Jefferis v. East Omaha Land Company/Opinion of the Court

The grounds upon which the circuit court proceeded in overruling the demurrer to the bill are stated by it in its opinion to be these: (1) It being alleged in the bill that the added land was formed by 'imperceptible degrees,' although the increase was great, resulting in the addition of many acres, yet the time during which it was made was nearly 20 years, and an increase might have been going on, imperceptible from day to day and from week to week, which, during the lapse of so many years, might result in the addition of all the land; and hence the averment of the bill cannot be overthrown, notwithstanding what is known of the character of the Missouri river, and of the soil through which it flows, and of the rapid changes in its banks which are constantly going on. (2) Where a water line is the boundary of a given lot, that line, no matter how it shifts, remains the boundary, and a deed describing the lot by number or name conveys the land up to such shifting water-line, exactly as it does up to the fixed side lines; so that, as long as the doctrine of accretion applies, the water-line, no matter how much it may shift, if named as the boundary, continues to be the boundary, and a deed of the lot carries all the land up to the water-line.

The propositions contended for by the defendant are these: (1) Taking the allegations of the bill, with those facts in relation to the Missouri river of which the court will take judicial notice, it appears that the formation in question was not accretion. (2) Taking the allegations of the bill most strongly against the plaintiff, it must be assumed that some area, however narrow, had formed between the time when the survey was made, in 1851, and the time when the land was entered by the patentee, in October, 1853. (3) The patentee, by the deed made by him to Still and Joseph L. Town, conveyed only 'lot 4;' and, while the successive grantees held the title to that lot, accretions were formed of greater or less extent, which were never conveyed to the plaintiff, the deeds to it calling only for lot 4. The substance of this contention is that, as the conveyance by the patentee to Still and Joseph I. Town described the land simply as 'lot 4,' it passed the title to that lot as it was at the date of the survey in 1851, and not at the date of the deed, in 1856 and thereby excluded the new land formed after the survey of 1851; and that, as accretions of greater or less extent were formed while the several successive grantees held the title, such accretions did not pass by their respective deeds, and the title e reto has not come to the plaintiff.

* It is distinctly alleged in the bill that the new land is an accretion to that originally purchased by the patentee from the United States. The rule of law applicable to such a state of facts is thus stated by this court in New Orleans v. U.S., 10 Pet, 662, 717: 'The question is well settled at common law, that the person whose land is bounded by a stream of water which changes its course gradually, by alluvial formations, shall still hold by the same boundary, including the accumulated soil. No other rule can be applied, on just principles. Every proprietor whose land is thus bounded is subject to loss by the same means which may add to his territory; and, as he is without remedy for his loss in this way, he cannot be held accountable for his gain.' And in Banks v. Ogden, 2 Wall. 57, 67, it is said: 'The rule governing additions made to land bounded by a river, lake, or sea, has been much discussed and variously settled by usage and by positive law. Almost all jurists and legislators, however, both ancient and modern, have agreed that the owner of the land thus bounded is entitled to these additions. By some, the rule has been vindicated on the principle of natural justice, that he who sustains the burden of losses and of repairs, imposed by the contiguity of waters, ought to receive whatever benefits they may bring by accretion; by others, it is derived from the principle of public colicy, that it is the interest of the community that all land should have an owner, and most convenient that insensible additions to the shore should follow the title to the shore itself.'

