284 P. 386 | Kan. | 1930
The opinion of the court was delivered by
This action was brought by the state on the relation of the county attorney, charging that J. B. Berk, who
Upon evidence which was somewhat conflicting the court found in favor of the plaintiff and adjudged that the defendant be perpetually enjoined from placing obstructions in the bed of the river or otherwise unlawfully encroaching thereon. In the findings of fact the court, among other matters, in substance found that in July, 3.904, defendant acquired lots one, two and three, on the north side of the Arkansas river, comprising altogether 172.56 acres, but that now he claims title to 228.46 acres, an increase of 52.90 acres. At the time of a government survey, made in 1867, the river at different places was about 600 feet wide, and there were then no islands in the river. About 1875 two small islands appeared near the center of the river comprising each from one and one-half to three acres. Trees began to grow upon the islands, some of which attained a diameter of twenty inches. These islands grew larger from year to year by reason of accretions. Some one built a cabin on one of the islands, and later a three-room house. For over thirty years, after 1875, there were three channels in the river, a south channel, a center channel between the two islands, and a north channel to which plaintiff’s land adjoined, each of which carried about an equal volume of water. Both of the islands were then surrounded by the main channels of the river. About 1900 the county erected a bridge near the place in question and at that time the south channel had become the main channel, and in low water was about 60 feet wide, the center channel about 40 feet wide and
The findings of fact are well supported by the evidence, and defendant, who produced evidence to the contrary effect, concedes that under the evidence the court was justified in restraining defendant from placing obstructions and making encroachments on the river, and is not now raising any question as to the injunction. He is insisting that the case was tried as an ejectment action without a jury in which the ownership of land was determined. He urges that ownership and right of possession belong to law and not to equity jurisdiction, and the finding and adjudication of ownership of the island by the state was in effect a judgment in ejectment, and he insists that ejectment cannot be obtained under the guise of a proceeding in equity. It may be sai.d that the defendant did not 'demand a jury or question the jurisdiction of the court to try the issues joined between the parties. The issues were equitable in nature and the judgment appropriate to the relief asked. In the action for equitable relief it was necessary for the state to show that it had an interest in the bed of the river and the property involved in order to establish its right to interfere and protect against the misuse of the same. To do this it showed that the river was a navigable stream and that certain lands therein were islands, and
Defendant admits the right of plaintiff to the injunction and he also concedes that injunction could,not be granted without a finding of some ownership of the state in the property in question. It appears that the court did not go beyond the conceded limit. The action was not one in the nature of ejectment and the judgment does not direct the ejectment of defendant from the property. The accretions to defendant’s land have not been definitely ascertained, and it appears cannot be without a survey. The line between the accreted land which defendant may justly claim, and that belonging to the state, is still open for determination, and when a question of possession arises or an action in ejectment becomes necessary, that line may be determined.
The contention that the state is estopped to claim the bed of the river or the islands in it because officers of the county had placed the land on the tax rolls, and taxes had been paid by the defendant thereon for fifteen years, is without merit. Neither local officers nor yet the legislature can waive the rights of the state in cases of this kind or give away lands of the state to riparian owners. The state holds the property in trust for the benefit of the public and cannot abdicate its function to carry out the trust. (Winters v. Myers, supra; Steckel v. Vancil, supra.) Nor are rights of the character asserted by the state lost by estoppel, and statutes of limitation are inapplicable to them. (Douglas County v. City of Lawrence, 102 Kan. 656, 171 Pac. 610.) See, also, Construction Co. v. Sedgwick County, 100 Kan. 394, 164 Pac. 281; City of Hutchinson v. White, 117 Kan. 622, 233 Pac. 508; 21 C. J. 1199.
It has been found that the defendant wrongfully obstructed the channels of the river in an attempt to gain a part of the bed of the river and the islands in it by an attempted accretion process, and that he did this when he knew or must be held to have known that