*1 сomplained XI. It was further there was error in the city City. assessment of one dollar benefit to the of E~ansas That city put matter of benefit jury provided VI, in Section Article ample powers of the Charter. The with the given 1~y right matter, it the Charter had the to -determine that why correctly and no reason is advanced it was not determined. McElroy city XII. H. F. was introducea as a witness. city specially open- E~e testified that was not benefited ing Street, general way of Fifteenth and in a as to the benefits to property. testimony objected other His to and discharged. it was moved that the The court discharge jury, overruled the motion to in- disregard McElroy structed them to `a eviden~e. He testified that acquainted city's finances, processes by he was with the knew the levied, provision which taxes could be and that there was no setting purchase the Charter for the aside of funds for the streets, alleys public or for uses. We are unable to understand theory competent. Certainly on what some of his evidence was not appellants injured by testimony were not his after it was stricken out the court. judgments No. 29710 Case No. in Case are affirmed. All concur. Ap Johnson, Adamantine Kate Cullen v. Cullen and
Mamie pellant. (2d) 39. W. 29 S. One, 1930. June
Division
254: *3 E. Henry appellant. W. MUchell and B. Hv/nt for *5 Conlding n & Mayer, Sprague
John G. for re- Landis, Jr., spondents.
SEDDON, brought 1970, action, C. This which is under Section quiet 1919, Revised the title ascertain, determine Statutes estate, July to real in 19, 1920, Circuit Court on commenced County. petition alleges plaintiffs of Atchison are the that owners in fee of the of half of 16, north half Section and the south 9, Range County; Section Township all in Atchison in that Johnson, in fee Adamantine claims be owner of said land, rightful described and in fact has no claim but in truth any part land; plaintiffs pray of wherefore, the described court to ascertain and determine estate, title and interest plaintiffs and the estate, said real and to define and adjudge title, parties estate therein, and interest and to adjudge the plaintiffs. fee to said land to be answer,
The dеfendant, Johnson, amended Adamantine denies generally allegations all petition; avers claim to own the described land to certain deeded lands accretions lying high along east bank the Missouri River Atchison County, conveyed quitclaim lands had been named, riparian deed made and executed certain owners therein quitclaim convey any but effectually that said not deed does lands plaintiffs, definitely for the reason said deed fails to describe conveyed; purporting the lands avers the lands plaintiffs’ petition high are described not accretions to the bank lying along lands River, east shore line of the Missouri integral part lands an are which are of an island which formed Missouri River the east side of the center the main channel Missouri; said Atchison river, that said island was prior many April 8, years entirely formed was for flowing river, waters of island, around said surrounded flowing river; said bank of between island the east island, from time to time, accretions to said until it were be- large body agricultural came a capable being of land used for purposes; granted said island was the State of Missouri to County provisions Chapter under Re- Article (Secs. being vised Statutes an act of the 7029-7043), the same Assembly April 8, General approved Missouri, years amended that defendant said island went *7 possession plain- 1898, and of described in took all the lands notorious, continuous, tiffs’ petition, actual, open, has and been possession adverse, peaceable exclusive, and of said uninterrupted, years for period consecutively, a and lands for of more than ten twenty-two years present suit, prior commencement of the ’ ten-year plaintiffs by Statute of Limita- and action is barred that against ; County brought defendant in the tion that Atchison a suit Township year lying 9, 65, 1914 for all land Section of said Range 42, by agreement suit, said Atchi- parties to wherein, County against judgment for the whole of son took a defendant peace, land; purchase pur- had that in order to his said plaintiffs’ petition from Atchison all chased of the described County sum February price of one dollar at the and County paid twenty-five per acre, had Court of and cents and County land; in cash for said $800 Atchison the sum made, County February 1918, had County, Court of Atchison good quitclaim sufficient and delivered defendant a and executed defendant; conveying and that deed the described land to grantors by laches from maintain- immediate are barred and their rights having on their by slept ing present action reason twenty-two years prior commencement period a present and knowing possession well of defendant’s action, acts purchase of land, ownership of and of the claim of exclusive said County and for the sum of by said land defendant from make having permitted defendant $800, allowed and and dwelling out-buildings a improvements, fences, build valuable pay land, and to taxes and to clear cultivate said thereon, house and de- thereon; prays court ascertain wherefore, defendant respective parties in of the estates, title interests termine the that defendant