*1 Adrian O. and Edith the Will of Executors of Irvine, Frazier George L. Frazier, Shantz Read & Investment v. Estate Com Corporation, Appellant (2d) W.
pany, . 123 Two,
Division December 1938.* Opinion Term, May 1938, August 17, *NOTE: 1938; filed at motion for rehearing filed; and transfer en Banc Sep- Court motion overruled at Term, tember December *2 L. appellant. J. Miller and Ernest E. Baker for Williams, Nelson & English, Curtis, E. G. Greve and] Clifford Thomas B. respondents. for Curtis
COOLEY, 1933, C . This August 31, suit was in the instituted Circuit Court of County George plaintiff St. Louis L. Frazier as against Shantz Company Real Estate & as Investment defendant. Ye shall herein refer parties plaintiff defendant, to said re- and spectively. plaintiff judgment The recovered ap- pealed. appeal lodged After in this court Frazier said died cause was in name and the revived of his who executors, entered appearance respondents. now and are ejectment
Plaintiff’s is in counts. The'first is action two count larger land, for a tract of about 18 the east' of a acres tract or 54 in half Township some 50 acres the south of Section 44 Range 4 North, East, County. in St. Louis tract of The 50 whole or 54 acres is bounded on the north the east west center comprises Section all in the south half of said the land n right section of said north the Meramee River and west way Company. The Pacific Railroad tract in dis Missouri line, on said section pute is bounded right distance way, east or for short railroad by the on south river and the west a line on southeast and in east-west center section line 377.57 point said feet drawn east corner of the half the northwest southwest river, defendant, due to the nearly south where in of said Section n fence, land claiming to own the east of fence/ built an plaintiff’s petition action to count of The determine second in count. first described same land ownership possession, answer admits denies Defendant’s predeces- and avers that defendant the owner that it and possession “ever title have owned been said land sors tract, parts deposited thereof were formed and since said .adjacent defendant, of this to-wit: accretions to “ Quarter half of ‘The East fractional the Northwest Quarter half West fractional of the Northeast Town- Section ’ ’’ Range 4 ship North, East, County, St. Louis Missouri. charges plaintiff com- way of counterclaim defendant had By same), upon dam- (describing and asked trespass mitted ages therefor. against defendant all the for on court found accordingly, presented by pleadings judgment entered
issues controversy be in adjudging the the land in title to counterclaim. denying recovery on defendant’s agreement it law. pleadings By Under action is at one By parties jury. request of both to the court without tried statute, Statutes stated, pursuant Revised court (Mo. sep- 1225), facts Ann., p. Stat. its conclusions of found arately from of law. the conclusions finding shall endeavor to summarize long. of facts is We necessary findings facts, appears quoting from the court’s accuracy. understanding controversy state may for aid that, found, defendant claims title to the here north- controversy to the east fractional half of the as an accretion the northeast quarter and fractional half of west the west record, title. to which *4 patent title with a from United States Plaintiff’s record starts the 1, 1840, granting Elijah Compton, “the southwest dated October to quarter quarter (north of the fractional fractional southeast River)” containing 38.87 accord 20, of acres Meramec said Section plat survey of to ing to the official said returned the the By convey by Surveyor General. mesne Office the General Land description, patented passed,' by similar to Hudson the so ances conveyed Benja Company, company to Commission Brothers 18, 1908, quarter all two Gratz, January of said sections min right of Missouri Pacific Railroad Meramec and southwest of the conveyed containing 50.464 describing the tract as acres. way, and 190, plat showing recorded acquiring in Gratz, said upon bought from Hudson tract Brothers Com in 50.464 acres Meramec showing River well to the south Company mission center, conveyed 20. Gratz to east-west of the September 20, 1920, recorded June 20, by dated by deed sub- stantially naming acreage but 54.64 and description, the same as ” referring Surveyor. to a survey by "Elbring, recorded one made convey All conveyances chain purport all quarter land north of Meramee River in said southwest quarter ones, southeast (except, of Section 20 to the later right way, the west or southwest railroad involved.) here title, United patent record with a
Defendant’s starts granting Destrehan, 29, 1844, States dated October Nicholas N. large body land, with a fractional other "the half of eas.t quarter quar- fractional half of the northeast northwest and the west grant containing ter” acres the whole 1383.97 "according to the returned plat of said lands official . . . Surveyor General.”
