Wilcox v. Pinney, 49710

• Decision Date: 20 October 1959
• Docket Number: No. 49710,49710
• Citation: 250 Iowa 1378,98 N.W.2d 720
• Parties: Douglas WILCOX, Appellant, v. Adah L. PINNEY Mildred I. Fair (Norberg), Almeda L. Peterson, Ruth E. Larson (Wooten), Van Dee Corr, Sybil Jaubon, Leslea Lanott, John Schloemer, Alfred Nelson, Henry J. Gruebel, Leila Fitchener, Clyde Kirk, Thomas & Thomas, William H. Thomas, Elmer E. Thomas, William H. Thompson, as County Auditor of Woodbury County, Iowa, Jerome Melcher, a minor, Elsie Black, Anne Madsen, Dorothy Kinsen, George Grubel, Chloris L. Grubel, Maurice Choquette, Blanche Choquette, and All Unknown Claimants, Appellees.
• Court: Iowa Supreme Court

Page 720

98 N.W.2d 720

250 Iowa 1378

Douglas WILCOX, Appellant, v. Adah L. PINNEY Mildred I. Fair (Norberg), Almeda L. Peterson, Ruth E. Larson (Wooten), Van Dee Corr, Sybil Jaubon, Leslea Lanott, John Schloemer, Alfred Nelson, Henry J. Gruebel, Leila Fitchener, Clyde Kirk, Thomas & Thomas, William H. Thomas, Elmer E. Thomas, William H. Thompson, as County Auditor of Woodbury County, Iowa, Jerome Melcher, a minor, Elsie Black, Anne Madsen, Dorothy Kinsen, George Grubel, Chloris L. Grubel, Maurice Choquette, Blanche Choquette, and All Unknown Claimants, Appellees.

No. 49710.

Supreme Court of Iowa.

Oct. 20, 1959.

Kindig, Beebe & McCluhan, Sioux City, for appellant.

John E. Hutchinson, Sioux City, Guardian Ad Litem.

Stewart & Hatfield, Carry & Crary, Sherman McKinley, Jr., Edward Moran, and Robert B. Pike, Sioux City, and Herbert Bails, Sloan, for appellees.

LARSON, Chief Justice.

Plaintiff's quiet-title action brought against defendants claimed absolute and unqualified legal ownership of real property in Woodbury County, Iowa, described as: 'The SE 1/4 of the NE 1/4 of Section 28; The NW 1/4 of Section 21; The NE 1/4 of the SW 1/4 of Section 21; The NE 1/4 of the N.E. 1/2 of Section 20; The E 1/2 of the SW 1/4 of Section 16; The NW 1/4 of the SW 1/4 of Section 16; The SW 1/4 of the NW 1/4 of Section 16; and 300.68 acres in Section 17, and 133.32 acres in Section 8, all in Township 86, North of Range 47, and all accretions thereto,' by virtue of certain deeds, and by continuous possession thereof. In view of the fact he held a valid tax deed from Woodbury County, Iowa, to the SE 1/4 of the NE 1/4 of Section 28, Township 86, N. Range 47, his right thereto was not contested, and the court quieted title to plaintiff herein. No complaint is made of that judgment and thus it is not an issue herein.

The trial court found against the plaintiff and in favor of the cross-petitioners as to the balance of the land and quieted title in them in accordance with divisions set forth in certain disclaimers filed by the cross-petitioners. These lands, the court held, were shown to be accretion lands as a result of the wiping out and restoration action of the Missouri River.

Plaintiff contends the trial court erred in that determination. He does not, as we understand it, question the applicable law, but his complaint relates principally to the court's findings of fact under the evidence as disclosed by the record.

I. This case, being in equity, is triable to novo in this court. It is our duty, therefore, to find the facts. To aid us we are furnished numerous exhibits, as well as expert testimony disclosing the past actions of the Missouri River in this three-mile-wide location. It must be recognized that the trial court has had considerable experience in similar controversies and understands the problems and testimony relating to them. We are, therefore, justified in giving more than casual attention to its findings, especially where, as here, it is borne out by clear, satisfactory and convincing evidence.

Certain applicable rules of law are undisputed and need little or no citation of authority. The presumption of ownership which follows the legal title can be overcome only by evidence which is clear and convincing. A preponderance of the evidence is not sufficient. Thompson v. Thompson, 240 Iowa 1162, 1170, 1172, 39 N.W.2d 132, and authorities cited therein. Each party seeking to quiet title to those involved tracts must succeed or fail on the strength of his own title and not on the weakness of the other. The record title to these lands since 1855 has been in plaintiff and his predecessors, as shown by plaintiff's Exhibit A. Thus defendant-counter-claimants' burden was a heavy one. They must not only show the land plaintiff claims was entirely destroyed, but that the restored land was rightfully theirs.

