McCormack v. Miller

KENNISH, J. — This is an appeal from a judgment of the Louisiana Court of Common Pleas of Pike county, in an ejectment suit. The plaintiff sued for the possession of about fifteen acres of land in said county. The answer was a general denial. The case was tried at the May term, 1908, and at the close of plaintiff’s case the court gavean instruction in the nature of a demurrer to the evidence. There was a verdict and judgment accordingly, and plaintiff appealed. It appears from the uncontradicted testimony that in the year 1891 appellant purchased “all of that part of the north half of section 25, township 55, of range 3 west, except what is known as Sugar Creek Island, ’ containing 160 acres more or less, which lies south of Salt River,” in Pike county, this State. He immediately went into possession of said land, and has occupied and cultivated it ever since. At the date of said purchase Salt River in part formed the northern boundary of said land. The land now owned by respondent, but then owned by his grantor, lay directly opposite and across the river, the river being the southern boundary thereof, except that in its northeasterly course the river crossed the north line of said section 25, leaving the section line, for a short distance east from that point, as the boundary line between -the two tracts of land. The general course of the river was in a southerly direction, but near where it reached appellant’s land it made a bend and changed to an easterly course, bearing a little to the north. Appellant’s [468] land was underlaid by a stratum of sand, at a depth of about eight or ten feet, and in times of high water the river along the bend at appellant’s land washed away the sub-stratum of sand under its south bank and caused the land to cave in and be washed away. Sometimes one flood would cause the river to encroach upon appellant’s land for a distance of from twenty to seventy feet. The channel moved to the south, keeping pace with the washing away of the southern bank, and as the channel moved south land was formed on the other side of the river, on the southern boundary of respondent’s land. The fifteen-acre tract in controversy is land which at the commencement of the suit lay on the north side of the river. In 1891 the site of the land now in dispute was within the boundary lines of the land then purchased by appellant, but in the seventeen years intervening the land so purchased had been washed away and the land now on the north side of the river had .re-formed as before described. A number of witnesses testified in behalf of plaintiff, including plaintiff himself, and ¡their testimony was, without exception, to the effect that the river had undermined and cut away land on the south side and formed land on the north side as heretofore described. Appellant introduced his deed in evidence and relied upon his title thereby acquired. No question of title by prescription is presented by the testimony. The respondent, as riparian owner on the north side of the river, was entitled to all additions to his land along the river by the process of accretion. [Benson v. Morrow, 61 Mo. 345; Rees v. McDaniel, 115 Mo. 145; Hahn v. Dawson, 134 Mo. 581; 1 Farnham on Water and Water Rights, sec. 69.] A running stream, forming the boundary line between contiguous lands, continues to be such boundary line, although the channel may change, provided thé change is by the gradual erosion and cutting away of its banks and not by a sud [469] cien change leaving the old channel and forming an entirely new and different channel. [Cooley v. Golden, 117 Mo. 33; Frank v. Goddin, 193 Mo. 390; Jefferis v. East Omaha Land Co., 134 U. S. 178; 3 Farnham on Water and Water Rights, see. 847.] In determining whether a riparian owner has title to land in controversy by accretion, the length of time in which it is in course of formation is not of importance. If it is formed by a gradual, imperceptible deposit of alluvion, it is accretion; but if the stream changes its course suddenly and in such manner as not to destroy the integrity of the land in controversy and so that the land can be identified, it is not accretion and the boundary line remains as before the change of the channel. [Benson v. Morrow, 61 Mo. 345; 29 Cyc. 348-349; Coulthard v. Stevens, 84 Iowa 241; Wallace v. Driver, 61 Ark. 429; County of St. Clair v. Lovingston, 90 U. S. 46.] Applying the foregoing well established principles of law to the facts of this case, there can be no doubt as to the correctness of the ruling of the trial court in directing a verdict for the defendant. Accordingly the judgment is affirmed. Ferriss, P. J., and Broivn, J., concur.