Opinion
No. 42393.
January 14, 1952.
Warren H. May, Louisiana, for appellants.
Brevator J. Creech, Troy, for respondents.
This is an action to quiet title to real estate in Lincoln County and in ejectment. Plaintiffs-appellants Kimberly and plaintiff-appellant Melloway are the owners of abutting parcels of land on the right or west bank of the Mississippi River. Defendants-respondents are the owners of an island in the river (referred to below and herein as Presley Island). The land in dispute (herein called the accretions) lies between plaintiffs' lands and the island as it existed when defendants bought it in 1940. The trial court found for and decreed title in defendants. Plaintiffs appealed.
As the parties agree that accretions belong to the owner of the land to which they accrete, no law issues are involved. The sole question is factual — did the accretions accrete to plaintiffs' lands or to defendants' island?
Bradley Island is east and north of plaintiffs' lands. The mouth of Sandy Slough is immediately north-northwest of the north part of Bradley Island. The slough waters flowed south-southeast through a chute between the Missouri bank and Bradley Island. The river's main channel was and still is east of Bradley Island.
In 1935, the government began, and in 1937 or 1938 completed, the construction of a lock and dam across the river eastwardly from Bradley Island. The project included an embankment from the north end of that island north-northwest to the Missouri bank east of the mouth of Sandy Slough; also a roadway, on pilings, from about the center of the island west-southwest to the Missouri bank. The result of this work caused the slough waters to pass through the chute under the roadway and to enter the river below Bradley Island.
Plaintiffs' lands are on the bank of this chute, south of the embankment and the roadway and opposite the south part of Bradley Island. Kimberlys' parcel is immediately south of Melloway's. Presley Island was initially a small sand bar, formed in the river before the lock and dam project was started, some 600 or 700 feet south of the (projected) south property line of the Kimberly parcel. It contained 4.61 acres when defendants purchased it from the county in November, 1940. According to defendants' evidence. it contained 17.79 acres in December, 1949, several months before the trial of this case.
A portion of these 17.79 acres, east of plaintiffs' parcels, is the land involved in this suit. The evidence was that the accretions were silt deposited by the slough's waters and the river's floodwaters and, especially, silt resulting from the government's sand pumping and dredging operations. There operations were in the river and in the slough, both during construction and, thereafter, in the maintenance of the lock and dam area and of the slough itself for several miles upstream.
Plaintiff's contention, as stated in their brief, is that "after the lock and dam project was completed, the water in front of plaintiffs' property, being mostly Sandy Slough, receded and left mud from the shore line on out some 300 feet, and said ground filled in rapidly by silt coming down said slough, especially in the high water of 1946 and 1947. As the water receded, plaintiffs had to put their boats farther out and had to walk across the mud or fill to the water, and this fill or accretion extends the whole length of plaintiffs' property and out therefrom east a distance of said 300 feet or more. An accretion also formed to this pumped island to the south of plaintiffs' property at the same time."
Plaintiff Adlai Kimberly testified that: he was a commercial fisherman and had lived on his land all his life; that after the dam was built the chute "began to fill in," especially after the 1946 and 1947 floods; a portion of the land shown on the West survey (hereinafter mentioned) and claimed by defendants actually accreted to plaintiffs' lands; "my bank side spread out to the island"; there were accretions to the island, more so to the north, but at the same time there were accretions to plaintiffs' lands extending eastwardly. Plaintiff Melloway, who bought from Clifford Bell in 1946, testified that: since he purchased, the chute "kept filling in" next to plaintiffs' lands; during 1947 and 1948 it "built up" about 18 inches. Plaintiffs' witness Bell, who had owned and lived on the Melloway parcel between 1912 and 1946, testified that: the "new land had commenced to form" around 1932; when he sold to Melloway in 1946, the land extended out 200 feet from the banks on plaintiffs' parcels. Plaintiffs' witness Birkland testified that the land in dispute "went both ways"; he "would say that it formed on the bank at the same time it was forming down on the island."
According to Adlai Kimberly, the sand bar first appeared in 1938, 1939 or "maybe 1940." Melloway said that its area was about 3 or 4 acres when he bought his parcel from Bell in 1946. Bell had seen the island "form, go out and form again"; the last time it commenced to form was in 1932, when it was about an acre in size; the island was higher in 1946 the last time he saw it.
