Wood v. McAlpine

• Court: Kansas Supreme Court
• Writing for the Court: WEST, J.:
• Citation: Wood v. McAlpine, 85 Kan. 657, 118 P. 1060 (Kan. 1911)
• Decision Date: 11 November 1911
• Docket Number: 17,009
• Parties: ANNIE B. WOOD, Appellee, v. J. S. MCALPINE et al. (THE ARMOUR PACKING COMPANY, Appellant)

118 P. 1060

85 Kan. 657

ANNIE B. WOOD, Appellee, v. J. S. MCALPINE et al. (THE ARMOUR PACKING COMPANY, Appellant)

No. 17,009

Supreme Court of Kansas

November 11, 1911

Decided July, 1911.

Appeal from Wyandotte district court.

Cause reversed and remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. JURY--Challenge to Array--Refused--Not Error. Under the law relating to jurors in counties having a population of 100,000 or over (Gen. Stat. 1909, §§ 4630-4639) requiring the jury list to be revised each year, it was not error to overrule a challenge to the array on the ground that such revision had not been made, it appearing that several hundred names of competent jurors still remained in the box.

2. RIPARIAN RIGHTS--Accretion--Reliction--Avulsion. A deed describing land as beginning at a point on the bank of a navigable river, running thence along the river bank presumptively carries with it the rights of accretion and reliction, but if the land adjoining the bank has been recently lost by avulsion such deed will not estop the grantor from subsequently claiming such land upon its reappearance otherwise than by natural accretion or reliction. Land added to the bank by accretion or reliction unaided by artificial means belongs to the grantee.

3. RIPARIAN RIGHTS--"Avulsion" Defined. To constitute avulsion along the Missouri river bordering upon Kansas, the bank must be destroyed or removed suddenly, visibly, rapidly, violently, in substantial quantity, and in a manner unusual to that river.

4. RIPARIAN RIGHTS--Same. To constitute avulsion it is not essential that the land torn away be removed intact so as to be capable of location or identification.

O. L. Miller, A. L. Berger, and Frank Hagerman, for the appellant.

W. L. Wood, and J. O. Fife, for the appellee.

OPINION

WEST, J.:

Silas Armstrong was the patentee of a tract of land in the fork of the Kansas and Missouri rivers containing nearly two hundred and fifty acres. I. & N. Dec. 1867 a suit was brought by the various parties who then owned the tract, for partition. A survey was ordered by the court and, later, partition. In September, 1867, the commissioners reported, allotting to Dr. Wood twenty and ninety-four hundredths acres out of the two hundred acres then left of the original tract, the remainder having washed away or disappeared. This report was confirmed. Afterwards, to prevent the Missouri river from further encroaching upon the land, certain portions were deeded to James F. Joy in consideration of his agreement to riprap the bank, which he did, completing the work within a few months. A map showing the allotments and the location of the riprap bank can be found in Wood v. Fowler, 73 Kan. 511, 517, 85 P. 763. The survey under which the partition was made is known as the Miller survey, the north line of which is from two hundred to three hundred feet beyond the riprap bank. At the time Dr. Wood and others agreed to deed to Joy, the south bank of the Missouri river was working southward, and the agreement was to execute deeds to Joy for certain tracts "bounded on the east by the Missouri river and extending back for quantity as shown upon a plat of said lands," Dr. Wood's portion to be four and one-half acres. This contract was dated August 26, 1868. The deed was dated September 22, 1868, and described the land by metes and bounds "beginning at a point on the bank of the Missouri river . . . thence southeasterly along said river bank to the point of beginning."

This was an action in ejectment by the widow of Dr. Wood to recover from the Armour Packing Company two and eighty-eight hundredths acres of the Wood allotment, numbered 14 (73 Kan. 517), extending northeast from the riprap bank to the Miller survey line. The defendant claims under deeds from Joy's grantees, and under the right of accretion incident to the title under such conveyances.

