97 Kan. 198 | Kan. | 1916
Mason, J.: Samuel E. Adams settled upon a tract of land lying between the original banks of the Arkansas river, and filed a petition asking to be allowed to purchase it as island school land. E. K. Roberson and W. B. Cornell filed protests, each claiming a portion of the tract as an accretion to patented land of which he was the owner, lying south of the river. The state, intervening by the county attorney, also claimed the title. The papers were certified to the district court in accordance with the statute (Laws 1913, ch. 295, § 3). A trial resulted in a verdict and judgment for Roberson and Cornell, and Adams appeals. The city of Great Bend was also a defendant, but as it has made no appearance here, and no error is urged with specific reference to it, no discussion of its relation to the case is thought necessary.
(1) The appellant complains because the burden of proof was placed upon him. He argues that as the title to the bed of the stream was originally in the state it was incumbent upon Roberson and Cornell, in order to give themselves any standing, to show affirmatively that the tracts which they claimed were accretions; This might be true as between these parties and the state, but no one except Adams is complaining. The statute above cited declares that in the situation here presented the “said cause shall regularly stand for trial with the settler as plaintiff and the protestant as defendant, and the state as intervenor, and the issues of fact and of law, and all claims of the respective parties to such lands, shall be fully tried and determined as other civil cases.” It was clearly the purpose of the legislature, in designating the settler as the plaintiff, to cast upon him, as the instigator of the proceedings, the burden of proving facts necessary to his recovery — among others, that the land claimed was of such character as to be open to settlement. This was decided in Winters v. Myers, 92 Kan. 414, 140’ Pac. 1033.
(2) The plaintiff criticises the instructions as ignoring the fact that the state owns the bed of the river, and in this connection cites the present act making all abandoned beds of navigable streams school lands, and providing for their sale whether they were ever islands or not (Laws 1915, ch. 322). The case
(3) The theory presented by the plaintiff at the trial was that an island had formed in the river bed and grown until it ■had covered the site in question. The defendant undertook to combat this mainly by showing that there never had been an island at the point of settlement. This was the principal issue to which the evidence on each side was directed, and the conflict was direct and irreconcilable. The court instructed, in substance, that the land belonged to the defendants if it had been gradually added to riparian tracts owned by them, by accretion or reliction; and those processes were clearly defined, no objections being made to the definitions. In 1884 several spans at the south end of a bridge across the river above the land in controversy were filled in with earth, and a dam was run out from the bank a short distance upstream, for the protection of the road so formed. The made land was shown to be largely due to this work. The plaintiff asked an instruction that he was entitled to a verdict if the tract in dispute was formed by the diversion of the stream caused by the fill and dam. This request seems intended to present the contention that a riparian owner can acquire no title to land formed in the bed of a stream if its formation is brought about by artificial causes, although he may have had no part in them. That view has sometimes been taken, but the weight of authority is to the contrary. (1 R. C. L. 233; 1 A. & E. Encycl. of L. 468; I Ene. L. & P. 805; 29 Cyc. 351; 1 Kinney on Irrigation and Water Rights, 2d ed., § 538, p. 928.) We accept the majority doctrine, which we do not understand to be now controverted by the plaintiff; for while a formal objection to the instruction referred to is made in the specification of errors, it has not been pressed in the argument.
(4) The plaintiff does contend, however, that there was no evidence to sustain a finding that the defendants had acquired title by accretion or reliction, for the reason that it conclusively appeared from the evidence of both parties that the immediate effect of the fill and dam was to divert the channel of
(5) The judgment not only denied the plaintiff’s claim, but also declared the defendants to be the owners of the lands in question, and ordered the plaintiff to be ejected therefrom. The plaintiff contends that in any event the defendants were entitled to no affirmative relief, and in particular that the order of ejectment was unauthorized, because the statute makes no provision for it. As the case was submitted to the jury the verdict is fairly to be regarded as including a finding that the land was formed by accretion to the south bank, and therefore belongs to the defendants. The language of the act of 1913 already quoted — that “the issues of fact and of law, and all claims of the respective parties to such lands, shall be fully tried and determined as in other civil cases” — indicates a purpose to have all controversies between the parties with respect to the land threshed out and disposed of in the proceeding there provided for. The statute in a sense protects a settler in entering and occupying a portion of a tract which may in fact be the lawful property of another occupant — it creates a procedure by which the rights of all parties after such settlement may be speedily litigated. The settlement is really the first step in a proceeding to determine the character of the land, and for that reason is given qualified protection.' An adjudication that the land is not open to settlement determines that the plaintiff has no right of possession, and it would be out of harmony with the spirit of the law to allow him to retain it until another judgment should be obtained against him in some other form of action.
The judgment is affirmed.