Iowa Railroad Land Co. v. Coulthard
148 N.W. 328
Neb.
1914
Check Treatment
Hamer, J.

' This is аn appeal from Washington county. There was a petition in equity to quiet title to about 500 acres of land. The answer sets up want of jurisdiction, accretion, and adverse possession. There is a reply and an affirmative plea of avulsion.

The United States made its survey in Iowa in 1852 and in Nebraska in 1856. It is claimed by the Iowa Railroad Land Company that between the United States survey of 1852 and ‍‌​​‌‌​‌‌​​‌‌‌​‌​​​​‌‌‌‌‌‌‌‌‌‌​​‌​​‌​​​​​‌‌​​‌‌​‌‍the survey of 1856 the Missouri river gradually cut to the north until it cut away all of section 34 in Iowa, and that it was running along near the north line of sec-*608lion 34 in April, 1857; that by reаson of the breaking up •of an ice gorge the Missouri river suddenly changed its •channel, and shot into Nebraska and left a body of land between.the Missouri river and Soldier river; that beforе said avulsion the lands had been added to the Nebraska .side and were embraced within the government survey of 1856. The trial court seems to have specially found that the change was caused by an avulsion; that the title to the land was legally in the Iowa Railroad Land Company, .and but for the plea of adverse possession the company would be еntitled to all the lands in controversy. The particular 160 acres is said to be located in the north half of ¡section 21 under the Nebraska survey. The court found for the defendant as tо his plea of adverse possession to 160 acres of the land. The appeal involves this tract of 160 acres. The special finding of the trial court as to the ■changes of the Missouri river is set forth in the decree, .and reads; “And the court, being fully advised in the premises, finds especially at the request of the plaintiff that the Missouri river on or about March 5, 1857, ran ■east along or near the north line of section 34, township 79, range 45 west 5th P. M.; that about April 10, 1857, the said Missouri river suddenly abandoned its channel and made a new channel to the south and wеst, by which it left the land in question north and east of it, and between it and the Soldier river; and the courts of Nebraska have jurisdiction of all lands within the United States survey of 1856 without regard to the enаbling act by which Nebraska was admitted into the Union, except such lands, if any, as may have accreted to the Iowa bank before the said avulsion occurred. And the court furthеr find's that a.ll of the land described in the petition of the plaintiff is within the state of Nebraska and the county of Washington, and this court has jurisdiction of the subject matter of this action. And the court further finds that the north half of section 21, township 19 north, range 12 east, if extended, and the south half of section 34, township 79, range 45 west 5th P. M., if extended, are substantially the same *609tract. And the cоurt further finds that the plaintiff is the owner of and has a legal estate in all the lands described in its petition in this action, except those lands described as situated in the said section 34, township 79, range 45 west 5th P. M., as said section would exist if extended to the full limits and extent of one mile square as specifically described in defendant’s answer, and the title thereto is forever quieted in this plaintiff. And the court further finds that the defendant George Coulthard has been in the open, notorious, exclusive, uninterrupted adverse possession under color of title, and claiming to be the owner thereof, of all lands described in plaintiff’s petition, situated in said section 34, township 79, range 45 west 5th ‍‌​​‌‌​‌‌​​‌‌‌​‌​​​​‌‌‌‌‌‌‌‌‌‌​​‌​​‌​​​​​‌‌​​‌‌​‌‍P. M., as claimed by plaintiff to be situated in the north half of said section 21, for more than ten years prior to the commencement of this action, and was, at the commencement of this action, the owner thereof and in the actuаl possession of the same, and the plaintiff was not and is not the owner thereof and had no estate therein, -at the commencement of this action. * * * It is therefore cоnsidered and decreed by the court that as to all the lands situated and lying in said section 34, township 79, range 45 west 5th P. M., and set forth and described in defendant’s answer, the plaintiff not being the ownеr thereof at the commencement of this action, the said suit in relation thereto' is hereby dismissed at the cost of the plaintiff taxed at $-.”