Defendant W. H. Presley had lived in the community since 1920; he first knew of the island's existence in 1932 or 1934; he had seen it grow in size year after year; he had "fished off it" for 2 or 3 years prior to 1940; he purchased it from the county in November, 1940, and received the county's deed therefor; the recited acreage was 4.61; the bar was forming 800 to 1000 feet south of Kimberly's (projected) south property line; since then the island increased in size; the extensions were to the north, northwest and west (i. e., toward Bradley Island, toward the chute between Bradley Island and the Missouri bank and toward plaintiffs' parcels) as well as to the south and east (main channel) sides; the island is about 3 feet higher in the center and slopes downward toward the chute on the west and north sides and also on the east side; since he bought it, it had increased about 1200-1500 feet to the north, 50 feet to the south, 200 feet to the east and 200-300 feet to the west; the accretions started forming at the bar and gradually extended toward plaintiffs' lands.
Mrs. Rose Presley, mother of defendant W. H. Presley, first knew of the bar in 1934. It was then about 300 feet from the west river bank and later extended to the west and north.
In 1940, at the county court's direction, Ben Williams, county surveyor, surveyed the island. He testified that: it was then simply a sand bar, probably 3 feet high; he ran the lines as close to the water's edge as he could; and the acreage was 4.61.
In December, 1949, Stanley West, then county surveyor, made a survey for defendants. This showed the island of the original Williams survey as being a narrow triangular tract the lower (south) point of which was about 100 feet north of the lower point of the island as shown by the West survey; and showed the short third (north or eastwest) side of the triangle as being in about the center of the island according to the West survey. West testified that: he followed "one definite contour of the island, being the one closest to the water's edge"; it was one continuous body of land with high points in the center and sloping toward the water on all sides; the acreage was 17.79; his description of those 17.79 acres was that used by defendants in their answer and counterclaim; he was asked by defendants to survey the island and knew that the land covered by his description was part of that island — "he had surveyed more islands than this one"; the land north and west of the Williams survey (the 4.61 acres defendants bought in 1940) had been "added to this island"; he "did not run Presley's boundaries," he "only surveyed the island."
V. A. Horne, civilian employee of the U.S. Engineers, first knew of Presley Island around 1936 or 1937; he was a member of the survey party which assembled data for the lock and dam's location; the island had increased during 10 or 12 years; it "formed up toward the lock and dam and then the windfall dirt is on that side and it was keeping on filling in there, and also when the river goes up and when it falls, it deposits silt in there, sometimes deposits maybe 3 inches, 6 inches, sometimes 8 inches." As an engineer, Horne thought that: "Slow current causes the body of land to be continually added to. You see when the current is not fast enough to carry off the silt, the silt settles and that builds up. Each time you have high water you have a little more silt that comes in there and then when the water goes down it settles and adds to it. * * * It was building up to the east, north and west. * * * Q. That is your theory of it? A. I know. Q. How do you know? A. I have been there long enough to know."
Robert H. Walker, another civilian employee of the U.S. Engineers, first came into the area in 1930; he investigated possible locations for the dam; the location was not made on the basis of the original surveys; he made other surveys in 1934; during construction, the engineers had to use the channel next to plaintiffs' lands to get to Presley Island; he had observed the increase in the fill in the river and knew the fill was still building up; the water is deeper at the bank than it is farther out; since 1940 he had often been at the lock and dam and had noted the increases in the island's size; it got higher and kept building on a gradual slope towards the north, west and south; when he last saw it, the highest point was the "original spot"; it filled in all directions but mostly west and north, at least 1000 feet from where it started; and he had never seen any land extending easterly from plaintiffs' lands.
Hilbert Jackson, born and raised at Winfield, a few miles away, had "been around there a lot"; he worked at the dam in 1935 or 1936; he first noticed the sand bar in 1939 when it was about an acre and by 1944 the bar extended "quite a lot" toward the west and north.
We review this non-jury case as a suit in equity; we give due regard to the trial court's opportunity to judge the credibility of the witnesses; the judgment may not be set aside unless clearly erroneous. Mo.R.S.A. § 847.114(d), Mo.R.S. 1949, § 510.310, V.A.M.S. Stewart v. Russell, Mo. Sup., 227 S.W.2d 1011; Schell v. City of Jefferson, 357 Mo. 1020, 212 S.W.2d 430. We have weighed the evidence and agree with the trial court that it preponderates in favor of defendants. The conflicting testimony of the parties themselves may have resulted from their interest. The trial judge saw them and heard them testify. Moreover, there were disinterested witnesses, qualified by experience and by their observations of the site, whose testimony was that the accretions had accreted to defendants', not plaintiffs', land. There was a firm, substantial foundation for the trial court's finding that the land in dispute accreted to Presley Island.
The judgment is affirmed.
VAN OSDOL and COIL, CC., concur.
The foregoing opinion by LOZIER C., is adopted as the opinion of the court.
All concur.