Benecke v. Welch

VALLIANT, J. — This is a suit in equity to enjoin defendants from taking certain threatened action which plaintiff alleges will cast a cloud on his title to certain land and involve him in a multitude of lawsuits. The petition shows that plaintiff, in his own right, and as surviving partner of a firm, is the owner and in possession of certain lands fronting the Missouri which were formerly in Saline county, but which by action of the river were cut [270] off front Saline and attached to Chariton county, “and that there was formed and attached -to the north and east side of said lands a large body of land by gradual and imperceptible accretion, extending over and across the former hed of the Missouri river, and the said original land, together with the accretions thereto, were for more than ten years prior to the bringing of this suit, “and still are, in the open and notorious possession of plaintiff,” etc. Then the petition goes on to say that the defendants are the judges of the county court of Chariton county, and assuming authority under an act of the General Assembly entitled “An Act to grant certain lake and river-bed lands to the counties in which they are located for school purposes,” approved April 8, 1895, have caused surveys to be made of the lands embraced in the accretions and are threatening to sell the same to divers persons, thereby casting a cloud on plaintiff’s title and involving him in many lawsuits. Upon the filing of the petition a temporary injunction was granted, but at the return term of the court the defendants filed a demurrer to the petition, which was by the court sustained, and plaintiff declining to- plead further, final judgment was rendered for the defendants, from which the plaintiff appeals. There were nine grounds assigned for the demurrer, that is, the grounds for demurrer were enumerated under nine specifications, but they were all assignments in varying forms of only one ground, that is,'that the plaintiff’s remedy was at law and not in equity. In the brief for respondents it is assigned as objection to the petition that it states conclusions and not facts, that it does not state facts from which it can be determined whether there-was a gradual reliction and imperceptible receding of the river from its bed, or avulsion, or that the riparian lands were extended by gradual accretions, or that the riparian lands were an island in the river and extended by reliction, or that [271] would justify the conclusion that the river bed should attach to land in Saline rather than in Chariton county. None of these alleged defects in the petition, however, were contained in the grounds assigned for the demurrer. It will be seen from the quotation from the petition above made that it does state that the land in controversy was formed by gradual and imperceptible accretions to the plaintiff’s land until it extended over what was the former bed of the river. Any accretion to riparian land must extend over what was formerly the bed of the river. The petition is as definite in that respect as it could be made. Eespondents argue in their brief that the lands in dispute were simply the former bed of the river, from which the water has receded, and that as the river bed belonged, not to the riparian owner, but to the State, it passed under the Act of 1895 to the county. But that conclusion of fact can not be drawn from the face of the petition, the statements of which are to the contrary. If it is the fact, as the plaintiff in his petition alleges, that the land in dispute is an accretion to his riparian land, then the action of the defendants in assuming that it is land that passed to the county under the Act of 1895, and on that assumption causing it to be surveyed and threatening to sell it to divers persons, easts a cloud on the plaintiff’s title, and is liable to involve him in a multitude of suits. Under these conditions his is peculiarly a case for the interposition of an injunction and the adjustment of the differences in a court of equity. He is now, according to the petition, in the peaceful possession of his own, but if his territory is to be invaded, his title clouded, and he be forced to bring, or defend as the case may be, a number of lawsuits, then even if he maintains his rights at the end he will have suffered much wrong, and his remedy at law will have been far from adequate. It is to prevent such wrong and to afford adequate remedy that courts of equity entertain suits of this hind. If authorities to sus [272] tain that proposition were needed they are amply furnished in the brief of appellant, but we deem it unnecessary to cite them. If the facts are as respondents contend they are in their brief, they should answer the petition and the court will try the issues. Not only is the plaintiff entitled to have these questions settled in a court of equity before he is disturbed, but the interests represented by the defendants would also be promoted by that course. If the land in question is an accretion to the plaintiff’s riparian land he should be left in its peaceful enjoyment, but if the facts are as defendants contend, they can best be-shown in the trial of the issues tendered in the petition and the rights of all parties be settled by decree in equity and the whole controversy ended in one suit. The judgment is reversed and the cause remanded to the circuit court with directions to overrule the demurrer. ' All concur.