191 F. 257 | 8th Cir. | 1911
The state of Iowa and Jessie W. Han-nan, who is the grantee of Charles R. Hannan, one of the original defendants, appeal from a decree of the Circuit Court which quiets the title of the complainants below to the lands which are the subject of this suit, and enjoins the defendants and the state of Iowa, which intervened in the suit, from claiming or asserting any title thereto adverse to that of the complainants and from clouding their title by surveys, reports, or conveyances. The complaint of the appellants here is that the court below failed to find that the laud in controversy was an island which sprang up between 1851 and 1867 in the Iowa part of the bed of the Missouri river and accretions thereto, that it also failed to find that this land was a part of the Iowa share of the old bed of the Missouri river which was abandoned during the flood of 1877, and that, on the other hand, the court found that this land consisted of gradual and natural accretions between 1851 and 1877 to the land on the Iowa shore of the river to which the complainants and their immediate and remote grantors had held the title from the United States for many years.
The laud here in controversy is a part of the bottom lands round about the Missouri river between Council Bluffs and Omaha. In 1851 that river as it came down from the north turned from its southerly course near Council Bluffs and flowed for a distance of about four miles in a westerly direction across the bottom lands between the higher banks, and then turned again toward the Gulf of Mexico and swept on southerly. In the year 1851 a survey of the land on the easterly or Iowa shore of the river was made, the meander line of that bank was run and fixed by the United States, and upon that survey the patents to the land on the Iowa side of the river were based. In 1856 a survey of the land on the west shore of the river was made by the United States, the meander line of that bank was run and fixed, and the patents to the land on the Nebraska shore were based upon the latter 'survey. The complainants and their immediate and remote grantors had acquired the title, patented in part by the United States and in part by the state of Iowa under a grant by the United States to that state, of all the lands material to this controversy bordering upon the river upon the east and south as it flowed when these surveys were made. Between 1851 and 1877 the river gradually washed away the sand and soil on the Iowa side and crowded its channel to the south at a point called Buslia’s Bend on its way across the valley, and at the same time at a point westerly of Busha’s Bend it gradually and naturally cut away the soil on the Nebraska side and moved its channel to the north until in 1877 it flowed in the form
In Nebraska v. Iowa, 143 U. S. 359, 12 Sup. Ct. 396, 36 L. Ed. 186, the Supreme Court decided that the line between the two states was not changed by the sudden abandonment of the oxbow by the river in 1877, but that it remained the center of the old channel although there was no water in it, and pursuant to that decision the
A very large proportion, if not all, of the land in controversy in this suit lay on the north and west of that part of the triangular tract to which the plaintiffs had title from the United States. If an island sprung up in the Iowa part of the bed of the stream between 1851 and 1867 practically all this land was an accretion to that island prior to the avulsion in 1877, and, under the rules of law which have now been stated, the property of the state of Iowa. But if there was no such island this land was an accretion to the Iowa bank, and it was the property of the plaintiffs. The great question in the case therefore was whether or not an island arose on the Iowa part of the bed of the river on the north and west of the triangular tract between 1851 and 1867, and to that issue almost exclusively the evidence, the briefs, and the arguments in the court below and in this court have been addressed.
They did, however, assert, and they still insist, that the decree below was erroneous “because by the permanent change in the channel of the Missouri river by avulsion in 1877, as set forth in the pleadings and shown by, the evidence, the title to all the land in controversy between high-water mark ánd the center or thread of the channel, as it existed at the time, vested absolutely in the state of Iowa, and the court erred in not so finding and deciding.” Conceding that the title to the land in the abandoned channel between high-water mark on the Iowa side and the middle thread of the river at the time of the avulsion was vested in the state thereby, yet the decree was right unless the proof before the court below was that the land in
"Without any reference to the doctrine of title by adverse possession, the fact that a party owning a tract of land has for many years occupied and claimed up to a particular line as the true houndary, and the owner of the adjoining tract has silently acquiesed therein, is a circumstance strongly lending to show the correctness of the claim: and in the absence of other controlling circumstances the line so indicated should be taken as the true division between the respective premises.”
