Polack v. Steinke

Kirby, J., (after stating the facts). It is first objected that the chancery court was without jurisdiction of this cause, it being contended that it is but a suit for breach of warranty as to quantity of land, and that appellants have an adequate remedy at law. It is not necessary to decide whether the complaint states a cause of action for equitable relief; for, if it be conceded that it does not, the cross complaint stated a cause of action clearly congizable in a court of equity, and supplied any defect of jurisdiction, and placed the court in possession of the case with right to grant relief to the party entitled thereto. Conger v. Cotton, 37 Ark. 286; Radcliffe v. Scruggs, 46 Ark. 96; Crease v. Lawrence, 48 Ark. 312; Dickinson v. Arkansas City Imp. Co., 77 Ark. 570. The action was not one for a breach of warranty as to quantity, there being no quantity or number of acres specified in either the contract for the exchange of these Missouri lands or the deed conveying them, but for an abatement of the purchase price on account of false representations and statements made to appellants and relied upon by them, as to the quantity of land contained in the tract, before the sale and as an inducement to it, and no error was committed in permitting the introduption of parol testimony relative thereto. Harrell v. Hill, 19 Ark. 111. It is almost undisputed that the Missouri lands were represented to contain about 800 acres and definitely 786 acres, such amount being shown on the plats exhibited to appellant, Polack, and relied upon in the making of the exchange and as an inducement to it, and it is not denied that the lands as described and conveyed only contain 527 acres, unless the sandbar west of the old river channel in fractional section 18 constitutes a part of them. The preponderance of the testimony shows that the island formed in the Missouri River on the west side of the old channel in section 18, and that the sandbar was formed by accretion to it and not to the shore land of appellee. Under the laws of Missouri, the title to islands forming in navigable rivers belongs to the county in which the island forms, and the riparian rights of owners of lands along that river, which is a navigable stream, are also well defined. By the decision of its courts, the shore owner takes only to the edge of the water, low water, and is of course entitled to the land added to his land by accretion or reliction. When, however, the bar forms and an island is made in the river, and afterwards by accretion to the island the land finally forms across the channel to the mainland, it is regarded as a part of the island, and does not belong to the shore owner upon the main land, but belongs to the county under the laws of said State. Session Laws 1895, 207; Benson v. Morrow, 61 Mo. 345; Cooley v. Golden, 117 Mo. 33; Rees v. McDaniel, 115 Mo. 145; Moore v. Farmer, 156 Mo. 33; Hahn v. Dawson, 134 Mo. 581; Voglesmeier v. Prendergast, 137 Mo. 271; Frank v. Goddin, 193 Mo. 399. See also St. Louis, I. M. & S. Ry. Co. v. Ramsey, 53 Ark. 314; Nix v. Pfeifer, 73 Ark. 199. The bar west of said old channel, having formed by accretion to the island, was not the property of the shore owner, and not included within the description of the lands conveyed to appellants, thus making a shortage of 259 acres not conveyed, for which they were entitled to compensation. Harrell v. Hill, 19 Ark. 111; Drake v. Eubanks, 61 Ark. 120. The testimony showing that the sandbar with which appellants said they would have been satisfied and have made no complaint of shortage, if it was included within their grant, was of about the same value as the Drew County lands, the chancellor correctly found that appellants were entitled to the shortage in acreage in the Missouri lands of the amount shown at the price of $7.50 per acre. He was mistaken, however, in his finding that 120 acres of the Arkansas lands included in the exchange had not been conveyed and decreeing the title thereto to remain in appellants; the tract as described in the cross complaint being apart of section 14, containing only 5 acres, instead of 120. He should have allowed appellants for the whole shortage, 259 acres, at $7.50 the reasonable value of the land they expected to get, and with which they would have been satisfied, in all $1942.50, and interest at the rate appellants’ note bears, and directed a delivery of the deed tendered in court conveying all the Arkansas lands to appellee. Upon this appellee should be credited with the amount of their said $1500 note, which should be can-celled, and for the balance a lien fixed as a condition for equitable relief upon the lands in Drew County. The decree is reversed, and the cause remanded with directions to enter a decree in accordance with this opinion.