The land in dispute, under the evidence аnd special findings of the trial court, is in Nebraska. The evidence of Chambers Hester justifies the conclusion that section 34, originally in Iowa by the Iowa survey, had been cut away by the rivеr so that the river ran along near the north boundary of that section. “Q. Where was the Missouri river running with reference to the north line of section 34 at the time it made its change into Nebrаska? A. Why, it ran right along the line pretty close to it. Q. What did it do in the spring of 1857, by way of changing its channel? Describe to the judge how the Missouri river acted *610in the spring of 1857 about changing its channel tо Nebraska, if it did. A. It changed its channel onto the Nebraska side and cut around quite a body of land.” It appears that the avulsion changed the course of the stream so that it rаn over into Nebraska, and the Soldier river seems to have declined to run toward the new channel of the Missouri, and it kept along the old channel and more or less ocсupied it. At the time of said avulsion ‍‌​​‌‌​‌‌​​‌‌‌​‌​​​​‌‌‌‌‌‌‌‌‌‌​​‌​​‌​​​​​‌‌​​‌‌​‌‍the greater part of said section had become a part of Nebraska. The plaintiff’s lands do not appear to have been within thе original boundary of fractional section 34 in Iowa. It will be seen that the line of these surveys probably conflict. It will be seen that the boundary between the states was more or less uncertain by reason of the fact that it changed with the accretion which displaced it. It had no certain stopping place.

The boundary between the states, if the surveys did not overlap, was the central thread of the Missouri river. This central thread changed 'as the stream changed, When the stream cut its way into the north side of section 34, the cеntral channel changed farther and farther over to the Iowa side. When the avulsion occurred (to which all parties agree) the channel of the Missouri river, about half a mile in width, suddenly changed and went over into Nebraska. Because of the sudden change the dividing line between the states remained where it was. It then remained in what had been the central thread of'the Missouri river. An examination of the litigation touching this subject shows apparently some uncertainty. See State of Nebraska v. State of Iowa, 143 U. S. 359; Coulthard v. Davis, 101 Ia. 625.

It is contended by the appellant that the appеllee made application to the state of Iowa to have the land in the abandoned ‍‌​​‌‌​‌‌​​‌‌‌​‌​​​​‌‌‌‌‌‌‌‌‌‌​​‌​​‌​​​​​‌‌​​‌‌​‌‍channel of the Missouri river surveyed and to purchase the same, and it is argued that because he did so> therefore his claim now is without merit. We do not so> regard it. He might have sought this method of terminating a troublesome and uncertain litigation. He was at *611liberty to maintain what he conceived to be his rights by any lawful method. The brief of appellant graphically sets forth the uncertainty of conditions affecting the title. “We find in the record of evidence that the Missouri river, since the United States survey of 1852 in Iowa, has made many changes in the vicinity of this land; ‍‌​​‌‌​‌‌​​‌‌‌​‌​​​​‌‌‌‌‌‌‌‌‌‌​​‌​​‌​​​​​‌‌​​‌‌​‌‍that the original government lines and corners were obliterated; that a perfect jungle existed in many parts of this great body of land now located between the Soldier river in Iowa and the present Missouri river; that squatters have roved over it from point to point sojourning for a time and removing to some other part.”

In Coulthard v. Davis, 101 Ia. 625, is a discussion touching the Missouri river and where it ran. It is said in the opinion: “The evidence in this case quite satisfactorily shows, that in 1856, when the land adjoining the Missouri river in Iowа was surveyed by the general government, the main channel of said river was a mile and a quarter, or more, east of its present location. Since said time there has been аdded to the Iowa side the tract of land in controversy, as well as other land, embracing in all several hundred acres. Whether this land has been added in such a way as to be accretion, or whether it has been added by a sudden and entire change in the river, detaching this body of land from the west bank of the river, and attaching it to what was formerly the east bank of the river, in such a way as that it is capable of identification, is the question we are called upon to determine.”' There is then a discussion of the condition of the land,, from whiсh the court concludes that it was not added by-accretion; that the soil was too rich; that it had cottonwood trees upon it from 15 inches to 2 feet in diameter;, and that thesе trees would not have been produced within the time elapsing if the land had been added by accretion. The conclusion of the court therefore was that the judgment of the court below should be affirmed. All the evidence tends to show an avulsion by which the Missouri, river left its old channel and came over into Nebraska. *612leaving land on the east side includеd in the survey of the government when the Nebraska survey was made.

The evidence as to adverse possession of the 160 acres by defendant is not as certain as we could wish. It is of such a character that we cannot say that the finding and judgment of the district court are wrong. The judgment is therefore

Affirmed.