the government itself at the time of the grant had found the defendant on the survey of Island No. 42, and had brought an action to evict him. While the common law recognized that the...