*1 Mary Appellants, Wallace, Roscoe Wallace D. E. Smith (2d) Harris . 119 813. Elmer W. One, September 1938.*

Division 1938; May 26, Term, 1938, for motion May Opinion filed *NOTE: September September- rehearing filed; 1938. Term. motion overruled at *2 Schaumburg appellants. L. O. Lamkin James for *3 E. D. Smith. Hulen, H. Windsor Lionel Davis for & John Cave *5 in (with count determine title HYDE, C . This is an action to Mary River. ejectment) in the Missouri Defendant to an island claiming admitting possession to Wallace answered and Defend- land. except portion the western (of part) a small possession ownership. claim ant Roseoe Wallace denied and made no one-half interest Defendant Elmer Harris claimed an undivided conveyance plaintiff. reply to Plaintiff all the land filed from answer to only, of defendant Harris later dismissed as and against him. The jury for Wallace found and defendants on both counts further found defendant each Judgment owned “an one-half interest undivided in the land.”' was on verdicts appealed. entered these defendants Wallace have plaintiff’s evidence, stood on their demurrer evidence, offered no here that contend evidence was to make insufficient a case on either count. Plaintiff’s evidence (viewed most him favorably ruling question) as it must following history controversy. showed the Prior to 1914, plaintiff Cooper a farm in on County owned shore Missouri River. joining The land his farm on the north west Capt. Sites, owned T.E. on the and that south and east was owned by John Whittle. lines between these not follow farms did section right-angles lines but ran almost to a which followed road general direction river About northwest southeast. 1910, began an island form in finally the river which extended front of all three farms. Just how far the extended island then farm, front of the Whittle what character of that inwas is not clear. Witnesses extent, estimated its east .of of the west line farm, quarter Whittle from a mile. half There was evidence that much “just the lower sand bar” and was “low wet.” go Steamboats either could on side of this island but.the main channel the Cooper used County shore and this island. Plaintiff Capt. Sites both obtained from Cooper deeds County portions for ex of this island. The tension of the line between their farms on the was intended shore to be the line dividing island. between their Plaintiff’s the county, which acknowledgment, no showed the land recited tlfat was ordered sold him described, by on October metes bounds, 16, Township 49, Range Section into which plaintiff’s farm shore extended. The tract described was of

7 7.20, chains, by by chains, 13.50 .chains, by shape, irregular recited, after acres.” This “containing 14.96 in.all chains, lying of “this is land description accreted land River.” E. D. Smith and the.Missouri his-petition, plaintiff, described land, by now claimed The survey and description based on a is Plaintiff’s of 543 acres. consists witnesses, this his plaintiff and According 1934. plat made in slough present east which marks south and lies to the land extending tract almost triangular a the river. It is 1914 channel farm; shore the base from the Smith miles the south and east two long; part this mile the southern tract almost side is a northern quarter mile to more a point a from less than and varies runs throughout lower of its extent. mile in mile than a half width original 16. deed was all in Section The land described 15, 21, into present The reaches Sections island claimed survey 22 and 27. Plaintiff’s showed that none of it now north being at farm, tip Smith shore northwestern the north- its Appellants own corner Whittle farm. land south and west of the land was by plaintiff. west In their an land claimed a Island, island, known as and was about a mile and half Wallace original was, from after down the river Smith-Sites Island. It 1930, joined Cooper County mainland. Plaintiff’s evidence that, main channel river took course of of the slough, marking now land boundary the south and west claims; wide; yards he that this then 300 this channel was Island, channel ran between the Smith-Sites Island Wallace putting Cooper County Island side of the main Wallace on obtaining deed, channel. Plaintiff said after entered upon part it for pasturing the south of the livestock. island and used high He a on built barn into the timber. but water washed land farming operations Plaintiff extended his southeast “always highest part up built land.”’ He said that cleared originally of the lay island which in front of Whittle farm bar, just growed “wasn’t finally land but up sand but willows kept filling raising.” the low, evidence showed wet part higher longer sand bars southeast gradually-built direction; continuously size of the island increased the in that years

Plaintiff’s evidence further showed that a after 1914 few river changed turning cutting its course east through due Island, river, so that the channel of the Smith-Sites main on, time ran around northern and eastern sides of the. conveyed county. plaintiff by change After the.original the river cut away plain much acre tract 14.96: but said, tiff (while occupied it) “there a-little there bit I but don’t know how much.” Capt. A son-in-law Sites, former sheriff ' n n (cid:127) and highway engineer, testified: . ‘ ‘ Q. island, purchased by of which was Mr. Smith Did Sites, by- Captain remain one island? A. It re- years. Q. island for' Then

