Miller v. Lloyd

275 Mo. 35 | Mo. | 1918

BLAIR, J.

This is a suit to quiet title. [Sec- 2535, R. S. 1909.] The dispute arises over accretions, and the attached plat presents the situation.

It is admitted, subject to an objection to certain patents, that certain of the respondents own those portions of sections 30 and 31 which fronted on the old river bank as shown by the plat. It is also admitted that appellant Bufton owns those parts of sections 1 and 36, as shown by the plat, which fronted on the old river bank. That bank formerly extended from X through T, A, B and F to Z. The new river front extends from X through D, O and E to Z. The accretions lie within these lines.

Entries. I. The suit was begun in 1912. On the trial patents issued in 1913 and 1914 were offered. These patents cover the larger part of the lands claimed by respondents. We understand it to be admitted that the patentees are persons whose title respondents have acquired by mesne conveyances. The point made by appellants is that title had not emanated from the Government until the patents issued; that these did not issue until after suit brought; therefore, that the suit cannot be maintained. The patents are not in the record. Their recitals are binding on the Government and patentee. They may have shown the patents were issued on entries properly made and prior to the institution of the suit. In aid of the judgment, the patents being before the trial court and not before us, we so assume. Such entry vests the equitable title in the entryman and such title is sufficient to support a suit under Section 2535.

n°Cre w?ns ofV<Creek.Ut II. Formerly, Big Shoal Creek flowed into the river at the point marked “Y” on the plat. The evidence tends to show that in seasons of high water accretions would form along the old river bank, near and in front of the mouth of this creek and that the creek itself would be filled with silt for some distance back of the mouth; that as the high waters receded the creek would force its way through these accumulations; sometimes iu a short time and sometimes several weeks or months after the waters of the river receded; that the deposits were made from the river bank outward, in the creek and on both sides of it. The trial court found these to be the true facts. There was also evidence that the creek was always a running stream, except when and to the extent high water covered it; that at times it was almost inconsiderable in width and depth near the mouth, but that there was always a stream of some kind flowing into the river except as just stated. Appellants’ theory is that this stream at all times separated the accretions in dispute from the land of respondents, and they invoke the doctrine that accretions are not saltatory, i. e., that they could not leap the creek.- DeLassus v. Faherty, 164 Mo. 1. c. 372, et seq. is relied upon. If appellants’ theory of the facts is accepted that case supports the conclusion they draw. The same decision (1. e. 373, 374) justifies the judgment rendered if the facts are as the trial court found them. If the accretions formed upon the old river bank and extended across in front of the mouth of Shoal Creek they became at once a part of the land reaching the bank at that point. The subsequent cuttiiig of a channel through the accretions formed would not affect the title thereto. This is held in DeLassus v. Faherty, and is sound law. In that case, as in this, any other judgment than that rendered would deprive respondents of all their river frontage. The judgment rendered gives them frontage and accretions proportioned to their original frontage prior to the formation of the accretions. This is in accord with well recognized principles. A judgment for appellants would extend their property “longitudinally down the river and between” respondents’ land and the river. This does not appeal to the equities of the situation. The case was tried and is argued here as one at law. There is undoubtedly substantial evidence to support the finding of the trial court. If it be said the character of respondents’ title transforms this into a suit in equity, we think proper deference to the finding of the chancellor requires us to say his finding must be upheld. This, because the evidence on the disputed question is well balanced and he was in better position to resolve the conflict.

instruction III. Complaint is made of the refusal of an instruction. Though the ease be treated as one at law ^is assignment must be overruled. Instructions given sufficiently covered the question involved. Affirmed.

All concur.