Bigelow v. Hoover

May 16, 1892
Reporters:
,
Before:
Given
Given, J.

I. The case having been tried below as an equity cause, without objection, it will be so considered on this appeal. This is not a contest 1. Accretions: title: evidence. between titles. The inquiry is simply whether the plaintiff has title, or, in other words, whether what is now known as “Hoover’s Island,” or any part thereof, is a part ‍​‌‌​​‌​‌‌‌‌‌​​​‌​​‌‌‌‌​​‌‌​​​​‌​​‌​​​​‌​​‌​​​‌‌​​​​‌‌​‌​‌​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌‌​​‌​‌‌​​​​‌​​​‌‌‌‌​​‍of the plaintiff’s lots by reason of being accretion thereto. It is difficult to express accurately in words the present shape and condition of the island, but the following will be sufficient for the purposes of the case: It is a pear-shaped body of land, with the neck or narrow end pointing southwest, towards the channel of the Missouri river‘. It is entirely surrounded by the waters of Brown lake, and separate from all other land except the plaintiff’s lots, which adjoin the neck or *163narrow point on the east and west sides thereof. The island has been occupied for a number of years, and is now resided upon by the defendants; a considerable portion thereof being available ‍​‌‌​​‌​‌‌‌‌‌​​​‌​​‌‌‌‌​​‌‌​​​​‌​​‌​​​​‌​​‌​​​‌‌​​​​‌‌​‌​‌​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌‌​​‌​‌‌​​​​‌​​​‌‌‌‌​​‍for cultivation, portions of the surface being quite elevated and entirely above high-water mark. The plat of the government survey made in 1851 does not show any island, but marks the space where the island now exists as ‘‘bayou.” The testimony of a number of witnesses familiar with the locality shows, however, that an island did exist there prior to that survey, and the size and age of trees shown to have been cut from that land leaves no doubt in our minds but that an island existed there at and before the survey. No doubt it was much smaller and less noticeable than now. The testimony is reconciled by the conclusion that the island, as it ‍​‌‌​​‌​‌‌‌‌‌​​​‌​​‌‌‌‌​​‌‌​​​​‌​​‌​​​​‌​​‌​​​‌‌​​​​‌‌​‌​‌​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌‌​​‌​‌‌​​​​‌​​​‌‌‌‌​​‍then existed, was not deemed of sufficient importance to survey or plat. We conclude that, notwithstanding what appears in the government plat, the island did exist at the time of the survey as a separate and distinct body of land from the plaintiff’s lots, and the plaintiff is not, therefore, entitled to the whole island as accretion to his land.

II. It is evident that, since the government survey, land has been formed by accretion between what was then the island and the plaintiff’s lots. 2: —: —: —. The ownership and title to the island being in the government, it is entitled to additions thereto by accretion the same as if it were owned by an individual. Benson v. ‍​‌‌​​‌​‌‌‌‌‌​​​‌​​‌‌‌‌​​‌‌​​​​‌​​‌​​​​‌​​‌​​​‌‌​​​​‌‌​‌​‌​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌‌​​‌​‌‌​​​​‌​​​‌‌‌‌​​‍Morrow, 61 Mo. 345, — a case similar in its facts to this. It surely cannot be said that this alluvion that was gradually deposited against this island and the plaintiff’s lots belongs entirely to the one or the other. In such cases the additions to the lands must be divided, and this the district court did in its. decree, with marked care and due regard to the rights of the plaintiff.

*164III. Appellees move to tax the costs of certain parts of the abstract to the appellant on the ground 3. Appeal: record: costs. that they are redundant, and immaterial on this appeal. An examination of the abstract leads ns to the conclusion that there are twelve pages thereof that ‍​‌‌​​‌​‌‌‌‌‌​​​‌​​‌‌‌‌​​‌‌​​​​‌​​‌​​​​‌​​‌​​​‌‌​​​​‌‌​‌​‌​‌‌‌‌‌‌‌‌​‌‌​‌​​‌‌‌​​‌​‌‌​​​​‌​​​‌‌‌‌​​‍were entirely unnecessary to be set forth, and should not have appeared in the abstract. The motion will be sustained and appellant taxed with the costs of these twelve pages at one dollar per page.

In view of the conclusion reached on the merits, appellees’ motion to dismiss need not be noticed. The decree of the district court is affirmed.