192 Iowa 780 | Iowa | 1921
This action involves certain lands adjacent to the Missouri River in Fremont County, Iowa. An understanding of the matters^in dispute can best be obtained by the examination of the accompanying plat.
The undisputed evidence shows that, many years ago, the river began a gradual process of erosion to the eastward, and encroached upon these lands belonging to the appellee. This process continued until a time not definitely fixed in the evidence, but approximately the latter part of the 80’s,' when the river had reached its easternmost location. At that time, the river had entirely overflowed and eroded Lot 1 in Section 4 and Lots 1, 2, and 3 in Section 3, and had encroached somewhat upon the land farther to the east. The irregular line to the right in the plat indicates the approximate location which the river reached in this manner. At a later date, not definitely fixed in the record, but in the early 90’s, the river began to recede from its new location, and to gradually fill in its former bed by alluvial deposits. It formed a new channel farther west than the original channel had been, and at the time of the trial, the eastern or Iowa bank of the channel of the river was as indicated by the irregular line to the left side of the plat.
It is the contention of the appellee that the lands marked on the plat as being accretions to Lot 1 of Section 4 and Lots 1, 2, and 3 of Section 3 belong to him, and he seeks to quiet title to said land. It is the contention - of the appellants that the lands in question did not accrete to the lands of appellee, but that an island was formed in the river bed, and that the accretions were largely made to said island, and not to the mainland.
I. A few general observations may help us in arriving at a
The state of Iowa owns the title to the bed of the Missouri River from high-water mark to the center or thread of the stream. Iowa v. Illinois, 147 U. S. 1; Hardin v. Jordan, 140 U. S. 371; Holman v. Hodges, supra. If, by a slow and gradual process of erosion, the river washes away its banks and changes its course, the title of the state to the bed of the stream follows the course of the river in forming the new channel. If there is some avulsion of the stream, whereby it suddenly changes its channel in such a way as to cut off a body of land which still remains in such a condition that it can be identified, then the boundary lines of riparian property owners are not changed by such sudden avulsion or cut-off. Kitteridge v. Ritter, 172 Iowa 55.
Where lands are overflowed and submerged, and within a reasonable time the waters retire and the land reappears, the title of the owner is not disturbed, and the proprietorship remains in the original owner. Mulry v. Norton, 100 N. Y. 424 (3 N. E. 581) ; St. Louis v. Rutz, 138 U. S. 226; Ocean City Assn. v. Shriver, 64 N. J. L. 550 (46 Atl. 690).
This rule has also been recognized where lands are removed by erosion, and are restored by accretion after the river recedes. Allard v. Curran, 41 S. D. 73 (168 N. W. 761).
Where the lands of a riparian owner are removed by the gradual process of erosion by the river, the land being no longer capable of identification, but having been carried away entirely, and the river occupies the,identical space formerly occupied by the lands of the riparian owner, the title-to the land so occupied by the bed of the river passes from the owner of the land to the state. This is one of the necessary incidents of riparian ownership. It is also the law that, where an island is formed in the
It also appears to be the law that, where the lands of a riparian owner have been slowly and gradually eroded by a navigable stream, and the river has usurped and taken up the location of said land, the riparian owner of the land at the newly formed river bank becomes entitled to the accretions that may thereafter be formed against said bank, even though they should extend over the same territory where lands of a former riparian owner had been located before the erosion took place. For example, if A is a riparian owner upon a navigable stream, and B owns land remote therefrom, and by erosion the river cuts away all of the lands belonging to A, and leaves B as the riparian owner on the newly formed bank of the stream, and thereafter the river slowly retires from this situation and places accretions against the newly formed bank, said accretions will belong to the riparian owner B, even though they extend over the very space formerly occupied by the riparian owner A. Yearsley v. Gipple, 104 Neb. 88 (175 N. W. 641); Welles v. Bailey, 55 Conn. 292 (10 Atl. 565); Widdecombe v. Chiles, 173 Mo. 195 (61 L. R. A. 309); Wood v. McAlpine, 85 Kan. 657 (118 Pac. 1060); Fowler v. Wood, 73 Kan. 511 (85 Pac. 763); Naylor v. Cox, 114 Mo. 232 (21 S. W. 589); Peuker v. Canter, 62 Kan. 363 (63 Pac. 617).