mained as one several what occurred? During Q. high through water, A. a- chute cut that island. How point cut near was chute to the division' made sur- *7 Q. veyor? A. happened It was above division line. that What through the that chute that-cut island? main A. That is now the Q. of the river. On channel whose land was this chute that cut through through the A. Captain-Sites’ part island? It was the of Q. . Now, island. . . Mr. McMahon, did the action of river cutting part in the Smith on completely away of that ever island cut portion bought island he in of the that 1914? A. It had not Q. 1930. . . portion . -What became of of the that the island was purchased L. T. Sites? A. (United States) The Government upper erected five dikes on of part end that of the that was land left—there a quarter long was one a mile and by that action —and joined that of side; land to Howard then County this side they made mat, that sunk it with rock and built dike rip-rapped the bank the top around end of Smith Island. words, In they put other the river in appeared the channel it have sought it when that cut in two.’’’ island 1929, plaintiff Between rented the island, whole of the which was the part all of cut off original on the south Smith- Sites change Island of the river channel and there land after to it. accreted Plaintiff paid against also taxes assessed island; Plaintiff named- four different occupied tenants who farmed island as his Throughout after 1920.' tenants this time grow island continued to size by accretion. Plaintiff that said one earlier survey showed 50 acres more on the land than his island n original tract. In 1929, plaintiff four-year made a lease of the is land to defendant Harris. 29, 1929, On December conveyed an undivided one-half interest islánd to Harris. not Hárris did occupy the island after 1931 because of made by appellant threats Roseoe Wallace and his brother. He testified: (1929) “In fall three partners myself portion- put fenced a big of-it and cattle on it. . . . There one was small Mr. field that Smith had —I would call in the southwest slough circle of the on the' west side is of the land, that been years had farmed several before that. We that made larger put it in corn . . in ’30. . putWe a one room house on spring it in the in -the ’30-and ’30 put winter-of ’31 we another ’’ room, it. He said that did not occupy southeast island then fenced. Helming, Mr. one of the men who farmed Harris, the island with testified that he cleared of the island for-plaintiff in 1920 that at that time there 700 feet of water - betwéen mainland and island. He also said part of directly opposite island was farm; mainland this that none of and. acres for about 18 cleared that he there He stated further farm.. Whittle front of the Whittle time -in front- of of the island at 30 acres about Harris, said with 'the men who farmed Smith, another farm. Will en not fence the 1929.but.did acres in 150 to they fenced other south and southeast there was island and tire portion “It said: enclosed a He further they fenced. around-part north and circled the river on the at island there this we through could out until island slough started of this cattle. . . . ground, keep our it was river, where solid hit the to.” part we wanted any fence privilege to We had government built dike States across United 1930 the In ran from the mainland and which island separated slough which farm the Smith mainland to the north- northeast corner from the filling slough much the island. This caused west corner the. also other dikes on north- government built time.. since that main the island to hold the channel in ern eastern sides those sides of the island. it had time around location *8 part the the much of Apparently, southeastern of island now government of dispute building has accreted since these works. the plaintiff that con- The 1929 from to recited the island deed Appellants brief) sug- (in “200 their acres more or less.”' tained gest joined Island, plaintiff’s that accretion island to Wallace this acres, plaintiff’s petition, the 543 and of described part that part a of Wallace Island and was later cut originally land that anyone it. else took However, off from none the nor of Wallaces testify. part (There evidence that of Wallace to stand so hand, Capt. Sites off.) Island was once cut On other two sons of many vicinity had known and who and other lived witnesses (some'knew 1890) positive- ever 1914 it back as the land since as far slough boundary ly testified that which south and east formed of 1914 either the land described at all times since been river had flowing it river; channel or branch of the that ran between a and accreted, plaintiff’s island, original it, and all that to and Wallace Island.

Appellants say the none the 14.96 evidence shows that of acre tract plaintiff’s Cooper County in described in from deed plaintiff’s petition; within the 543 of cluded acres land described in original water; description all of this under is now and any Island, if 543 of Smith it acres accreted to accreted to the lower part 1914, front Whittle farm, plaintiff of the to which never any They title. obtained that “if the and state metes bounds description of the 14.96-acre tract in fact include did what was of an island in east line that tract of barred in case, events from in this recovering evidence because'the dis quarter closed that evidence island mentioned in from a" extended 10 mile, more, farm

