| Mo. | Nov 26, 1894
Plaintiff sued the original defendants in ejectment, December 20, 1890, to recover possession of a piece of land in Holt county.
The petition follows the statutory form (R. S. 1889, sec. 4631); but proceeds further to show the nature of plaintiff’s claim to possession. It alleges that plaintiff owns a tract of land adjoining that in controversy. It particularly describes both tracts, and charges that plaintiff’s claim to possession of the latter tract is based on the fact that it is an accretion to the former, which originally abutted upon the Missouri river.
The defendants answered by a general denial.
The cause was tried before Judge Anthony with the aid of a jury.
Plaintiff is the owner of land near the Missouri river in Holt county. The tract fronted on the shore for a considerable distance at the time the title passed from the United States government, by patent in 1849. The official survey, on which the entry of the first purchaser was based, represented the river as bounding the land on the west. So it then did, according to all accounts. The river pursued a semicircular course at that point, the effect of which was to give the river line the general shape of a crescent, with the points turned westward. The main land now owned by plaintiff was then near the center of that particular bend or inlet of the stream.
The land of the defendant, Mr. Hinekle, was further north, near the top of the bend.
Since the original survey and settlement of the several tracts now owned by plaintiff and Mr. Hinekle respectively, a large formation of land has taken place in front of them. The old river bend is now completely filled with land, comprising a tract of several hundred acres, extending from the old river line westward to the present bank, more than a mile distant.
The river now follows (or, rather, did follow at the last reports in this record) an irregular, but somewhat semicircular course. The outer side.of the curve was, at last accounts, toward the Kansas side.
The territory involved in this case may be generally described as a strip fronting for some sixteen hundred fee ton the river, and running thence a little northeast to the undisputed Minton estate on the old river bank. The strip is located near the center of a larger tract, all of which is said to have been formed by alluvial deposits in the old river bend.
At the outset of the case, Mr. Steele, a tenant of Mr. Hinckle, was also a defendant; but as he moved away pending the proceedings, the cause was dismissed as to him in the circuit court.
The defendant offered evidence tending to negative plaintiff’s case at several points, and also intended to support a claim for the same property as an accretion upon the defendant’s estate, which lay near the head of the original bend. •
Under instructions to be again mentioned, the jury found for plaintiff for the strip of land sued for, and for damages and monthly rents. The latter items of the verdict were, however, remitted by the plaintiff, leaving the recovery and judgment standing for possession of the property only, and for costs.
From that judgment defendant appealed, after following the usual course to obtain a review.
The defendant’s counsel have advanced several assignments of error.
1. It is first urged that plaintiff should have been forced to a nonsuit by the instruction, which defendant asked, declaring that plaintiff had failed to make out a case. This contention is founded on the idea that the evidence shows that the new- river bank at the place in question, was not formed by gradual accretion.
It is claimed by defendant that a great part of the tract in suit consists of a large sand bar or island in the river, formed while one channel yet ran in front of plaintiff’s land and separated it from the island or bar; and that afterward, when the channel filled and was replaced by solid ground, the river shifted to the western channel, suddenly.
Where there is substantial evidence to support the plaintiff’s case, the questions of its credibility and weight are for the trial jury and court, in an action of ejectment, such as that now in hand.
2. Defendant complains of the second instruction given for plaintiff, in which, among other things, it is said that if a large part of plaintiff’s original tract on the river bank, as described on the government survey, was first cut away toward the east, and if the jury find “that lands were made back to and against said lands where such other lands- were washed away, then, although a slough may remain against the bank of said river where the washing away of said land ceased, still the plaintiff would be entitled to all his old original lines and corners; and if accretions were by said riveformed against said old lines, after the same were so made back to his said land, then the plaintiff would be entitled to all said accretions, the same as though the original lines of his said lands had never been washed away or changed by said river,” etc.