The Destrehan, with patented along land so much other land by him, partitioned among owned his four children in The decree partition July Appellant was rendered 'does not set out Respondents pro- this decree in its abstract of record. Appellant’s duce in their counsel additional abstract. state " (The Azby the abstract sets decree off Peter Nicholas Des- according containing trehan No. 4 ‘A’ Lot Plat attached thereto 650 aeres of land —Plat ‘A’ Exhibit No. introduced as Defendant’s River.) being 1—and bounded Meramee There on the south no identifying in the A.” A shown abstract said ‘‘Plat photostatic copy plat of said was introduced explanation identification, Ex. far as without shown parties however, abstract. seem, the court treated to have plat partition proceedings, made in one the course of the though the In record as does not that it this abstracted show was. connection note court’s finding we inaccurate particular: court fractional half stated said east and west fractional half of conveyed were Peter Azby by partition Nicholas Destrehan deed A, containing acres, dated 4 of Plat July 3, as "Lot . . south River. . . bounded the Meramee There partition partition no shown. The must have deed meant to, The decree above referred which was evi- decree. introduced evidently interlocutory dence, makes men- decree. any plat, A” or of nor of "Plat of the Meramee River tion a.s'a *5 involved, nor it boundary purport land here does set off the to any It Azby large, Destrehan land. Peter Nicholas describes adjudges (a that Peter Nicholas, and son of amount half deceased), a one interest in all is entitled to "in then them). mentioned, (describing to-wit:” petition As land in 866 20
Section north- description east half of the is “the fractional quarter west quarter west northeast fractional half 20 Twenty.”' of Section No Section is land in the half of south partition. mentioned. appointed are to make Commissioners it, report approving if final decree commissioners introduced, in the such records were are not referred to shown or plat A may by abstract. Plat have been 'made and returned suit. It seems to treated partition commissioners .have been so inspec- parties impossible definitely, It tell by the below. just alone, plat tion of the what land was meant to be included in indicated, 4, considering acreage but Lot as there indicated may be intended to extend southward to the inferred boundary. making southern River, river its seems Meramec plat been below. On the river shown sub- to have assumed stantially of the east-west center of Section south line Proceeding' facts, finding now with the court’s the court stated partition Azby 4 proceeding in the Lot was allotted to Peter legal partition Destrehan was no and no Nicholas but legal east-west line of Section allotment of land south of the center jurisdiction having such 20, partition been without the court Richards, daughter land; by 3, 1902, Marie deed June (with conveyed E. Love Azby heir to John sole of Peter Destrehan land), 4 N. estate in Sections other Nicholas Destrehan “Lot North, East, being (describing 4 20, Township Range 44 17 and 17) quarter fractional land in Section northeast quarter half of east the northwest fractional of Section together 1, 2 Destrehan’s es Lots of said bounded tate, Survey south 17 and east east line of Sections west, running west west of Section quarter half of northwest 20 in and the west line Section except less, therefrom the containing 645 more or acres way Railroad.” right of Pacific of Missouri Beginning 1902 there Love in were with deed title, describing each found, six in defendant’s chain deeds above, from Richards substantially out the deed set of Section definitely naming the east-west center Love and defendant, boundary. the one last deed as the southern 22, 1912. November dated found:
The court further controversy ac- land in claims to the “That half of and the east fractional cretions Town- half fractional west patent upon issued' to N. East, founded Nicholas Range ship 29, October dated Destrehan
“That the Court cannot cáse from the in this determine evidence that at the Surveyor time by the United States 1818 the Meramec River line half-section intersected east and west point at a which is now the corner of the land contro- versy, and crossing flowed northeast, again said and southeast half-section at a point 129.72 present feet west of the west right the Missouri Pacific way. Railway
“The Court finds according that a survey east by Pitzman, -west half-section line River Meramec crossed said half-section line about feet east of shown was incorrect Government survey aforesaid.