II. Applying these general rules to the facts of the instant case, we find that, by the slow process of erosion, the Missouri River changed 'its channel and worked eastward until it had entirely cut away the lands in Lot 1, Seption 4, and Lots 1, 2, and 3 in Section 3, and other lands lying to the east. The location where these lands had been became thereby a part of the bed of the Missouri River, and title thereto became vested in the state, while so occupied by the river. Appellee was, however,
Appellants contend that appellee does not, by bis pleadings, claim tbe lands in controversy as accretions to tbe lands which bordered on tbe river at tbe time it was farthest eastward, but only as accretions to tbe lands which bordered on tbe original bank, and which were entirely eroded by tbe eastward movement of tbe river. In this contention, we think appellants are in error. Appellee’s petition and bis proof are broad enough to entitle him to claim tbe lands in question as accretions to lands owned by him on tbe east bank of tbe river when it-bad reached its farthest point of invasion of tbe lands on tbe Iowa side. If tbe accretions formed by the river as it receded from tbe newly formed eastern bank were accretions to tbe mainland, then they belonged to tbe appellee, as riparian owner, in any event, and he was entitled .to have his title quieted thereto.
III. It is appellants’ contention that, after the river began to recede from its easternmost location, an island appeared in the stream, distinctly separated from tbe shore, and that this island was located upon that portion of the river bottom that occupied, in part, the location of a portion of appellee’s lands before tbe river wrested them from appellee by erosion. Appellants contend that, when such an island appeared in tbe stream of the river, it then belonged to the state, although it was located upon the exact spot where the surface of appellee’s lands had been before tbe erosion took place.
We are inclined to sustain appellants’ view of the law in regard to such a situation. The maxim “cujus est solum ejus est usque ad eoelum et ad inferos” does not apply in such case. Appellee did own his land from the highest heaven to the center of the earth; but be so held it with all tbe incidents of a riparian owner on a navigable stream; and when, by tbe slow process of erosion, the river removed tbe soil and took up its bed upon the very spot where tbe surface of appellee’s lands bad been, then said place passed to tbe state, as part of the bed of the stream. Thereafter, if there was an island formed in tbe bed of the stream, entirely independent of the mainland, such island belonged to tbe state, even though it was located upon the very
Appellants contend that the major portion of the accreted lands in controversy consists of an island formed in midstream, and of accretions thereto. Appellee contends that they are all accretions to the mainland. Right here is the crux of this case. An island is a body of land entirely surrounded by water. In McBride v. Steinweden, 72 Kan. 508 (83 Pac. 822), the Supreme Court of Kansas said:
"There is complaint of the instructions, and especially as to the one which defined an island. Among other things, the court said: ‘It may be stated by way of definition that, to constitute an island in a river, the same must be of a permanent character, —not merely surrounded by water when the river is high, but permanently surrounded by a channel of the river; and not a sand bar, subject to overflow by a rise in the river, and connected with the mainland when the water is low.’ In the same connection the jury were told that, in considering whether an island in fact existed, or whether the land in controversy was accreted to plaintiff’s land, they might ‘consider the character and extent of the claimed accretion, the character of the timber growth, the relative size and permanency of the channels, if any, around the claimed island, as compared with the size of the stream, the topography of the land in controversy, the character of the soil, the growth, if any, of timber or trees, the testimony of the witnesses, and, in fact, all the circumstances as developed by the testimony.’ Whether the formation in the river was a sand bar or an island was a question of fact, and was fairly presented to the jury. It did depend upon the stability of the soil and the size and permanence of the channels around it. Railroad Co. v. Schurmeir, 7 Wall. (U. S.) 286 (19 L. Ed. 74); Shoemaker v. Hatch, 13 Nev. 261; Gould on Waters (3d Ed.), Section 166. As the court told the jury, account should be taken of the conditions named, and also of a variety of circumstances as to the physical features of the formation, the growth upon it, and whether the water supposed to separate it from the shore land
