St. Louis v. Rutz

This is an action of ejectment, commenced January 29, 1884, by Edward Rutz against Benjamin Seeger, in the circuit court of the county of St. Clair, in the state of Illinois, to recover the possession of certain land situated in said county, described in the first count of the declaration as follows: 'Commencing the survey thereof at a point on the line between surveys one hundred and forty-eight (148) and one hundred and forty-nine, in the common fields of Prairie du Pont, from which the southernmost corner of said survey number one hundred and forty-eight, at the bluffs, bears S., 33 1/2° E., (var. 6°,) two hundred and forty-nine and 25-100 (249.25) chains; thence north, 33 1/2° W., with said line of said surveys extended, to the center thread of the Mississippi river; thence along the center thread of said river to the line between survey one hundred and fifty-six (156) and survey one hundred and fifty-seven (157) extended to said center thread of said river, making the right-angle distance between the said extended lines 34.60 chains; thence south, 33 1/2°E., along said last-mentioned extended line to a point in the line between said surveys one hundred and fifty-six (156) and one hundred and fifty-seven (157) of said common fields, from which the most southern corner of said survey one hundred and fifty-six bears south, 33 1/2° east, two hundred fifty-four chains distant; thence along the meanders of the original bank of the Mississippi river, as surveyed by the United States government in surveying said common fields, to the point of beginning, with the appurtenances.' Seeger put in a plea of the general issue; and the city of St. Louis, a municipal corporation of Missouri, and the landlord of Seeger, was made, by an order of the court, a co-defendant with Seeger, and was given the sole control and direction of the defense of the suit; and it put in a plea of the general issue. Afterwards, on the petition of the city of St. Louis and of Seeger, the suit was removed into the circuit court of the United States for the southern district of Illinois, and that court took jurisdiction of it. By a written stipulation filed, the case was tried by the court without the intervention of a jury, and the court, held by the district judge, made the following findings of fact:

'(1) That in the years 1849 and 1850 one Augustus A. Blumenthal acquired, by deeds from the parties then in actual possession of said premises as the owners thereof, the title in fee to surveys numbered 149, 150, 151, 152, 153, 154, 155, and 156 of the common fields of Prairie du Pont, in the county of St. Clair, in the state of Illinois, and that Edward Rutz, the plaintiff in this suit, acquired from said Blumenthal his said title to said land prior to the commencement of this suit.

'(2) That the map or plat made by G. F. Hilgard, county surveyor of St. Clair county, Ill., produced in evidence, and marked 'Plaintiff's Exhibit B,' is a correct map and plat of the said premises and the surveys and lines indicated thereon; which said map is hereby included in and made a part of these findings, and to which reference is made for greater certainty.

'(3) That, as appears from the evidence and plats read and produced in evidence, the said surveys numbered 149, 150, 151, 152, 155, are each one arpent (or about twelve rods) in width, and the said surveys 153 and 154 are each two arpents (or about twenty-four rods) in width, and that the said survey numbered 156 is three arpents (or about thirty-six rods) in width, and that said several surveys adjoin each other and lie side by side in the order the same are respectively numbered,-survey 149 being upon the extreme northerly, and survey 156 being upon the extreme southerly, side of the entre tract,-and that each and all of said surveys extended to and were bounded by the Mississippi river on the north-westerly ends thereof, and extend south-easterly from the Mississippi river, the average distance of about one thousand rods, to the hills or bluffs on the Illinois side of said river.