“The Court is unable to determine whether or not have accretions on formed side the Meramec River Survey west of 1975 in 20'against the east fractional half of the northwést the west and fractional half of the Section 20.
“The dispute Court finds that the tract carried County assessment records of the from 1921 to date in name plaintiff, plaintiff paid years has taxes for all those on acreage. this
“The Court finds County records show that in 1908 the land, greater or portion it, Benjamin was assessed to Gratz others, conveyed plaintiff. who
“The Court further finds the western of the tract, end about dispute, acres, which there is no whether as 50 acres taken plaintiff end, has been cultivation; cleared and is in the eastern portion partially includes the now plaintiff, claimed by plaintiff; cleared and balance cultivated with trees is covered undergrowth. “The Court finds in the fall of 1931 defendant a fence ran through property beginning point ill at' a the east and west center- running slight angle southwardly section line of Section 20 at claiming to the river 18.487 bank, acres on eastern end of paths acre tract. That about same time at it also made some rough-hewn bridges, designated put up house as a refresh- fence, portion use ment stand east of this and have made of that tract that time. since controversy there was some about “The Court finds attempted it; fence, time removed or at one remove replaced thereupon it. finds that defendant did maintain boat dock on the “The Court early dock, however, This property of said shore located, and, according testimony permanently was at never property, on said locations in various and was at other various times times located farther property down the river east of the question, ground on defendant’s sometimes ad- sometimes joining railway Company. of Missouri Pacific Railroad
“The at predecessor evidence shows that one time or his *7 in title gravel had this ground, on the then taken sold dock part out defendant particular because that of the no river was longer purposes. for available dock ‘‘ any The at no paid Court finds that made time has ground pay dispute. to the effort the taxes on testimony “The from the Court finds adduced has that the river changed substantially fifty years, not in the last no dur- and at time period ing that been has the east and west center-section of line. of plaintiff portion
“The Court cultivated the western finds in dispute, continually ground tract has clearing been the the. acreage the putting towards in cultivation. additional plaintiff Court east of portion ground finds that of the cleared being there, thereupon, defendant’s the fence before fence stopped, brought plaintiff he action. That promptly thereafter this fence, a crop many of had in 1931 east defendant’s had cut shortly ground prior putting that time purpose to for the the trees .. cultivation. . predecessor from in title some- plaintiff’s “That under license land, plant operation prior gravel time 1890 there to point approximately at a defend- is located witness the fence reaches river. ant’s now permitted
“The in 1926 licensee plaintiff Court finds that the point through eastwardly property the to to run fence considerably present fence had used in the river east of the cattle. property pasture Gratz, Benjamin grantor,. also evidence “There Gratz, prior Company
and the Hudson Brothers Commission acres, and on the 54 permission a witness fish and hunt granted prior years up to 1908 during- witness it was used survey February 18, made “The finds Court The field value. Government, erroneous is so river at purport of the to start the meander survey of of this *8 predecessors and that undisputed and his in title pos- major at all session times of the lands covered their by years ten title and for more than record exercised usual acts the of ownership including over the entire tract disputed claimed the land; the Court all disputed finds that has title to ’’ by possession. adverse
In addition we 1908 “helped add that a witness testified he through cut the survey line when a was made . . cut brush evidently and stuff like Gratz re- survey Gratz that” — plat. a corded Survey in the findings Reference is made court’s to U. S. of 1818. a necessary understanding survey to an of this and the so-called application herein contentions relative to its issues to state concerning the facts it as shown evidence. following, be “cer- Defendant introduced said to ” Range Township 44, 4: copy
tified of field notes of “Meandering of Bank from fractional the North of the Merrameck Nos. 19 20 the river Section Corner down degrees 53 E. 20.00 Chains “S. degrees
“N. 43 E. 21.00 Chains degrees 86 E.