petition, and to the land described adjudged exclusive owner thereof. the sole and be plain- to have been reply is shown the record filed No reply deny- though filed, a had been was the action tried tiffs, but of the answer. ing generally several averments Circuit changed, first to the was twice the action The venue of of Andrew County, Circuit Court and then of Iiolt Court during February, term was tried the cause where court. equitable tendered defendant’s laches, trial issue of A jury. of a answer, court, without the aid first before had hearing trial made and issue, After court finding the defend- plaintiffs, a favor of the entered agreement equitable “by Thereupon, of laches. ant, issue (the recites), parties” so the issue the manner оf record ownership of said thereof was tried and sub- formation land and resulting jury, mitted in a unanimous verdict of the to a of, to, have land described are the owners right, that the title or plaintiffs’ petition, no has land, interest thereof. The trial court entered said unsuccess- judgment conformity verdict, and, a after an with the trial, appeal ful motion for a new the defendant was allowed an court. to this survey plaintiffs tended show a
The evidence adduced vicinity made the United States in the Government year at which bank River time the east of the Missouri ex- southeasterly quarter tended in direction across the northwest quarter southeast of Section and across half west *8 65, 15, Township the south all in 16, Section half of Section and Range Lying 42. approximately one mile of west of the east bank large island, River Island, the Missouri was a as Kauffman’s known wholly lay which island of within the Nebraska. The main State channel of the Missouri River flowed between Kauffman’s Island river, the east shore of and line at the time of the Government bormdary 1846. survey present of The line of between states Mis- along northerly easterly souri and Nebraska extends and sides of Kauffman’s island. The land in between the lies easterly easterly shore line of Island Kauffman’s so-called and “high “high of bank” the Missouri which River, bank” marks the easterly line, limit, or of erosion extreme of the Missouri River, and through parts 4, 5, meanders in a semi-circular direction of Sections Range 9, Township 15, 65, and 42. A small comer of the quarter quarter of the northeast northeast of Section and a con- quarter siderable southeast of Section were included survey of 1846. In 1882 Government the waters River, main channel of the Missouri which at time flowed Kauffman’s Island and the bank between east of the river as shown survey began of 1846, in the Government to cut into the bank east by gradual river, and erosion period over a ten or more away years lying river and washed cut the land to the north and еast, bank of gradually so that the river was east extended northerly easterly irregular until it and reached the and semi-cir- presently “high known east as the bank” period cular line line. The year 1893, during until about the period. of erosion continued which of Sec- all '9, of Section according plaintiffs’ evidence, the most were and Sections 10 portions of the west tion and half channel away by and the main completely river, and washed cut “high against bank” immediately flowing east of the river was eroding the River year 1893, Missouri ceased About the line. of the river “high of the main channel bank,” and the waters east began southerly and gradually imperceptibly in a to recede river ex- waters westerly This recession of the direction. recession was years, so period of or more over a two tended the result of sudden not gradual imperceptible, eddy “An plaintiffs’ expressed it: witnesses one avulsion. As think I that Was about of the channel. Missouri side fоrmed on the eddy back the west. The formed stream 1892. threw the That just shot off and against up bank here. The water then right up began cutting on head of When began going down chute. it this from bank away line, channel that drew the Kauffman Island place now, where state line is began come back to it keep working in behind it. It would to- it bach it came as filled filling n Missouri side. . . in on the . Nebraska side and ward the east Missouri River cut channel of the filled cutting going side off the Nebraska side and was the Missouri bend; place the river was here last until left this west it Island. The channel of the Missouri Kauffman the east side of probably along Kauffman Island two the east side of flowed I quit cutting along bank. ... it the east years after three Missouri and Nebraska. This state line is between know where the channel of Kauffman Island.” The known east it, last that, plaintiffs further tends to show on behalf of gradually west, receded the south toward river waters of the Island, Kauffman’s sand bar formed the east side gradually “high bank,” the bar was extended farther east expressed As witnesses it: and south. one the west *9 high flowing bank quit around the next to the Missouri “The water died, ’91 or ’92. As the river was in channel the went shore. That high away west, bank the and a sand bar from the to formed behind rivet*, kept filling along away, and in the batik as the it went it it as silt, further out.” evidence tended to show that went Plaintiffs’ deposited upon, lodged against, alluvium were and sediment, and “high bank,” bar which formed the east so that the sand grew rushes, gradually height, bar in area and in and that the grew in the soil and trees took root of the bar and brush, willow's twenty years, period that, more than so at the for a of time bar which trial, trees the were of there were considerable some grew size, gradually it was As in extended toward size. the bar the completely the channel between until it Kauffman’s west closed
