86 Kan. 804 | Kan. | 1912
We have considered the briefs and arguments on rehearing and have reexamined the former opinion which counsel claim is a departure from Fowler v. Wood, 73 Kan. 511, 85 Pac. 763.
That case involved land north of Ohio avenue and east of the 'Miller survey line, to which the law of submergence and reappearance had immediate application. The doctrine of avulsion .and erosion was considered and stated, but here a particular and .special application of the general definition became necessary 'in view of the conflicting evidence touching the land in controversy, a portion of the strip between the Miller survey line and the riprap bank. (See map, Fowler v. Wood, 73 Kan. 511, 517, 85 Pac. 763.) The laws of nature governing the action of the elements, the difference between the habits of various streams and the characters of their banks and the divergence 'of the evidence in this case, all made it necessary to reach a workable application of the general doctrine of avulsion and erosion to the facts and conditions shown. In Fowler v. Wood, supra, the outlines were correctly set forth while here the necessary details were' filled in, constituting an application of the rule rather than •a departure from it.
The law of accretion1 and reliction stated in Fowler v. Wood, 73 Kan. 511, 85 Pac. 763, was followed and applied, and of the correctness of such statement and application we have no doubt. What was said in the syllabus, however, concerning natural accretion' and reliction and accretion or reliction unaided by artificial means was said with reference to and in view of the
The former opinion (Wood v. McAlpine, 85 Kan. 657, 118 Pac. 1060) will remain unchanged.