McCormack v. Miller

1. ACCRETIONS: River as Boundary: Title. A running stream forming the boundary between lands otherwise contiguous, continues to be such boundary line, although the channel may ■ change, provided the change is by the gradual erosion and cutting away of its banks, and not by a sudden leaving of the old channel and the forming of an entirely new and different channel. And where the plaintiff owned land that was bounded by a running stream, and the stream gradually cut away a part of it and formed it on the other side of the stream up against defendant’s lands, the defendant is entitled to all additions to his lands along the river so made, as accretions thereto, though such “made” land comes within the descriptions contained in plaintiff’s deed at the time he purchased. 2. -: Length of Time in Forming: Identity. In determining whether a riparian owner has title to land by accretion, the length of time in which it was forming is not important. If it was formed by a gradual, imperceptible deposit of alluvion, it is accretion, and becomes a part of the land against which it 'is deposited; but if the stream changes its course suddenly and in such manner as not to destroy the integrity of the land or so that the land can still be identified, it is not accretion and the boundary line remains the same as before the change of the channel.

Appeál from Louisiana Court of Common Pleas.— Hon. David H. Eby, Judge. If the instruction in the nature of a demurrer to the evidence, was given upon the theory that the land sued for in the petition, and claimed and fenced by the defendant, was in the nature of accretions to his, defendant’s, land, the instruction is erroneous; and for that reason the judgment should be reversed and the cause remanded. (1) In order to entitle the adjoining* property holders to the right of possession of land left bare by the receding water, recession must be slow, gradual and imperceptible; in case of a sudden and sensible recession of waters the ownership will not be changed. 1 Am. & Eng. Enc. Law, p. 473. Accretion is a process of gradual and imperceptible increase of land caused by tlie deposit of the earth as sediment thereon by contiguous waters. 1 Am. & Eng. Enc. Law, p. 467; Cooley v. Q-olden, 117 Mo. 48; Busen v. Mowva, 61 Mo. 345-; Hahn v. Dawson, 134 Mo. 500'. There has been some conflict of authority as to the exact meaning of the word “imperceptible” which appears in the definition. It has generally been held that imperceptible increase means an increase so gradual and insensible that its progress in any moment of time may not be perceived. On the other hand the position has been taken, less reasonable, that imperceptible refers to the final result of accretion. 1 Am. & Eng. Enc. Law, p. 469; Doe v. Allen, 4 Dev. & B. (N. C. A. R.) 62; 3 Am. & Eng. Enc. Law, 523; Benson v. Morrow, 61 Mo. 348. Where the river suddenly changes its course, or deserts its original channel, the boundary remains in the middle of the old channel. Rees v. McDaniel, 115 Mo. 152; 1 Am. & Enc. Law, p. 473, sec. 2. There is very strong, clear and substantial evidence in this record, showing that Salt River has entirely forsaken its channel and formed an entirely new channel. For that reason, under the law, the boundary line so far as Salt River is concerned, of the land that McCormack bought, has not been changed. The evidence also shows very conclusively, that the changes made by Salt River in its channel, were very suddenly made; that the river deserted its original channel; and the boundary line of the McCormack tract of land, it being the land of which the property in controversy is a portion, so far as the river is concerned, remains where the river ran in 1891. (2) It is fundamental law of accretions that the lands to which they attach must, to entitle their owner to the accretions, be bounded by the river or stream.’ Any separation of the claimant’s land from the alluvion by the lands of another, however narrow the intervening strip may be, or whatever the size of claimant’s tract behind it, precludes his right to the accumulated alluvium. Sweringen v. St. Louis, 151 Mo. 348. The -doctrine of accretions will not permit the jumping of a wide creek, so that, if the creek always separated the “made” land from the shore, it cannot be said to be an accretion to the shore, that is, to be joined on to and becoming a part of the shore land. DeLassus v. Faherty, 164 Mo. 361. The evidence in this case is clear on the point that the northern portion of the land in controversy, never was bounded on the north by Salt River; but that it was bounded by the line dividing sections 24 and 25-. It is also clear from the evidence there was a space of ground between the southern bank of Salt River and the section line dividing sections 24 and 25, just north of the ground in controversy. Accretion is the process of gradual and imperceptible increase of land, caused by the deposit of earth, sand, or sediment thereon by contiguous waters. The land thus made is called alluvion. Where considerable quantities of soil are, by a sudden action of the water, taken from the land of one and deposited upon, or against the land of another, they are called avulsion. That ground which a river has added to your estate by .alluvion becomes your own, by the law of nations ; and that is said to be alluvion which is added so gradually that no one can judge how much is added in each moment of time. 1 Am. & Eng. Ency. Law, 467; Nebraska v. Iowa, 143 U. S. 359, and 145 U. S. 519. The test of what is gradual as distinguished from what is sudden, seems to be, that though witnesses are able to perceive from time to time that the land has encroached on the sea line, it is enough if it was done só that they could not perceive the progress at the time it was made. Angelí on Tide Waters (1 Ed.), 71; St. Olair Co. v. Lovingston, 23 Wall. (U. S.) 46: The riparian owner is entitled to the land formed by gradual and imperceptible accretions from the water, regardless of the cause which produced it. Tatum v. St. Louis, 125 Mo. 664; Benson v. Morrow, 61 Mo. 350'; Rees v. McDaniel, 115 Mo. 152. It naturally follows from the above observations that in order to entitle plaintiff to the land in controversy one of two things must have happened; either the channel of the river must have changed its course so as to cut off plaintiff’s land in a body and attach it to defendant’s land with its identity unchanged, or it must have been taken, as the bank caved in, and the identical particles deposited on the other side of the river, adjoining defendant’s land. The claim that either was done in this case is absurd. It is well settled law that, where after an original survey of land on a river has been- made, part of the same is washed away and afterwards new land re-forms within the limits of such survey, such land does not necessarily belong to the owner of the survey. If such remade land consists of accretions to the land of another, the latter may claim it, although it extended beyond his lines and into the survey so partly washed away. Naylor v. .Cox, 114 Mo. 232.