'(4) That said Blumenthal, under said deeds to him, whereby he acquired title to said surveys, in the year 1850 entered upon and took the actual possession of said surveys, including, as a part thereof, the accretions thereto formed on the river front of said surveys embraced within the side lines of said surveys, extended without deflection in a direct line across such accretions north-westerly to the Mississippi river, and said Blumenthal so held such possession of said premises, and paid all taxes thereon, each year from January 23, 1850, to December 23, 1873, at which said last-mentioned time said Blumenthal conveyed 500 acres off from the north-western end of said premises, by deed, to said Edward Rutz and others, whose title the plaintiff acquired in fee on and prior to the 7th day of March, 1883, and thereupon succeeded to said Blumenthal's said title to and possession of said premises; and that the said Blumenthal, from whom the plaintiff so derived such title and possession as aforesaid, and the several owners of the surveys and lands in the said Prairie du Pont common fields adjoining said surveys 149 to 156, both on the northerly and southerly sides thereof, have each, ever since the year 1850, up to the present time, claimed, possessed, fenced, inclosed, used, and occupied as a part of their said several surveys and lands, respectively, that portion of the said accretions thereto embraced within the side lines of their respective surveys extended wihout deflection in direct lines north-westerly to said river; and that ever since the year 1849 the several owners of said surveys have, by common consent, recognized and acted upon such extension of the side lines of their several surveys in a direct course across said accretions to the river, as the true and proper boundary and division lines between them, in respect to the accretions formed on the river front of said surveys.

'(5) That the premises described in the declaration and sued for are located at the present time, and were at the commencement of this suit, eastwardly of the center of the main channel of the Mississippi river, and in the county of St. Clair, in the state of Illinois.

'(6) And the court further finds that, as appears from the evidence and from the survey of said lands made by William L. Deneen, as the county surveyor of St. Clair county, Ill., on November 15, 1850, produced in evidence, at that time, the dry land of said surveys numbered 149 to 156, inclusive, extended westwardly to the line indicated by the words 'River Bank, 1850, by Deneen,' on the map marked 'Plaintiff's Exhibit B;' and that the main-land of said surveys numbered 149 to 156, inclusive, in the year 1850, extended westwardly over and across, and included about sixty rods in width of, the lands described in the declaration, to-wit, that portion of said lands lying between the river bank in 1850, as indicated by said Deneen's survey, and the line marked 'Old Surveyed River Bank, 1814,' as said lines are respectively designated on said map; and that in the year 1863 the main and dry lands of the surveys 149 to 156 extended about fifteen chains or sixty rods further westward, and beyond the line of the river bank so surveyed by said Deneen in 1850, and that the eastern bank of the river in 1863 was about one-half a mile west of a certain dwelling-house hereinafter mentioned, then standing on said survey No. 151, and so continued until the year 1865.

'(7) That the greater part of the so-called 'Arsenal Island,' which now extends over and is embraced within the boundaries of the lands described in the plaintiff's declaration, is located upon the site of the dry lands of said surveys numbered 149 to 15, i nclusive, as the same existed from 1850 to 1865, and that the residue thereof (being about one-eighth of the entire width of the same) is located upon the bed of the Mississippi river as it then existed, and easterly of the thread or middle line of said river.

'(8) That between the years 1865 and 1873 the river front of the said surveys numbered 149 to 156 was washed away, so that, in July, 1873, the river front of said lands only extended to the line marked 'River Bank, 1873,' on said map, and that said river bank thereafter continued to wash away and cave in until it reached the line marked 'River Bank, 1884,' on said map.

'(9) And the court further finds, from the evidence, that such washing away of said river bank did not take place slowly and imperceptibly; but, on the contrary, the caving in and washing away of the same was rapid and perceptible in its progress; that such washing away of said river bank occurred principally at the spring rises or floods of high water in the Mississippi river, which usually occurred in the spring of the year; that such rises or floods varied in their duration, lasting from four to eight weeks, before the waters of the river would subside to its ordinary stage or level; that during each flood there was usually carried away a strip of land from off said river bank from two hundred and fifty to three hundred feet in width, which loss of land could be seen and perceived in its progress; that as much as a city block would be cut off and washed away in a day or two; that blocks or masses of earth from ten to fifteen feet in width frequently caved off and fell into the river and were carried away at one time; that, in the spring of the year 1872, Mr. Augustus A. Blumenthal, Jr., the occupant of the land at the time, lived in the dwelling-house situated on said survey No. 151, and the river had, since the year 1865, so encroached upon the land that the house was then but about four or five hundred feet back from the river bank and water's edge, as it then existed. When the spring rise or flood occurred that year, the said Blumenthal became alarmed for the safety of his house, and immediately commenced taking said house down and removing the same further from the river bank, and, in so doing, worked 6 or 8 days in succession, at the expiration of which time the bank had caved in and washed away so rapidly that the bank and waters of the river had approached within a few feet of the foundation of the house, and before the waters subsided carried away the greater portion of the foundation of the house, and the flood which came in the spring of 1873 carried away the residue of said foundation, with at least 100 feet more of the land, and that such caving in and washing away continued until the building of the dyke at the point indicated on said map, on the eastern side of the river, above the said lands, which dyke was built by the United States government in the years 1876 to 1878.

