Jefferis v. East Omaha Land Company

This is a suit in equity, brought in the circuit court of the United States for the district of Nebraska on the 9th of February, 1889, by The East Omaha Land Company, a Nebraska corporation, against Thomas Jefferis. The case was heard on a demurrer to the bill, which makes it necessary to state with particularity the allegations of the bill. The are asfollows: The lands which are the subject of the suit are of the value of $2,000 or more. In 1851 the deputy surveyors of the United States, then engaged in surveying the public lands in township 75 N., range 44 W., of the fifth principal meridian, in the state of Iowa, ran, marked, and made fieldnotes and plats on the meander line of the left bank of the Missouri river, and returned the said field-notes and plats to the surveyor general of Iowa, who filed the same in the general land office, and they were thereupon duly approved; and since that time no resurvey has been made by the United States of the lands lying along, upon, or near said river, or of the premises which are the subject of the bill. Section 21 in that to wnship was properly surveyed and subdivided by the deputy surveyors, and the plats and notes thereof were duly made, returned, and approved as aforesaid. By the surveys the section was found, and by the plats and notes thereof returned, as fractional; and a part thereof, designated as lot 4, was formed, containing 37.24 acres, the north boundary thereof being on the Missouri river. The meander line of the river was described in the fieldnotes as beginning at meander corner No. 6, the same being at a point on the line between sections 16 and 17 in said township and range, about 100 feet north of the intersection of the exterior lines of said sections 16 and 7 and sections 20 and 21; thence south, 71 deg. east, 2.68 chains, to meander post No. 7, on the north line of lot 4; thence south, 79 deg. 50 min. east, 54 chains; thence north, 85 deg. east, 4.50 chains; thence east 15 chains; thence north, 78 deg. east, 5.25 chains to the corner of sections 21 and 22. A map is annexed, marked 'Exhibit A,' being a true copy of the plat so made, returned, and approved, showing the meander line of the river, and the lines of the subdivisions of sections 16, 17, 21, and 22. On the 10th of October, 1853, one Edmund Jefferis entered lot 4 at the United States land-office for the district of land subject to sale at Kanesville, Iowa, paid the proper officer of the office the legal price thereof, and received therefor the usual register's certificate; and on the 15th of June, 1855, the usual patent of the government was duly issued to him for the land. In the certificate and patent the land was described as lot 4, in fractional section 21, in township 75 north, range 44 west, of the fifth principal meridian, containing 37.24 acres, according to the official plat of the survey of the land returned to the general land-office by the surveyor general. At the time of the entry the meander line of the left bank of the river was the same, or nearly the same, as shown by such field notes and plat. On the 14th of July, 1856, said Jefferis duly conveyed the land to Joseph Still and Joseph I. Town, describing the same simply as lot 4, in section 21, in township 75 N., range 44 W., of the fifth principal meridian. On the 21st of September, 1857, Town conveyed the undivided half of the premises, with warranty, to one McCoid, who, on the 16th of October, 1857, quitclaimed the premises to one Coleman. On the 25th of May, 1858, Coleman conveyed them, with warranty, to Mrs. Ruth A. Town. On the 27th of April, 1859, Joseph I. Town and Ruth A. Town conveyed them, with warranty, to one Boin, who, on the 30th of May, 1861, quitclaimed them to one McBride; and McBride, on the 30th of September, 1861, quitclaimed them to one Schoville. Schoville having died, his widow and heirs quitclaimed them to the plaintiff, on the 22d of March, 1888. On the 9th of March, 1888, Still quitclaimed the other undivided half of the premises to Lyman H. Town, who, on the 28th of March, 1888, conveyed the same to the plaintiff. In each of the deeds made by those several parties the premises were described as lot 4, in fractional section 21, township 75 N., range 44 W., of the fifth principal meridian, and the deeds were duly recorded in the registry of Potta wattamie county, Iowa, in which county the premises were situated. About the time of the original entry of lot 4 by Edmund Jefferis, new land was formed along and against the whole length of the north line thereof, and from that time continued to form until 1870; so that in that year, at a distance of 20 chains and more from the original meander line before described, and within the lines of the lot on the east and west running north and south, a tract of 40 acres and more had been formed by accretion to the lot, and ever since had been and now is a part thereof. The said land was so formed by natural causes and imperceptible degress,-that is to say, by the operation of the current and waters of the river, washing and depositing earth, sand, and other material against and upon the north line of the lot; and the waters and current of the river receded therefrom, so that the new land so formed became high and dry, above the usual highwater mark, and the river made for itself its main course far north of the original meander line. Such process, begun in 1853 and continued until 1870, went on so slowly that it could not be observed in its progress; but, at intervals of not less than three or four months, it could be discerned by the eye that edditions greater or less had been made to the shore. In 1877 the river, at a point more than a mile south of the north line of the lot, suddenly cut through its bank, and made o r itself a course through the same, leaving all of section 21 north of its bank. A plat, marked 'Exhibit B,' is annexed, upon which is delineated the river both before and after such sudden change. The river is and always has been navigable for steamers of large tonnage. The United States never claimed any interest in the lands so formed by accretion to lot 4. The plaintiff submits that by such several mesne conveyances, whereby the title to lot 4 has come to it, it has become seised in fee, not only of the land included within the boundaries of the lot at the time of such survey, but also of the land so formed by accretion thereto, so that the east and west boundaries of the lot are formed by the protraction of the east and west lines north to the left bank of the river as the same was in 1877, when the river suddenly changed its course, and the north boundary of the lot is the said left bank at that time.