263 “high line, bank,” river, and the old east shore Island joined Island, the after which the became to east side of Kauffman’s entirely of main of waters chаnnel the Missouri River flowed testified on the west side Kauffman’s Island. Several witnesses along “high no water has flowed the east bank” of the river that during 1894, except 1903 since the floods of at which partially times the bar was covered flood waters years. a controversy The land the old those bar testimony witnesses. described July riparian On several individual owners of lands “high abutting on old east bank” the Missouri River com- quiet portions separate menced four to title to actions the land controversy, claiming title here thereto as accretions deeded respective plaintiffs lands owned in those actions. The several brought against County actions were and Adamantine bar) (the Johnson defendant in the case at as codefendants. There- after, plaintiffs separate conveyed the several in those actions quitclaim controversy, by plaintiffs now in deed, lands present action, purpose being conveyance оf such to avoid multiplicity suits, prosecute a plaintiffs enable a single quiet action ascertain, determine, and the title to the land controversy. here The several actions which had been so com- March 2, 1920, present menced were dismissed on and the action July 19, was commenced 1920. admitted was present trial of parties, action, that paper lying have record or all of the shore lands of, east “high bank,” adjoining, the old contiguous which shore are lands controversy. to the described land in tending adduced defendant to show that the originally island, formed in an the Missouri River as
lying Island, west, easterly between Kauffman’s on the and the shore river, gradually grew by line of the and that the island accretion joined east until it shore line. Defendant testified that he was physician surgeon, practiced a profession he had his that from 1877 1898; "Watson, until he that came the towm vicinity in controversy, spring 1881; of the land in the he 1881; saw that, the island first east side the island a river; Was about half distant from the east shore line of mile 1881) (in acres, area of island growing island; was then timber the island was entirely surrounded waters of the Missouri River from 1881 bought defendant went over to the island in Hays, “little shack” from Tom for “shack” one Hays $62; paid lived, intervals, that defendant on the island *10 years 1808, kept after he several that maintained his home
264 town, daughter for with his Watson,
in of had lived the where he away blown twenty-five twenty-six “shack” years; or that the was on the built by a a barn which defendant cyclone, and small had small river; a away by defendant built island was that washed year and fenced logs cleared 1915, of cottonwood in house part thereon; part he sowed pastured stock that island, 1918, after the island he farmed grass; in blue that the island grass; corn, in wheat and had about 150 island sowed acres of the business drug Watson, owned a store in town that he drug 1921, 1920 he personally until when conducted sold he vicinity generally as John- store; in the island was known that the length and a half Island; Johnson's mile in Island was a son's 1898, acres, and in and contained than mile wide more having a six or growing the island diameter of trees then on were of the Missouri River was then eight inches, and main channel Island; the channel of Johnson's on the east side flowing 1904. on the east island river ceased side year that, Atchison appears from the Johnson, against a commenced suit Adamantine plaintiff, as seeking quiet south half of the title to the Section defendant, as Township Range (the being north half of land same being judgment in a en- which suit resulted controversy), here County, wherein was May 1914, in favor of Atchison it on tered right, Johnson had no title or interest in adjudged Adamantine enjoined perpetually asserting, from land, and he was said February on any right, Thereafter, or interest manner, therein. Johnson, defendant, paid Coun- Adamantine 7, 1918, the $800, of which he received from the ty sum of in consideration county quitclaim purporting convey to defendant all said deed duly controversy, whiсh deed here filed record land following testimony 1918. February 7, given May 18, trial Johnson, of another Adamantine action, present action, different in evidence offered “Q. only interest: You an admission defendant are (Section) 9? A. I I claiming claiming north half am what Q. Doctor, you your bought. claims, you abandoned all not? did Q. bought. You A. Ex- I I abandoned all claims? A. did when county. Q. only so bought you I from claim cept And you county acquired you from when bought claim have is (Section) claim the south all. I now half Yes, A. it? 16.” (Section) north half and the of defendant that, on behalf further shows
