*1 Feldmann et al. v. Catherine Nothstine, Appellant, W. Elias (2d) 912. 8 W. S. July 3, One, 1928. Division *2 Soh'wper for appel- II. Irwin Jesse Wm. C. Booth, W. John lant. *3 respondents.
Ras Pearson for
*4
SEDDON,
appeal.
G. This
is
ac-
cause
here
a second
tion
originally
May 15,
commenced
in the Circuit Court
*5
of Franklin Counly,
changed
thereafter
to
and
the venue was
Circuit Court of Cole
a
County, where
trial of
action before the
latter court, sitting
plaintiff.
a jury,
judgment
as
in a
for
resulted
judgment
was reversed and the
court, the
nisi
to
appeal
Upon
County
a
Court of Cole
for
new
tlie Circuit
to
remanded
cause was
expressed in
conformity to the views
with in
proceeded
trial, to be
Feldmann,
court.
Two of this
[Northstine
Division
opinion of
an
The approximately to try and determine title to being one count bounds, and described metes land, specifically of 227.56 acres Range Township 26 and in Sections alleg’edto be situate being eject- in the second count County, Missouri, and in Franklin together damages land, with of the described possession for ment thereof, monthly and for withholding possession unlawful for the peti- action, trial of to the second profits. rents and Prior by adding thereto, two additional counts tion amended equity ascertaining, determining in seeking' third a decree count by survey northern of Franklin defining, otherwise, boundary tracts claimed County between the of land and also the by plaintiff defendants, respectively, and the fourth count seek- defining ing equity ascertaining precise a bound- decree by plaintiff specifically aries the land claimed described petition, adjudging plaintiff the first and second counts to bo possession same, the owner thereof and to be entitled to and to cause and durable monuments to be fixed suitable so as locate ’ permanently precise boundaries of tract of land in con- troversy. of, general
The answer of a defendants is allegations denial plea each count petition; jurisdiction a to the of the circuit courts Franklin counties, respectively, Cole predicated upon the claim of defendants that in controversy the land is now, and al- ways been, has situate in Warren County, and not Franklin Coun- ty, Missouri; an possession averment of adverse defendants of land ten, described for for more than twenty, years; and an ownership, by patents averment virtue of from the States United conveyances and mesne of record, of (al- certain described lands leged to be included in the plaintiff’s petition) lands described in situate in Warren County, reply Missouri. general is a denial of the averments of the answer. At the commencement trial, plaintiff requested the trial a, court, sitting as court of equity, try the cause the issues in equity presented by the third and fourth counts the amended petition, which request was refused the trial court. The cause
was thereupon tried jury upon the first second counts of the amended petition, with accordance the directions and views ex- pressed by Division Two of this court in Northstine v. Feldmann, supra (298 Mo. 365), resulting following verdict: “We,
506 find that all of of the defendants favor issues in jury, find the Mis- channel main north of the question were the lands in favor Judgment was 1875.” entered 30, souri on November River with said ver- plaintiff, in accordance against the defendants trial and in arrest of for a new motions dict, unsuccessful and after appeal an to this court. allowed judgment, plaintiff was controversy, of the lands Plaintiff’s claim of title to the patents, dated, two right thereof, possession is bottomed to April 1919, May 7, and issued respectively, 6, 1915, and County County, conveying plaintiff to lands of Franklin Court controversy thereto, island, bed, as or river lands accretions ap- pursuant provisions Assembly, act General to the of an of the proved April p. R. (Laws 1895, 207; 1919, 1895 S. secs. 7029- 8, on amendatory thereof, per for a consideration of 7032), $1.50 acts by plaintiff treasury County. acre, paid into of Franklin The are and heirs-at-law of defendants the descendants Heinrich Feld- mann, deceased, patents and claim title under from the United States during to McKinney, years Alexander 1837, issued conveyances McKinney from Alexander Heinrich mesne said Feldmann, acquired 1, who warranty deed, title March dated grantee McKinney, from a remote said Powell, for Albert a purрorted $14,341.75. patents, consideration of said The and the several conveyances, mesne which title, under defendants claim de- being scribe land controversy here in as situate Warren Coun- ty, Missouri.