In Railroad Company v. Schurmeir, 7 Wall. (U. S.) 272, the question involved the title to lands bordering on the Mississippi River. The court said:
“At the time of the survey, there was a parcel of land (called by the counsel on one side, a sand bar, reef, or ‘towhead,’ and by the counsel on the other, an island) lying along the shore of the river, about four feet lower than the mainland of the fraction, and with a channel or slough between it and the mainland. This depression was about 28 feet wide, and the bar or island, in its extreme width, was about 90 feet. Its extreme length was about 160 feet. The main body contained 9.28 acres; this parcel, 2.78 acres. In high water, this parcel of land outside was completely under water; in medium water, it was exposed to view, and the water flowed through the depression; but, at very low water, there was no flow of water through the depression. It lay in pools in the depression. ’ ’
See, also, King v. Young, 76 Me. 76.
The appellants contend, and offer evidence to show, that there was an island formed in the channel of the river that followed the general contour of the east bank and was close to it; that the main body of the Missouri River flowed to the west of this island; that a portion of the water of the riv.er flowed to the east of the island, and that there was a well defined river channel there, which is referred to by the witnesses as the ‘ ‘ Iowa Chute.” There is no question that there is a depression now existing in the accreted land, with more or less well-defined banks, and extending, in the general course of the river, from near Section 4 to Section 23. The appellants seem to concede that the land lying east of the so-called “Iowa Chute” was accreted to the mainland, but it is their contention that all lands lying west of the “Iowa Chute” accreted to an island.
As we understand the record, the evidence shows that there are well developed trees, both east and west of this ‘1 Iowa Chute, ’ ’ and that they are substantially larger than the trees and shrubs that appear within the “Chute.”
It is impossible for us to set out all of the evidence of the respective parties in regard to the existence and nonexistence of
Appellants produced witnesses who testified to their acquaintance with the locality for a number of years, some of whom had lived at one time upon the land described as an island, and who testified that there was a well defined stream of water that flowed down the so-called “Iowa Chute,” and that this channel became closed at the north end by artificial means. One witness testified that he placed wire netting and logs across the “Iowa Chute” at the upper end, to prevent the waters of the river from flowing down the same.
On the other hand, there were a number of witnesses produced by the appellee, who had lived in the vicinity of the lands in controversy for many years, and were apparently thoroughly familiar with the location, who testified that there never was any island in the river, as claimed by witnesses for the appellants; that the course of the river next to the Iowa bank was uncertain; that there was a swale or depression in the accreted lands, which is referred to by the appellants as the “Iowa Chute; ’ ’ that the same was not the bed of a flowing stream, nor part of the Missouri River; but that, in times of high water, the river overflowed these accreted lands, and passed down this swale or ‘ ‘ Chute. ’ ’ There is also evidence that, in times of freshets, the water backed up into this depression or ‘ ‘ Chute ’ ’ from the south end. There is also testimony in behalf of the appellee to the effect that lying eastward from the “Iowa Chute” is what is known as the “Morrow Slough,” that had an outlet into this “Iowa Chute;” and the presence of flowing water in the “Iowa Chute” is explained by appellee’s witnesses on the theory that the same came from the Morrow Slough, instead of from the Missouri River.
We have given the ease such consideration as its importance merits, and have read all of the evidence with care, and are persuaded that all the lands in question were properly held by the trial court to be accretions to the mainland, and that the appel-lee was entitled to a decree quieting his title in said premises.
It therefore follows that the decree of the district court must be, and the same is in all respects, — Affirmed.