It is contended by the defendant that this well-settled rule is not applicable to land which borders on the Missouri river, because of the peculiar character of that stream and of the soil through which it flows, the course of the river being tortuous, the current rapid, and the soil a soft, sandy loam, not protected from the action of water either by rocks or the roots of trees; the effect being that the river cuts away its banks, sometimes in a large body, and makes for itself a new course, while the earth thus removed is almost simultaneously deposited elsewhere, and new land is formed almost as rapidly as the former bank was carried away. But it has been held by this court that the general law of accretion in applicable to land on the Mississippiriver; and, that being so, although the changes on the Missouri river are greater and more rapid than on the Mississippi, the difference does not constitute such a difference in principle as to render inapplicable to the Missouri river the general rule of law. In Jones v. Soulard, 24 How. 41, it was held that a riparian proprietor on the Mississippi river at St. Louis was entitled, as such, to all accretions as far out as the middle thread of the stream; and that the rule well established as to fresh-water rivers generally was not varied by the circumstance that the Mississippi at st. Louis is a great and public watercourse. The court said that from the days of Sir Matthew Hale all grants of land bounded by fresh-water rivers, where the expressions designating the water-line were general, conferred the proprietorship on the grantee to the middle thread of the stream, and entitled him to the accretions; that the land to which the accretion attached in that case was an irregular piece of 79 acres, and had nothing peculiar in it to form an exemption from the rule; that the rule applied to such a public watercourse as the Mississippi was at the city of St Louis; and that the doctrine that, on rivers where the tide ebbs and flows, grants of land are bounded by ordinary highwater mark, had no application to the case, nor did the size of the river alter the rule. In Saulet v. Shepherd, 4 Wall. 502, the doctrine of accretion was applied in respect of a lot of alluvion or batture in the Mississippi river fronting the city of New Orleans, in favor of the riparian proprietor; and it was held that the rih t to the alluvion depended upon the fact of the contiguity of the estate to the river, and that, where the accretion was made to a strip of land which bordered on the river, the accretion belonged to such strip, and not to the larger parcel behind it, from which the strip, when sold, was separated. In County of St Clair v. Lovingston, 23 Wall. 46, the same doctrine was applied to a piece of land situated on the east bank of the Mississippi river opposite St. Louis. It was there held that where a survey began 'on the bank of the river,' and was carried thence 'to a point in the river.' the river bank being straight, and running according to such line, the track surveyed was bounded by the river; that alluvion meant the addition to riparian land, gradually and imperceptibly made, through causes, either natural or artificial, by the water to which the land was contiguous; that the test of what was gradual and imperceptible was that, although the witnesses might see from time to time that progress had been made, they could not perceive it while the process was going on; and that it was alluvion whether the addition was made on a stream which overflowed its banks, or on one which did not. The authorities on the subject are collected in the opinion in that case. The rule is as applicable to the Missouri river as it is to the Mississippi, whether the principle on which it rests be that the riparian owner is entitled to the addition to his land because he must bear without compensation the loss of land caused by the action of the water and any consequent expense of repair to the shore, or whether that principle be one of public policy, in that it is to the interest of the community that all lands should have an owner, and most convenient that insensible additions to the shore should follow the title to the shore. In the present case, the land in question is described in the bill as a tract of 40 acres and more. How much, if any of it, was formed between the date of the original survey, in 1851, and the time of the entry in October, 1853, cannot be told; nor how much was formed between 1853 and 1856, while the patentee owned the lot; and so in regard to the time when it was owned by each successive owner. There can be, in the nature of things, no determinate record, as to time, of the steps of the changes. Human memory cannot be relied on to fix them. The very fact of the great changes in result, caused by imperceptible accretion, in the case of the Missouri river, makes even more imperative the application to that river of the law of accretion.