Corey v. City of Fort Dodge, 118 Iowa, 743, 747, 92 N. W. 704, 705 and cases there cited. In view of these facts, of this rule of *law and of the evidence of title which the long-continued possession in accordance with these boundary lines produced, the burden was thrown upon the state in the court below to show where, in what respect and to what extent, if at all, these boundary lines were incorrect, and where the true lines were between the plaintiffs’ land and the state’s part of the abandoned channel of the river. The court below considered all the evidence in the case upon this subject, found that the state had not successfully borne this burden, that the boundary lines in accordance with which the plaintiffs and their grantors had occupied and improved were the true boundary lines of their property and confirmed their title in accordance therewith.
The equity and righteousness of the result to which this study and analysis of the evidence upon the direct issues in this case leads is demonstrated by other considerations which the record forces upon our attention. The avulsion that vested in the state every claim it ever had to any land in or about the oxbow occurred about July 8, 11877. More than 26 years passed before the state took any action that indicated any intention to claim any interest therein. Meanwhile the lands in controversy were, for more than 20 years, in possession of the plaintiffs and their grantors. They built streets, railways, buildings, and other improvements upon them. The state taxed and treated them as the property of the plaintiffs. Without notice or warning on the 13th day of April, 1904, the Legislature of Iowa enacted chapter 185 of the Session Laws of that year to the effect that all land between high-water mark and the center of the abandoned channel of any navigable stream, and all bars, islands, and land' withm such channels, should be sold to the person who should make written application therefor, should deposit 50 cents per acre, and should pay the balance of the value thereof after a survey of the land and a report of appraisers. On April 14, 1904, Charles R. Hannan made his written application to purchase of the state all the land within the outer lines of the oxbow and deposited $1,000 in part payment of the purchase price of the tract. The state appointed L. P. Judson to survey this land, and thereafter in October. 1904, the complainants exhibited their bill in this suit against Hannan, Judson, and W. B. Martin, the Secretary of the State of Iowa, to enjoin them from clouding the complainants’ tiile to the lands in controversy by further proceedings under chapter 185. The state of Iowa was not a party to this suit and no attempt was ever made by the complainants to make it a party. On March 2, 1907, upon the application of the Attorney General of the state, the court permitted it to intervene, and thereupon it voluntarily filed its petition of intervention in which it alleged that it was the owner of the land here in controversy by virtue of its ownership of the alleged island and of its part of the abandoned river bed. It was then almost 30 years after its claim to any of this laud first arose, and if it had been a private party its silence, acquiescence, and laches would undoubtedly have estopped it from asserting any claim to this land against these plaintiffs. Counsel for the appellants, however, invoke the general rule that neither by the statute of
Notwithstanding these authorities the stale insists that the plaintiffs may not maintain an estoppel here because the title to the land in controversy is the same as that of a certain tract of 13 acres which the East Omaha Land Company, a predecessor in interest of the complainants, claimed as an accretion to a government lot owned by it in a suit between that company and one Hansen and others which was commenced in the year 1890 and in which the ultimate decision was that this 13 acres was not such an accretion, but was an island which arose in the Iowa part of the bed of the Missouri river, and hence was not the property of the Land Company. But the claim of estoppel here is based on the tacit acquiescence of the state in the possession and claim of the plaintiffs and their grantors and on its taxation of this property as theirs. The suit and decree in Land Company v. Hausen and others was no notice that the state had not waived, and was not by its acquiescence and taxation waiving, all claim to the lands is controversy in this suit (1) because the state was not a party to that litigation-, made no claim and gave no notice of any demand therein; (2) because the 13 acres involved in that suit is not any part of the subject-matter of this suit; and (3) because the evidence in this case is that there never was any island where the 13 acres are located and notice of the claim in that suit that there was such an island would have been, as the evidence now proves, notice of a baseless claim and for that reason futile.