The surveys along evidence herein discloses that the lands north and south banks of the Missouri River were under made authority of the United States year Government or about- the surveys and that only so to, made extended and terminated respective with, they banks of the river as then existed. result of surveys those that, Federal is when the seсtion lines of the surveys are extended across the channel the Missouri River as it existed in respective corners Township the sections in 45, Range 2, as the survey of the lines made in were Warren County, approximately are one-half mile east and one-half north mile of the respective corners according of the same sections to the lines of the survey County. as made in Consequently, Franklin lands situate County Warren uniformly have conveyed been described and ac- cording to the lines of survey the Federаl made on north side or bank River, Missouri whereas lands situate in Franklin County have uniformly been conveyed described according to the lines of the survey Federal made south or bank side said river. The testimony engineering witnesses educed on the trial was that, effect while the controversy lands in and claimed by the respective plaintiff parties, and defendants, differently are nevertheless, for parties, pleadings respective in the described concerned, is present action far as and so purposes, рractical all and identical the same descriptions include different the several ‘ controversy. land in for 1875, and year in the to show that tends evidence Plaintiff’s large there existed thereafter, thereto years -prior several *7 south of on the side width, situated land, about one mile body of for a distance of extending and west and east River, the Missouri Shelton’s called which was sometimes miles, approximately four taking Island, the commonly Boeuf known as also Island, and was had the Creek, a stream which its source frоm Boeuf latter name emptied County slough, and which into a Franklin hills and of bluffs River, point of, rel- Missouri at a south and arm of the or abandoned slough atively easterly of, end said island. on the The close to the separating body of that of land from the Island, south Boeuf side body County, approximately seventy-five Franklin to main of was generally wide, dry, except and of one hundred feet was times high of extremely water, when flood and some the waters of the through slough. Missouri 1883, River flowed the In which .the year big of flood, a the -waters of the through Missouri River broke upper slough the end of west or the narrow of the south side year Island, Boeuf which of the since some waters of the river have continuously through slough. years flowed the prior For to some the year 1883, the main of waters or channel the Missouri River cut across upper end, above head, slough the or of the and followed a course along Island, flowing, the west north sides Boeuf of and for con- period time, siderable of between the lands of Heinrich Feldmann, ancestor, defendants’ and Boeuf theory plain- Island. It is the tiff, plaintiff’s and tends show, that, period evidence for the twenty-five years between 1870 channel, and the main or channel of navigation, of gradually the Missouri River imperceptibly and widened from the south to the north for a approximately distance of one and miles, one-half and that erosive action the waters of the main channel of the river gradually, imperceptibly and in- sensibly away, cut and up swallowed into the voracious maw of the river, all of the lands of Feldmann, Heinrich except only a few acres (not thereof herein) involved contiguous high to the bluffs north, or County side, Warren river; of the the lands' of Heinrich away so Feldmann washed and up swallowed gradual and erosive action of the waters of the river were supplanted by the main channel of the river, north or left bank which main channel became extended to a of only distance 300 or 350 feet from the foot of County. bluffs Warren place deepest in the main channel of the Missouri River, according plaintiff’s evidence, was opposite village or town of Peers, a station on at the foot railroad, which lies Texas and Kansas Missouri, and one-half a mile approximately County, Warren bluffs in Plats Boeuf north side Island.. original miles north two engineers in the Government States by the United surveys made and by plaintiff, show in evidence put years 1879, respective years during those River Missouri of the main channel plats to evidence those tend Island, and north of Boeuf have been river from channel main of the gradual encroachment County during thе Warren northwardly bluffs of toward south tends to show Plaintiff’s evidence 1895. 1879 and period between River such channel the Missouri regularly plied
that steamboats also tends to show that evidence year 1895. Plaintiff’s until river north and channel bars formed and sand towheads vegetation took root Island; willows other west of Boeuf bars, and sand that alluvium was grew the towheads thereon, bars caught so that such towheads sand deposited enlarged, united, and gradually imperceptibly became formed gradually body controversy, land in which has еxtended eventually joined original ta the south and has become to the Boeuf *8 Island; year avulsion, 1895, change in the an that, or sudden through its River course, the cut a new Missouri channel the slough Island, widened, old south of Boeuf channel which has and channel, from main navigation, that became or of date the channel of the River, Missouri and which channel was about one wide mile present action; at the time of the trial the that, year after the .of 1895, the of waters the former main of river, channel of the north Boeuf Island, receded from the of County, foot the bluffs in Warren leaving slough, a to in depth some ten fifteen feet approximate- ly 100 yards, more, width, slough or which lies at the foot of the bluffs in County, Warren and which marks the north the course bed or main the channel of prior 1895, the river to year alleged the of the avulsion. 