171 F. 39 | 8th Cir. | 1909
This cause presents the question whether Hunter M. Meriwether or the state of Kansas is entitled to certain money resulting from the condemnation for public use of a certain tract of land in Wyandotte county, Kan., by a railroad company. Whether the one or the other is entitled to it depends upon which of them was the owner of the land at the time of the condemnation. This land is situated near the fork of the Missouri and Kansas rivers, and is conceded to have been a part of a tract originally in 1857 patented to one Armstrong, from whom by mesne conveyances Meriwether deraigns title.
After issue was joined, this cause, which was in the nature of a hill of interpleader, was referred to a special master to take the evidence and report the facts and conclusions of law for the consideration of the court. In due time the master made his report, disclosing that many witnesses had testified in the case and that records of weather bureau, reports of river commissions, plats, patents, maps, deeds, and other documentary evidence had been given in evidence and considered by
The master’s findings of fact show that in 1857, when the land was patented to Armstrong, the southern bank of the Missouri river formed the northern boundary of the patented tract, and that the land now in controversy came to within a distance of from 300 to 600 feet from the river bank as it then was; that afterwards the Missouri river encroached upon the southern bank, overran and carried away the surface of the patented land so far southwardly as to involve the land in dispute; that steps were taken to avert its progress by riprapping the bank, which proved fairly efficacious, but that the channel of the river had before then been so diverted southwardly that it came close up to the riprap bank; that the channel continued to flow there, covering the lower strata of the land in controversy from about 1869 to 1887, when it began to recede and a sand-bar accretion began to appear; that the channel, which for years had been navigable along and close to the riprap bank, ceased to be there navigable, and soon thereafter the commercial and navigable channel had receded towards its original location northwardly several hundred feet away from the land in controversy; that as this channel receded the sand bar increased, and firm land again appeared where before there had been water covering the channel and bed of the river.
It is claimed that the special master found that the land in controversy was formed by accretion in the full legal significance of that word, and that therefore the findings support the decree, but a careful scrutiny of the findings fails to convince us that any such distinct finding was made. It is true the master says:
“The defendant and cross-petitioner Hunter M. Meriwether is the fee owner by a direct line of conveyances from Silas Armstrong, patentee from the United States, for the land bordering on the south hank of the Missouri river between the land of Jane W. Stark mentioned in the preceding finding and the state line, with all accretions thereto.”
The italicized words do not in our opinion amount to a finding that the lands in controversy were formed by accretion. The finding at best states a conclusion resulting from prior findings, and fails to show that
There is also a finding that an island had formed in the river on the Missouri side of the state line which became submerged at high water, and that the land in controversy now lies on the southern and descend - irig slope of the sand formation on the west and southern side of that island. It appears to us that all the questions which are thus only vaguely referred to in the findings relating to title by accretion, whether on the island or mainland, are inextricably interwoven with the greater question whether the land was originally carried away by avulsion or by erosion; and as to this there is no finding whatsoever.
The land, as already said, originally belonged to Meriwether’s grantor, and if the state ever acquired title it was because the land had for 20 years or more constituted the bed of the river, which, being navigable, under well-recognized law belonged to the state. If the river by reason of a flood or other sudden inundation violently cut a new channel through and thereby submerged the land so as to make it for a time only the bed of the river, that fact did not operate to divest Meriwether’s title and invest the same in the state. If, on the other hand, the river encroached upon the land by the gradual and imperceptible process of erosion only, the title of the state followed wherever the bed of the river went. For a statement of this doctrine and a résumé of cases concerning it, reference may be made to the kindred case of Fowler v. Wood, 73 Kan. 511, 85 Pac. 763, 6 L. R. A. (N. S.) 162, 117 Am. St. Rep. 534. Whether, therefore, the occupation of the land by the river was brought about one way or the other became a vital, if not decisive, issue of fact in this case. The findings of fact are silent on this important issue, and on other questions they are not specific enough to enable us to- properly hear and dispose of the case.
A motion by the appellee Meriwether to dismiss the appeal because the transcript of the record is defective in these particulars first requires consideration.
The statute (section 698, Rev. St. [U. S. Comp. St. 1901, p. 568]), provides that:
“Upon the appeal of any canse in equity, * * * a transcript of the record. as directed by law to be made, and copies of the proofs, and of such entries and papers on file as may be necessary on hearing -of the appeal, shall be transferred to the Supreme Court.”
This statute by provisions of the act establishing Circuit Courts of Appeal (Act March 3, 1891, c. 517, 26 Stat. 826 [U. S. Comp. St. 1901, p. 488]), is made applicable to appeals taken to this court.
Rule 14 of this court (150 Fed. xxviii; 79 C. C. A. xxviii), in recognition of the statutory obligation just referred to, provides:
“No ease will be heard until a complete record, containing in itself, and not, by reference, all the papers, exhibits, depositions and other proceedings, which are necessary to the hearing in this court, shall be filed.”
This statute and rule afford ample latitude for the parties to eliminate such part of the proceedings as may not be necessary for the proper presentation of the cause in the appellate court; but as the filing of a transcript of such parts of the record “as may be necessary on hearing of the appeal” is a jurisdictional necessity (Hill v. Railroad
In Railroad Company v. Schutte, 100 U. S. 644, 25 L. Ed. 605, there was a motion to dismiss the appeal because of a defective record. The court there said:
“It is now alleged that many important papers and documents used on the hearing below, and necessary for the proper determination of the cause here, have been omitted from the transcript as filed. While we desire to encourage in every proper way all attempts made in good faith to exclude immaterial matter from the transcripts brought here on appeals or writs of error, it will not do to permit the appellant or the plaintiff in error to make, up a record to suit himself, without any regard to the wishes of his opponents or the rules and practice of the court. We therefore order that the appellees file with the clerk of this court and with the counsel for the appellant, on or before the .1st day of February next, a statement of the papers, documents, and proofs used on the hearing below, and omitted in the transcript now on file, which they deem necessary for the proper presentation of the cause; and that unless the appellant shall, on or before the 15th day of March, file in this court as 'part of the record copies of such papers, duly certified by the clerk of the Circuit Court or his deputy, under the seal of the court, this appeal be dismissed. If in this way unnecessary papers are brought up, we will, ou application, make such order in respect to costs as may under the circumstances he proper.”
The same practice, denominated by Judge Lurton as a less rigorous . rule, is followed by the Circuit Court of Appeals for the Sixth Circuit in Cunningham v. German Ins. Bank, 43 C. C. A. 377, 103 Fed. 932.
We find in the appellees’ brief the following:
“Meriwether not only claimed by the most specific assertions that the property in question was an accretion to the land which he owned on the shore, but that it was a part of the same land. He was entitled to, and did show, by the most indisputable evidence that he owned the land by a record title; that it was washed away by a rapid process of avulsion, and that it was reformed by natural accretions to the original shore. All of these propositions were not only set forth in most indisputable claims, but were established beyond all question by the evidence introduced.”
Rather than to sustain appellees’ motion to dismiss this appeal, we have concluded to adopt the more conservative practice approved in Railroad Company v. Schutte. An order will accordingly be made that the appellees on or before the 1st day of July, 1909, file in this court a written specification of the papers, documents, and proof used on the hearing below and omitted from the transcript now on file which they deem necessary for the proper presentation of the cause to this court, and deliver a copy thereof to counsel for the appellant; and that unless the appellant shall on or before the 1st day of September, 1909, file in this court as part of the record, copies of such papers, documents or proof duly certified by the clerk of that court or his deputy under the seal of that court, this appeal will be dismissed.