The bill must be held to state a fact, in stating that the land in question was formed by 'imperceptible degrees,' and that the process, begun in 1853 and continued until 1870, resulting in the production by accretion of the tract of 40 acres and more, 'went on so slowly that it could not be observed in its progress, but at intervals of not less than three or more monthsit could be discerned by the eye that additions greater or less had been made to the shore.' The fact, as thus stated, is that the land was formed by imperceptible degrees, within the meaning of the rule of law on the subject, and it is not capable of any construction which would result in the conclusion that the land was not formed by imperceptible degrees. In the Roman law it was said, in the Institutes of Gaius, (book 2, § 70:) 'Alluvion is an addition of soil to land by a river, so gradual that in short periods the change is imperceptible; or, to use a common expression, a latent addition.' Justinian says, (Inst. bk. 2, tit. 1, § 20:) 'That is added by alluvion which is added so gradually that no one can perceive how much is added at any one moment of time.' The same rule was introduced into English jurisprudence. Bracton says, (book 2, c. 2:) 'Alluvion is a latent increase, and that is said to be added by alluvion, whatever is so added by degrees, that it cannot be perceived at what moment of time it is added; for, although you fix your eye-sight upon it for a whole a y, the infirmity of sight cannot appreciate such subtle increments, as may be seen in the case of a gourd, and such like.' Blackstone says, (2 Comm. 262:) 'And as to lands gained from the sea, either by alluvion, by the washing up of sand and earth, so as in time so make terra firma; or by dereliction, as when the sea shrinks bank below the usual watermark,-in these cases the law is held to be that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining. For de minimis non curat lex; and, besides, these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is therefore a reciprocal consideration for such possible charge or loss.' The whole subject was fully considered in England in the case of Rex v. Lord Yarborough, 3 Barn. & C. 91, in the King's Bench, same case, in the house of lords, 2 Bligh, (N. S.) 147, and 1 Dow & C. 178; same case, ''sub. nom.'' Gifford v. Lord Yarborough, 5 Bing. 163, in the house of lords, where it was decided, in effect, that in cases of alternate accretion and decretion the riparian proprietors had movable freeholds; that is, moving into the river with the soil as it was imperceptibly formed, and then again receding, when by attrition it was worn away. Lord Yarborough owned lands immediately adjoining the sea, to prevent the encroachment of which upon his he built sea walls on two sides. The ooze, sand, and soil from the sea were gradually deposited outside of and against these walls, until, by the accretion, some 450 acres of land were made in a short time, which the crown claimed against him. But the court of king's bench held, and the decision was affirmed by the house of lords, that, the land being formed by the gradual and imperceptible action of the sea, Lord Yarborough, and not the crown, was entitled to it. See, also, In re Railway Co., 5 Mees. & W. 327; Scratton v. Brown, 4 Barn. & C. 485. The doctrine of the English cases is that accretion is an addition to land conterminous with the water, which is formed so slowly that its progress cannot be perceived, and does not admit of the view that, in order to be accretion, the formation must be one not discernible by comparison at two distinct points of time. In New Orleans v. U.S., supra, the accretion was 140 feet in width, formed in 22 years. In County of St. Clair v. Lovingston, supra, the court says: 'In the light of the authorities, alluvion may be defined as an addition to riparian land, gradually and imperceptibly made by the water to which the land is contiguous. * *  * The test as to what is gradual and imperceptible, in the sense of the rule, is that though the witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on.' To the same effect are Jones v. Johnston, 18 How. 150; Jones v. Soulard, 24 How. 41; Schools v. Risley, 10 Wall 91; Halsey v. McCormick, 18 N. Y. 147; Mulry v. Norton, 100 N. Y. 424, 3 N. E. Rep. 581; Academy v. Dickinson, 9 Cush. 544; Land Co. v. Lippincott, 45 N. J. Law, 405. The accretion set forth in the bill is alleged to have taken place between 1853 and 1870, and it is not alleged that the sudden change in the course of the river in 1877 caused any accretion. There is no suggestion in the bill that the land made by the accretion can be identified as having been previously the land of any particular person. There can be no identification unless there is a sudden change, and that is the very opposite of an imperceptible accretion.

We come now to consider the question of what passed by the description in the patent of the land as lot 4, 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. The bill alleges that in 1851, when the township was surveyed, the meander line of the river, as marked on the plat, ran along the bank of the river, and that at the time of the entry, in 1853, the meander line of the left bank of the river was the same, or nearly the same, as that shown by the field-notes, and on the plat made, returned, and approved in 1851. On these facts it is contended for the defendant that the title to any new land which may have been made between 1851 and 1853, by accretion, did not pass to the patentee by the grant of lot 4 in the patent, but remained in the United States. The plaintiff, on the other hand, contends that the description in the patent of the land as lot 4 in effect made the river the boundary on the north, and passed the title of the United States to any new land that might have been formed before that time. The bill states that the register's certificate and the patent described the land as lot 4, in fractional section 21, in township 75 N., range 44 W., of the fifth principal meridian, containing 37.24 acres, according to the official plat of the survey of said land returned to the general land-office by the surveyor general. That plat, of which a copy is annexed to the bill and marked 'Exhibit A,' shows the Missouri river as the north boundary of lot 4, and that lot is marked on the plat as containing 37.24 acres. It is a familiar rule of law that, where a plat is referred to in a deed as containing a description of land, the courses, distances, and other particulars appearing upon the plat are to be as much regarded, in ascertaining the true description of the land and the intent of the parties, as if they had been expressly enumerated in the deed. Fox v. Sugar Refinery, 109 Mass. 292. This rule is applicable to government lands bounded by the Missouririver as the same are surveyed and platted under the acts of congress; and the patent passed the title of the United States to lot 4, not only as it was at the time of the survey in 1851, but as it was at the date of the patent in 1855, so that the United States did not retain any interest in any accretion formed between the survey in 1851 and the date of the patent.