to half the Smith southeasterly from mainland in front of or north east of the John Whittle farm.’.’ and-out and argue saying impossibility theory, also plaintiff’s of “plaintiff by change action contends miraculous Biver, the Missouri twain the ‘Smith-Sites Island’ was severed in portion boundary Sites, him Sites the island traveled over into Howard consists County now 1,700 by heirs, acres claimed portion the Sites Smith traveled less, river, down the now consisting of 543 acres a distance more or (cid:127) of one and miles original a half or two from its location. miles Nevertheless, right to jury witnesses so testified and had pass weight testimony, upon credibility their to find original off, cut there- plaintiff’s island thus change after size, shape, did increase in it now covers so area. different though acquired Even it .true no title to original southeastern part (or it) by no island deed, appellants not' were instruction. peremptory .entitled-to a Plaintiff acquired had substantial evidence to show that had (as conveyed the whole island prior time he existed Harris) 1929; possession. adverse R. S. also Sec. [See Realty Frazier, Ancona v. Co. 328 41 S. W. (2d) Mo. “No 820.] more act ownership affirmative can the rental be asserted than the collection thereon. The rents inclosure of the same fences payment different times of taxes are, potential facts, due on the land addition more other persuasive possession.” evidence of (Mo.), actual Wells v. [Jamison (2d) 347, 7 see, S. cited; also, W. (Mo.), and cases Jamison v. Wells 63;W. Klaber, S. Branner (2d) 169, W. Mo. l. Moreover, c. county was at least sufficient to constitute color actually of title described. land it *9 Wells, v. supra; Meredith, Cashion 333 970, 64 W. [Jamison Mo. (2d) case, plaintiff’s In this evidence that he in shows was possession of completely an island by surrounded water so much years the first he it, for ten go held steamboats could on either side it. by It boat up had to reached all at times thereafter government to: the 1930 when built its works. evidence There no prior plaintiff’s to show to when were off, tenants driven that anyone plaintiff other than his and ever or a tenants claimed held island, original (after foot of either of its extent it was off cut original 'of the Island) Smith-Sites or of the it. land to accreted .plaintiff, original If to (or beyond obtained title part island description deed) by possession in his prior adverse to by also owner accretion became óf land all thereafter to that accreted it.-.. Missouri cases sée 3 Missouri Law Beview [For discussion ] plaintiff If once title- got. other in to land in .existence 181.. original by possession his tract and if this- southeast adverse enlarged it, not by was accretion lose it even subsequently to he did though away. He of his tract later all first washed still owned change (even size, shape it location) same island if in did and possession had time the which he river cut exclusive plain islands. therefore, Smith-Sites Island into hold that We, two ownership evidence was to show all of the land tiff’s sufficient his Harris; subject rights in his to the defendant petition, described appellants’ the evidence overruled. properly and that to demurrer was assigned given in error have also instructions request plaintiff They defendant were Harris. these say and urged misleading incorrect on demurrer for same reasons plaintiff grounds. Since had upon evidence as well other of the by possession evidence adverse all substantial to show title change channel, appellants’ cut demurrer original off o-f island merely because of evidence not be sustained could original southeast to show described entire failure his deed However, island. not entitled to base ern convey land, recovery theory his deed did of this that his finding. requiring evidence shows Some of his own without such beyond-the his southeast, description there land to convey part and which only which was of an deed intended island In recite that the land island Plaintiff’s did not even land. authorizing plain therefore, were structions 1 and erroneous recovery requiring descrip without either a finding tiff’s boundary of the Sites tions the deed all of island covered south ad-' finding necessary of the facts thereto to. constitute possession. follows: were, verse These instructions 1.) jury (Instruction you Court if instructs the “The find pur- D. plaintiff, Smith, believe from that the E. the evidence Missouri, some lo- Cooper County, chased from island land county, in that that other accreted to’ cated lands land-so purchased, ac- originally purchased, that said said land so thereof, de- land or a creted constitutes land mentioned evidence, thereafter into scribed possession entered said, land, in' .1920 cleared of said land and himself tenants until thereafter for used said land or .rented your against the verdict should be for the Mary Wallace Roscoe on the count defendants Wallace first petition an one-half described for undivided interest land petition.” - 5.) (Instruction jury purchaser “The instructs Court (cid:127) purchased, of island to all land so entitled accretions though purchased mazy even so have described *10 bounds metes definite number of acres. The line and and as a of purchaser'-extends edge, such the mater’s the purchaser assumes 12 being by washing away chance of his land decreased or increased increased such if it inures to him accretion; increase ” of-

operation law. portions together, these instructions taken in- italicized of there requiring finding a that was accretion de- land stead plaintiff’s deed, that in stated this was not nec- specifically scribed essary. question Realty same in This was discussed Ancona Co. v. Frazier, (2d) 820, 41 750, 328 Mo. W. and the thus stated: S. rule at

