Graham v. Knight

LEVY, J. (after stating the facts as above). The appellants first insist that they were entitled to recover the accreted land lying east of the C. M. Collom survey, because the land conveyed by the Rochelles to J. Kos-minsky and his successors in title, now held by appellee, did not extend to the river so as to carry or acquire riparian rights and the right of alluvion along that part of the river. The contention is that there was conveyed to J. Kosminsky only the original highland along the water front, and there was not conveyed, but expressly and definitely excluded from his purchase, the beach or accreted land which at that time had already formed between such highland and the water’s edge. A solution of the question requires an examination of the deed to Mr. Kosminsky, for the succession of the appellants to the title of the Rochelles is dependent upon the construction to be given to the prior deed of the Rochelles to Mr. Kos-minsky, under whom appellee claims title. It is a recognized principle that a riparian owner may, upon the sale of the upland, reserve either submerged or accreted land, or any part of it, or he may make it the subject of a separate sale, or sell it with the upland. The general rule, however, is that the accreted land passes to a grantee of the upland as an. incident or appurtenance unless reserved upon a sale of the upland. The question of the intent of the grantor that the submerged or accreted lands or any part thereof shall or shall not pass with the upland is according to the rules, to be determined and found in the terms of the deed of conveyance. The deed here to Mr. Kosmin-sky makes no express reservation. The appellants, though, say that the calls in the deed are uncertain and ambiguous, and parol evidence offered to explain them shows the undoubted intention to make •the reservation of the beach or accreted land at the time from the sale to J. Kosminsky. The “east half of the C. M. Collom survey” was clearly and in words conveyed to Mr. Kosminsky, and it was to be bounded, according to the plain calls of the deed, on the east and north by Red river. There is a call for “the west bank of Red river, thence with the meanderings of the said river, thence with the bank of said river to a stake,” etc. The words “west bank,” as applied to a river, means the land adjacent to the water on the west side thereof. That exact definition should here be given to it, in view of the next and following calls being “thence with the meanderings of the said river, thence with the bank of said river.” The second call could not be followed as it is written, unless the preceding words, “bank of the river,” have application to the land adjacent to the water of the river. The stream, as a natural object, is the intended boundary. That no other bank but the bank of the river as it then ran was meant is apparent. *984 when all the calls are considered together, as they must be, according to legal rules. Thus the stream itself is the call to bound the land by a line to the margin of the river, or the water’s edge, then along the margin or water’s edge. Consequently, as the calls in the deed are not uncertain or ambiguous, they cannot be varied, as undertaken in the trial, by parol evidence. Besides, even the parol evidence offered, if considered, would sustain the ruling of the trial court, as involved in his decision, that no other or different bank of the river was shown to exist on the ground so as to make two banks of the river existing at the time of the conveyance. The calls, however, in the Kosminsky deed, must control. Muller v. Banda, 31 Tex. 265, 98 Am. Dec. 529; Griffin v. Barbee, 29 Tex. Civ. App. 325, 68 S. W. 698. The purchaser, then, took under this deed to the bank of the river as it was or might thereafter be by accretion. As a legal consequence, appellants have no title to the accreted land of the C. M. Collom survey. Moreover, it is thought that, under the undisputed evidence, the adverse occupancy by Hooks conclusively established a title by limitation in Hooks in 1906, as against the Rochelles, to the C. M. Collom survey accretions. Appellants next insist .that, as they showed title to the accreted land of the .John Collom survey, the accretions must be apportioned to the owners of the lands in the two surveys in proportion to the river frontage. This would be true, we think, as a matter of law in this record, -unless it should further be said that the trial court was authorized to conclude, as a matter of law, that the appellants’ right to any part of the accreted land of the John Collom survey was defeated by the adverse possession under limitation of appellee and those under whom he claims. After a full consideration of the record, we have' concluded that the evidence on this question of limitation, so far as it pertains to appellants’ title and claim to the J. W, Collom survey, was not of that conclusive character that authorized the court to take the question away from the jury. There is evidence that Hooks fenced, used, and cultivated land, some of it including accreted land, and paid taxes on it for some years. But they were claiming it solely under the terms of their deed and to the extent of their deed, which made it entirely a part of the C. M. Collom survey. Further, the possession and use of the land by Hooks extended inferably to the accreted land proceeding directly from the C. M. Collom survey, and not wholly on the entire front and proportion of land accreted to the John Collom survey, a separate and distinct survey. And it does not definitely appear that the entire accreted land was actually inclosed by a fence, an used in adverse possession, to or along the river front prior to 1913. The accretions in becoming a part of the lands to which they are joined take the title and condition of that land just as it exists at the time of their formation. If the true riparian owner of the mainland is in possession of the mainland under his deed, then he is in constructive possession of the accretion. But if the mainland is in a possession adverse to the true riparian owner, he is not in constructive possession of the accretion. Then, unless the riparian owner of the mainland is barred by the statutory limitation of adverse possession as to the mainland, or as to the entire river frontage on the river, he is entitled to recover in a suit against him. The right to accreted land is by virtue of ownership of the original shore line or river frontage. From the beginning the accretion was but an increment of the river frontage, and whatever right the appellants and their predecessors in title ever had in the river frontgage, that same right they necessarily have in the increment, as inseparable from the river frontage right. In order, then, for the appellee to claim a right to the accreted land belonging to the John Collom survey, having no deed of conveyance thereto, he must show that his claim rests upon adverse possession for the statutory period of 10 years. The rule is that the possession of a mere intruder, or person without deed or color of title, upon accretions formed to land, will not be adverse as against the rightful owner, except as to the part he actually occupies and incloses, which inclosure must be definite and notorious. 1 R. C. L. p. 235; Railway Co. v. Groh, 85 Wis. 641, 55 N. W. 714. It follows that, if appellants be not barred by adverse possession of appellee and those under whom he claims as to their right to accreted land of the John Collom survey, then they are entitled to have the accretions apportioned to the owners of the lands in the two surveys in proportion to the river frontage of the east boundary of the C. M. Collom survey and the north boundary of the John Collom survey as shown in the original field notes thereof, and the' present frontage of said surveys on the river inclosing the accreted lands. City of Victoria v. Schott, 9 Tex. Civ. App. 332, 29 S. W. 681; 29 Cyc. p. 353; 1 R. C. L. pp. 244, 245; Johnston v. Jones, 1 Black, 209, 17 L. Ed. 117. Appellants are entitled to their river frontage as a vested right, if not barred by limitation, regardless of how small or large the original tract was. Fulton v. Frandolig, 63 Tex. 330. There was error in giving the peremptory instruction, and the judgment is reversed, and the cause remanded for another trial.