The evidence built a four-room frame house fall $2250, and thereafter a cost of controversy, fenced a con- caused the of the land. He also land to siderable assessed
265 amounting to year taxes, tbe paid 1919, in tbe for taxation from that thereon paid year, the taxes $3.95, for that and has levied A num- February, 1926. present action in until the date trial the having measured of defendаnt testified to of witnesses on behalf ber growing trees of some of the tape-line a size cottonwood with the some of the cottonwood controversy, in and that land upon the circumference, a half eight and two and seven to feet trees were in evi- introduced photographs A were number of diameter. feet showing tim- the of the the size by purpose defendant for dence indicating extent upon controversy, the land growing the ber being by at time of the cultivated land was to action. trial ruling finding and assigns Appellant I. error in adverse upon presented defendant’s the issue laches trial court sitting court, as a Notwithstanding the trial answer. that respondents equity, issue as chancellor, such one tried insistently urge proper place present such issue has no purely law, is an action and that defendant’s action, which no bar to action at of laches constitutes defense plea law. 1970, (Sec. brought R. action is under statute
The instant 1919) quiet plaintiffs’ claim of land, based on the S. title to ownership purely law, said and is an action at unless fee, land equitable ownership issue as of the land is tendered an 574; 315 Mo. County, 568, answer. v. Cole the defendant’s [Dumm 413; 213 268 Conran, v. Mo. Cullen v. Atchison 404, Lee equitable peculiarly W. is a claim 93, S. Laches defense an 95.] action, place has a defense to an action at or cause of no legal plaintiff law, upon to an action wherein stands a claim of 172; 319 Bleish, 149, v. Mo. Willis v. 291 Robinson, title. [Heeker 675; 558; 281 Roberts, v. Mo. Bell 650, 551, George, Mo. Brooks v. 30; Kellogg Moore, 271 189, Mo. v. Mo. 17, 275 Chilton v. 243; Hayes v. Nickey, Schall, 114, 261 Mo. Mo. is petition allegations from the of the plain herein that wholly solely ground cause of action their claim a distinguished from legal, as an title to the in con equitable, land troversy; and, prior under the announcements of court, this legal cannot divested of their the application title equitable of laches. George, c. of the l. doctrine [Bell Looking cases answer, defendant’s find we no cited.] respects equitable issue therein tendered as the title ownership controversy. Defendant, legal land in answer, his claims a ground land based controversy, fee to title formation, and, therefore, legal of island land title April prior Missouri, said was vested in the State of State, public domain, as a (Secs. R. April 7029-7043, statute virtue enacted legal granted title in said land S. and transferred the 1919), February 7, county, the said Countjq conveyed legal land to defendant. sold and said had attempts plain- up laches While defendant’s answer to set pray any equitable answer affirma- defense, tiffs as an does not *12 equitable prayer of tive relief. The the answer is that the 'court “try, estates, shall ascertain and determine the title and interests plaintiffs of, and in said de- and to the real estate defendant determine, . plaintiffs’ petition, adjudge, and . . scribed in quiet respective titles, settle, and and rights, define the interests property; . estates of and defendant said real . . to and (defendant) the court that he is sole owner find in plaintiffs’ real described and and petition, estate that an order barring precluding plain- decree be entered record forever persons claiming as as all tiffs, them, by, through and each well or plaintiffs, setting up any under from hereafter title or claim to said fop property; proper real all other orders and in relief premises.” prayer
Such a prayer equitable does not constitute a for affirmative merely relief, asks for an ascertainment and determination legal say, title —that is which party, to or legal subject-matter is vested with title in land which is the 275 582; Newbrough action. v. Mo. Rowland, [Koehler (Mo. v. 202 Sup.), setting Moore S. W. The mere up equitable anof defense in the answer does not convert an action equity proceeding at law into a equitable unless affirmative re prayed. lief is Rowland, 275 573, 581, cases [Koehler opinion We equitable plea are of laches, cited.] answer, as set forth in defendant’s does not constitute a defense bar law, action plea, being that such unac any companied prayer equitable for affirmative not relief, does convert the equity. instant action at law into one in