None of the evidence tended to show that plaintiff’s whole estate on the river bank had been washed away by the movement of the river eastward. Only part of his land was thus swallowed up. Plaintiff still remained proprietor of a large tract on the bank. So that when, afterward, the river receded, and in course
Whether that claim should properly rest upon the force of the original title, or be referred to the general law of accretion, we are not required to investigate. Under other instructions the jury found as a fact that the accretions in the old bend did not begin at the defendant’s land on the north, and extend in a southeasterly course until opposite plaintiff’s property on the main land.
Other instructions presented squarely the issue whether the accretion in suit was formed upon, and extended from, the land of plaintiff or from that of defendant; and on that issue the jury found - for the plaintiff.
There was evidence to support that finding, and we discover no error prejudicial to defendant in the language of the second instruction, above quoted, as applied to the case before the court.
3. Defendant also complains of the refusal of the second request for an instruction, which was this:
“2. If the jury believe from the evidence that, at the time of the change of the channel of the Missouri river from the land claimed by plaintiff, there was a slough left or formed, running between plaintiff’s said lands claimed by him, and the lands occupied by the defendants, and that there is now no water in the same, except surface water running therein or back waters from the Missouri river at the time of high water, and that said slough was not filled up by accretions on*192 either side but has been filled up from the bottom in whole or in part by deposits therein made by the flow of the surface water and back water from the Missouri river, then the plaintiff can not recover and the jury in that case should find for the defendants.”
The only idea embodied in this instruction, not otherwise given to the jury, is that plaintiff could not recover if the slough, which at one time existed on plaintiff’s land, was filled up from the bottom by deposits, caused by the action of surface water and “backwater” from the Missouri river.
We think that idea does not embody a sound legal conception.
If the slough was gradually filled up with alluvial deposits, the fact that they did not first make land on the sides of the slough is unimportant. If the deposits ultimately reached the surface and blended with the adjacent land of the plaintiff by the action or recession of the waters, the accretion so formed became part of the plaintiff’s domain.
The instruction certainly does not offer to submit the issue whether or not the plaintiff, as owner of the river bank, could acquire title by accretion to any sand bar or island, separated from the east bank by any portion of the river.
No question was raised at the trial as to the rights of anyone in possession of any such island or bar, as against the owners of land on the original river shore. Each party to the action claimed the disputed ground as an accretion to his own property on the shore, and the jury* under instructions, asked by defendants as well as by the plaintiff, found that the accretion in dispute had formed upon the plaintiff’s shore, and not upon the defendant’s.
The second refused instruction merely presented the question as to the mode of the formation of the
4. It is further claimed by the defendant that plaintiff was not entitled to recover the strip of land sued for, because, at most, he and defendant were equitably interested in the whole accretion formed in the old bend of the river, and should have shared therein ratably.
Under the evidence, instruction, and the judgment, plaintiff recovered possession of a long strip reaching from his old estate on the original main shore, to the present bank of the river. He stated a claim to that particular piece, and the basis of his claim, with great particularity in his petition.
Defendant denied totally plaintiff’s right to possession.
If, as defendant now intimates, plaintiff and defendant were entitled to share in common the ownership of any part of the disputed accretion, defendant should have raised that question in some way in the trial court. He did not do so.
Even if plaintiff was entitled to possession only as tenant in common he might maintain ejectment under the law of this state. (E. S. 1889, sec. 4634.)
And the denial of the plaintiff’s right to the possession by the answer, and the persistent opposition of defendant before suit and at all times in the circuit court, to any recognition or acknowledgment of a right in plaintiff to possession of the land, would tend to show an ouster of plaintiff as cotenant, if he was such. Falconer v. Roberts (1886), 88 Mo. 574" court="Mo." date_filed="1886-04-15" href="https://app.midpage.ai/document/falconer-v-roberts-8008658?utm_source=webapp" opinion_id="8008658">88 Mo. 574.
Had the question of a common interest been, raised in the trial court, we might review the circuit rulings upon it. But it was not raised, so far as the record shows.