“N. 11.50 Chains degrees 50 E. 12.50
“S. Chains degrees 17 E. 12.00 Chains
“S. degrees 40 E. 7.50 Chains
“S. E. corner of Samuel degrees 80 3.25 Chains to the Pruitt Sur- “S. fractional No. 20 from which post corner of Sections thereat set a vey degrees W. 20 diameter bears S. links and Maple 16 inches a 8 degrees diameter bears N. *W. links. 9 inches Feb- Sycamore a ruary 18, 1818.”
There is in than other explanation record of this exhibit what appears face, except on its shows the Samuel other evidence Survey Pruitt was the to in court’s Survey No. referred finding; nor appear does notes. In this it who made these field connection its Ex. plat, we note that defendant also introduced a again explanation without identification or far as shown abstract, 3, being photo- which merely recites Exhibit “Defendant’s copy, opposite page.” static inserted On its face exhibit plat a Township Range 4. At appears to be the bottom “Surveyed by F. A. P. bears this notation: J. Roiston & Vanmater Feby. D. S. 1817.” It a of the Meramec River north shows section hardly section of Section 20. It it could would seem plat since those field be based field notes above mentioned year notes till about later. were not made that, notes, Further was shown the evidence as to those field tracing meander the courses and distances indicated t beginning point point the named reach named i did not termination; tracing reversing process back from meander line point by latter courses distances indicated point. short, would reach named In beginning sur found, close. A survey *9 survey by Pitz- according a one It is true court to the found that 20 Section line man 1870 to center appeared in the river cut the the 1818 field notes. by about 400 east of where it shown feet El- evidence, plaintiff’s witness but Pitzman was not offered in which plaintiff, on bring, surveyor, plat, by a introduced had made a by the as shown the river he said was line of he traced what basing to be survey. understand defendant Pitzman’s But we do not section of a small dispute theory that claim to in its the land 1870, accord- 20 in Section of the center line of the river was north very consider- survey. exclude To so would ing to Pitzman’s do theory been Had such claims. disputed it portion the land able course might taken different trial have the below advanced in- theory, as offered. Defendant’s might been have other evidence ap- its brief here in trial and its course the pleading, by dicated 20 Section center line of of the was north pears the river be that 871 1818, in notes, supra, as shown in by land field that the half of the half of and west riparian of said that the section was when Destrehan patented to steadily dispute in gradually an which is accretion has interrupting thereto without any formed recession or northward standpoint from movement the river. We shall treat case theory on which it below. of the was thus tried found, if, Thus no sub- considering case, as 1818, line center section stantial evidence that river cut said title. if the river then north And defendant has no record United line, yet it south thereof when the may center have been said patents Compton in and to Destrehan issued its States may river have been slow but movement of the The southward the center go far reach south of pass did it not have acreage points named Elbring computed between section line. line south meander north center section line and the land meander notes, tracing 1818 field said of the river indicated as beginning from its named line courses distances indicated ' plat, which acres. From his on point went, far as at 5.46 it by him com- computed shown, it the area apparent lines are south all the center section prised land north nearly triangular portion comparison small By meander line. of said computed Elbring’s computation with the area included in not in- portion small plat apparent it is from him an acre. scarcely have amounted computation could cluded in determined can be There is no evidence center line of the east-west reference to the river with years after twenty-two over issued Compton’s patent when Since patent issued when Destrehan’s survey, to lands controversy as an accretion the land defendant claims riparian claims were then title which it predecessor in patented to its muniments think Its to show. incumbent on it was we 20-as its southern the east-west prima facie show title show said line muniments of boundary, boundary. 806; Federal Land Government [2] surveys. We Bank v. take [Myher judicial McColgan, v. Myher, notice of 332 Mo. 224 Mo. descriptions in 868, 59 S. W. W. side al., 13 Mo. v. In Hartt Rector et (2d) 1055 (10-14).] subdi governmental description by that a it is said page 498, see To effect bounds. same by metes and description visions is description . 631, 635. “. Helms, Mo. Hampton v. *10 de specify and ‘we according government subdivisions de and out boundaries if marked as we particularly scribe as ” v. Batter each corner.’ specified [Ohlson line and scribed" each ton (Mo.), 230 S. v. 112, citing quoting W. 110, and from Hartt al., Rector et supra.]