But, if plea of laches can the so-called be taken and considered plea estoppel as in pads, a nevertheless, we think that the evidence support plea is estoppel. insufficient to given We have close study and consideration to the evidence adduced defendant support plea, find we no substantial evidence de- caused any expenditures fendant was to make improving any controversy, land in or to do other act his by rea- injury, delay any son of or inaction of the grantors. plaintiffs, or their So far discloses, the evidence occasionally defendant lived large (which body of land pleased defendant to call “John- February 7, when Island”) prior son’s squatter, as mere a County. purported acquire defendant Atchison color of title from While defendant testified that “island” included more than area, upon acres in when he first the “island” commenced live convincing there is clear no evidence that he made improvements upon substantial acres of land here con- troversy acquired quitclaim until he had a from after thereto deed that, 1918. The February, evidence discloses cheap purchased Hays a “shack” from one according $62, which, testimony wit- of one defendant’s log pretty “was a nesses, sand, up shack in the well covered sand, pretty well to the northwest of island.” is no There log “shack” upon was located the 640 acres controversy. land here Sometime thereafter defendant built a “island,” small barn some of the so-called barn but the encroaching away by washed River, waters of Missouri log away by cyclone. “shack” blown The defendant pastured “island,” cattle and but, other live stock accord- “they they ing evidence, land; just ran defendant’s all over they something eat; my wandered where found ranged cattle According forward over acres.” backward to defendant’s *13 testimony, eighty 1912, he had cleared land and about acres of cleared, 1918, cultivating, had and about 150 was acres of land in hazy vague respecting and but the evidence is the location and de- scription of land, the none of cleared cleared and cultivated the certainly clearly or shown to have land been embraced within the controversy. 640 acres of here in The defendant testified that land upon “island,” further he had built some fences the he testified years that did when fences built, he not remember the the were any part we no substantial find evidence in the reсord that of the controversy year shortly was 1917, land in fenced until the before (in 1918) acquired February, quitclaim defendant deed from convey County, purporting 640’ Atchison to defendant acres controversy. Defendant, according testimony, of land to his costing upon house, a four-room frame $2250, built half south year year 1919, “about I 9, bought of Section a after by defendant, plain- however, The house was built land.” after the 1918) grantors (in commenced tiffs’ had their several actions to quiet portions of the land in controversy, the title to those and while pending in the were Circuit County. actions Court Atchison effect (de- was to the evidence of Adamantine Johnson herein) party made a actions, was fendant defendant those process August, with therein in 1918, was served responded he upon him served and filed process answer in each of to the said ac- indisputable is therefore that defendant had actual, tions. as notice, grantors plaintiffs’ well аs claims constructive, house four-room building controversy prior the land in upon taxes paid no in 1919. the land Defendant notice he had year which time 1919, at until the (in commencement grantors by reason claims brought 1918) quiet of the several suits evi County. from the appears grantor, Thus, it his injury or substantial no real suffered dence of defendant he their plaintiffs, or delajr upon or reason of laches controversy. now in asserting to the land grantors, their claims part of delay or inaction delay laches; laches is Mere is not disadvantage injury of another. works to the individual one 49; S. W. (2d) Antry, Johnson v. 16 S. W. Bacon, v. [Carlin (2d) 409; W. v. 409; 282 S. Davies Casner, Parish v. 142 Mo. 16; Lindell, v. Lindell Real Estate Co. 1,Mo. Keiser, plaintiffs, grantors, delay inaction or their Nor does the 61, 79.] pais, discloses, estoppel in amount to far as evidence herein in so George, plaintiff’s at law. v. a action [Bell so as to constitute bar Lum 32; Kellogg Carson v. Moore, 275 Mo. error 270 Mo. The trial court committed no Co., ber finding upon the issue of laches tendered defend assignment answer, appellant’s respecting of error ant’s upon that is denied. ruling trial court issue give assigns Appellant error in the refusal of the trial II. court to peremptory jury defendant’s instruction the nature peremptory evidence, instruction re- a demurrer quested Appellant all evidence. at the close of takes presented by lae^es; ^ia/k ^le P°sition P^-133 answer, action into equity, converted the instant one in sitting triable chancellor, the court verdict of merely binding advisory, was not the trial appellant court. Wherefore, finding insists or verdict of binding upon is not conclusive and appeal, this court *14 pass weight and that we should evidence, upon review the whole its credibility, right and equities and determine for ourselves the and of Paragraph the matters issue. As we have held in I of this opinion, purely law, legal instant action is one at wherein the the ownership contrоversy of and the land in issue, was sole the prajred equitable relief, inasmuch as the answer and- no affirmative legal the answer was insufficient to convert the action an into equitable Hence, jury action. the verdict of the herein is conclusive upon binding appeal, court provided, this on of course, and support is substantial evidence to verdict, there the and absent by procedural error committed the trial court. v. Cole [Dumm County, 315 268 W. S. County, Cullen v. Atchison 93, 95.]
