No. 31135 | Neb. | Jul 29, 1941
This action is brought by the plaintiff, appellee, against the defendant, appellant, to quiet title to lands in Dixon county, Nebraska. Defendant filed cross-petition to quiet title to the accretions to such land. The plaintiff also asked that defendant, and others, be enjoined from selling or offering to sell the land in question. The district court found in favor of the plaintiff; and against the defendant on its cross-petition, and the defendant appeals.
Under authority of chapter 72, art. 2, Comp. St. 1929,
Two assignments of this contract were made: The first from Bottorff to John Mulhall on February 10, 1920, and the second from John Mulhall to his son, Warren Mulhall (the plaintiff), on April 17, 1923. Both assignments were properly recorded in the office of the land commissioner. Both assignments described the land as above with the addition of the words “and the accretion thereto.”
The events between the immediate parties prior to March 28, 1938, are immaterial to a decision, but on that day the commissioner of public lands and buildings mailed to the plaintiff a letter stating that the time limit for the payment of the purchase price on the foregoing sale contract had expired and that, “unless the balance of this contract is paid in the near future or proper arrangements made for an extension of time, the land covered by this contract will be advertised and offered for sale.” Further correspondence shows that he owed delinquent interest for two years. The plaintiff asked for an extension of time, and hearing before the board on his application was set for May 9, 1938. On that day the board met and by unanimous action canceled plaintiff’s contract, but this action of the board on a hearing on May 23, 1938, and June 9, 1938, was set aside, it being shown that plaintiff had arranged for a continuance of the first hearing before May 9 because of the inability of his counsel then to be present, and
The plaintiff contends that the board of educational lands and funds, when presented with full payment of principal and interest, was bound to issue a deed in conformity with the sales certificate, and had no power to add restrictions or reservations, first, because the sale certificate controlled by its description the extent of property, with whatever legal implications the wording might bear, which the state had agreed to sell and the purchaser had agreed to buy; and, second, that such board is a creature of law and has no power to dispose of educational lands other than in the manner set forth in the statute; that since the statute, under which it operates, does not authorize the board to sell less than a fee, it has no power to exclude accretions
When the sale contract with Bottorff was made in 1914 the Missouri river was probably a city block to the east of the east line of the forty. The original United States survey placed the river partly along the east side of the quarter, and as late as 1886 the river had moved westward through the forty and later only a few feet east from the line on the south and about two-thirds of a block on the north. The original survey showed the tract to contain 48.80 acres — that portion of the southeast quarter of the southwest quarter and the southwest quarter of the southeast quarter of section 16 which the river had left unplowed —and was known as lot five, when conveyed by the United States of America to the state of Nebraska. From a point directly east of the tract in question to a point directly north, the river turns and describes a wide arc. The line thus made, in determining accretions, is proportionately
When in 1914 Bottorff became the buyer, such a small area of accretion land, five to eight acres in all, adjoined the quarter • that, had it so remained, no question would probably have arisen; but since then the river has gradually moved eastward so that now to the northeast — -the direction to which accretions in this instance are measured —about 78 acres of new land has formed. The main contest is for this additional land.
Testimony as to what quantity of land the original buyer thought he was receiving and that the then board estimated the land’s value at $25 an acre is not impressive nor controlling. The small quantity of accretions then existing' a width along the forty of only about 20 rods, barely enough for comfort from the ravages of the Big Muddy — would hardly be considered, or, if considered, would be included in the clause “more or less.” Furthermore, such testimony was inadmissible, under all the circumstances. What was intended to be conveyed must be determined from the instrument. Carr v. Miller, 105 Neb. 623" court="Neb." date_filed="1921-02-02" href="https://app.midpage.ai/document/carr-v-miller-8032231?utm_source=webapp" opinion_id="8032231">105 Neb. 623, 181 N. W. 557; Eiseley v. Spooner, 23 Neb. 470" court="Neb." date_filed="1888-01-15" href="https://app.midpage.ai/document/eiseley-v-spooner-6645537?utm_source=webapp" opinion_id="6645537">23 Neb. 470, 36 N. W. 659; 18 C. J. 277 et seq. In any event, the description in the contract controls and carries with it whatever accretions had then formed. De Long v. Olsen, 63 Neb. 327" court="Neb." date_filed="1901-12-18" href="https://app.midpage.ai/document/de-long-v-olsen-6654125?utm_source=webapp" opinion_id="6654125">63 Neb. 327, 88 N. W. 512. Accretions attach in the same manner as fixtures and growing trees, require no special description, and must be expressly excepted or reserved to avoid a transfer. See generally 45 C. J. 571; Note, 58 L. R. A. 199; Stern v. Fountain, 112 Iowa 96" court="Iowa" date_filed="1900-10-09" href="https://app.midpage.ai/document/stern-v-fountain-7109234?utm_source=webapp" opinion_id="7109234">112 Ia. 96, 83 N. W. 826; Haynie v. May, 217 Iowa 1233" court="Iowa" date_filed="1934-02-06" href="https://app.midpage.ai/document/haynie-v-may-3436450?utm_source=webapp" opinion_id="3436450">217 Ia. 1233, 252 N. W. 749; Jefferis v. East Omaha Land Co., 134 U.S. 178" court="SCOTUS" date_filed="1890-03-10" href="https://app.midpage.ai/document/jefferis-v-east-omaha-land-co-92718?utm_source=webapp" opinion_id="92718">134 U. S. 178, 10 S. Ct. 518; Topping v. Cohn, 71 Neb. 559" court="Neb." date_filed="1904-04-07" href="https://app.midpage.ai/document/topping-v-cohn-6655769?utm_source=webapp" opinion_id="6655769">71 Neb. 559, 99 N. W. 372. Stavanau v. Gray, 143 Minn. 1" court="Minn." date_filed="1919-06-06" href="https://app.midpage.ai/document/stavanau-v-gray-7979373?utm_source=webapp" opinion_id="7979373">143 Minn. 1, 172 N. W. 885, cited by defendant, is a description by metes and bounds, and yet is contrary to the weight of authority. Shepard’s Citations show it cited but once on the subject under discussion and then discredited. Haynie v. May, supra. The
It seems established by the evidence that, when the state of Nebraska acquired the land under discussion, the tract was then located on the river and thus the title to the accretion at the time of sale to Bottorff would pass to him and later to his successors. Topping v. Cohn, 71 Neb. 559" court="Neb." date_filed="1904-04-07" href="https://app.midpage.ai/document/topping-v-cohn-6655769?utm_source=webapp" opinion_id="6655769">71 Neb. 559, 99 N. W. 372; Jefferis v. East Omaha Land Co., supra. “Every conveyance of real estate shall pass all the interest of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used.” Comp. St. 1929, sec. 76-106. See Carr v. Miller, 105 Neb. 623" court="Neb." date_filed="1921-02-02" href="https://app.midpage.ai/document/carr-v-miller-8032231?utm_source=webapp" opinion_id="8032231">105 Neb. 623, 181 N. W. 557. The rights of the state in conveying such land are measured by the same law as that of a private individual. Bigelow v. Herrink, 200 Ia. 830, 205 N. W. 531; 9 C. J. 181.
Having reached the foregoing conclusion, it follows that the trial court’s decree is in all respects correct, and it is therefore
Affirmed.