143 Iowa 389 | Iowa | 1909
The land in controversy is upon or near the western boundary of the state, and the dispute to be here settled is only another phase of the confusion in titles which has arisen from the frequent shiftings of the channel of the Missouri River. The land along the eastern border of the river was surveyed by the United States government in the year 1851 or 1852. That survey showed township 79 N. of range 45 W. to be less than the standard measurement of six miles square, being abbreviated to some extent on both its western and southern borders by the river. Section 34 of this township was one of the sections which were made fractional because of the river on the south. The testimony tends to show that from the date of the survey for a period of years the river, which at this point flowed in an easterly direction, gradually encroached upon the Iowa shore, until practically all of fractional section 34, with other lands on the east and west were eroded away, the river channel shifting in the same direction until its bank on that side nearly or quite coincided with the north line of said section; the stream being at ordinary stages about a half mile wide. After reaching the eastern, or rather northeastern, limit in the year 1857 the river, by some flood or avulsion, suddenly developed a new channel a mile or more to the south or southwest, leaving the old channel practically empty. About the same time a- stream known as Soldier River, which had before emptied into the Missouri just to the northwest of section 34, declined to follow the Missouri in its recession to the southwest, and sent its waters along the channel abandoned by the larger
In submitting the 'case for a verdict the court, instructed the jury, in effect, that the issue between the parties turned entirely upon the question whether the land in question lies lipón the Iowa side of the boundary line, and therefore within the jurisdiction and authority of the state to make title thereto to the plaintiff. As to the rules of law governing the consideration of this question the court instructed as follows:
(5) The law with reference to changes in river boundaries is this: That when the banks of a navigable stream or river, such as the Missouri, change by slow process not visible to ordinary observation, the river still continues to mark the boundaries of the respective states along its banks; but, when by some sudden avulsion of the stream what is known as a cut-off is created, so that a body of land is detached in such a way that it is capable of being identified, the boundary lines, whether they be those of the state or of property owners, remain unchanged. There is, however, this important difference to be kept in mind between the boundaries of á state and those that limit the rights of property owners, in that property owners on banks of navigable streams own only to the water’s edge, whereas each state extends up to the middle thread of the stream; and, in ease of such sudden avulsion of the river, the respective states — in this case the states of Iowa and Nebraska — each become the owner of the riverbed so abandoned, to the extent of the middle thread of the stream as it formerly flowed,- upon its respective side thereof.
(6) The abandoned channels of riverbeds, referred to in the laws of the Thirtieth General Assembly, are not such as are created by slow and imperceptible accretions upon one side and wearing away upon the other, even though the place where the river formerly flowed may be by these processes entirely deserted by its waters. This statute refers only to riverbeds abandoned by sudden changes or avulsions of the river, such as I have before referred to.
(7) The plaintiff of necessity claims that there was such an avulsion; for, if there was no such avulsion, there*394 would be no land to which he could claim title under this statute. The defendant also claims there was an avulsion, or sudden change in the channel of the river, about 1857, but the parties do not agree as to the time when this avulsion occurred.
(8) The state having issued to the plaintiff a patent to this land is presumptive evidence that the land conveyed thereby was part of an abandoned riverbed or channel which, under the laws above stated, belonged to the state of Iowa. But this presumption is not conclusive, and ought not to prevail if a preponderance of the evidence shows that such is not the fact.
(9) If the defendant has established by a preponderance of the evidence that the land occupied by him was not on the Iowa or left side of the middle thread of the Missouri river as it ran at the time the avulsion: or cut-off in question occurred, then he will be entitled to your verdict; but, if he has 'failed to show such a state of facts by a preponderance of the evidence, then your verdict should be for the plaintiff.
(10) The plat, which has been offered in evidence by the plaintiff, shows that the lands claimed by him are situated within the meander lines of the Missouri river as located by the survey jof 1852; but the defendant claims that after this survey was made, the channel of the river gradually shifted to the north until in 1857, when, as defendants claim, the avulsion occurred which affected this land in controversy. If the river at the point in question was so far out of its channel as marked by the survey of 1852 that the land occupied by defendant- could not have been within its bed, and on the Iowa side of the middle thread of the stream, when the avulsion occurred, then the defendants will be entitled to your verdict, for the validity of the patent issued to plaintiff, must depend on whether the land embraced therein was in fact on the Iowa side of an abandoned bed of the Missouri River, as the term ‘abandonment’ is defined and explained in these instructions. But, as before stated, the burden of proof is upon the defendant to make out such invalidity of the patent by the preponderance of the evidence.
The appellant challenges the correctness of these in
4 State '^changeboundaries: rivers: in channel. Nor is there any merit in the claim that the verdict is without substantial support in the evidence. The boundary line being, as we must assume, the middle of the main channel of the river, and the river being peculiarly subject to gradual encroachment upon its banks, resulting in a like gradual swaying of such channel-from right to ,left, or vice versa, followed perhaps by a similar recession in the direction of its former bed, it follows upon general principles of the law of riparian rights, as applied both to individual landowners and to sovereign states recognizing the stream as a common boundary, that the location of the division line moves with the movement of the channel; and such line as it existed when'the avulsion of 1857 occurred may not have been coincident with the line as it existed at the date of the government survey in 1852. The defendants as we have seen assert that between 1852 and 1857 a change did in fact take place, and that the river had eaten its way into the Iowa shore along the water front of section 34, with a corresponding movement in the same direction of the central thread of the channel.
We find no error in the record, and the judgment of the district court is affirmed.