Opinion
No. 42317.
July 9, 1951.
APPEAL FROM THE CIRCUIT COURT OF SALINE COUNTY, PHIL H. COOK, J.
Don C. Carter, Sturgeon, for appellant.
Roy W. Williams, Boonville, Robert D. Johnson, Marshall, for respondents.
Action in two counts, in ejectment and to quiet title to an irregular 48-acre tract of described land in Cooper County. Plaintiffs alleged title by adverse possession; and defendant by answer admitted his claim of title to that part of the described land which encroaches upon "Island No. Thirty-Four (34), in the Missouri River," which, defendant alleged, he had purchased in 1945. The case was tried without the services of a jury. At the conclusion of plaintiffs' evidence, defendant filed "motions for a directed verdict," and, in effect, announced he did not desire to introduce any evidence. The trial court overruled the motions and found the plaintiffs "are the owners of said land. * * * defendant has no right or claim to said real estate," and rendered judgment for plaintiffs on both counts of their petition. Defendant has appealed.
(Plaintiffs alleged title had vested in them by limitation under the provisions of Section 1008, R.S. 1939, now § 516.070, R. S. 1949. However, the evidence introduced by plaintiffs and considered by the trial court would indicate the trial court and the parties plaintiff treated the ten-year statute of limitation, Section 1002, R.S. 1939, now § 516.010, R.S. 1949, as applicable. We may assume the plaintiffs intended to plead the applicable statute. Compare Allen v. Wiseman, 359 Mo. 1026, 224 S.W.2d 1010.)
In 1917, one Mochel and wife conveyed to William Oerly a tract of land "containing 148.77 acres, more or less" described by metes and bounds. (The land described in the Mochel deed is situate in Sections 10 and 11, Township 48, Range 15, Cooper County.) The north line of the land, according to the description, extended "to the Missouri River," and the description continued, "thence southeasterly down said river with its meanders * * *." The conveyance also recited it was understood "a portion of said land has fallen into the Missouri River."
In 1920, William Oerly and wife executed a deed of trust to secure debt, in which conveyance the land was described as it was in the Mochel conveyance to Oerly, except that the deed of trust contained, in addition to the description of the main body of the land, the words, "together with accretions thereto."
In 1932, the Oerly deed of trust was foreclosed and the land was sold to one William J. Sombart and others, the purchasers taking title as tenants in common. In the trustee's deed, the purchasers' respective interests were particularly set out by "eighteenths," William J. Sombart acquiring an eleven-eighteenths interest in the land in the trustee's deed described. The description of the land in the trustee's deed was the same as that in the Oerly deed of trust, supra, and included the words, "together with accretions thereto."
Plaintiffs, Hugh and Milton Kirschman, were the purchasers at a sale in partition. We may infer the sale was pursuant to an order partitioning the lands among those interested as purchasers at the sale in foreclosure under the Oerly deed of trust. The sheriff's deed in partition, dated December 8, 1945, conveyed to Hugh and Milton the land as actually described in the conveyances, supra, including the words, "together with accretions thereto."
The evidence shows that the northeastern corner of the land, actually contained in the metes-and-bounds description as used in the conveyances, supra, was marked upon the ground by an "iron pin." The 48-acre irregular tract in controversy lies to the eastward of the main body of the farm as described by metes and bounds. The irregular tract is "bar land and brush land, timber."
A line projecting eastwardly from the "iron pin" to the Missouri River delineates the north boundary of the land in controversy. Omitting measurements by which the "iron pin" is located, the plaintiffs' petition described the 48-acre tract as follows, "* * * an iron pin, the point of beginning, running thence East to the Missouri River, thence in a southeasterly direction along the Missouri River to a point due east of the aforesaid stone (located at the southwest corner of plaintiffs' main tract), thence West 6 chains, thence in a Northwesterly direction to point of beginning * * *."
It is the position of plaintiffs-respondents that the irregular tract is land which had and has become, by accretion, a part of the main tract brought at the partition sale in 1945, their theory being that they, and those under whom they claim, have possessed and claimed to own the land so purchased by them for the statutory period of ten years; and that title so acquired included the title to the accretions — the 48-acre irregular tract in controversy.
It is contended by defendant-appellant that the evidence introduced by plaintiffs was insufficient in showing essential elements of title by adverse possession. Cases including Eld v. Ellis, Mo.Sup., 235 S.W.2d 273; Pahler v. Schoenhals, Mo.Sup., 234 S.W.2d 581; Allen v. Wiseman, supra; Horton v. Gentry, 357 Mo. 694, 210 S.W.2d 72, are cited by defendant-appellant. In making this contention and in citing these cases, defendant confines his argument to the evidence of acts of plaintiffs with reference to the isolated 48-acre irregular tract.
Relating to the 48-acre tract, considered apart from the western main body of the farm, the evidence tends to show plaintiffs, in January 1948, surveyed a line and built a fence of one barbed wire from the iron pin eastwardly to the "water's edge" of the Missouri River. They did this because someone was "cutting timber." (It is tacitly conceded defendant thereafter took the fence down sufficiently to enter upon the disputed tract of land.) Plaintiffs also paid taxes "on the farm," and they "did cut some brush (on the irregular tract)." Defendant says this was the only evidence of the actual possession of the irregular tract by plaintiffs. In urging the evidence of these acts was insufficient in showing the elements essential to the establishment of title to the irregular tract by adverse possession, defendant-appellant does not take into account or give probative effect to the additional evidence of the actual possession, acts of ownership, and use of the main body of the farm by plaintiffs and those under whom plaintiffs claim since even prior to 1932.
