131 Neb. 767 | Neb. | 1936
For cause of action plaintiff alleges in his petition that he is the owner of section 22, township 3, range 17, in Richardson county, Nebraska, and all of the accretions extending east from this real estate to the west bank of the Missouri river, and that the defendants claim some interest therein adverse to,the plaintiff’s ownership.
Plaintiff asks that this claim of the defendants be declared null and vpid and plaintiff’s title quieted against the same.. , , . .
There were several answers of different defendants, but
From a decree quieting title in all the disputed land in the plaintiff, the defendants have appealed.
Thus, the issue is whether or not the land east of section 22 was formed by the Missouri river by accretion by a gradual receding to the east of this river, or whether there was a sudden change in the river’s channel that was an avulsion. If the land east of section 22 was formed by accretion, the judgment of the trial court is correct. If there was an avulsion of the Missouri river, it is not. However, there is a question, as to evidence, that will be considered later.
The determination of this appeal and the rights of the parties are in the main questions of fact. The law is clear and well settled in this state on the question of law involved in this action.
1 C. J. 730, defines accretion as: “A gradual increase of land by imperceptible degrees; the gradual and imperceptible accumulation of land; the imperceptible accumulation of land by natural causes; the increase or growth of property by external accessions, as by alluvium naturally added to land situated on the bank of a river or on the seashore; the increase of real estate by the addition of portions of
An avulsion has been defined in 6 C. J. 876: “The sudden and rapid change of the channel of the stream which is the boundary, whereby • it abandons its-, old and seeks a new bed.” See Nebraska v. Iowa, 143 U. S. 359; Bouvier v. Stricklett, 40 Neb. 792, 59 N. W. 550.
The results of the two processes are quite different. In accretion the riparian owner’s boundary still remains the stream, While in avulsion where a new bed is suddenly formed there is no change of the boundary. • „•
The case of Nebraska v. Iowa, supra, states' the law in this regard applicable to this case.- The third paragraph of' the syllabus in 36 L. Ed. 186, is: “Where -the boundaries between states or nations are,- by prescription or treaty, found in running water, accretion, no matter to which side it adds ground, leaves the boundary still the center' of the channel. Avulsion has no effect on boundary, ■ but leaves it in the center of the old channel.”
A careful study of the record discloses that there was an ice gorge in the Missouri river in' 1915 north of said section 22' near section 10- of the ■ same township. So far there is no dispute; but as to what happened to the channel of the Missouri river at the' time of this ice gorge in 1915 at section 10, there is much dispute and variance between the testimony of the witnesses.
It' seems clear that at one time the Missouri river flowed from the north from near section 10' to the south, with its channel near the center of section 22, and that at the time of the trial the river flowed east from section 10 and south and a considerable distance east of the old channel in section 22.
Some of appellants’ witnesses stated that the east bank of the old channel'was visible at the'time of-the trial, and that at the time of the ice gorge the channel of the Missouri
But the evidence is by no means clear that this high water chute was the original channel of the Missouri river near the time of the ice gorge in 1915, nor that the channel of the Missouri river, at or near that time, suddenly changed to the east.
Plaintiff had many apparently reliable witnesses, who had lived in that community near sections 10 and 22 for many years, who testified that the Missouri river after the ice gorge went back to its original channel and continued to run by section 22 as it had before the ice gorge, and that since the ice gorge the river slowly and gradually moved to the east, leaving the land adjoining section 22 on the east, which land is now in dispute. None of these witnesses are impeached and their testimony seems to stand under cross-examination. Even some of the appellants’ witnesses stated that the river after the ice gorge gradually moved to the east. From our study of the entire record, we believe the trial court was right in holding that the land in dispute was accreted land of' the Missouri river. The trial court had all the witnesses before it and could better know and determine the truth and as to whether or not any of the witnesses was mistaken. We can see no useful purpose in further reviewing or setting out the evidence in this opinion.
Complaint is made by the appellants that the trial court would not permit them to show the size of certain trees on Clark island. The place where these trees were situated was some distance northeast of the land in controversy. This evidence was immaterial and there was no prejudicial error in its exclusion.
Although none of the defendants claimed title to any of the land in controversy, and were mere squatters, still the burden of proof, was on the plaintiff to prove by a preponderance of the evidence all the material allegations of his petition. We think he has so established his case.
We find no error in the record, and the judgment of the district court is
Affirmed.