We are to say upon unable substantial evidence that there is no predicate finding jury herein, the verdict the and and of therefore justified disturbing we are and find- not such verdict sharp ^ *s is conflict in evi ^rue ^at a the inS- respecting the of formation the
dence manner the controversy; land in but the adduced evidence strongly controversy rather show that the land in tends riparian plain- accreted to shore lands of the owners from whom the deraign tiffs tends title, while the evidence adduced controversy is of strongly, perhaps, to show that island the land question formation, or to such island. The or issue of the accretions (im- manner of formation of certain lands in Sections mediately adjoining controversy) before this lands here in was the court the v. 191 S. W. we Hall, case Griswold wherein finding jury refused to disturb or set of a aside the verdict and controversy formation, but was the land there in not of island was respondent’s formed or reliction to shore line accretion 268 S. W. land. The later of Cullen v. Atchison case large body of which land now involved the title a of land again disturb a refused to part, was this court finding jury and verdict of a land was not island formation, shore was formed accretion or reliction to the S. cited, (268 In we said riparian owners. last lands of the the case 95) at : offered W. l. substantial evidence abundant, c. “There was jury in this justified trial, which the verdict returned Substantially presented here on same issues as are case. judgеs passed juries two least
merits were two (Mo. Hall cases, entitled Griswold circuit court. One of these appealed this following, W. Sup.), 191 S. l. c. It court, defendant; Hall, affirmed. judgment favor of weight upon of the testi province pass us, dis record before
mony, justified, feel we do not turbing evidence.” the same demurrer to the urged by however, that appellant, is verdict therefore, evidence, and, physical facts in disregarded set aside as a matter of verdict should “physical point us to the not appellant law. While does the verdict with which he claims be irreconcilable facts” has appellant’s contention finding jury, assume that we growing respecting the size trees reference therefore, appellant would controversy, and, by de- described the size the inference that trees have us draw growth such size and have attained witnesses could not fendant’s *15 wholly formation, unless the lands and had existed were of island long period by for a A was made time. similar contention appellants W. (Mo. Sup.), S. case of Bleish Rhodes 971, 973, con- wherein land there in the issue tried ivas whether the by troversy was riparian formed accretion lands owned appellants, an Bleish et first formed as ah, or whether the land had River, respondent, island Rhodes. Missouri as contended given Said this Division of this court in that case: “Instruction respondent finding for if in- respondent authorized land land,’ appellants’ volved not formed did accrete to ‘deeded first joined island, as an and was mainland accre- thereafter argument against tions. The is plats this instruction that physical conclusively facts show no island ever formed as contended by respondent. ‘physical upon . . . The now facts’ relied were dispute depended upon testimony. oral Some plats photographs are record. In not in the the circumstances it can- be held appellants’ not establishes claim as a that rеcord matter of law.” find and
We hold that there was sufficient substantial evi- upon theory which jury plaintiffs, dence submit land ivas not of formation, island con- tended appellant, defendant and but that the land was formed by accretion, by reliction, plaintiff’s grantors. to the shore lands It therefore trial committed no that the court error refus- follows ing peremptory defendant’s instruction nature in the of a demurrer province jury the evidence. It determine, was the under evidence, including “physical all evidence, facts” which theory true, plaintiffs’ or defendant’s, and the verdict and find- ing jury upon up- such issue fact is and binding conclusive appeal. court on this Appellant assigns
III. giving certain error instructions request plaintiffs. Complaint behalf of the
Is ma<^e instruction numbered reads: you instructs if “The court find dispute was not formed as an island island, County or as an accretion to an then Atchison had no title quitclaim county land and the deed from said said to defendant nothing.” сonveyed urged appellant criticisms such (1) “said instruction instruction legal are eliminates the re- required quirement are to recover the strength own title, appellant’s their and not title;” weakness (2) recognize that “said instruction further fails to the fact that question if the land the old bed of the Missouri River, and suddenly said river abandoned that the and left said old then, bed,
271 belonged by passed and case, County, said land to Atchison respect criticism its deed the first to defendant Johnson.” With to against by appellant, leveled the instruction: As the is contended quiet statutory rule of is title to that, law well settled actions to strength land, solely of his own plaintiff prevail upon the must adversary. Hence, title, upon and not. the weakness the of his title plaintiff proof, establish, by in such action his own must first prima-facie he in the action before he title to the land involved has adjudication validity invalidity respecting is entitled to an the or thereto; plaintiff title, no valid for, defendant’s if the has title no of his the claim it is concern to know whether or not defendant’s 255 Cyc. 1329; v. Co., of title is valid. Senter Lumber [32 (Mo. 291; v. Co., 193 Mo. Parker Wear Wheeler Land parties by herein, 230 S. W. was admitted the Sup.), But it during paper trial, plaintiffs course of have record or the the that the “high adjoining, lying of, title and the old to the shore lands east riparian, are shore, bank” or Biver, of the Missouri lands controversy. controversy contiguous If to the the land land by lands,” plaintiffs’ formed accretion