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Statement of the Case.
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 was about two hundred 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 purported to convey about twenty acres, which were 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 threatened to, and, unless restrained by injunction, would, dispossess the plaintiff and seriously interfere with its plans and purposes. • The defendant was insolvent and unable to answer for the damage to which he would subject the plaintiff by entering into the premises and dispossessing the plaintiff.
The bill waived an answer on oath, and prayed 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 had become and was vested in the plaintiff; that the deed made to the defendant be delivered up to be cancelled; 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, 40. Fed. Rep. 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
Argument for Appellant.
intermeddling with, the premises, and from asserting any right or interest 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 north, of range 44 west, 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 cancelled, 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 1520 feet north of the southwest corner of lot 4 in section 21, township 75 north, range 44 west, of the fifth principal meridian, running Mhence north 660 feet; thence east 1320 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 begiuning; containing 20 acres. The decree further stated that the defendant prayed an appeal to this court, and that it was allowed.
Mr. Finley Burke for appellanta
I. The allegations of the bill taken in conjunction with the known character of the Missouri River, and its bed, erable us to deny that the new-formed lands are accretions. The appellant does not wish to be understood as assuming that the court will take judicial notice of the character of the particular lands in question: only that it will take judicial notice of the characteristics of the Missouri River. United States v. Lawton, 5 How. 10, 26; Peyroux v. Howard, 7 Pet. 324.
The facts in relation to this river are matter of common knowledge. They are shown in public documents; in the
Argument for Appellant.
reports of surveys and soundings made by government authority and even in the works on geography used in the public schools. They are also shown by reference to histories and works of travel and description. They are within the knowledge of all persons living in this region. But, waiving for the present the common and general knowledge of these matters, the bill itself supplies us with such information as is needed for our present rurpose.
It appears that between 1851 and 1877 the river moved north a distance of one mile. It is said that this was done so slowly as to be imperceptible at any one time. Then suddenly it cut through its. banks at a point some miles south but yet further up the river as it then existed and left its old bed and courses and made for itself a new one at this great distance.
These allegations show that this river is one, the changes in whose channel are frequent, rapid and very great. Its course is tortuous, and it flows through a wide valley of soft, sandy loam. We also know that at certain seasons of the year it has a very rapid current and large volume. Its waters are turbid with mud and washings from the mountains. Much of the soil of the bed is of that character called quicksand, the particles of which glide easily upon each other, causing large tracts of land to fall into the river, thus cutting and changing its banks. The current of the river impinges first upon one side and then upon the other, so that sometimes in a single season new land of great extent is formed. The land which is washed away upon one side of the river is usually carried by the current a great distance and then thrown up as a sand-bar upon the other side.
Some care ought to be exercised in applying the doctrine of accretion. in such a region. The law on this subject is borrowed from England where it was applied to tidal rivers. It is well known that the rivers of England in which the tide ebbs and flows are rivers in whose banks the changes are very slight and cover a long period of time.
The test of the applicability of the doctrine is, whether the land is formed so slowly as to be imperceptible. If the new
Argument for Appellant.
formation can be discerned the doctrine does not apply. Imperceptible, in this sense, means what is not discernible when the situations at two periods, somewhat apart, are compared. Rex v. Yarborough, 3 B. & C. 91; S. C. (House of Lords) 2 Bligh (N. S.) 147.
While it is true that a case can be imagined where the made land had formed in such a slow and gradual manner as to be accretion and be governed by the law thereof upon the banks of the Missouri River, yet taking the known character of that river in connection with the allegations of the bill, which show affirmatively that this river is one in which the changes are frequent, rapid and great, and that the land in question formed with a rapidity which, in England, would have been contrary to all ideas of accretion, we submit that the bill shows on its face, in connection with the facts of which judicial notice is taken, that the doctrine of accretion does not apply to the land in dispute. As “imperceptible” means, what is not discernible when the situation at two periods not widely apart is compared, it would seem to be a great hardship to apply the doctrine of accretion to such changes, where what is formed on one side and lost on the other is transferred so rapidly, and where the land is easily identified as being the quarter section or the fractional lot which, last year, belonged to a neighbor on the opposite side of the stream.
The words "slow" and "imperceptible,” as understood by a conservative English landowner, mean quite different ideas from what they do to an active denizen of Omaha, Nebraska. The word “slow” as applied to changes in the banks of the Thames from Blackwall to its mouth may have quite a different meaning from that of the same word applied to changes in the Missouri River. The bill shows a change of a mile in about nineteen years, “imperceptible” at any one moment of time. The law of accretion can have no application to such changes.
II. Taking the allegations of the bill most strongly against the pleader we have a right to assume that some area, bowever narrow, had formed between the original lot four (4) and the river after the date of the survey and before the time
Opinion of the Court.
when the land was entered. If so, said strip belonged to the United States, and the accretions, if any, subsequently formed should go to the government. The right to alluvion depends on contiguity, and the accretions belong to the land immediately adjoining the water, however narrow it may be, or whatever may be the size of the parcel behind it. Saulet v. Shepherd, 4 Wall. 502; Granger v. Swart, 1 Wool. C. C. 88.
III. Conceding that the entry of Edmund Jefferis passed from the government tu Edmund Jefferis all the land to the river, still the bill fails to show that the deed of Jefferis to Still and Town by apt words described the land which may have formed between the date of his entry and the date of the deed.
The bill states that by several mesne conveyances the complainant acquired the title to lot four (4) in the year 1986. It also states that between 1853 and 1877 some forty (40) aores of land were formed between the lot line and the river line of 1877, but it fails to state that any of the chain of deeds under and through which complainant claims title, contained descriptive words covering and including any part of these forty (40) acres of added land. The question is: What passed by the successive deeds of lot four (4) under which complainant claims?
If the land in question is to be regarded as accretion, we claim that it does not pass by a deed describing only the land to which such accretion has been made. Granger v. Swart, ubi sup.; Lammers v. Nissen, 4 Nebraska, 245; Lamb v. Rickets, 11 Ohio, 311; Jones v. Johnston, 18 How. 150.
Mr. J. M. Woolworth and Mr. C. J. Greene for appellee.
MR. JUSTICE BLATCHFORD, having stated the case as above reported, delivered the 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 twenty