— The scene is laid near Loutre (alias, Otter) Island in the Missouri river — a historic spot in the early annals of Missouri. The dramatis personae are Frank, the owner of certain shore land on said river, i. e. the riparian owner, and Groddin, an islander. Frank bases a claim to the land involved somewhat upon the ownership of the shore, but mainly upon his purchase from Warren county on December 31, 1900, and a patent issued therefor February 8th, 1901, by said county under the provisions of article 6, chapter 122, Rev. Stats. 1899, relating to “accreted lands.”’ Groddin, in possession, claims the land as an accretion to an island off said shore, locally known as Groddin island, which island he claims to own under a patent from the same county of date November 21,1898, made under the provisions of an act of the Legislature in
Prom a judgment general in form in favor of God-din and for costs, nisi, in an action brought by Prank to determine the respective interests of Prank and God-din in, and to quiet title to, the said real estate, based on -section 650, Revised Statutes 1899, Prank appeals.
Other essential record facts will appear further along.
(1) A small part of section 29, township 46, range 4, in Warren county, has been preserved from the wasting wash of the river waters and is owned by appellant, who purchased through probate proceedings from a Stuart estate. When originally surveyed by the government, section 29 consisted of a fractional northeast quarter, 158.9 acres, a full northwest quarter, 160 acres, and a fractional south half, 39.18 acres — the river bounding it on the south. The erosion of the current ate away the larger part of this land, some of it during Prank’s ownership. A few years ago there appeared in the river, partly south of Prank’s shore line, a sand bar, or, in the language of rivermen, “a towhead,-” which grew by recession and accretion until a certain portion of the bar projected over the aforesaid survey, leaving the channel of the river split in twain, part being north of the sand bar and between that and the shore line, and part south of said bar. The bar continued to grow, not in a saltatory way, but by accretion of alluvium insensibly formed and deposited, willows finally took root, overflows came leaving deposits until some portions at highest elevations were above flood tide; at which time respondent procured his patent, entered into possession, and, struggling with recurring
We do not understand the learned counsel for appellant to contend that, because some of Frank’s shore land was disintegrated, held in solution by the water and carried off, pushing the north bank of the river further north, he would be entitled to new land reformed on the situs of the old, unless such new land was formed by accretion to the north shore or by recession there. His contention, as we interpret it, is rather that this condition of things created equities, springing from the natural justice of the thing, which should have some determinative force on other controverted questions in the case presently to be considered. Is this contention sound? We think not, because:
In the first place, whatever be the common law or the civil law, each State of this Union may settle for itself the title to lands formed by accretions within its boundaries. [Barney v. Keokuk, 94 U. S. 324; St. Louis v. Rutz, 138 U. S. 226.]
In the second place, in Missouri, the riparian owner does not own to the middle of the thread of a navigable river, ad fihim medium aquae (Benson v. Morrow, 61 Mo. 345), but only owns to low water mark. [Cooley v. Golden, 117 Mo. 33; State ex rel. v. Longfellow, 169 Mo. 109.] And this court in Naylor v. Cox, 114 Mo. l. c. 243-4, adopted (badly proof reading) the reasoning and rule announced in Welles v. Bailey, 55 Conn. l. c. 317, thus: “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 land at any former period.” It results from the foregoing, that where the water line is the boundary, as it was of Frank’s land north of the river, that boundary, no matter how far
In the third place, the conclusion follows, using the foregoing legal propositions as postulates, that where shore land has been washed away and the void space thus created becomes the river bed and thereafter new land reforms in the river within the original survey, such new land does not necessarily belong to the owner of the survey — the riparian owner. If it be formed to the shore land by accretion or reliction it will belong to the riparian owner. If, on the other hand, a sand nucleolus appears in the channel off the shore, which swells, peradventure, to a nucleus and thereafter, by reason of alluvion accreting thereto, eventually reaches the geographical dignity of an island, such island with the alluvion thereto accreted does not inure to the riparian owner. [Chinn v. Naylor, 182 Mo. 583; DeLassus v. Faherty, 164 Mo. 361; Naylor v. Cox, 114 Mo. 232; Cooley v. Golden, 117 Mo. 33; Cox v. Arnold, 129 Mo. 337; McBaine v. Johnson, 155 Mo. 191; Moore v. Farmer, 156 Mo. 47; Widdecombe v. Chiles, 173 Mo. 195.] But, under the statutes heretofore referred to (art. 6, chap. 122, R. S. 1899), all such islands and their appurtenant alluvium, the fantastic progeny of the mysterious and muddy river, alternately spewed out of and then, perchance, swallowed into the maw of its waters, belong to the respective counties within which they appear, and are subject to disposition as swamp lands for the benefit of the public schools — they being part of the public domain. [State ex rel. v. Longfellow, 169 Mo. supra.]