No different rule is established by the acts of congress which provide for the survey and sale of the public lands. The provisions found in section 2395 et seq. of the Revised Statutes, in regard to the survey of the public lands, are re-enactments of statutes passed in 1796, 1800, 1805, 1820, and 1832. According to these provisions, section 21 being a fractional section, because the river cut through it on its north side, the east and west side lines of lot 4 were to be run north to the river. No provision was made for running the north boundary line of lot 4, but the river formed such north boundary without the running of any line there. The statute provided that where the course of a navigable river rendered it impracticable to form a full township of six miles square, and in those portions of fractional townships where no opposite corresponding corners could be fixed, to which to run straight lines from established corners, the boundary lines should be ascertained by running from the established corners, due north and south or east and west lines, as the case might be, to the water-course, Indian boundary line, or other external boundary of such fractional township. In the present case the plat was made in accordance with the statute, showing the river as the northern boundary of fractional section 21, and of lot 4 therein; and as the patent referred to the official plat of the survey, and thus made that a part of the description of lot 4, that description made the river the boundary of lot 4 on the north. In Railroad Co. v. Schurmeir, 7 Wall. 272, this court said: 'Meander lines are run in surveying fractional portions of the public lands bordering upon navigable rivers, not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream, and as the means of ascertaining the quantity of the land in the fraction subject to sale, and which is to be paid for by the purchaser. In preparing the official plat from the field-notes the meander line is represented as the border line of the stream, and shows, to a demonstration, that the water-course, and not the meander line, as actually run on the land, is the boundary.' We are therefore of opinion that the patent of June 15, 1855, which described the land conveyed as lot 4, according to the official plat of the survey, of which a copy is annexed to the bill, marked 'Exhibit A,' conveyed to the patentee the title to all accretion which had been formed up to that date.

The case of Jones v. Johnston, 18 How. 150, is cited by the defendant as holding that a grantee can acquire by his deed only the land described in it by metes and bounds, and cannot acquire, by way of appurtenance, land outside of such description. But that case holds that a water-line, which is a shifting line, and may gradually and imperceptibly change, is just as fixed a boundary in the eye of the law as a permanent object, such as a street or a wall; and it justifies the view announced by the circuit court in its opinion, that where a water-line is the boundary of a given lot, that line, no matter how it shifts, remains the boundary, and a deed describing the lot by number or name conveys the land up to such shifting line exactly as it does up to a fixed side line. See, also, Lamb v. Rickets, 11 Ohio, 311; Giraud's Lessee v. Hughes, 1 Gill. & J. 249; Kraut v. Crawford, 18 Iowa, 549.

These views result in the conclusion that the side lines of lot 4 are to be extended to the river, not as the river ran at the time of the survey in 1851, but as it ran at the date of the patent in 1855, and that all the land which existed at the latter date, between the side lines so extended and between the line of the lot on the south and the river on the north, was conveyed by the patent. All the grantors in the deeds made subsequently to the patent, including the patentee, described the land in their successive deeds as lot 4. It is contended by the defendant that this description conveys the land as it was at the date of the entry, or, at most, at the date of the patent; that as, from the allegations in the bill, it must be intended that some accretion was formed between July 14, 1856, the date of the deed by the patentee, and September 21, 1857, the date of the deed by Joseph I. Town to McCoid, the description of the land as lot 4 in the latter deed was not adequate to pass to the grantee the new land, and therefore all the land which was formed afterwards, belonged to Still and Joseph I. Town, and not to McCoid; also that if, in point of fact, there was no accretion between July, 1856, and September, 1857, there must have been accretion subsequently, while some of the successive grantees held the title, prior to 1870.

But we think that in all the deeds the accretion passed by the description of the land as lot 4. In making every deed the grantor described the land simply as lot 4, and did not, by his deed, nor does it appear that he has since or otherwise, set up any claim to any accretion. It must be held, therefore, that each grantor, by his deed, conveyed all claim, not only to what was originally lot 4, but to all accretion thereto. When McCoid, in 1854, conveyed his interest in the premises by the description of lot 4, as he had taken a deed of the undivided half of the premises by the same description from Joseph I. Town, in September, 1857, and had title thereby up to the river, his north line was the river, which was gradually adding land to his land. How much was added during the time he owned his undivided half he could not tell, and he conveyed his interest to Coleman without any reservation. The same is the case with each successive grantor, and each must be held to have passed by his deed his title to all the land up to the river, as the river was at the date of his deed. When each successive owner took his title, lot 4 was a water lot, having the rights of wharfage, landing, and accretion; and, although new land was formed during his ownership, yet when he conveyed the premises he conveyed them b the same description by which he had received the valuable rights referred to. The decree of the circuit court is affirmed.

MILLER, J., did not take any part in the decision of this case.