Cooley v. Golden

Supreme Court of Missouri

Cooley v. Golden

21 L.R.A. 300, 23 S.W. 100, 117 Mo. 33, 1893 Mo. LEXIS 330

CourtSupreme Court of Missouri

DecidedJune 19, 1893

StatusPublished

Cited by50 cases

This text of 21 L.R.A. 300 (Cooley v. Golden) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cooley v. Golden, 21 L.R.A. 300, 23 S.W. 100, 117 Mo. 33, 1893 Mo. LEXIS 330 (Mo. 1893).

Pincite

Opinions

Macfarlane, J.

— The following statement prepared by Bbace, J., is adopted:

This is an action in ejectment brought by Millard F. Cooley, lessee of the Hamilton Land Company, against James F. G-olden, for the recovery of a tract of about two hundred and seventy acres of unsurveyed lands lying south of fractional southeast quarter of section 32 and fractional southwest quarter of section 33, in township 67 of range 42, and south and west of fractional sections 3, 4 and 10, in township 66, of range 42, all west of fifth principal-meridian, in Atchison county, in this state, composed partly of an island called Pole island and a triangular tract of ground of about one hundred acres of reíicted land in the old bed of the Missouri river. The answer was a general denial and a plea of statute of limitations.

Title emanated from the government to the aforesaid surveyed lands at various times from 1850 to 1856. It is not disputed that the plaintiff’s lessor has acquired that title through various mesne conveyances, its immediate grantor being J. P., and A. H. Allen. The lands were surveyed about the year 1846. As riparian [37]*37owners of these surveyed lands, plaintiff’s lessor claims the land in controversy. The location of these lands by such survey, with reference to the then existing bed of the Missouri river, is shown by the following plat:

[38]*38As will be observed they are on the north shore of the river.

The evidence tends to show that at the time of the government survey the current of the river washed this shore, that at some time previous, a bar had formed in the river opposite these surveyed lands; that in navigating the stream, boats passed between this bar and the north shore until about the year 1854, when the current changed and afterwards ran, and boats passed, south of it. At the time of the survey this sand bar had been in existence for some years. It was a long, narrow strip containing perhaps an hundred acres or more, upon which young cotton wood and willows had grown to the height of fifty or sixty feet, and became known as Pole island. It was not noticed in any way in the government survey. After the current changed in 1854, the water-way between it and the main shore began to fill up, and it soon became so united to the main shore, to the northwest of it, that in an ordinary stage of water persons could cross to it with teams by throwing in a little brush in the depressions between the island and the main shore. The water of an independent stream called ‘ ‘Willow Slough” flowing into the old channel from the north however separated the principal part of the island from the main land to the north and northeast of it.

On the fifth day of July, 1867, the Missouri river being at a very high stage of water, suddenly cut through the narrow neck of land between sections 18 and 30, township 66, range 42, and run all its water through said newly made cut and abandoned its old bed in the bend, fifteen miles long and from three-fourths of a mile to one mile wide; as shown in plat A. The'peninsula of land so cut off by said avulsion and thrown east of the Missouri river is called [39]*39McKissock’s island and continues to be a portion of Nebraska. This relicted territory was at first and for a year or two stagnant ponds of water. Gradually, however, by drainage and evaporation it became comparatively dry, except water standing in a few low places. Occasionally when the Missouri river was high it would overflow this ground as well as the surrounding country and deposit sediment on said low ground. In time vegetation commenced to grow on it, trees appeared and about 1881-2-3, much of it became fit for pasture and cultivation. It is still much lower than the surveyed lands surrounding it on the Missouri and Nebraska' shores and has in many places deep sloughs and depressions in which water rests a good portion of the year. It is as a general rule higher in the center than it is next the shore, and there is a deep depression all along the main shore between this relicted land and the originally surveyed lands, leaving the border of the originally surveyed shore higher than the relicted lands all around.

From a point on the Missouri shore, seventy-seven chains east of the northwest corner of section 5, township 66, range 42, runs a public road due south, crossing the west end of Pole island across the aforesaid relicted land to that portion of the Nebraska shore called McKissock island, and the lands in controversy and claimed by appellant is that portion of Pole island lying east of said road and a portion of said reliction in a triangular shape lying south of said island.

The condition of the old bed of the river at the time this suit was brought, and the situation of the land in controversy and the respective claims of the parties is illustrated by the following plat:

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