'(10) That the said washing away of the bank on the front of the said surveys was caused by dykes built by the city of St. Louis on the western side of the river, at the points where the same are indicated on said map, by causing the current of the river to flow over to and against the eastern shore; that the western bank of the river opposite the plaintiff's said land is rocky, and there appears to have been no material change in that bank since the first survey thereof by the United States government.

'(11) The court further finds that in 1853 there existed an alluvial formation or body of land on the western side of the river and near the Missouri shore, then called 'Quarantine Island,' which in that year (1853) was surveyed by William H. Cozzens. The location and boundaries of said island are indicated upon said map, the same being shaded red, and having written thereon the words and figures, 'Quarantine Island, also called 'Arsenal Island,' as surveyed in 1853.' In 1858 the said island, in low water, extended to and adjoined the main-land on the western or Missouri side of the river. At some time between the years 1853 and 1863 the greater portion of said Quarantine island washed away, so as only to leave remaining that portion thereof embraced within a second survey thereof made by said Cozzens in January, 1863, the location and boundaries of which are indicated upon said map by the words, 'Survey No. 411 of St. Louis land, school lands, Arsenal island, surveyed in 1863;' the letters and lines thereof being shaded green upon said Exhibit B.

'(12) Said Quarantine island, since its survey in 1863, has been called 'Arsenal Island,' and at the time of said surveys of said island in 1853 and 1863 the same was situated on the west side of the main channel of the Mississippi river, and about a mile higher up the river than the lands described in the declaration, and no part of the same then extended down the river opposite said plaintiff's said lands.

'(13) On February 10, 1863, a part of the said island, designated as 'Survey No. 411 of St. Louis School Lands,' containing 109 and twenty-two hundredths acres, was assigned to the St. Louis public schools, in pursuance of the act of congress of June 13, 1812, entitled 'An act making further provision for settling the claims to land in the territory of Missouri,' (2 U.S. St. at Large, p. 748,) and of the supplementary act of May 26, 1824, (4 U.S. St. at Large, p. 66,) and the residue of said island, as so surveyed in 1863, being nine and sixty-five hundredths acres on the northern end thereof, appears to have been also assigned to said St. Louis public schools on August 25, 1864, as indemnity for school lands lost in section 16, T. 45 N., range 7 east, of the St. Louis district, Mo.

'(14) By deed dated February 8, 1866, the St. Louis public schools conveyed their right and title to said Quarantine or Arsenal island to the city of St. Louis, which lands are described in such deed as situated 'in the county of St. Louis and state of Missouri.' As early as the year 1850 the city of St. Louis occupied said Quarantine or Arsenal island for quarantine purposes, and so continued to occupy the same until the year 1875, when the said city of St. Louis leased said island to the defendant, Benjamin Seeger, who, as such tenant, lived on and occupied the said island up to the time of the commencement of this suit. During the years 1861 to 1865, inclusive, the United States government occupied a portion of said island for the purpose of a military hospital, and as a place for the burial of those dying at such hospital. The dry land described in the declaration in this case did not arise or form in the Mississippi river until about the year 1874, and subsequent thereto; the same having, after the year 1865 and prior to 1874, become, in part, submerged and washed away, in the manner stated in the 8th paragraph of these findings.

'(15) The court further finds, from the evidence, that there is not now, and was not at the time of the commencement of this suit, any land whatever above the surface of the water in said river on the site or within the boundaries of said Quarantine island as so surveyed in 1853, nor upon the site or within the boundaries of said island as so surveyed in 1863, but that the same was subsequently wholly washed away.