The plaintiff asserts that early in 1867 a great flood raised the rivers, the Kansas river first rising and, the ice becoming gorged therein, the water broke through the Armstrong tract, cutting a new channel through which the Missouri river also ran, diminishing the acreage as shown by the commissioners' report already referred to; that the waters, having cut away much of the land, went down late in 1867, but rose again in 1868 and continued the destruction, so that a contract was made with Joy to riprap the bank in order to prevent further encroachment by the Missouri river, a large portion of the Armstrong tract, including the land in controversy, then being submerged by its channel; that after a long lapse of years the defendant and others drove piling out into the river from Kaw Point and thereby finally diverted the channel back to its former location and then the submerged land gradually reappeared; that the submerging of the land in controversy was caused by avulsion and that the deed to Joy conveying the land only to the riprap bank did not convey the northern submerged portion of allotment fourteen, and that the artificial diversion of the channel back to its original location caused the land in question to reappear, and as it has never been alienated by the. plaintiff it is still hers.

The defendant contends that the land in question was not cut away by avulsion but by erosion, and that the reappearance was caused by accretion and reliction, which under the terms of the deed to Joy belong to the defendant as his grantee.

After a protracted trial the jury found generally in favor of the plaintiff and the defendant appeals, assigning as error the ruling of the court in denying the, challenge to the array of jurors, in permitting the plaintiff to amend her petition, in admitting and rejecting certain evidence, in overruling a demurrer to the evidence, in refusing and giving certain instructions, and in overruling a motion for a new trial.

In every county having a population of one hundred thousand or over the statute requires the judges of the district court to cause a complete list of the qualified jurors of the county to be made, which list is to be revised each year and as much oftener as the judges shall deem necessary, the names to be placed in the wheel or box from which the panel is to be drawn. (Gen. Stat. 1909, §§ 4630-4639, Laws 1907, ch. 232, §§ 1-4, 6-10, Laws 1908, ch. 61, § 1.) The defendant challenged the array because the requirements of the statute had not been complied with. It appeared, however, that the list had been properly arranged in 1907, though not since revised, and that three hundred and thirty-seven names remained in the box when the panel was to be drawn. The required revision would only result in striking from the list the names of those who had died, removed or otherwise become disqualified, and in adding the names of other qualified jurors. There was no showing that the names still in the box were those of persons in any wise disqualified, and if they were not, their names would have remained had the revision been made. It was practically a question, therefore, of a choice between a few hundred and a few thousand names of qualified jurors, and no substantial rights of the defendant were invaded by overruling the challenge. The cited case of The State v. Jenkins, 32 Kan. 477, 4 P. 809, involved a long list of names other than the one required by the statute, hence that decision is not controlling.

In the permission to amend the petition, in the rulings on evidence and on the demurrer to the evidence, we find no material error. The instructions given and refused and the denial of the motion for a new trial reached the vitals and fundamentals of the case. Plaintiff's theory of avulsion was supported by numerous witnesses, and while the defendant's theory of erosion was upheld by a still greater number, we can not say that there was not sufficient proof to go to the jury or that the verdict was without evidential basis. The difficulty consists in ascertaining the true meaning of avulsion and erosion as applicable to the facts of this case.

But before considering these, a subsidiary question should be disposed of. Dr. Wood's deed to Joy beginning at a point on the bank of the river and running thence southeasterly along the river bank was in pursuance of the contract to convey the land bounded on the east by the river and extending back for quantity. The plaintiff's theory is that as Wood owned to the line of the Miller survey and the land between that and the riprap line had been lost by avulsion the title to the bed of that portion had not been lost and the land between the two lines could upon reappearance be claimed by him unless it had actually accreted to the shore line as fixed by the deed. The defendant's contention is that the deed by its own terms shows an intention to convey land bordering upon a navigable stream and as against the grantor is conclusively a conveyance of the rights of accretion and reliction, and that the loss was caused by erosion and not by avulsion, and hence on no theory could the plaintiff claim title to the bed between the two lines. It is conceded that the purpose of the conveyance was to provide for a riprap bank and thereby prevent the further encroachment of the river. Probably as a matter of fact no one thought at that time anything about the land over which the river was then flowing next to the riprap line, and as the construction of the deed is purely one of intention (Fowler v. Wood, 73 Kan. 511, 536, 85 P 763; 3 Farnham, Waters and Water Rights, § 855), and as no actual evidence of intention appears, the ordinary presumption following the language used in the deed should control, which is that the title carried the rights of reliction and accretion to the bank as it then existed and which apparently marked the extent of the...