or reliction “deeded to was by plaintiffs, admission, then virtue have of the aforesaid shown controversy. prima-facie Plain- themselves have land in to to the title plaintiffs, for and tiffs’ Instruction No. does not direct a verdict properly may therefore instruction be viewed considered such and integral court, as an all instructions of the and the taken By together single charge jury. viewed as a to the Instruction No. given jury request also were instructed that plaintiffs, the grantors plaintiffs’ “it owned the is admitted this case that the Eiver, high . . land on the bank of the Missouri . situate grantors from the deed introduced in evidence said conveyed interest, any right, title, or grantors any, if which said had to the south half said Section 9 jury 16, and, therefore, half if the believe north of said Section the from south half of said Section and the north that the against land, any, half was if Section made to said high which had theretofore been made to and said bank river, earth, gradual imperceptible deposit by the of said high accreting bank, said added said and sediment sand bank, gradual receding high river from bank said plaintiffs.” The further- your verdict be for the court must then request defendant, they if jury, at more instructed island, prior land in was an at and controversy believed conveyance quitclaim deed of to the time thereof controversy the land in be- County, Atchison then longed county lawful the said had the' controversy right to' convey land View- defendant, Johnson. jury
verdict ing should сharge single entire together, as a all of the instructions apparent cause submitted jury, it that the jury trial, that on the joined parties adopted theory, bordering paper to the shore lands plaintiffs held record or is extended River, which title “high Missouri bank” of determine that find ánd controversy if should to the land re- accretion, formed land been had contrary, the plaintiffs; if, on the liction, to shore lands of controversy was should find and determine that *17 formation, island, of island such then Atchison accretions to controversy County to in time of the held the title the land the conveyance Atchi- quitclaim deed of defendant, of and the deed to controversy County conveyed legal to the title the land son to whole, as considered a instructions, when defendant. The taken by parties jury theory adopted the fairly submitted 1 is No. and con- trial, and, plaintiffs’ Instruction when read given jury, to integral part of all the instructions sidered as an from the con- nothing in which еxcludes is said instruction any were re- jury or fact of element sideration adjudication an quired entitle them to prove in order to controversy. respects second criticism title to the land As against plaintiffs’ there is no evidence I,No. Instruction leveled by suddenly River, avulsion, the Missouri the record adjacent river east and left the old bed of the abandoned bank,” by whereof abandoned bed river “high reason County prior belonged may have at and be said to conveyance All of the evidence time of its deed of to the defendant. the recession of the waters front the herein the effect gradual Missouri River was and im- old easternmost channel of years, extending period more, of at two perceptible, over least of old channel or there was no sudden abandonment and that evidentiary by of herein waters the river. The do not bed facts principle (applicable bring within the of law the instant case Cоoley avulsion) by 117 Golden, this court in v. of announced cases by appellant as 33, supporting Mo. which case cited his is plaintiffs’ 1. of Instruction No. criticism by complains error was Appellant committed trial court giving plaintiffs’ No. 2, of Instruction as follows: in the “The court instructs the that there is no of evidence adverse by case, the defendant in this and that
Possessi°u (cid:127)only question by you considered is whether or not question by the island in to the lands owned formed grantors by reliction, accretion or as defined other instructions.” It claimed that this instruction withdrew from is consideration
273 by of raised possession, of issue title adverse presented defendant by notwithstanding that answer, defendant’s to establish ample had adduced and substantial -on the trial plea by possession, his title as adverse grantors. carefully evi- considered the their We have studied by such evi- opinion dence adduced arewe plea of wholly is defendant’s title dence insufficient to еstablish possession. possession Obviously, was not .adverse until Feb- color title any under land quitclaim delivery ruary 1918, the date the execution and convey purporting to defendant deed from Atchison general applicable in this and controversy. rule, statutory re- jurisdictions, that, most other the absence necessary in order to quirement, color of title is not a element 708; 2 perfect R. C. L. originate possession. adverse [1 Quick 408, 412; 172; Rufe, Walsh, Mo. Mather v. C. J. v. title, pos- color the adverse
Mo.
in the absence of
But,
only
such
prescription
who
extends
session
one
claims title
actually
occupied
pos-
part of the land
been
has
involved.
during
claimant, continuously
uninterruptedly,
sessed
period
prescribed
of time
the Statute of Limitations.
the whole
130;
Dawson,
v.
122 Mo.
Mo.
Jones,
Davis v.
[Pharis
458;
Mansfield,
108 Mo.
Purl,
v.
Wilson
Allen
*18
348;
318; Campbell
54
315,
Brown,
v.
Davis,
Powell v.
Mo.
343,
App. 319,
146 Mo.
clear or certain evidence
be
is no
There
324.]
occupancy
possessiоn
he
or
half of defendant
was ever in actual
that
controversy.
there
particular and described land in
While
of the
belonging
is
live stock
to de
some evidence that cattle
other
acres,
comprising
pastured upon
more,
fendant were
island,”
such
“Johnson’s
there is
evidence that
stock
so-called
no
surrounding
part of the
by
confined
inclosures or fences
were
testimony
controversy lies. The
of de
where
land in
“island”
“ranged back
forth over
fendant, himself, was that
cattle
his
1,000
plea of
support a
acres.”
evidence is
Such
not sufficient
295,
67;
v.