The defendant also insisted that the land in question was raised above the water by a sudden change of the stream, and hence could not be treated as an accretion at all.
The various lines of defense pursued at the trial can, perhaps, best be shortly indicated by the following instructions, which the court gave for defendant at the trial, viz.:
“1. The plaintiff in this case claims title to the lands charged to be in the possession of the defendants, by accretions formed to his said lands fronting on the former or old bank of the Missouri river,-that is, lands accreted or formed to his said lands by the washing or receding of the Missouri river. The court, therefore, instructs the jury that before they can find for the plaintiff they must believe from the evidence that the land occupied by the defendants was land ' made or accreted to said deeded land, claimed by plaintiff and not other or different lands, and, unless the jury so find, they will find for the defendants.
“2. The term ‘accretions,’ as used in the instructions on both sides in this case, means land gradually formed to the shore land by the washing of the Mis*195 souri river, and such made land is termed ‘alluvion’ or ‘accretions’ and becomes a part of, and belongs to the owner of, the land to which it is formed.
“3. if the jury believe from the evidence that the lands of which the defendants are in possession were formed or accreted by deposits caused by the washing or receding of the Missouri river, to other lands than those claimed by the plaintiff, then the plaintiff can not recover and the jury must return a verdict for the defendant.
“4. If the jury believe from the evidence that the Missouri river began to recede from defendant’s lands or other lands than those claimed by the plaintiff, and formed accretions thereto, and that the river gradually receded eastward, or in a southeasterly course, and gradually extended said made or accreted lands from said lands, in said direction, to or beyond the prolongation of the east line of the defendant’s said land, then the plaintiff can not recover, and the jury should find for the defendants.
“5. Before the plaintiff can recover in this case the jury must believe, from the evidence, that the lands possessed by the defendants are accretions to plaintiff’s land; that the Missouri river began to-recede from plaintiff’s land gradually and form accretions thereto, and that the river gradually receded in a westerly direction, and gradually extended said accretions from plaintiff’s said lands, in said direction, to and over the lands possessed by the defendants or some part thereof, and, unless the jury so find, they will find for the defendants, and in no case has the plaintiff any right to recover or claim any land beyond the line of his accretions.
“6. The court instructs the jury that the burden of proof is upon the plaintiff to establish his right to recover in this case by a preponderance of the testi*196 mony, and, unless the jury so find, your verdict must be for the defendants.”
Under these instructions the jury found, for plaintiff, with damages, etc. But to avoid some questions (which were supposed otherwise to arise on the record) the plaintiff, we repeat, remitted that part of the verdict which gave him damages, rents and profits.- The judgment then followed for the possession only, and costs.
According to the issue presented sharply by defendant’s fifth instruction, above quoted, as well as in other less distinct forms by other instructions, the jury must have found that the land in suit was an accretion upon plaintiff’s riparian property, and not upon that of the defendant.
Parties to a civil action are ordinarily held bound by the positions they take in the trial court.
If defendant intended to claim that in no event could plaintiff recover more than a moiety of the accretion, he should have put that proposition into some sort of form in the circuit court.
The suggestion now advanced that the plaintiff should, in no event, be allowed to recover more than a part, or undivided share of the property, comes too late. At best it amounts to this: that plaintiff, having a right to some interest or estate in the disputed land, has recovered a larger share than he is justly entitled to, under the facts. Such an objection, in the state of the record now exhibited, amounts to nothing more than that the verdict is excessive. That objection should have been made in the circuit court to be available here for review. Schmitz v. Railroad (1893), 119 Mo. 256" court="Mo." date_filed="1893-12-23" href="https://app.midpage.ai/document/schmitz-v-st-louis-iron-mountain--southern-railway-co-8011150?utm_source=webapp" opinion_id="8011150">119 Mo. 256.
Having discussed all of the defendant’s assignments of error that appear to call for remark, and finding