This action was commenced in the Circuit Court of Franklin County, Missouri, on May 15, 1920, in two counts. In the first count plaintiff claimed to be the owner in fee simple of the following described real estate, situate in Franklin County, Missouri, to-wit:
A tract of land being part of Sections 26 and 27, Township 45 north, Range 2 west, of the Fifth Principal Meridian, as surveyed and subdivided by Jesse F. Ekey, county surveyor of said county, by Edgar Rapp, deputy, as shown by plat and field notes of survey filed in the office of the Clerk of the County Court of Franklin County, and approved by said court on April 7, 1919, and described as: Beginning at a point in the county line between Warren and Franklin Counties, according to a survey and plat thereof, marked Exhibit A, made by Benjamine
F. Frick, County Surveyor of Warren County, Missouri, on May 7, 1918, and approved by the Circuit Court of St. Louis County, by an order and decree made by said circuit court of record in the case of Elias W. Northstine, plaintiff, v. Warren County, defendant, No. 29,316, in July, 1918, a certified copy of which order and decree of court is recorded in the office of the Recorder of Deeds within and for Franklin County, in Book 85, page 382, etc., said point being south 81 degrees and 13 minutes west 4.33 chains from corner No. 7 on said county line survey, thence south 81 degrees and 13 minutes west along said county line 14.54 chains to a point in east line of Meyer's claim, thence south 33 degrees west along Meyer's line 31.12 chains to an iron rod, thence due south 11 chains to a point, thence south 54 degrees and 25 minutes east 16.34 chains, thence south 53 degrees and 16 minutes east 7.63 chains, thence south 50 degrees and 36 minutes east 9.36 chains, thence south 48 degrees and 29 minutes east 6.50 chains, thence south 48 degrees and 10 minutes east 4.95 chains to a point, thence south 89 degrees and 15 minutes east 1.64½ chains to the southwest corner of claim of Bocklage et al., thence north 1 degree and 38 minutes east along line of last named claim 23.80½ chains to the northwest corner of Bocklage claim, thence south 89 degrees and 45 minutes east 18.62½ chains to corner of Bocklage claim, thence north 45 minutes west 38.20 chains to the southeast corner of George Hellebusch claim, thence north 88½ degrees west along south line of George and Benjamin Hellebusch 23.52 chains to southwest corner of Benjamin Hellebusch, thence north 1½ degrees east 4.24 chains to place of beginning, containing 227.56 acres, more or less, according to plat thereof made by Jesse F. Ekey, County Surveyor of Franklin County, Missouri, by Edgar Rapp, deputy, December 16-20, 1919, recorded in Book 8, page — Surveyor's Record of said county.
Said count then charges that defendants claim to have a title, estate or interest in said real estate. It concludes with a prayer asking that the title, estate or interest
of the plaintiff and the defendants respectively in said real estate, be by the court ascertained and determined; and that the court by its judgment and decree adjudge the title, estate and interest of plaintiff and the defendants in and to said real estate.
Plaintiff charges in the second count of petition, that on April 7, 1919, he was entitled to the possession of the real estate aforesaid; that on April 8, 1919, defendants entered into possession of said premises, and unlawfully withheld from plaintiff the possession thereof to his damage in the sum of five thousand dollars; that the monthly value of the rents and profits of said premises is three hundred dollars. Said count concludes with a prayer for the recovery of said premises, and $5,000 damages for the unlawful withholding of same from plaintiff; and $300 for monthly rents and profits, from the rendition of judgment, until possession thereof is delivered to plaintiff, and for costs, etc.