(2) The chief contention of Frank is that the county’s grant to Goddin was by a fixed boundary, was confined and fixed by arbitrary and immutable lines and, hence, the right to accretion, reliction or recession could not apply to his grant.
To deal with this contention intelligently reference must be had to the record before us. It seems the
“Whereas, it having been shown to the satisfaction of the county court of Warren county, Missouri, at its August term, 1898, that a tract of land has, within the past five years, formed in the old bed of the Missouri river in or opposite to sections twenty-eight and twenty-nine, township- forty-six, range four, west, in Warren county, Missouri, by the recession or abandonment of the waters of said stream.
‘£ The said track of land was thereupon ordered by this conrt to be surveyed, according to law, by the county surveyor of the county aforesaid, and that he report his proceedings under said order at the next term of this court thereafter, to-wit, the November term, 1898, of the county court of Warren county, aforesaid; and whereas, as appears by the report of said surveyor filed at the November term of this court, 1898, he did make survey of said island which, according to his said report, contains about one hundred acres of somewhat elevated land higher than the sand bars then surrounding same, which said land, according to the laws now in*397 force in this State, becomes a part of the school lands of Warren county, Missouri, and subject to sale by order of the county court of the county aforesaid, at public or private sale, and whereas, B. H. Goddin has offered and deposited with the clerk of this court the sum of one hundred and twenty-five dollars for said land, -being at the rate of one dollar and twenty-five cents per acre therefor.
“It is considered by the court that it is the best interest of said county that said offer be and the same is hereby accepted, and it is therefore ordered, adjudged and decreed by the court that all the right, title and interest that said county of Warren acquired for school purposes by reason of the premises and by virtue of the laws of the State of Missouri, be and the same is hereby vested in and sold and conveyed to said B. H. Goddin, and unto his heirs and assigns forever.
“In testimony whereof, we have hereunto set our hands”, etc.
It may be conceded to appellant that a grantor might convey his upland by such boundaries, calls and immutable lines and description as would result in a reservation to the grantor of appurtenant flat lands and their present or subsequently accreted alluvion. Such was the case in Dunlap v. Stetson, 4 Mason 349, and such substantially was the case of Cook v. McClure, 58 N. Y. 437 — both relied upon by appellant. The same principle was in effect applied by this court in controversies relating to urban lots conveyed with reference to and bounded by streets, one of which fronted on a navigable river bank. [Smith v. St. Louis, 21 Mo. 36; Smith v. St. Louis Public Schools, 30 Mo. 290; Ellinger v. Railroad, 112 Mo. 525; Sweringen v. St. Louis, 151 Mo. 348.] As said by Napton, J., in Smith v. St. Louis Public Schools, supra, referring to the general rule regulating accretion: “This rule, however, did not apply to fields which the Romans termed limited, or agri limitati. ‘In agris limitatis, jus allu
Goddin took the chances of both avulsion and imperceptible wasting away. On the other hand, .he purchased the chance of accretion, recession or reliction. There is nothing in the ease to fairly indicate that he intended to buy or did buy a limited tract, leaving the title to alluvion, afterwards accreted, in the county to be disposed of and thus hedge him in and away from water ingress and egress by such disposition.
It was not necessary for his patent in terms to convey thereafter accreted land. Such accretion inured to him by operation of law. [Jefferis v. East Omaha Land Co., 134 U. S. 178; St. Louis v. Rutz, 138 U. S. supra.]
In dismissing the matter now in hand, it may be said that the evidence satisfactorily establishes the fact that the land covered by Frank’s patent makes a part' of Goddin Island, and that Goddin Island sloped from the center elevation down to the river.
(3) Appellant presents the further insistence, somewhat borne out by the evidence, that the surveyor,
In our opinion the judgment should be affirmed and it is so ordered.