There was evidence tending to show that, prior to the foreclosure sale in the year 1932, Oerly had possessed and farmed the main body of land west of the disputed tract; and, after the foreclosure sale, William J. Sombart (who, it may be inferred, was acting for himself and his co-tenants, purchasers at the foreclosure sale) engaged one Miller to act as agent in handling the land. The farm was actually occupied by Arthur Adair, a tenant. Miller caused a survey to be made by the county surveyor of Cooper County. The county surveyor began his survey at the "iron pin," and surveyed and staked a line east to the "water's edge" of the Missouri River. In 1936, at the direction of Miller, Arthur Adair, the tenant, built a fence (a single strand of wire) on the line where the county surveyor's "stakes were." The fence stood for a number of years, and parts of the fence were still there when one Mary Taylor bought lands to the northward in 1941 or 1942. Mary Taylor testified that she sold the lands to the northward to defendant in 1945. At the time, she showed defendant the iron pin, and indicated where the parts of the old fence running eastwardly had been when she had bought the land in 1941 or 1942. She told defendant, "that that's where the line went through there; that's what Mr. Miller said." When the line eastward was again surveyed and the new single-barbed-wire fence was built by plaintiffs in January 1948, there were "parts of the old wire there. * * * This old fence was on the same line where we built our * * * new fence."
As we have noticed, the conveyance from Mochel and wife to Oerly in 1917 recited the understanding a part of the lands described in the deed had fallen into the river. Thus it may be inferred the main body of land in the conveyances described bordered on the waters of the river in 1917. There was evidence the "water's edge" of the Missouri River frequently changes — it changes "almost yearly." The Oerly deed of trust of 1920, and subsequent conveyances, described the main body of the land as it had been described in the Mochel deed, and contained the additional words, "together with accretions thereto." There was the further evidence that in the last few years the east line of the disputed tract "has curved towards the river." The evidence justifies the conclusion the disputed tract has been built by accretion since 1917, and there was no evidence tending to show the tract or a portion thereof was created by any other action than the building of land by the gradual action of the waters of the river and the recession of the western edge of the waters of the river.
Conceding plaintiffs did not show a perfect record title, even to the main part of their farm, the evidence tends to show that plaintiffs and their predecessors came into possession (under color of title) of the main part of the farm "together with accretions thereto"; and that plaintiffs and their predecessors have actually possessed and exercised acts of ownership over the main farm as a farmer-owner would, since prior to the year 1932. The indicia of their possession of the main farm extended over the forming accretion and brought it under their actual possession. Consequently, it was to be reasonably found that plaintiffs and those under whom they claim have been in the actual possession of the whole body of the land, including the 48-acre irregular tract, since prior to 1932. In 1936, plaintiffs' predecessors signified (to such person who may have then owned or later acquired lands to the northward) the claimed northerly extent of the accreted land which they claimed to own as part of their farm, by the construction of a fence, which fence was renewed by plaintiffs in 1948.
The legal principles applicable to the facts of the instant case have been comprehensively stated by this court in the case of Benne v. Miller, 149 Mo. 228 at page 238, 50 S.W. 824 at page 827, as follows, "An accretion becomes a part of the land to which it is built, and follows whatever title covers the main land, whether it be title by deed or title by possession. In its nature it is not susceptible, during its forming, of that kind of possession which distinguishes the occupation of dry land. But it attaches to the dry land even while it is yet under water, and belongs to the owner of the land, and is in the actual possession of him who holds the actual possession of the main land. If the main land is in fact unoccupied, it is in the constructive possession of the owner of the true title, and with it goes the constructive possession of the forming accretion. But, if the main land is held in adverse possession to the true owner, he is not in constructive possession of the accretion; and, since the accretion in its formative state is not susceptible of actual occupancy in the sense of a pedis possessio, the indicia of the actual possession of him who holds the main land are extended over the forming accretion, and bring it within his actual possession. And it is not necessary that such possession of the accretion should be held for 10 years to give the possessor title because title to it follows title to the main land; and when the latter is held under the conditions and for the length of time required by law to vest the title in the possessor, the title to the accretion follows, even though the deposit had been made but a year or a day. * * *" See also Lossing v. Shull, 351 Mo. 342, 173 S.W.2d 1; Doebbeling v. Hall, 310 Mo. 204, 274 S.W. 1049, 41 A.L.R. 382; Campbell v. Laclede Gas Light Co., 84 Mo. 352; 2 C.J.S., Adverse Possession, § 205, page 806.
Moreover, as we have indicated supra, defendant did not introduce any evidence. There was no evidence tending to show what land or its extent defendant owns, if so, to the northward; nor did defendant introduce any evidence whatsoever tending to show any record or possessory title as basis of his claim of title and right to possession to the 48-acre tract or any portion thereof. As stated, the evidence tends to show that, prior to defendant's entry, plaintiffs were in possession, claiming to be the owners of the whole farm including accretions thereto. Giving credence to such evidence, then, regardless of any question of limitation of action, they, plaintiffs, were entitled to prevail against defendant, and the trial court's judgment is consequently justifiable, inasmuch as plaintiffs had shown a better title than defendant, who had shown no title or possession at all. Lossing v. Shull, supra; Johnson v. McAboy, 350 Mo. 1086, 169 S.W.2d 932, and cases therein cited.
The judgment of the trial court should be affirmed.
It is so ordered.
LOZIER and COIL, CC., concur.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court. All of the Judges concur.