Willard v. Robertson

• Decision Date: 02 May 1939
• Docket Number: No. 35572.,35572.
• Citation: 129 S.W.2d 911
• Parties: WILLARD v. ROBERTSON et al.
• Court: Missouri Supreme Court

129 S.W.2d 911

WILLARD v. ROBERTSON et al.

No. 35572.

Supreme Court of Missouri, Division No. 1.

May 2, 1939.

Motion for Rehearing Overruled June 14, 1939.

Appeal from Circuit Court, Saline County; Charles Lyons, Judge.

Proceeding by Frank Willard against J. Marion Robertson and others, trustee, and M. J. Murphy to determine title to real estate. From a judgment for plaintiff, defendants appeal.

Affirmed.

W. T. Bellamy, Perry G. Storts, Louis J. Rasse, Avery R. Kier, and J. Marion Robertson, all of Marshall, for appellants.

Johnson & Bacon and W. H. Meschede, all of Marshall, for respondent.

HYDE, Commissioner.

This is an action to determine title to land in Saline County bordering the Missouri River. Plaintiff claimed the land as accretions to his deeded land and also by adverse possession. Defendants claimed under a deed from Saline County under provisions of Sections 11165 and 11168, R.S.1929, Mo.St.Ann. §§ 11165, 11168, pp. 4888, 4890, on the theory that the land was either originally formed as an island or was a former river bed abandoned by reason of an avulsion. The pleadings raised only issues at law and the case was submitted to the jury, which found for plaintiff. Defendants have appealed from the judgment entered.

Defendants' assignments of error go to the court's rulings on evidence and instructions and they do not claim that plaintiff failed to make a jury case. Plaintiff's evidence showed title by deed to the southwest quarter of Section 21, Township 52, Range 22, obtained in March, 1923, from grantors whose title emanated from the United States government. Plaintiff's evidence further tended to show that about 1891 the Missouri River ran north near the west side of Section 21, turned east near the north side of that section, then ran east through that section, and to some distance beyond, where it made a long curve to the southeast, and ran around what was called Teteseau Bend; that since that time the river has gradually and continuously receded northward, cutting away the Carroll County side and building accretions to the Saline County side; and that the river now runs north not only along the west side of Section 21, but also to the west of all of Section 16, north of Section 21, and part of Section 9, north of Section 16, where it turns east and runs east through the south part of Section 9. Plaintiff claimed all of the land north of the southwest quarter of Section 21, to the present river banks, lying west of the center line of Sections 21 and 16. Defendants' deed described an irregularly shaped tract containing about 80 acres in the west half of Section 16, which is the land in dispute in this case. There is a house on this land built by one of plaintiff's tenants. Plaintiff's evidence further was that, when he bought the southwest quarter of Section 21 in 1923, together with all then existing accretions thereto, the river had already receded two miles north of the south line of his deeded quarter section (which would locate the river about on the line between Sections 16 and 9); that all of the land claimed by defendants was at that time out of the river; that there was then no water between it and the rest of his land to the south; and that he took possession of the land defendants now claim, at that time, and has held possession ever since. Plaintiff also had evidence tending to show that no part of the land in dispute was ever part of an island; that no islands formed in the river opposite this part of his land; and that the only formations there were sand bars and "towheads" (small bars with a growth of willows) which were later washed away.

Defendants' deed from the county was made in October, 1934, and this suit was commenced by plaintiff in December, 1934. Defendants had evidence that there was a chute (slough or arm of the river) south of the land defendants claimed in 1923, and that boats went through it then and after that time. It was shown that there was an avulsion in June, 1923, by which the river cut off Teteseau Bend. Defendants claimed that this caused the chute to fill. However, plaintiff's evidence was that all effects of this avulsion were farther east than the land in dispute and that it did not reach into or affect in any way the situation in Sections 21 and 15. It was also shown that defendant North was originally a tenant of part of plaintiff's land. Defendants introduced United States Government maps showing the course of the river in 1914, 1920, and 1924, and had expert testimony as to what they indicated.

Defendants' first assignment of error is that the court refused their offer of a commissioner's deed from Saline County to the Saline County Farms Company made in June, 1925, conveying land in Section 21 and adjoining sections. Defendants' plat, in evidence, indicated that most of this land was east of the land claimed by plaintiff, but some of the land described in this deed was in the west half of Section 21 north of the land described in defendants' deed. It did not describe any of the land claimed by defendants, and actually in dispute in this case. It is contended by defendants that this was material upon the issue of plaintiff's adverse possession, because it indicated that another party claimed part of the tract claimed by plaintiff. However, defendants are in no position to question the court's exclusion of this deed, which described no portion of the land in dispute, because during plaintiff's testimony they were successful in excluding by their objections, which the court sustained, evidence of acts of ownership by plaintiff upon this land north of the land in dispute. Their objections were made...