Holman v. Hodges

58 L.R.A. 673, 112 Iowa 714
CourtSupreme Court of Iowa
DecidedJanuary 17, 1901
StatusPublished
Cited by26 cases

This text of 58 L.R.A. 673 (Holman v. Hodges) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holman v. Hodges, 58 L.R.A. 673, 112 Iowa 714 (iowa 1901).

Opinion

Ladd, J.

1 There is little controversy concerning the facts of this case. The plaintiffs have been owners of lots 3 .and 4, bordering the Missouri river, since 1862. A bar began to form opposite these, near the middle of the stream, in 1857. Certainly it had not appeared in 1856, as the ferryboat went directly across without obstruction. 'The following year a steamboat ran aground on the bar, and for several years afterwards boats were compelled to avoid it by following the current on either side. As early as 1861, ■according to one of the plaintiffs, it was a half mile wide, and has been added to until it is now two to three miles long. By 1870 the northern part was overgrown with willows, and, ■though the main.current of the river had gradually changed to the west of the bar or island, that part to the east was still 3 5 or 20 rods wide, with a distinct current. Since then willow .and cottonwood trees have sprung up on the bar, a small part was cultivated in 1878, and it has been occupied, for agricultural purposes since 1886. During all these years alluvial ■deposits have been added to the north, south, and west. In 1870 accretions began to form on plaintiffs’ lots and this has been going on ever since. The water at ordinary stage coniinued to flow between plaintiffs’ land and the island until .about 1887, and it has run through a well-defined channel •during the spring and June rise of the river up to the present time. Without setting out the evidence in detail, it is enough to say that the formation of the bar or island has been entirely distinct from any accretion to the shore. It arose near the middle of the river, though probably east of the thread of the then main current, without any connection with the Iowa •shore, and was gradually added to by accretion or reliction ■until an island of the proportions mentioned was formed. Not only is this true, but the conclusion seems inevitable [716]*716from the circumstances shown that the additions to plaintiffs’ land, whether from accretion thereto or the receding of the waters, have resulted from the formation of the island. Its-existence undoubtedly changed the main current of the river,, and by its growth to the northeast gradually cut off the stream formerly flowing between it and the shore. Whether this be-true, however, need not now be determined. It is enough for the purposes of this case that the land beyond the channel last mentioned was formed independently of plaintiffs’ land. It then never became part of their lots through the process of accretion or reliction.

2 II. But the appellants insist that, even if all we have-said be true, yet are they the owners of the island. They argue that, as the state acquired title to the soil at the bottom of the river, as the latter receded towards Ne~ braska, it ought to be excluded from any claim to the-part of the bottom abandoned; in other words, it seems to be thought that the state’s title ought to be limited to-the soil covered by the waters. And it is said that, even though it may have owned the island when surrounded by water, that title moved from beneath it as the river receded, and the land became plaintiffs’ as soon as connected with shore. It is conceded that no authorities have been found announcing such a doctrine, and we have been unable to discover any case awarding a riparian owner land because connected to nisown, save when this has occurred through the imperceptible accretion or the reliction thereof by the gradual receding of the waters. The argument that this should be the rule, for that, while he may gain, he is equally likely to lose, is that on which ownership to the center of an unnavigable stream is grounded. And it may have had some influence in decisions-declaring title in the riparian owner to the middle of a navigable stream above tide water. See Morgan v. Reading, 3 Smedes & M. 366. No question is made but the Missouri river at this point is a navigable stream, and that ordinarily [717]*717ibe riparian owner lias no title beyond high-water mark. McManus v. Carmichael, 3 Iowa, 1; Haight v. City of Keokuk, 4 Iowa, 199; Tomlin v. Railway Co., 32 Iowa, 106; Houghton v. Railroad Co., 47 Iowa, 370; Bennett v. Manufacturing Co., 103 Iowa, 207. Nor is it doubted that title to the soil at the bottom of such a river from high-water mark to the middle of the channel is in the state. Railway Co. v. Porter, 72 Iowa, 426; Pollard v. Hagan, 3 How. 225 (11 L. Ed. 565) ; Hardin v. Jordan, 140 U. S. 371 (11 Sup. Ct. Rep. 808, 838, 35 L. Ed. 428). As said in the la'st case: “Such title to the shore and land under water is regarded as inci•dental to the sovereignity of the state, a portion of the royalties belonging thereto, and held in trust for the public purposes of navigation and fishery, and cannot be retained or .granted out to individuals by the United States. Such title being in the states, the lands are subject to state regulations ■and control, under condition, however, of not interfering with the regulations which may be made by congress with regard to public navigation and commerce.” . Contrary to the views of this court expressed in Dunleith & Dubuque Bridge Co. v. Dubuque Co., 55 Iowa, 558, the supreme court of the United States, in Iowa v. Illinois, 147 U. S. 1 (13 Sup. Ct. Rep. 239, 37 L. Ed. 55) laid down the rule “that the true line in navigable rivers between the states of the Union which separatethe jurisdiction of one from the other is the middle of the main channel of the river. Thus the juris•diction of each state extends to the thread of the stream; that is, to the mid-channel, and, if there be several channels, to the middle of the principal one, or, rather, the one usually followed.” As this island, then, was formed on the bottom of the river, connected in no way wfith the shores, it would seem that title continued in the state. It rests on soil which, when beneath the surface of the water, belonged to the state, and, if no longer its property, when was the title devested ? The moment the bar appeared above the surface of the water ? [718]*718If so, who acquired it ? Surely uot the plaintiffs, for at that time a stream 40 or 50 rods wide separated it from their land. And its separation is still marked by a distinct channel to-which the waters gradually receded up to 1887, and through which they still flow at the annual freshets. Nor do we think there is any ground for supposing title to shift as suggested. True, Lord Coke referred to what he designated a “movable freehold,” as where the owner of the seashore acquires or loses land as the sea recedes or approaches. See "Kent, Commentaries (11th ed.) 547. In that sense title to land bordering the Missouri river may be said to be movable, for no-one at night may safely predict what will be his boundary line the nest morning. The state may lose part of the-bottom of the stream by accretions to the riparian owner’s land, or by reliction. But this is because it occurs through, these processes, for the state is governed by rules applicable-to the individual owner. That the state acquired title to soil at the bottom of the stream previously belonging to Nebraska or to private owners furnishes no ground for depriving it of the property it held. As well say, because of plaintiffs’ ae quiring a large body of land by accretions, they should be dispossessed of that previously owned, or divide it with adjoining owners to the east.

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Bluebook (online)
58 L.R.A. 673, 112 Iowa 714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holman-v-hodges-iowa-1901.