1913, In County the Court Franklin County, claiming lying the lands said between slough on the north original and the Boeuf Island on the south to ac- be creted lands and lands formed the recession and abandonment of the waters of the River, Missоuri caused Boeuf .Island to be re- surveyed, and the claimed river bed surveyed lands to be and sec- tionized, and caused a survey to be made to placed monuments be in an endeavor to mark establish the middle the main channel of the Missouri River as it supposedly existed immediately prior to alleged avulsion, or change in the course of the main river channel, year in 1895, pursuant to provisions require- n mentsof the act of the General Assembly, approved April on 8, 1895. p. 207; R. 1919, S. secs. Thereafter, 7029-7032.] [Laws_1895, lands in controversy plaintiff were sold to County Court of were issued thereto patents lands, County as river bed Franklin plaintiff’s constitute patents which County, by Franklin plaintiff to ownership. claim title and be and conceived they following what Defendants, understood in the expressed as of this court of Division Two directions Feldmann, of Northstine ease opinion division in the of that trial, second on the sought evidence show, by their Mo. as River of the Missouri channel of the main the middle location of taking date effect existed November the samе the middle State, present Constitution entirely lay that date River at main channel of the Missouri in con- the lands controversy, lands and between south of the II. Defendant H. Feld- troversy original Island. and the Boeuf a mann, Feldmann, considerable son of testified Heinrich away by portion was washed by his father of the lands owned that “it some in the bottom and left some River, Missouri but left away. didn’t just kept It and it all wash hills, ...
falling year more; year washed every every more -was gradually, it, away until it the rest quit, went to Boeuf until it left Island;” that, changed its course and. after the river went up south of Island, Boeuf of Heinrich Feldmann “filled land sides; up again, it it both both up; built formed from from filled sides.’’ respecting Defendants’ witness, Glosemeyer, testified “It action didn’t wash it all river the Feldmann lands: away; it land; up eighty washed on farm it until washed somewhere, T think, stopped altogether. until it ... It washed away and it years. came back in the course of As well as I re- member, it ninety-seven ninety-eight. either Feldmann had surveyed the land again, and old him man Feldmann built a house —I think in ninety-seven that was the south end of this land.” —on At the conclusion of evidence, plaintiff requested court peremptorily *9 jury instruct the that the defendants had shown no title to the lands in controversy, and that, under law the and the evidence, their verdict must for be plaintiff, the which peremptory instructions were refused the trial court. At request the and on hehalf of defendants, the gave court to the
jury instructions, certain “G”, “F”, lettered “H”, and “I”, which, in substance, jury told the that question “the sole you for to decide is where the middle of the channel the Missouri River was on 1875, 30, November and whether the questiоn land in was north or south of the main channel on that date,” and, furthermore, that “it any does not make difference what changes, any, if may have place taken or been made the channel of the river since then, or any whether not or all of question the lands in were afterwards away; washed or whether or not question the lands are new lands any with concerned not you are lands; old to the
or accretions or the river, by the made been may have that changes whatever issue 1875; far as so 30, thereof, аfter November channel No- river, after if the no difference makes concerned, it suit is away; makes it lands defendants’ all of the 1875, 30, washed vember Island Boeuf north of lands all the washed river if the no difference what difference no 1875; it makes November away after ques- sole is; the lands composing defendants’ soil character of the the lands where place or not whether you is for to determine tion middle that was place of the north question located is are 1875; November it was River as of Missouri channеl your and cannot recover plaintiff place, if it is north of for the defendants.” must be verdict by plaintiff, requested instructions, refused certain The court beds, river and abandoned newly-formed islands effect that “ Missouri, and belong to the State thereto, together with accretions respective counties conveyed enactment, to the were, by legislative jury find and believe situated; if the and they might be in which 30, 1875, the Missouri prior to November that, the evidence from against lands of flowing of Boeuf Island was north River gradually northward moved ancestor, that the river defendants’ by filling in northern shore line eroding upon banks its (in land until it all its southern had removed shore line controversy) formerly ancestor, and that the owned defendants’ thereafter, year channel the south river about a new cut side of River bottom abandoned its former bed the Missouri along controversy line, and that land in northerly shore a part bed, change of said channel abandoned river such did not change counties, boundary between Franklin Warren line and, notwithstanding change of channel, the line be- tween said counties continued to be the middle of the main channel abandonment; river as it was at located the time of said jury if the find controversy and believe that part the land was a bed, said abandoned lying county river situate south line between Franklin and Warren counties as it was located at the time when the river bed, abandoned its former and that thereafter plaintiff purchased County the same from Franklin and received a conveyance county, thereof from said plaintiff acquired then good lands, title to said notwithstanding may the said lands have been formed on place the bed of the river at a which was once owned in simple by fee defendants, or grantors, their and the verdict of jury must for plaintiff against be provided defendants, you find that said land was south of the middle the main channel of said abandoned river bed as it existed at the time of its abandonment.”