Defendant its patent contends the call deeds chain quarter of title for the fractional half of the quarter carry by west fractional half of the would northeast description such all accretions thereto whether when already formed patent subsequently; citing Destrehan Jeffries issued formed 676, v. Omaha 134 U. S. Gorton 153 Mo. Co., Rice, East Land v. If it to appellant S. W. like cases. be conceded correct, would absent a contention reservation of accretions be conveyance conveyance prior owner, or a we thereof think avail in case even if it be it cannot this assumed that quarter riparian fractional half sections were because: , Compton land, in 1840 both patent Prior to all the (so south of the east-west center of Section 20 as line far pertinent belonged case), to the United States. We think riparian formed, clear that a landowner whose land accretions have becoming extending boundary, may thereby his and con sell his though vey land, accreted leaves the such even non-riparian (see Frank Goddin, remainder of v. Mo. land 1057); subsequent convey if he 91 W. so a does description would ance him all of carry otherwise portion conveyed give previously accreted land cannot title to the purchaser. question prior nor affect the title That description The by appellant. in the cases involved cited quarters southeast fractional Compton, southwest and patented to River, the east-west cen 20 north of the Meramec —made leaving riparian boundary, northern ter of the section his form, center which accretions could thereafter north of said subsequent All line. con wholly if the then south river was line the veyances in chain of title made said section showing boundary. prima made at least a Plaintiff thus facie northern good not overcome other evidence. title, which was record title fails. defendant’s record Por further reason we think in which Destrehan petition partition in the suit decree far partitioned, so be the lands to partitioned described were quarter the northwest east fractional half of pertinent, here quarter of Section half of the west fractional partition suit. publication appears was an order there out abstract but it set in the published notice is not sec quarter named half above described said notice stated half of the east half the northeast the west tions as petition de In said said Section the northwest notice, men- the river is not indicated, publication and, in the cree
873
as
tioned
boundary
the southern
be
of
description
but
partitioned
boundary.
makes the east-west center section line the
unless,
Lands south of
included,
said center
not
as
are
at least
quarter
part
accretions to
sections, they
said half
are
as
included
general designation
thereof under the
of the half
sections.
theory
because,
shown,
But that
tenable
is not
there is
as we have
riparian
no
that
half
sections were
when
patents
partition
above
not
land
referred to issued.
court could
jurisdiction
subject
given
in
not
to its
See
of
case.
Heirs
Burn
Hitt,
plaintiffs
ham v.
143
45 S. W.
claimed
Mo.
purchaser
partition
heirs
claim was
of
at
their
sale and
pe
denied
in
because the land
not been included
claimed had
said, 143
partition
tition
order of sale in the
suit. The court
sale,
c.
370:
partition
judicial
Mo. l.
45 W. l. c.
“A
is a
sale
indispensable
validity
prerequisite
of
is an
such
upon
judgment,
sale that it should be
decree or order
based
a valid
by the
.