200 Mo.
by
Peterman,
C. J.
Crain
limitation.
title
[2
Nye Alfter,
Hornback,
245;
v.
275
bank or
although
jury might
shore
from
evi
lands,
believe
in
dence that the
originally
land had
as an island or bar
formed
in
river. The
an
practically
criticized instruction is
identical with
(numbered 3) given
plaintiff
struction
in Chinn v.
behalf of
Naylor,
We find error no reversible to have committed been the trial giving jury any court in instructions criticized appellant herein.
IV. appellant furthermore contended the trial failing apportion court erred accre- instruct
tions, and to direct the as to the manner of apportionment. ^ perceive why of no We reason the trial should apportionment court have directed an ac- cretions. Neither the nor the their re- pleadings spective instructions, only or claimed a accre- prayed tions, apportionment division or thereof. Bach respective parties claimed, and now claims, the whole of controversy. An apportionment land in instruction of place present accretions has case, pleadings no under the Allen, the evidence. Moreover, the [Crandall *20 made he appeal when complain upon defendant will not heard to trial any proportionate part no claim accretions [Nay by way requested below, instructions. pleading, evidence or lor v. 114 Mo. c Cox, l. 243.] Defendant, upon trial, maps V. offered in evidence two County, namely, Hughes's map year 1877, S. S. for the map year ljpon objection .plain~ Rummerfield `s for the 1894. of the tiffs, proffered maps the trial court refused to receive the evidence, assigned ruling and error is in such and action of discloses, proffered maps the court. So far as the record both of the private maps. accuracy, correctness, were unofficial and authenticity maps wаs not undertaken to be shown maps proffered by solely and the were as in dependent documentary maps not, evidence in the cause. The were themselves, in and of thenticity. evidence of their own correctness and au Halleran, App. 195, [Miller 208.] v. 219 Mo. Nor were the maps original documents, they apparently being merely shown to be printed copies originals, purported and the makers of the maps acting were not shown to have made theni while official capacity; wherefore, relating the law to tlte admission in evidence of application [Bell ancient documents has no to such instruments. v. George, opinion, proffered maps 34.] 275 Mo. In our were competent independent documentary cause, not evidence in the rejecting [Stewart and the trial court committed no error in them. Co., 281, 290; Stumpe Kopp, 412, 418;
v. Land 200 Mo. 201 Mo. Hornback, 238, 242; Railway Co., Carter v. 139 Mo. Williamson v. App. 115 Mo. 72. During argument jury, following VI. оf the cause to the by plaintiffs' ``G-entlemen, statement was made counsel: I am will- ing right willing to end this case now. I am to make a proposition gentlemen to these on the other side. Dr. (defendant) Johnson testified he saw that tree from willing which that block was cut on that island in 1881. I am right block, submit this ease on this now. Let the take that they forty-five rings it, bring if can count in a verdict for the de- fendaht, not, bring plaintiff." and if in a verdict for the Where- upon, agreeing anything, defendant's counsel said: "We are not object attorney." and we to the statement of the The court then ``Argue ruled: the evidence and let the draw the conclusions." excepted ruling Defendant to the aforestated of the court. urged by appellant foregoing argu- statement and plaintiffs' highly improper prejudicial, ment of counsel was Assuming argument and constitutes reversible error. *21 yet plaintiffs’ by appellant, improper, counsel was as is contended court, which we ruling find no trial reversible еrror argue only upon to effect that counsel must In ef from evidence. let the draw their conclusions rebuke fect, ruling of a mild in the nature court was counsel, and admonishment or direction an disregard being evidence. argument as counsel’s outside reprimand Defendant’s further counsel did ask the trial court to not merely offending except or rebuke the counsel, but content ruling trial aforestated the court. We cannot convict respect court of record ruling, reversible error such with 1049; 274 W. (Mo. Sup), S. before us. v. White [Busse Surety (Mo. Sup.), Dittmeier Real Estate Co. Co. Southern Railways Co., 246 Torreyson v. S. W. United thorough given We have several careful and consideration assignments by appellant, error we find made no reversible follows, error to have been the trial below. there- committed judgment fore, affirmed, should circuit court Lindsay concur. Ellision, GG., ordered. it so foregoing opinion adopted is0., PER CURIAM:—The Seddon, judges All of concur. opinion of the court. as the Company et al. v. Francis ex Valentine Coal State rel. Appeals. City Judges Court of Kansas H. al., et Trimble (2d) S. 1028. W. Banc, June 1930. en Court