Responding to the instructions of trial court, given behalf on
511 a unanimous defendants, jury returned request of at the finding defendants, in favor of issues finding* the verdict, channel of the main north question were lands in “all of the that 1875.” 30, November of the Missouri river instruc- giving of the assigns error in appellant Plaintiff and in- of defendants, the refusal and in of behalf
tions- aforesaid on plaintiff. requested on behalf aforesaid structions submitting court, trial learned apparent It is requested by defendants jury upon instructions cause to the in ac- by plaintiff, acted requested refusing and in instructions an- Two court of Division cordance with the directions That Feldmann, 298 365. decision Northstine v. Mo. nounced in boundary lines between thе several ruled that Division Two 30, they November as existed on State, counties opera- became present on which this State date Constitution inexorably date effective, fixed as Constitu- tive and were said changed thereafter at and an operative, except as became tion immediately qualified election of the voters the counties interested. court, recently en overruled decision of banc,
This has Division case, ruling holding- Two the Northstine the extent of the just to, Hoffman, referred of Stаte ex inf. v. 318 the case Mo. 2 (2d) February 4, S. W. 1928. 582, decided Since the court, decision of this banc, case, supra, en in the Hoffman our own ruling division of this court has of the court, followed late en banc, in present two cases decided at term this court. [Akers Stoner, 1085; 319 Stoner, Mo. Jacobs v. Mo. In the 1093.] Hoffman, Akers, cases, supra, lately Jacobs have we ruled that the Constitution of 1875 supersede did not principles the rules and (in the common law force adop- this State at the time of the tion taking present Constitution) effect оf our im- gradual, perceptible and changes insensible course, in the channel, of a river work corresponding changes lines marked channel; river but, on the other hand, where a river or stream which is a boundary, suddenly avulsion abandons its old and seeks a new bed or channel, change such of channel change works no of boundary, and the boundary remains was, as it in the middle the old or abandoned channel, although may no waters flowing be therein. Our late ruling in the cases last cited is amply supported by judicial authority. on the Law of [Gould (3 Ed.) Waters sec. 159; Nebraska v. Iowa, 143 359; U. S. Missouri v. Nebraska, 196 U. 23; S. Cooley v. Golden, 52 App. 229; Vogelsmeier Mo. v. Prender- gast, 137 Mo. 271.] statute of this State in force at the time of the adoption taking effect of the Constitution (now of Sections 9334 R. 3919) S. made “the middle of the main channel of Missouri the. River” the boundary between Warren
512 Akers, Franklin, Hoffman, in the late decisions our counties. Under a bounda- law, such common that, at supra, we held cases, and Jacobs may with boundary shift that such migratory, in ry is or less more imperceptible and insensible due to shifting of the stream gradual re- by accretion and channel, occasioned changes course, in or its imper- gradual, by reason of therefore, If, liction on its banks. channel of the main course, in changes its insensible ceptible and shifted has Franklin counties and Warren River between Missouri Con- operation present of our date of 1875, the since November main channel of change in the course stitution, then such said change in between corresponding river worked a by avulsion, abandоned suddenly River, counties; and, if the Missouri channel, or then sought a new bed channel, and its old or former before the as it was remained counties boundary between said abandoned channel. and of the old avulsion, iii middle last jury to on by court given While the instructions Di- to the directions of responsive present were trial of the action Feldmann, Northstine v. decision in in its Two this court vision clearly principles with the in conflict are supra, such instructions case, court, banc, en in the Hoffman lately by as this law announced and Jаcobs by court the Akers this division supra, and of this cases, giving instructions, such the refusal supra, and the plaintiff, by constitute reversible error. requested contra instructions must be retried because regretted that this cause While it is to be response positive direc- by trial court error committed yet appeal cause, given this the former of the tions court on right eminently proper should own it is that we correct our announcing declaring case, law manifest error according principles that the cause should bе retried to correct supported controlling law juristic authority. declared as Mangold Bacon, In v. 237 l. 516, 517, Mo. lately c. our