At the time of the original government plat in about 1850 the river hugged the west or Nebraska side of this water melon-shaped area and was in about its present location. (See plat drawn from plaintiff's Exhibit 1.)

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

The record is undisputed that this river and its bed moved over to the east or Iowa side in the late 1920's or early 1930's, and then moved back to its former or present location in the middle or the late 1930's. The vital issue which was decided by the trial court in favor of the counter-claimants was whether or not, in making these changes, the river slowly eroded away all the intervening land, and then by an accretion process rebuilt it as it moved back and forth, or whether the change was sudden or by avulsion, at least to the extent that an island or bar which was included in the tract claimed by plaintiff always remained above the high-water mark and never became a part of the river bed. After a careful consideration of the evidence, we agree with the trial court's determination.

II. Right or wrong, it is well established that lands of a riparian owner are as subject to being lost by the gradual process of erosion by the river as they are of being added to by the process of accretion. We said in Payne v. Hall, 192 Iowa 780, 783, 185 N.W. 912, 914: 'Where the lands of a riparian owner are removed by the gradual process of erosion by the river, the land being no longer capable of identification, but having been carried away entirely, and the river occupies the identical space formerly occupied by the lands of the riparian owner, the title to the land so occupied by the bed of the river passes from the owner of the land to the state.' We reaffirmed this pronouncement in Rupp v. Kirk, 231 Iowa 1387, 1391, 4 N.W.2d 264, a case similar to the one at bar, and in Solomon v. Sioux City, 243 Iowa 634, 638, 51 N.W.2d 472. We also said in the Rupp case the character of the soil, the vegetation and trees, as well as other physical facts, on the tract in question, are proper items to consider in the determination of whether this Missouri river in its westward movement at that locality in 1927 cut away formations in front of it from its bed and built an entire bar from the shore line, or most easterly high bank, by the process of accretion. Also as to this view see Bone v. May, 208 Iowa 1094, 225 N.W. 367; Kitteridge v. Ritter, 172 Iowa 55, 151 N.W. 1097; Arnd v. Harrington, 227 Iowa 43, 287 N.W. 292.

III. The doctrine of accretion is well recognized and well established in Iowa. We have often said, to constitute an accretion there must be a gradual and imperceptible addition of soil to the shore line or any adjoining land above high-water mark by the action of the water to which the land is contiguous. Meeker v. Kautz, 213 Iowa 370, 372, 239 N.W. 27, 28; Payne v. Hall, supra; Solomon v. Sioux City, supra.

IV. 'High-water mark' has a definite meaning in our law. It is co-ordinate with the limit of the bed of the water, and that, only, is to be considered the bed which the water occupies sufficiently long and continuously to wrest it from vegetation, and destroy its value for agricultural purposes. Solomon v. Sioux City, supra; Meeker v. Kautz, supra.

V. With these pronouncements in mind, the plaintiff's evidence of record title, and the admission by all parties that the Missouri River is a navigable stream we examine the testimony and the exhibits to determine for ourselves whether the counter-claimants established by clear, satisfactory and convincing evidence that the land claimed by them was accretion land, whether at some time between 1855 and 1950 the land was entirely washed away, and whether it had become the bed of the river for a sufficiently long period of time to wrest it from vegetation and destroy its value for agricultural purposes.

The trial court in its decree said: 'There can be no question from the evidence that all of the land in controversy in this action was at one time washed away and was later rebuilt.'

While space will not permit us to relate all the evidence regarding the 'island', the vegetation, or the soil composition between the east and west locations of the river in this vicinity over the years, it is well to note the elevation of this high land or island was about five feet above the abandoned channel of the river in the chute or near its eastern high bank. Both of the well-qualified experts, Towl and Hart, had walked over this territory and examined the soil. They seemed to agree that after the passage of the river, the made bar land first grew willows and other small vegetation, and later cottonwood trees, which in turn had to be cleared before the ground could be cultivated. Back in 1936, according to plaintiff's Exhibit 5, Mr. Towl said a small tract about 500 or 600 feet wide on the high part of the island territory showed evidence of such farming.

On the other hand, Mr. Hart said: 'In my opinion from the high bank west of the present channel of the Missouri River that is all accretion land', and referred to the land involved in Sections 9, 15, 16, 20, 21, and 22, None of it, he said, was original land.

Mrs. Chloris L. Grubel, a witness for defendants, testified: 'I have been familiar with this land since 1927, at which time the channel was about where it is now; in 1927 or 1928 I walked to the river, the land west of the 1905 high bank was willows, sand, and vegetation; no islands west of 1905 high bank, only sand bar and small willows; shortly after this the river cut back east towards the house...