“Where or the time of alluvion batture sale has attained a susceptible it private ownership, sufficient elevation to be does pass expressed act not the land sale. with unless so in [Citing Goddin, 390, 397, Frank 193 W. 1057, In Mo. 91 S. authorities.] 493, grantor Am. Rep. may convey 112 that St. it is conceded a his upland calls, descrip- boundaries, such immutable lines and grantor tions as would result reservation to the appurtenant a present flat lands their or accreted alluvion. subsequently [Cit- ing patent We think was the effect of such defendant’s authorities.] Holt County and, thereby from he consequently, acquire not did any dispute. does interest land now This not instrument purport convey boundary, an such with river island for a conveyances Goddin, like Dumm supra; County, in Frank v. v. Cole 315 Mo. 568, 445; S. W. similar cases.’’ think here We situation same is the because bought only part county, appears a of an island and it there was then other the southeast land to land described might question his deed. be whether not jury There as to or southeastern part lying island front of the Whittle farm susceptible had that time at elevation attained sufficient to be private ownership. But submitted. no such issue argue further cannot any deed construed cover of an island because of lying the recital that “this land is accreted between E. D. Smith River.’’’ How the Missouri ever, that recital could not control over metes bounds deed, good so this deed was parties as to the ac tually described wherever it was without acknowl formal and-even edgment shown. v. Smith, Elsea 273 Mo. l. c. [See W. only Instruction No. 1 was the which instruction hypothesized plaintiff’s facts theory a verdict. authorized Plaintiff such had no instruction second count. covering theory evidence; Instruction No. 1 set out not- in accord with least susceptible misleading of the construction it was conveyed theory based on the entire deed an island. Instruction No. specifically stated such a gave obtained (at events) edge, him to the water’s er . emphasized roneously ignore error Both instructions- theory bought own large island, and that *11 larger We , from the one. off by being cnt separate island became finding fact issues required to make was not jury the hold instruction Harris Even the plaintiff. for a verdict to essential to constitute necessary elements the factual hypothesize all not does revers Therefore, submission this was possession. title adverse ible error.. questions con settle retried, we will must be case Since this the which pleadings, the case state the nature cerning at another trial. confusion cáuse some might otherwise the court with trial ref procedure followed assigned error as The Harris. defendant' plaintiff and between erence to issues interest one-half under an undivided by Harris claimed filed answer court asked the plaintiff affirmatively the deed respective rights, quiet adjudge, determine, settle, and define the “to real plaintiff and to said title, estates of defendants interests and seeking to have this aside reply Plaintiff filed deed set property.” agreed give a note deed of trust ground that Harris to on agreed price but not later purchase secure that he did do so and to reconvey plaintiff. reply to also “that the said Harris to This stated possession take said the said real estate has under deed and did not ’’ possession plaintiff. remained evidence, following theAt occurred: close of the plaintiff please, “Mr. If the Court dismisses as Davis: defendant Elmer Harris. plaintiff “The allowed as to the The will be to dismiss Court: objection defendant Harris if there is no on

defendant Harris. objection. Harris asks defendant “Mr. And Martin: No his in the case.”

withdraw answer filed objection appellants’ made said: Upon counsel court just they . . The Court pleadings will like are. . “I leave the answer defendant Harris permitting not withdrawal of the Sapp: . . . Mr. I want to under- nor dismissal of answer. ? proceeding out The The this —is or of this Court: stand Harris Sapp: Mr. Harris. What theory dismissed as to you if Well, out? The Court: want Court on it—is he it, think far what Court thinks about I don’t is out know as these Wallace are concerned.” defendants jury instructions, of both

The cause on was then submitted to Harris, authorizing jury to be owner to find Harris land, one-half interest in if an undivided Plaintiff’s against appellants. claims of were to own it as found them, equitable issue between dismissal to Harris eliminated jury as an action at law properly case submitted to and the equitable appellants. issue issues them proper have been for appellants not would did concern and it try R. S. separately court from the law issues. [Sec. that the this We hold dismissal of case as to Harris proper prejudicial In con appellants. could not be nection, allegation in the Harris’ appellants say reply possession answer that “the estate remained in the said real has plaintiff” “unlawfully appellants an admission that not were possession precludes plaintiff’s question,” of the real estate *12 ejectment alleged that recovery However, plaintiff count. March, “on the said day 1934, second into wrongfully entered premises possession unlawfully and now from the withhold ereof,” appellant th she Mary Wallace’s answer stated possession that she “admits is real described estate petition, except (a first count first small amended described).” allegation R. The Sec. [See reply, in view of all the must pleadings, be to mean construed against Harris take him after possession cláimed did not tenant) ; (he under the lease held under a Harris possession only appel up remained him time under allegation possession lants took in 1931. We that this cannot hold be plaintiff’s right ejectment against construed defeat ap so as to pellants. pleadings to If their desire to amend appellants, they make clearer title issue between should them and permitted urged Other will likely to do so. matters now not be again in upon occur way the same retrial. judgment Ferguson remanded. the cause reversed and

Bradley, CC., concur. opinion by adopted

PER foregoing C., CURIAM:—The Hyde, opinion judges of the court. All concur. O’Malley City Appellant S. W. Louis, Katherine St. . 119 (2d) 785. One, September 1938.*

Division Term, May 26, 1938; May Opinion motion for filed *NOTE: at Term, September 17, September filed; 1938. rehearing motion overruled