1 The subject-matter of the controversy, to-wit, 29.11 acres' of land with the exception of 1.46 acres-lying outside tire government meander line in the southwest corner of the tract, is all accreted, having formed since the originial government survey in the year 1847. Plaintiff claims that she formerly owned the land, and that de1fendant obtained a deed thereto by fraud. Defendant denies-plaintiff’s ownership. Says that he was at all times the equitable, if not the legal, owner ’of the property; that he had deeded the same to one Stroud in the year 1893, and in good faith and without fraud procured a quitclaim deed from plaintiff and her Husband for the express purpose of clearing the title thereto in his grantee. Plaintiff’s title is based on three patents issued by the state of Iowa. The first, No. 10,140, was issued to plaintiff, and cohveyed the southeast fractional quarter of section 16, containing 83.2 acres; the second, No. 10,087, purports to convey to plaintiff 40 acres of the east end of said quarter ; and the third purports to', convey to George W. Dashiel, plaintiff’s father-in-law, 43.2 acres of said quarter. The evidence shows that the first patent was returned to the school fund commissioner, in order that plaintiff might let her father-in-law have the tract that was covered by the patent which was issued to him, and that the second and third patents were issued in lieu of the first. Thereafter plaintiff and her father-in-law had a surveyor make a division of the land, and this he did by running a line 60 rods west of the east line of the fractional quarter section. The deed to the defendant covered the land in the above mentioned fractional quarter, so-uth of the Des IVIoines river, that runs through this quarter, and east of the 60-rod line .established by the surveyor.
*288’2 The first point made by the defendant is that plaintiff’s patents do not cover the land in controversy. The lands were originally surveyed in the year 1847; and, that a better understanding may be had of the situation, we append a copy of the plat, certified by '.the surveyor general:
*2894 5 *2906*288The Des Moines river, which runs through the section .-as shown by this plat, had worked its way northward until at the time of trial the south bank was 12.97 chains north -of the southeast corner of the section, and at the center of the southeast quarter was near where the north bank was at the time of the original survey. There is no doubt that the ■original patent conveyed the whole of the southeast quarter ■of the section. The number of acres mentioned therein in not controlling, for it is a general rule that, independent •of express averment or covenant as to quantity, a statement as to the number of acres conveyed will yield to the actual •-area, as ascertained by reference to the plat, field notes, monuments, or other certain description of the premises conveyed. Ufford v. Wilkins, 33 Iowa, 110; Schlosser v. Cruickshank, 90 Iowa, 414. If the case stood alone on the original patent, *289there would be no doubt of plaintiff’s title to at least a part of the land in controversy which lies south of the river as it runs through that section. The meandered line of the river was not treated as a boundary in any of the patents and was run simply to mark the sinuosities, course, and distance of the river. The southeast comer of the section, as fixed by the government surveyor, was evidently in or near the ¡middle of the stream. But defendant contends that neither of the two subsquent patents made to take the place of the first one covers the land in dispute, that lies south of the river, in the southeast quarter of the section. As bearing on this proposition, the court instructed that the second patent issued to plaintiff vested title in her to 40 acres on the east side of the quarter section, excluding the Des Moines river as meandered by the United States survey, and that the width of such tract would be equal on both the north and south lines thereof, and the west parallel with the east sectional line, and that the burden was on the defendant to show that when she and her father-in-law divided the land between them, after the second and third patents were issued, they agreed upon and recognized the north bank of the river as the southern boundary of their tracts. It further instructed that the Des Moines river was a navigable stream, and that the meandered space between the two banks of the river did not pass by the patents hitherto mentioned. These instructions are complained of, and it is further argued that the evidence shows beyond dispute ■that neither plaintiff nor her father-in-law ever made claim to any of the land lying south of the river. We think the instructions are dearly correct. Norty acres off the east side of a fractional quarter ordinarily means just what the trial court says it does. As the Des Moines river was a navigable stream, the patents did not convey the land lying between the meandered lines of the river. Title to that land was in the state, subject only to the ripar*290ian rights of the owners of the land on either bank of the stream. Schlasser v. Cruickshank, 96 Iowa, 414. These meandered lines did not fix the boundaries of the land. They were subject to change, and title followed the meanderings of the streams. Tomlin v. Railroad Co., 32 Iowa, 106; Musser v. Hershey, 42 Iowa, 356. So that the court was correct in excluding the land lying between the meandered lines from .the 40 acres. It was also correct in saying that the burden was on defendant to show that plaintiff did not make claim to any part of the land lying south of the river that was included in her patent. This conclusion follows from what we have hitherto said regarding the land described in the patents. The evidence was in conflict regarding this last point, and we are not to interfere with the conclusions of the jury on this proposition..Defendant may have had a peponderance of the evidence, but that is not for us to determine. McCormick v. Huse, 78 Ill., 363, relied on by appellant, is not in point. There the original survey showed a fractional half section divided by a bayou, and the government issued separate patents for the land lying on either side thereof. Each patentee knew, from the field notes, plat, entry, and purchase, that he was getting lands bounded by the meandered lines of the bayou. The number of acres on either side was shown, and the court held that, under the facts of the case, quantity was a part of the description. Here the government surveyor did not undertake to subdivide the section, as it was school land; and the jury may have found, as we have said, that the patentees understood they were getting all their deeds called for. There in some evidence regarding a map or plat in the office of the school-fund commissioner that plaintiff’s husband saw about the time she obtained her patent, but the jury may have found from the evidence that he thought he was getting all the land in the quarter section covered by the first patent. The plat or map itself is not in evidence, and we have no means of knowing what ir, showed, or of its authenticity. *291There is no evidence that the state authorities ever subdivided the sections, except as it was done through the patents issued by it, which referred to the original government survey. The state has never attempted to issue any other patents for this quarter than those to which we have referred.
