168 N.W. 761 | S.D. | 1918
T-his, action was-- brought to quiet title to a tra-ct of land claimed -b-y appellants and described' as lots 5 and 7 in section 31, in ,a -certain township in Union county. As originally surveyed, said tract led? land was- bounded- -on tibe south by the Missouri river and! -on the north; by the southwest quarter of section 30, in th-e same township-, -and which, belongs- to- respondent. During t-he ten-year period between 1878 and 1888, the river -cut away its bank along the sout-hl side -of lots 5 andl 7, -in section 31, and, -by gradual -and imperceptible -degrees, eroded and washed away the surface of saidl land- -until it -became entirely -submerged 'b-y the riv-er. .Suiclhi .a-ction lof the river 'continued! -until -same portions of respondent’s land were also washed' away, though to- what extent does not appear, nor is it material. Some time after 1888, the river -commenced to recede from- the land thus submerged and, by the 'gradual 'deposit of silt and alluvium-, restored the -land that had been washed, away. Not only .was .the -land- in -Section 30 restored, but the river continued to recede until, by the year 1900, lots 5 and 7 in section 31 had also- been fully restored. Appellants
That respondent’s -contention relative to her riparian rights is. supported 'by some of the courts cannot be questioned. In Welles v. Bailey, 55 Conn. 292, 10 Atl. 565, 3 Am. St. Rep. 48, the rule applicable -to such cases is stated as follows :
“If a particular tract was entirely -cut -off from a river b-y an | intervening tract, and1 that intervening tract should be gradually) washed -a-way until- the remoter tra'ct was reached- by the river, -the latter tra-ct would beclome -riparian as much, as if ■ it had been origin-ally such. This follows necessarily from tibe ordinary application- o-f the principle. All -original lines -submerged- by the river have ceased to- exist; the river is' itself -a natural boundary, and every changing condition -of the river in relation to- adjoining lands is treated as a natural relation, and is not affected- in- -any manner by the relations of the river -and the fend- at any former period. If, after washing -away the intervening lot, it- should encroach upon the remoter lot, and should begin to change its- movement in t-h-e other direction, gradually restoring what it 'had taken from the remoter lot, and finally all that it had taken from- the in-
In Peuker v. Canter, 62 Kan. 363, 63 Pac. 617, the Missouri river washed away all of the tract that was riparian tci the ri-ver and for some distance into the remoter tract. The liver then receded- and, by accretion, restored: all of -both tracts precisely as was done in this case. The Supreme Court. of Kansas followed the rule announced in Welles- v. Baile)'-, supra, above quoted. This rule appears, as is indicated 'by 'some of the above ¡quoted language, to have sprung- from the fact that, when- the riparian estate is destroyed! and- parried away, the boundary line between -that and the adjacent estate is obliterated and lost, and1 that, in case of restoration by accretion or reliction, there is no way of identifying the -original estate, and' therefore it is deemed to have- been entirely destroyed and lost. B-ut no such reason exists in this case, '.¡'lie ¡boundary line .between- the lands of appellant and- respondent was a government section line, and of -course- ¡can be re-established without difficulty. In the absence of the reason, -there is no justification for the rule. Without holding that, in all -cases where land has been carried away or submerged1 by the action of the water in a lake or river and ¡afterward restored by the -action- of snob water, isuichl land belongs to- the original owner thereof, we -can see no reason», in justice -or equity, why the land involved in this case, after it had been restored by the river, should be given to- respo-n-d'enifc merely because the -river had -at s-otoe -time touched her land. After her land had been fully restored to¡ her, s'he had all that she- was entitled! to -o-r in glciod ¡conscience -could demand'. What seem© to us to- he the ¡rational' ru-le applicable to the facts- as they appear in this' case is that -announced in Association v. Shriver, 64 (N. J. L.) 550, 46 Atl. 690, 51 L. R. A. 425. This case is supported by a fo-iunidab-le array -oif authorities ¡which ¡are -collected and reviewed in the opinion of the court a-nid -cited in the note appended thereto in 51 L. R. A. These -cases- fully sustain appellant’s contention. We believe that, after -appellant’s land had been
The judgment and order appealed from are reversed, and the cause is remanded! to the trial court, with directions to enter a decree quieting title in the appellants to the disputed premises.