Counsel invoke the conceded rule that there may be no estoppel of a party from asserting his titles and rights where knowledge, or the means of knowledge of them, is equally open to both parties There are, however, two reasons why this rule is not controlling in the case in hand. In the first place the rule-has an exception that the owner of a known right or title may by his representations, acts or silence
“Following the ancient common-law maxim ‘nullum tempus occurrit regi,’ it lias been settled as the rule here that the United States is not affected in respect to its pursuit of remedies by mere delay or general statutes of limitation. But when it sues in equity as a private suitor on a cause of action relating to its proprietary interests, it is held to be affected by those equities which are recognized as fundamental in controversies between private parties. And why should this not be so? It derogates from the dignity and character of the government to suppose that, formed as it is to secure impartial justice between individuals, it may nevertheless in the conduct of its own affairs, without regard to the principles it represents, perpetrate upon its citizens wrongs which it would promptly condemn if practiced by one of them upon another.”
"Tlu; stale cannot be permitted to say that it has slept during all this long period and abandoned its sovereign dulies to its citizens, as well as its reciprocal moral obligations to the government which had made it so magnificent a gift. The state is not to be regarded as a mere machine, incapable of intelligence or conscience. And, while it is necessary and right to restrain or annul the unauthorized acts of its agents by which its interests might be impaired, yet there must come a time after long-continued acquiescence in public action with knowledge of it, when, in the interest of its citizens, the state itself shall he precluded from despoiling others by the assertion of its original rights.'’
To the same effect on a similar state of facts was the decision of the Supreme Court of Michigan in State v. Flint & P. M. R. Co., 89 Mich. 481, 51 N. W. 103, 106.
In United States v. Walker (C. C.) 139 Fed. 409, 412, 413, 420. Walker wras a United States marshal from 1889 to 1893. During this time he presented in his accounts charges for services rendered by his deputies which he and the accounting officers supposed to be lawful, but which were in fact illegal. The United States allowed and paid these charges from time to time during the four years he held his office, knowing that a large portion or all the amounts so paid to him would be immediately paid over by him to his deputies in payment of their services, as it was. Five years after his accounts had been allowed and closed and after the expiration of his term as marshal, the United States presented to the Circuit Court a claim for the repayment of these amounts by Walker, but the court refused to sustain the claim and said:
"When the sovereign comes into court to assert a pecuniary demand against the citizen, the court has authority, and is under duty, to withhold relief to the sovereign, except upon terms which do justice to the citizen or subject, as determined by the jurisdiction of the forum in like subject-matter between man and man.”
The state comes into this court of equity and prays its decree that the title to the land in controversy be quieted in it. Its claim originated in 3877. It never asserted or suggested it until more than 26 years thereafter, and one cannot wink so hard as not to see that it
In Smith v. Clay, 3 Brown, Ch. 639, Lord Camden said:
“Nothing can call forth this court into activity but conscience, good faith and reasonable diligence.”
There is no equity in the claim of the state against the plaintiffs in this.case, it does not appeal to the conscience, it is met by an equitable estoppel, it was not presented or prosecuted with reasonable diligence, and a court of equity may not sustain it.
Questions which have not been discussed in this case were presented by the briefs and arguments of counsel but the conclusions which have been reached render them immaterial.
And because the evidence in this case fails to convince that the court below fell into any error of law, or made any mistake of fact in its finding that the proof failed to establish that the land in controversy, or any part of it, was ever an island in the Missouri river or accretions to such an island, or a part of the abandoned channel of the river between the thread of the stream and high-water mark on the Iowa side in 1877, prior to the avulsion, and because by the continued adverse possession of this land by the plaintiffs and their grantors, claiming title for more than 20 years before the state made any claim to it, by the acquiescence of the state in their possession and claim and its levy and collection from them of taxes upon it as their property during this time and by the expensive improvements they made upon it in reliance upon this acquiescence and taxation, the state is now estopped from asserting title to this property in equity, the decrees must be affirmed and it is so ordered.