7 *2928 *2939*291II. Holding as we do that the jury was warranted in finding that plaintiff had title to some of the land lying south of the river, the next question that demands out attention is that of fraud in obtaining the conveyance. That defendant obtained a quitclaim deed to the part of land in dispute from plaintiff and her husband for the sum of one dollar is admitted. Plaintiff claims that this conveyance was obtained by and through the fraud of defendant, in representing that it was for the purpose of clearing up title to the west half of the quarter section, that there was nothing in the deed except a release of a flaw in the title to that half, and that there was nothing in the deed that in any manner affected title to her land, and that if there was he would make it good. The only statements plaintiff pleads she relied upon were that the deed did not affect her land in any way, and the promise to indemnify her in case it did. The promise to indemnify would not of itself constitute fraud. It might give plaintiff a cause of action for breach of contract, but not one sounding in tort. This is elementary doctrine, and needs no citation of - authorities in its support. But it is also true thatp laintiff need not show that it was the false representation alone that she relied on. If the false statement was one of the inducements that led her to act, it was sufficient, although the statement was coupled with a promise, the breach of which would not of itself constitute a fraud. It is admitted that defendant and his attorney both stated to plaintiff before she executed the deed that it did not affect plaintiff’s land. The evidence is in conflict regarding the alleged statement, — that they said it was for the purpose of clearing up the title to the west 40 only. In view of that conflict, we cannot interfere with the findings *292of the jury on that issue. -But it is said that neither of these ■representatations, even if - true, can be the basis of a claim of fraud; that they 'were merely expressions of a legal ■opinion; and that plaintiff was not justified in relying thereon. We cannot agree with counsel in this contention. 'The statement was in some sense a statement of a legal conclusion, but it was also a statement of fact. Whether or not a particular tract of land. is covered by a deed is ordinarily a matter of fact. ■ There may be questions of law mixed with it, but primarily the question is one of fact. The deed did' cover land that was included in plaintiff’s patent, if that patent be valid. But it was not the legal question that was being discussed. It was simply the fact question as to whether or not it was so written as to cover the east half of the fractional quarter. That it did not cover it is undenied, and that the jury may have found that defendant said it only covered the west half is -clear, if plaintiff’s evidence is to be believed. In this connection defendant complains of the eleventh and twelfth instructions given by the court. They are too long to be copied at length. The exact complaint is that certain representation’s said to have been made by defendant-, but which are not claimed to have been relied on in the petition, are made the basis of a claim of fraud. It is true that the court did refer to p such statements, but they are all charged in the p-e tition, although it is not said that plaintiff relied on each of them, and there was evidence to sustain them. Had the court authorized the jury to find fraud from these statements alone, there would no doubt have been prejudicial This it did not do, however. It required the jury to find not only that these statements were made, but that the others on which plaintiff says she relied were also made, and that all were relied on by plaintiff. The instruction-was more favorable to-defendant than he was entitled to. If any one may complain of them, it is- the plaintiff. No> statements or conduct not referred to in the petition were *293alluded to in tbe charge, and there is no claim that the verdict is not supported because of no proof to show that plaintiff relied on each and all of the statements charged. Aside from this, however, a statement in the pleadings that defendant represented that the deed did not affect plaintiff’s land would be supported by evidence that defendant represented that it covered nothing but the west half of the fractional quarter. .She was making no claim to this west half, and del end ant knew that she had no title thereto. The statement in the pleading was of an ultimate rather than an evidentiary fact, and would be supported by evidence of the character indicated.
10 III. Defendant further claims that plaintiff is estopped by her own negligence from claiming fraud. In this conection he says that the verdict is contrary to the tenth instruction. That instruction reads as i'<flows: “If you find from the evidence in the case that the plaintiff, Sarah Dashiel, signed the quitclaim deed in question in this case without acquainting herself with its contents, then she is estopped by her own negligence from asking relief from the obligation created thereby, and is bound by said quit-claim deed, acording to its terms and the description of the property as set forth therein, unless you find that her signature thereto; without the knowledge of the contents thereof and description of the land therein quit-claimed, was procured from her by fraud.” To properly determine this point, reference must also be made to a part of the eleventh instruction bearing on the same subject, as follows: “(11) But if you find from the evidence in the case, at the time said deed was executed, that the plaintiff was advanced in years, and that her eyesight was defective, and that she was unacquainted with the description of her land by numbers, by reason of the fact that the original patent to her land had been destroyed by fire in 1861; and if you further find that she told the defendant that she would wait until she had an opportunity to take legal ad*294vice and consult here attorney, and if upon so doing, she found everything all right and as represented by defendant, she would sign the deed; and if you further find, for the purpose of inducing her to sign the same then and there, that the defendant falsely and fraudulently represented,” etc. The eleventh instruction, in so far as it has a bearing on the point under consideration, is not complained of. If it had been, the complaint would be without merit. Williams v. Hamilton, 104 Iowa, 428; Sutton v. Risser, 104 Iowa, 631. The two propositions were submitted to the jury, and it evidently found, under the eleventh instruction, that plaintiff was not negligent. • Believe as we may about this finding, it has evidence to support it, and we should not interfere.
