Wiggenhorn v. Kountz

• Decision Date: 28 March 1888
• Citation: Wiggenhorn v. Kountz, 23 Neb. 690, 37 N.W. 603 (Neb. 1888)
• Parties: WIGGENHORN ET AL. v. KOUNTZ.
• Court: Nebraska Supreme Court

23 Neb. 690

37 N.W. 603

WIGGENHORN ET AL.

v.KOUNTZ.

Supreme Court of Nebraska.

March 28, 1888.

Syllabus by the Court.

Where an island in the Platte river had been surveyed by the United States, and sold to a party, who received a patent therefor, such party, or his grantee, will becomethe owner of any accretions to such island, or of land formed by avulsion from the washing away of the upper part of the island, and the sudden formation of new land on the lower end thereof; and a party cutting trees growing upon the land so formed will be liable to the owner thereof in trespass.

While the general rule is that a grant of land on a stream not navigable includes all islands or parts of islands between the shore and center thread of the stream, unless reserved, yet where there is a clear reservation of the islands, either expressly or by necessary implication, they do not pass to the grantee; and the filum aquœ which bounds the grant is the center thread between the shore and the island. In such cases two fila aquœ are established, one on each side of the island.

Where the main-land and an island have been separately surveyed and purchased by different parties, as distinct tracts, the grantees of the main-land cannot claim the island as included in their grant.

Where two or more parties are sued jointly, and there is a verdict and judgment against them, and either defendant desires to raise a question peculiar to himself in the motion for a new trial, he should file a separate motion, and not join with the other defendants.

Error to district court, Saunders county; POST, Judge.

Jacob Kountz brought this action against E. A. Wiggenhorn, E. A. Clossen, and John Johnson, to recover the value of certain trees alleged to have been cut by defendants, and converted to their use. Judgment was rendered against all the defendants, and Wiggenhorn and Clossen bring error.

T. B. Wilson, J. B. Strode, and S. M. Chapman, for plaintiffs in error.

C. Thompson, for defendant in error.

MAXWELL, J.

The defendant in error brought an action against the plaintiffs, in the district court of Saunders county, to recover the value of certain trees cut down by and converted to the use of the plaintiffs in error. The defendant in error alleges in his petition “that from the 7th day of December, 1871, until the 29th day of November, 1882, he was the owner in fee-simple, and in the possession, of lot one, (1,) in section thirty, in township thirteen north, of range ten east, in Saunders county; that on or about the first day of September, 1881, and between that date and said 29th day of November, 1882, and while plaintiff was the owner and in possession of lot one aforesaid, the said defendants Earnest A. Wiggenhorn, John Johnson, and Emery A. Clossen, unlawfully and with force broke and entered upon the plaintiff's said land, described as follows, as aforesaid, to-wit: Lot one, in section thirty, in township thirteen north, of range ten east, of the 6th principal meridian, Saunders county, the state of Nebraska,--and then and there cut down one hundred cotton-wood trees belonging to plaintiff, and then growing on said land, and of the value of one hundred and ninety dollars, and carried the same away, and converted them to their own use, to the plaintiff's damages in the sum of $190.” Johnson filed an answer to the petition, in which he alleges, in substance, that he was employed by Wiggenhorn to cut the trees in question, and that Wiggenhorn informed him that he had lawful authority to cut said trees. Wiggenhorn and Clossen answer jointly, denying the facts stated in the petition. On the trial of the cause, a verdict in favor of Kountz, and against all the plaintiffs in error, for the sum of $25, was returned. A motion for a new trial was thereupon filed and overruled, and judgment entered upon the verdict. The testimony shows that, at the time stated in the petition, the defendant in error was the owner of lot 1, section 30, township 13 N., range 10 E. The land was entered prior to the year 1860, and a patent issued in that year, under which the defendant in error claims title. The lot in question is an island situated in the Platte river; there being a well-defined channel on each side of said island. In the year 1867, during high water in the Platte river, the upper part of said island was washed away, and, the testimony tends to show, formed an accretion to the lower end of said island. The timber in question was cut on the land thus formed at the lower end of the island. That 60 trees, from 8 to 15 inches in diameter, were cut on this land, and used as piles on Mr. Wiggenhorn's mill-dam, is proved beyond controversy. There is some dispute in the testimony as to whether Mr. Johnson was hired by Wiggenhorn, or sold him the piles; also whether Clossen was employed by Wiggenhorn or Johnson; but, in the situation of the case, the particulars as to the transaction are not material. All three participated in the trespass, and Mr. Wiggenhorn procured the trees, for which he claims to have paid to Johnson $32. The proof shows that the trees, for the purposes for which they were used, were worth from $2 to $2.75 each. The principal defense relied upon is that the land on which the trees grew was not the property of Kountz, but was public land, to which all had equal rights; and it is claimed, further, that the land thus suddenly formed would belong to the...