92 Kan. 591 | Kan. | 1914
The opinion of the court was delivered by
Fred Steekel brought ejectment against Reuben G. Vancil. The plaintiff claimed the land as an accretion to lots owned by him bordering on the Arkansas river, and also by virtue of a long-continued possession. The defendant claimed as a purchaser from the state under the statute authorizing islands in navigable rivers to be disposed of as school land. The issues of fact were determined by a jury in favor of the defendant. Judgment was rendered on the verdict, and the plaintiff appeals.
The statute referred to reads:
“All islands lying in the navigable streams of this state, wherein the title to said islands is vested in the state of Kansas, may be sold according to the procedure for the sale of state school land.” (Laws 1907, ch. 378, Gen. Stat. 1909, § 8202.)
It was found by the jury that the land in controversy was originally an island, but that it had ceased to be one prior to the enactment of this law. The plaintiff contends that as the statute refers only to '“islands,” it has no application to any lands which were not in fact islands at the time it was passed. We think, however, that the obvious purpose of the legislature was to provide for the disposition of all lands the title to which is in the state by reason of their having originated as islands in a navigable river, and that its language must be construed accordingly.
A part of the land in controversy is situated within the boundaries of a section which was conveyed by the state to the Atchison, Topeka & Santa Fe Railway Company in 1893. The plaintiff contends that his own prior possession entitles him to a recovery as to this
The plaintiff also contends that the state, by acquiescing for a long period in the occupancy and use of the land in controversy by individuals, was estopped to claim title, and could pass no better right to the defendant. He concedes that limitation and prescription do not run against the state, but maintains that it enjoys no immunity from equitable estoppel, citing State v. Livingston, (Iowa, 1914) 145 N. W. 91. That case seems to support the contention, but the usual rule is to the contrary. (16 Cyc. 780. See, also, Hopper v. Nation, 78 Kan. 198, 96 Pac. 77; The State, ex rel., v. Akers, ante, p. 169, 140 Pac. 637.) In Winters v. Myers, ante, p. 414, it is held that the legislature can not waive the state’s claim to land in circumstances similar to those here presented. It necessarily follows that the state is not precluded on equitable grounds from asserting its title.
Complaint is made of the failure of the court to instruct in effect that if the land in controversy was an island at the time the state was admitted to the
The plaintiff sued for all the land lying between certain lots and the river. One of the lots named is. situated mainly in the southwest quarter of section 33,. but extends for a short distance into the southeast, quarter. The defendant in his answer made claim to all the land described in the petition, but his certificate of purchase described the land he had bought from the.
The judgment is affirmed.