Wilkerson v. St. Louis Sectional Dock Co.

• Decision Date: 16 June 1890
• Citation: 14 S.W. 177,102 Mo. 130
• Parties: WILKERSON v. ST. LOUIS SECTIONAL DOCK CO. et al.
• Court: Missouri Supreme Court

14 S.W. 177

102 Mo. 130

WILKERSON v. ST. LOUIS SECTIONAL DOCK CO. et al.

Supreme Court of Missouri.

June 16, 1890.

EJECTMENT — ADVERSE POSSESSION — LIMITATIONS — PRACTICE — EVIDENCE.

1. In ejectment for riparian premises of which defendant, the city, had been in open, uninterrupted, and adverse possession for 19 years, condemnation proceedings, which were subsequently declared void, instituted by the city during that time to open the wharf along the whole river front, including the premises in controversy, are inadmissible in evidence to show either title in plaintiff or the character of the city's possession.

2. Where the adverse possession is commenced in the life-time of the ancestor, the running of the statute is not suspended by the coverture of plaintiff, who derived the land from her ancestor.

3. When, after retiring, the jury return and propound questions of law to the court, arising on the facts of the case, it is proper for the court to answer the questions by additional instructions.

4. The judge may, in his discretion, in such case, refuse to permit further argument by counsel, after giving the additional instructions.

John A. Harrison, E. P. Johnson, and Geo. W. Hall, for appellant. Leverett Bell, for respondents.

BRACE, J.

This is an action of ejectment, instituted February 20, 1878, in the circuit court of St. Louis. The answer was a general denial, and a plea of the statute of limitations. The verdict and judgment was for the defendants, and the plaintiff appeals. The action was originally instituted against the St. Louis Sectional Dock Company, a corporation in possession of the property as tenant of the city of St. Louis; and in due time said city, on its motion, was made a party defendant. The property in dispute is a parcel of ground in the south wharf of St. Louis, extending from the south line of Russell avenue (formerly Picotte street) to the north line of Trudeau street, if said lines are produced to the river, a distance of 346 feet and 6 inches from north to south, and having a width from east to west of 300 feet. Its eastern boundary at the present time is the Mississippi river, which is also the eastern line of the wharf as established by ordinance 5403; and its western boundary is block 868 of the city of St. Louis, and the western line of the wharf as established by said ordinance 5403. The evidence for the plaintiff showed that she had acquired the title of the government to an undivided one-half of a tract of land west of the premises about 1,000 feet, under a special concession made to Joseph Brazeau in 1786, confirmed and augmented by a concession made in 1799, which concession was surveyed in 1803, by which survey said grant was bounded on the east by the Mississippi river. The concession, as thus bounded, was confirmed by the act of congress approved July 4, 1836. The north and south lines of the tract of land in the Brazeau grant, in which the plaintiff had acquired an undivided half interest, and which will hereafter be designated as the "Picotte Tract," if extended eastwardly to the west bank of the Mississippi river as now defined, would include the premises sued for. The evidence tended to show that, prior to the year 1820, a bar commenced forming in the river extending down in front of the Brazeau tract; that it continued to increase and accumulated soil and became of such proportions that, some time between 1820 and 1835, probably about 1830, a man by the name of Duncan moved on the formation and commenced cultivating it. In the year 1835 Duncan attempted to acquire title from the government to this land formation by entry under the pre-emption act of congress, and his claim seems, after his entry, to have been surveyed by a United States surveyor; but no approval of such survey appears in the evidence, and it seems the entry was afterwards canceled. Duncan acquired no title by his pre-emption entry, however, as was held in Jones v. Soulard, 24 How. 41; Kissell v. Public Schools, 18 How. 19, 16 Mo. 553. The formation in the river after Duncan took possession of it was always thereafter known as "Duncan's Island." The main channel of the river was east of this island. From the beginning of this formation down to about 1845 there was between this island and the western shore of the river a slough. The evidence tended to show that this slough was navigable for steam-boats when the river was in a stage of ordinary high water; that in ordinary low water it was not navigable, but water flowed through it; and when the water was more than ordinarily low it ceased to flow, and stood in ponds separated by sand-bars. The evidence tended to show that in 1845 the city of St. Louis commenced erecting a system of dykes between the Missouri shore and this island, the effect of which was to check and finally stop the flow of water through the slough; and thereafter it was filled up, and part of it became the dry land and premises for the recovery of which this action is brought.

The evidence for the plaintiff tended to show that the center line of the slough before it ceased flowing was north and east of the premises, and that the premises was a part of a sand-bar which had formed in front of, and extended from the main shore line of, the Picotte tract (to which it was attached) in the direction of the island. The evidence for the defendant tended to show that the center line of the slough was south and west of the premises, and between it and the Picotte tract, and that it was partly on the island proper, and that the remainder was an accretion to the island. The plaintiff's ancestor, Honore Picotte, acquired title to the riparian tract in 1835 from the legal representatives of Joseph Brazeau. Picotte's deed called for the Mississippi river for the eastern boundary of his tract. By act of the general assembly of Missouri, approved March 3, 1851, (Laws Mo. 1850, p. 73,) all the right, title, interest, and claim of Missouri acquired, by virtue of an act of congress entitled "An act to enable the state of Arkansas and other states to reclaim the swamp lands within their limits," approved September 28, 1850, to an island in the Mississippi river, in the county of St. Louis, called "Duncan's Island," situate and being opposite to the lower part of the city of St. Louis, was "set over, transferred, and conveyed" to the city of St. Louis. The city acquired no title to the island, however, under this act, as it does not appear that it was ever selected, certified, or patented to the state as swamp land. Late in the year 1858, or in the beginning of the year 1859, the Sectional Dock Company, which was then a copartnership concern carrying on its business at the foot of Mulberry street on the bank of the river, with the assent of the city, moved their works and business to the premises in controversy, and contiguous property formerly in the bed of this slough, or on this island. This concern was...