. The
not
in the decree
of sale.
sale of
included
land
conveys
title there
authority
sheriff is without
of
his deed
no
law and
ap
why
principle
perceive
to.”
the same
should
We
reason
partition
ply
of land in
in
suit.
to an allotment
kind
unnecessary
us to deter-
considerations
for
foregoing
make
Mrs.
that the deeds from
Richards
mine defendant’s contention
convey all
subsequent parties in its chain of title show an intent to
A
description
A”
“Lot
of
of Lot
as shown
“Plat
call for
prevail
N.
Estate” should
over the
Destrahan
Nicholas
boundary,
center
as the southern
east-west
for if
Richards
no title to
south
Mrs.
had
land
convey
grantee
successors.
nor
her
line she could
none
could
his
good record
think under
facts shown
had
We
only
he
color of
even if
be
had
title. But
it should
held
con
prior
conveyance
that.
to him
at
In the
he
least had
the Meramec River
veyances
predecessors
north of
by his
the land
said,
line, whether,
the trial court
the center section
and south of
tract, of
acres,
conveyed
single
as a
50 acres
it contained
more
for
conceded that
dispute
part.
is a
pe
alleged
prior
years
ten
the date of ouster
than
predecessors
possession
he
his
had been
actual
tition
its fence in
where defendant built
tract Avestof
part of said
found
part. The court
said wrest
owned
and indeed
had
disputed
claimed the
land and
predecessors
that he
statute,
it. Under
ownership over
usual acts
exercised the
Ann.,
(Mo.
p. 1129), pos
Stat.
Statutes
Revised
title,
tract
the name
color of
session, under
exercising, during the time
such
claimed,
tract
whole
claimed,
possession,
ownership
the usual acts of
over the whole tract
possession
is deemed
of the whole
such
tract.
(cid:127) What
depend
acts will
possession
“actual”
characterize
particular
property,
facts of
eases. The
nature and location
the uses to which
be
must
applied
it can
all the circumstances
143, be considered.
105 Mo.
Hays,
Plateau Land Co. v.
[Ozark
*12
957;
Schiermeyer,
404, 421, 19 S. W.
S. W.
Goltermann v.
111 Mo.
in
acts
determining
So
of owner
what acts constitute usual
484.]
we think such
And
ship
facts and circumstances must be considered.
statutory
possession
it is
constructive
entire
said that “the
of an
require
tract,
accompanies
possession
actual
a part
would
ownership
specific
required
of one who
act
less
‘than would be
”
wrong.
right
possession by
enters without
retains
[Golter
Also,
in
Schiermeyer,
mann v.
125 Mo.
PER foregoing opinion by Cooley, CURIAM: —The opinion judges as the All court. concur. (2d) Appellant Pyle,
The State v. Carter W. . 123 Two, Division December notes a, purport Section to reach the south in the west point February 6, 1818, Survey 1975 made or some corner of U. west survey river. meander of the than days earlier twelve ending points point are definite fixed starting point river, meander the end survey 'the independent Survey.. using. is.impossible, prior U. S. a point is'fixed ing notes, the field to close survey; and, evi only since this is the upon dence point as to whether or river east-west not- cut the center-section line of Section in 1818 at the iron stake shown on Defendant’s Exhibit the Court finds that there is no credible evi of such dence fact. “The Court finds that part United States did not with ownership of the land in south of the east-west center- section line and north of the Meramee River until did part with the north half ownership of the 20 until 1844. “The Court finds there is no evidence in this case lo- to show the except cation of river in survey erroneous Government of 1818. “The Court finds that has a possessory record title and disputed title to that lying west of a line drawn point of intersection of the river and the center- east-west (shown by 1870) section line Pitzman river;
Notes
notes indicated the field does not described, veyor, which he plaintiff, method, called said there awas closing such circumstances. we understand his As testimony survey, if manner plat made, closed he had described, the east-west entirely he show the river south of would 20. These circumstances center line relative findings not sufficient survey account for the court’s contention the river cut evidence to defendant’s sustain center section line in