'(16) The court further finds that in the floods in the Mississippi river, before mentioned, large portions of the upper or northern end of said island washed away; that in such floods a bar formed each year below, and joined to the foot of, the island, extending down the river for the distance of a quarter of a mile or more; that when the water subsided after such a spring flood the surface of such bar appeared in sight above the surface of the water, but nearly on a level with the water, for the greater length of such bar; that, during the first summer after such bar had formed, willows grew upon it, and the flood which occurred the next succeeding spring deposited more sand and soil on the bar, which was retained by he willows, and the bar so formed was thus raised higher, in each successive annual flood, so long as it was overflowed in high water, and this process was repeated at each succeeding flood by the formation of another bar below that formed by the preceding flood, which in turn was covered with a growth of willows and raised higher by each succeeding flood until it ceased to be overflowed.

'(17) The court further finds that such bars were not formed by accumulations of sand or soil washed up against the lower end of the island, but by the deposits, in times of flood, of soil and sediment upon the bed of the river below the island.

'(18) And the court further finds that before the said island was washed away the main and navigable channel of the Mississippi river was eastwardly of the island but after the said bar was formed lower down the river in front of the plaintiff's land the main and navigable channel of the river has been, and still is, on the west side of the said bars or island, and that since the said bars or island had so formed in the river in front of said surveys the boats navigating the river have not run between the bar or island and the bank of the eastern or Illinois shore of the river.

'(19) The court further finds that in the years 1876 to 1878 the United States government built a dyke from the eastern or Illinois shore of the river to the bar or island, as it then existed, about sixty rods northerly, or higher up the river than the north line of the plaintiff's said land, and which said dyke is indicated on said map by the line having the word 'Dyke' written beneath the same. And that in the years 1878 to 1882 the United States government built a dam above said dyke from a point near the head of said bar or island to the eastern or Illinois shore, on the line designated 'Dam' on said map: and after said dyke and dam were built the flow of the water through the channel or space occupied by water between the said bar or island which had so formed in front of the river bank of plaintiff's land, as it existed at that time, was thereby impeded, and the channel or space gradually filled up, by deposits from the river, so that by the year 1884 the same became dry land from the line in front of the said surveys 149 to 156, marked 'River Bank, 1884,' out to the western side of the said bar or island on the north-western end of said surveys, as indicated on said map, and that the same has since continued to be, and is now, dry land, except in extremely high water, and that the lands described in the declaration embrace so much thereof as lies westerly of the line marked on said map with the words 'Old Surveyed River Bank, 1814,' and easterly of the middle or thread of the main channel of the Mississippi river, and between the extended lines of said surveys, as indicated on said map marked 'Plaintiff's Exhibit B.'

'(20) The court further finds that the plaintiff is, and was on and prior to the 1st day of January, A. D. 1884, and at the time of the commencement of this suit, the owner in fee of said lands described in the first count of the declaration, situated in the county of St. Clair and state of Illinois, and that the defendants are guilty of unlawfully withholding the possession thereof from the plaintiff, in manner and form as alleged in the declaration.

'(21) And that the value of the said lands in controversy in this suit exceeds sixteen thousand dollars.'

On these findings, the court entered a judgment which found that the defendants were guilty of unlawfully withholding from the plaintiff the premises above described; and that the plaintiff, at the time alleged in the declaration, owned the lands in fee; and adjudged that he recover the possession of them in fee from the defendants, according to the finding of the court. A motion for a new trial was made and overruled. There is in the record a bill of exceptions, which shows that at the trial the defendants moved the court to make the findings of fact and declaratons of law which are set forth in the margin, but that the court overruled such motion, and the defendants excepted. The bill of exceptions states that no declaration of law was given by the court, except so far as the same may be included in the findings which the court made; and that the defendants excepted to the findings of fact made by the court, and to the rendering of judgment for the plaintiff, and to the overruling of the motion for a new trial. Seeger and the city of St. Louis sued out a writ of error from this court to review the judgment. During the pendency of the writ of error in this court, Seeger has died, and the city of St. Louis is the surviving plaintiff in error.

Leverett Bell, for plaintiff in error.

[Argument of Counsel from pages 239-241 intentionally omitted]

J. K. Edsall and A. S. Wilderman, for defendant in error.

BLATCHFORD, J.