Lammers v. Nissen

4 Neb. 245 | Neb. | 1876

Gantt, J.

The plaintiff in this case claims the land in controversy, as accretions formed on the bank of the river, by which he alleges his land was hounded. The first question suggested to the mind by the issues raised between the parties is: What is an accretion to land? It seems to be a settled doctrine at common law, that an accretion to land is the imperceptible increase thereto on the bank of a river by alluvial formations, occasioned by the washing up of the sand or earth, or by direliction as when the river shrinks back below the usual water mark; and when it is by addition, “ it should be so gradual that no one can judge how much is added each moment of time.” And when the formation of land is thus imperceptibly made on the shore of a stream, by the force of the water, “ it belongs to the owner of the land immediately behind it, in accordance with the maxim, de minimis non curat lex." It is said that “ no other rule can be applied on just principles,” for the reason that “ every proprietor whose land is thus bounded, is subject to loss by the same means which may add to his territory, and as he is without remedy, for his loss in this way, he cannot be beld accountable for his gain.” ' In Granger v. Swartz, 1 Woolworth, C. C. R., 91, it is held that, if when the entry of public land is made, the banks of the river, at any ordinary stage of water, was in fact where the meander line was represented by the survey, and land has since' been formed by accretion, it will become the land of the person who has title to the land immediately behind it. New Orleans v. United States, 10 Peters, 717.

Again, another inquiry involved in the consideration of the case is as to what is' the effect which a meandered line, purporting to have been run along the bank of a stream, may have in regard to laird at the time lying between it and the bank of the stream, and remaining unsurveyed. And in respect to this inquiry, I think it sufficient to observe that as to public lands of the United States, conceding' the rule to be well settled that a meandered line bordering on the bank of a stream, is not to be considered as the boundary of the tract, but simply as defining the sinuosities of the banks of the stream, and as a means of ascertaining ■ the quantity of the land in the fraction subject to sale, yet the question whether such line does in fact define the sinuosities of the bank of the stream or not, is one which may be determined by evidence aliunde. The mere fact that it is run and is designated upon the plats as a meandered line, certainly cannot be conclusive in the matter. To establish the doctrine that such meander line is conclusive, would estop the-government from disposing of lands left unsurveyed between such line and the bank of the stream; it would prevent the correction of mistakes made by surveyors in such case, and would be in direct conflict with the well settled rule of law defining what is an accretion to land. In Granger v. Swartz, supra, the principle is enunciated that if between the meander line, by which the government survey was made, and the bank of the river, there is, at the time, a body of swamp or waste lands, or flats, on which timber and grass grew, and horses and cattle fed, then the patents for the lands surveyed would not cover this land, but must be confined to the actual limits of the meander line, and include no more.

The remaining question is one of fact, in the consideration of which the law as stated in respect to accretions and meandered lines must apply. It is this: Has the land in controversy been formed by gradual alluvial formations on the bank of the river, since the original survey of the meander line was made in November, 1858? All the proof taken in respect to the nature and character of this land, at the time the original survey was made, and since that time, is found in the testimony of five witnesses examined on the part of the plaintiff and twelve on the part of the defendants.- There is some conflict in the testimony of some of these witnesses; it, however, appears very clear that the weight of the evidence establishes the fact that the land in controversy was not formed by accretions since the original survey was made. One witness, examined on the part of plaintiff, says that in 1857-1858, this land was covered with vegetation and a growth of very young trees; and P. Clark, whose deposition was taken on the part of defendants, says that he resided in the county in which the land is situate, from 1858 till 1865; that he was present when a portion of the original line was run, beiug interested at the time in relation to a claim which was bounded by the meandered line; that at this time he estimated there were from eight hundred to one thousand acres of .land between this line and the bank of the river, of a similar character to that inside the meander line, and covered with a growth of cottonwood and willows, and that there were cottonwood trees from six to eight inches in diameter; he also says that, at the time, he called the attention of the surveyor to these facts, who replied that he supposed that the slough (on the west side of which he was running the line), was a portion of the river as it had some water in it, but that it made no difference, as the land lying outside the meandered line would go to the state as swamp lands. The testimony of this witness is corroborated by that of ten others. The slough mentioned by the witness extended only a part of the distance along the meandered line.

Upon a close examination of the evidence, we think it clearly establishes the fact, that at the time the meandered line was made in 1858, the nature and character of the land, on both the west and east side of that line, in respect to both soil and topography, were similar, except that some portions on the east side were somewhat lower than on the west side; that at least a very considerable portion of that part now in controversy was covered with vegetation and a growth of cottonwood and willow timber, and that its surface was above the ordinary stage of water in the river.

We are of opinion, that upon both the law and the facts of the case, the finding and decree of the court below are right, and should be affirmed.

Decree aeeirmed.

Chief Justice Lake, concurred. Maxwell, J., did not sit.