11 IV. Certain rulings on evidence are complained of. The court sustained objections to certain questions as not proper cross-examination. Strictly speaking, perhaps this is true; yet no error would have been committed had the trial court admitted the evidence. The whole matter rested in the sound discretion of the trial court, and we will not interfere. The defendant might have offered the evidence in his own behalf, had he been so advisd, and no possible prejudice resulted. Plaintiff’s husband was permitted to testify as to the number of acres of land north of the river. Objection to this on the ground that it was a conclusion, and not the best evidence, was overruled. We think the ruling was correct, for the river was changing from time to time, and the number of acres on either side was a question of fact. Moreover, there was no plat or survey showing these facts. In any event, the ruling was without prejudice.
*29612*294V. Defendant claims that the greater part of the land lying south of the river was accreted, and should be divided between plaintiff, the owner of the west half of the quarter, and the owner of the land adjoining section 16 on the south. Reference to the plat will disclose the basis of this claim. It is said in argument, and is, no doubt, true, that accreted *295land is to be divided so that each of tbe proprietors of tbe former shore line will have the same proportion of the new as they had of the old. Coulthard v. Stevens, 84, Iowa, 241. The exact point is that the court ignored this rule in its instructions, and permitted the jury to find that all of the accreted land south of the river belonged to the plaintiff, and was transferred by the deed to the defendant, and did not limit the amount of accretions for which plaintiff was entitled to recover. The material part of the instruction complained of reads as follows: “(22) When the United States surveyed the land through which the Des Moines river flowed, and abutting thereon on either side of said river, the same was treated as a navigable river, and the land along its shores was meandered on both sides of said river, and the space between the meander lines on each shore was excluded in calculating the number of acres in any section or part thereof through which said river flowed; and the purchasers of the tracts of land abutting upon said river acquired title to the meander line of said river, but at the same time became what is known in law as ‘riparian owners,’ so that the encroachment by the river upon their land, and washing away, would be their loss, and at the same time any accretions -made by the river to their land abutting upon said river would inure to their benefit and become their property, and hence, if you find from the evidence in the case that on the south side of the river, and east of the line 60 rods west of the east line of said section, there have been accretions to the land in said section 16, abutting upon said river, by reason of which the quantity of land abutting thereon has been increased, then such increase would inure to the benefit of the abutting owner thereof, and if the plaintiff was such abutting owner thereof, on the south side of said river it would inure to her benefit, but only to the extent to which the samé was added to her land abutting thereon, and included in said southeast quarter section, east of the 60-rod line.” It will be noticed that there is nothing *296therein that required the jury to award plaintiff the value of the accretions. The instruction is certainly good as far 'as it went, and, if defendant wished a more explicit one, it was his duty to have asked it. Aside from'this, we are by no means convinced that plaintiff was not entitled to all the accretions. Her land, as well as that of the adjoining owners, was described by reference to the original government survey. The meandered line was not mentioned in the conveyance. One corner of the government survey was in the river, and that corner was used as a point of description in the various conveyances. When the meander line is fixed as a boundary, and is not used simply to define the courses, distances, and sinuosities of the stream, it is controlling, and nothing will accrete thereto. How much stronger is this case, where all the conveyances described the land according to the original government survey! As sustaining our conclusions, see Jones, Real Property section 472; Gould, Waters, p. 313; James v. Howell, 41 Ohio St. 696; McClintock v. Rogers, 11 Ill ., 297. Without at this time committing ourselves to this doctrine, we cite these cases to show that, even if the instruction be as defendant claims, it is not without support in the authorities. It is enough to say that the first point made seems to be conclusive. There was, of course, certain land lying between high-water mark and the channel of the river that plaintiff did not own, and could not recover for; but we' have no means of knowing how much that was, or, rather, have no reason for saying that the verdict as reduced by the court included these lands.
13 VI. The last complaint is that the verdict is without support, and is the result of passion and prejudice. We have said it has support in all particulars, save as to the amount of damages allowed. With reference to this the court heard all the evidence, and reduced the verdict returned by the jury to what it thought was a proper amount. We think there is such support that we *297ought not to interfere either with the verdict itself, or the-.amount thereof. No prejudicial error appears, and the.judgment is aeeirmed.
AI-generated responses must be verified and are not legal advice.