de parted brother, Lamm, speaking Judge court, for bane, en peculiarly expressive style, his “Verily, forceful and said: a court right has a natural change Padgett its mind. own In Smith, v. 125j 205 pointed Mo. it was out it necessary preserve unimpaired right guardedly natural to be and discriminat —one ingly high power. used of a appellate exercise An a court is court for correction of errors —its own as as others. In cor well recting the errors of do proceed lower courts we not theory we make none our own. Wright, v. [Donnell Mo. l. c. 317.] . . . grace Whether from or right, cogent when convincing appear, reasons harmony such as lack of with other decisions, injustice where no hardship or would flow from a change, where, by inadvertence, principles law have been incorrectly declared the first time, or mistake of fact has been made, or injustice to'the opinion, the first adhering to done be pаrties .rights Avould re- duty to it is onr play have rule exceptions to then the in the same appeal on the second oavu errors correct our examine and case.” 390, 400, this Barron, 286 decision, Mo. Murphy In a later is not appeal former “The decision said: this court division of l. Bacon, 237 c. [Mangold v. Mo. adjudicatei in the full sense. vea legally de cannot AA’hich court from 517. It is not judgment- ] *12 in the decisions Under case. in same appeal part second on this of all mat final determination absolute it was not an this State inexorable, adhere to court must that of such force ters decided right wrong. it be whether appeal it events and on this at all be con appeal will general on one is that matters decided rule excep case, unless in appeal a the same sidered second settled A them. discus of tional a re-examination circumstances call for sion Avhichwarrant a exceptional of circumstances the nature appeal is found in questions re-examination on a former decided this court has case above Our division of adhered cited.” oaaui or, foregoing rather, rule, rule, general exception to the to the just yet court, a and not present cause at the term of decided Harden, (2d) officially reported. 8 W. S. 905.] [Seibert that, urges appellant insistently But as all the facts inasmuch fully exhaustively by and circumstances have been shown good purpose putting by eA’idence.and is subserved that no be parties expense possible to the time and another trial and a third cause, appeal of judgment we should therefore reverse the the circuit court judgment and render such as should have here been court, by rendered the circuit or that we should remand the cause to the circuit court judgment with plaintiff directions to enter for the against apparent, however, defendants. It is that defendants proferred upon single their theory evidence that the middle of the main channel of the Missouri River as it existed on November inexorable, Avas 30. 1875. unchangeable permanent between Warrеn and counties, Franklin pursuant to the directions of this court on the appeal former cause, and that such issue Avasthe sole issue to be tried and jury. submitted It pos- is defendants, sible that on a retrial of action, may be able to of- fer proof substantial that the main course or channel of the river changed Avasnot year by in the avulsion, or sudden and violent channel, abandonment ual, the former but such change grad- imperceptible, and or, insensible: may defendants be able to offer proof substantial that the Feldmann bottom lands were not en- Avashed arvav tirel.A' Avaters of the river and that the land controversy accreted to their remaining bottom or lands, shore or to other they lands Avhereof legal title, luu'e the so as to extend their If de- ownership any if be. lands, such accreted there
title and facts, proof then fendants shall to offer substantial of such be able pi’oof will a there conflict between the defendants arise wholly fact resolved plaintiff, one of to be and the issue becomes by the jury, jury and dеtermined a unless trial be waived parties. single theory In view action was tried below on which the .the jury, possibility to the further view of the submitted action, conflicting .proof..respecting a retrial of the facts feel, justified directing
we do not entry judgment of a in the court,:or entering judgment here; circuit opinion but we are of judgment nisi, that the giving should be reversed for error in refusal jury, to the and that re- instructions cause should be of. manded to the circuit court for another trial the issues. It is so Lindsay ordered. and Ellison, GG., concur. foregoing opinion by Seddon, adopted
PEE CUEIAM: —The is C., judges 'All of opinion of the court. the. concur. as the *13 Oregon County. (2d) W. Appellant, W. W. 8 S. Underwood, 597. July 3, One,
Division 1928.