When the plaintiff became seised of the land, it entered into the same, and made large and valuable improvements thereon; and it has projected the enterprise of redeeming the land and other land adjoining it, of improving the same so that the whole will be available for railroad and manufacturing purposes, of building railroad tracks, station-houses, depots, warehouses, and manufacturing establishments, and selling parcels of the land to others for such purposes, and has expended more than $20,000, and has in hand $100,000 which it purposes to expend in grading, and in building roads, bridges, etc. In 1888 one Counzeman and others, without any authority of law, entered upon the land so formed by accretion, and for a time occupied it, but afterwards abandoned it. Recently, Counzeman has made to the defendant a deed of quitclaim purporting to convey a certain parcel of the land so formed by accretion to lot 4. The south line of the land so conveyed to the defendant is about 200 feet north of the original meander line of lot 4, as that line was so run, marked, and platted by the United States surveyors; and the deed purports to convey about 20 acres, which are within the above-recited boundaries of the land formed by accretion to lot 4. When Counzeman entered upon the land, and when he made the deed to the defendant, each of them well knew of the plaintiff's plan and purposes in respect thereof, and that they had no right so to enter; and the defendant threatens to, and, unless restrained by injunction, will, dispossess the plaintiff and seriously interfere with its plans and purposes. The defendant is insolvent, and unable to answer for the damage to which he will subject the plaintiff by entering into the premises and dispossessing the plaintiff.

The bill waives an answer on oath, and prays for an injunction restraining the defendant from entering into, taking possession of, or intermeddling with, any part of the premises conveyed to him by Counzeman, and for a decree declaring that the land so formed against lot 4, including that conveyed to the defendant, became and was a part of lot 4, and included within its description; that the title to it has become and is vested in the plaintiff; that the deed made to the defendant be delivered up to be canceled, that he be perpetually enjoined from asserting the same, or any title or interest thereunder, against the plaintiff; and for general relief. The defendant interposed a general demurrer to the bill for want of equity.

The case was heard before Mr. Justice BREWER, then circuit judge, who filed an opinion on the 1st of March, 1889, directing that the demurrer be sustained. 40 Fed. Rep. 386. On a petition for a rehearing, which was heard by the same judge, he filed an opinion (Id. 390) directing that the demurrer be overruled. Thereupon a decree was entered, on the 13th of November, 1889, overruling the demurrer; granting a perpetual injunction restraining the defendant from entering into, taking possession of, or in any manner in termeddling with, the premises, and from asserting any right ori nterest therein; and declaring that the land in question was formed by process of accretion and imperceptible degrees against the premises known and described as lot 4 of section 21, in township 75 N., of range 44 W., of the fifth principal meridian, in the state of Iowa, as the same was originally surveyed and platted by the surveyors of the United States, and became, by such accretion, a part of said lot, and was included within such description, and the title thereto passed by such description from the original patentee of the United States to the plaintiff, by divers mesne conveyances, and is now vested in the plaintiff. It was further decreed that the deed made to the defendant by Counzeman, purporting to convey the premises be delivered up to the plaintiff, to be canceled, and that the plaintiff recover its costs to be taxed. The premises upon which the decree operated were described in it as follows: Beginning at a point 1,520 feet north of the south-west corner of lot 4, in section 21, township 75 N., range 44 W., of the fifth principal meridian; running thence, north 660 feet; thence east 1,320 feet to the extension due north of the east boundary line of said lot 4, as originally surveyed and platted by the United States; thence south, on that line, 660 feet; and thence west to the place of beginning, containing 20 acres. The decree further states that the defendant prayed an appeal to this court, and that it was allowed.

Finley Burke, for appellant.

[Argument of Counsel from pages 184-187 intentionally omitted]

J. W. Woolworth and C. J. Greene, for appellee.

BLATCHFORD, J.