The answer of said defendants to each count of said petition, alleges in substance, that the boundary line dividing the counties of Warren on the north, and Franklin on the south, is "the middle of the main channel of the Missouri River;" that the real estate described in the petition is on the north side of "the main channel of the Missouri River," and is in Warren County aforesaid; that this action was commenced in Franklin County, Missouri, and the venue removed to Cole County aforesaid; that by reason of the foregoing, the Cole Circuit Court acquired no jurisdiction over the subject-matter of this action; that defendants plead the want of jurisdiction of the Cole Circuit Court, as a bar to any further procedure. Defendants further alleged in said answer, that the land attempted to be described in the petition, is indefinite and uncertain; that the calls in said description are from, and to, points and lines, local and private, without a single call for a point or line based on any public monument, line or survey; that the alleged boundary line dividing Warren and Franklin counties is erroneous, arbitrary and asserted without the semblance of authority to support said contention; that the description
of said land in the petition is so indefinite and uncertain, appellants do not know, and cannot determine, whether plaintiff is attempting to describe the land or a part thereof which defendants claim to own and are in possession of; that the only tract of land which defendants do own and are in possession of, lies in Township 45 N., Range 2 west of the 5th P.M., an accurate description of which is hereafter set out. Defendants in said answer deny that plaintiff has any interest in the lands hereafter described and claimed by them. They further allege that through their immediate, mesne and remote grantors and ancestors, they are now, and have been, in the open, notorious and continuous adverse possession of the lands hereafter described, claiming ownership of same, as against the world, commencing with the year 1834, when the United States issued a patent or patents to one Alexander McKinney; and defendants plead said possession for more than ten years as a bar against this action. Defendants further allege in said answer, that the only land which they claim to own and hold possession of, lying in Township 45 N., Range 2 west of the 5th P.M., is in Warren County, Missouri, and described as follows:
A tract of land containing 58.37 acres situated in the northwest fractional quarter of Section 27, Township 45 north, Range 2 west, bounded as follows: Beginning at a concrete block with a two-inch pipe in the center thereof, the same marking the common corner to Sections 21, 22, 27, and 28, running thence S. 1 deg. 0' W. with the section line 1.70 ch. to a ¾ inch rod set at the intersection of the north line of U.S. Survey No. 1697 with the said section line; running thence with the north line of said Survey No. 1697, S. 57 deg. 0' E. 34.41½ ch. to buggy axle marking the northeast corner of aforesaid survey; running thence with the east line of said Survey S. 32 deg. 46' W. 26.10½ ch. to a set gate hinge; thence east 15.20 ch. to a set post; thence N. 0 deg. 50' E. 42.50 ch. to a 1 inch rod set on the north line of aforesaid Section 27, running thence west with the section line 30.60 ch. to the point of beginning.
A tract of land containing 192.13 acres situated in the southwest part of Section 27, Township 45, north, Range 2 west, and bounded as follows: Beginning at an axle 2 inches in diameter set at the common corner to Sections 27, 28, 33 and 34; running thence N. 1 deg. 0 E. with the section line, 14.98 ch. to a buggy axle set at the intersection of the east line of U.S. Survey No. 1697, with the said section line; running thence with the east line of said Survey N. 32 deg. 46' E. 29.37 ch. to a set gate hinge; thence east 38.69 ch. to a set post; thence south 37 ch. to a set ½ inch rod; thence west 18.62 ch. to a set railway rail coupling; thence south 2.67 ch. to a set buggy axle on the south line of above said Section 27, 5 ch. w. of the quarter section corner; running thence with the section line west, 36.24½ ch. to the beginning.
A tract of land containing 33.65 acres situated in the northwest quarter of Section 34, Township 45 north, Range 2 west, bounded as follows: Beginning at an axle 2 inches in diameter, set at the common corner to Sections 27, 28, 33 and 34 of above said township and range; running thence with the south line of Section 34, east 36.24½ ch. to a set buggy axle; thence south 22.37½ ch. to a set ½ inch rod; thence N. 51 deg. 37' W. 28.22 ch. to a set 1 inch square iron bar; thence N. 70 deg. 54' W. 14.98 ch. to the beginning.
It is further alleged in said answer that these defendants are the children and heirs of Heinrich Feldmann, deceased, and inherited the above described land from him; that said land was conveyed to said Heinrich Feldmann in 1870, for $14,000, which was paid by him to his grantors; that he went into immediate possession of said land, and since said date said Heinrich Feldmann and these defendants have been in the continuous, actual, open and notorious possession, claiming the same against all the world, and paying taxes thereon to Warren County and the State of Missouri; that if the whole, or any part, of said land attempted to be described in plaintiff's petition, is identical with any, the whole, or any part of above described tract of land (which defendants are unable to determine on account of the vague and indefinite description
of the land in the petition) then defendants plead possession as above set forth for more than ten years as a bar against this action. It is further alleged in said answer that the lands described therein were patented in the year 1834, by the United States to Alexander McKinney, and have come down from that date, through mesne conveyances to Albert Powell, who, in 1870 conveyed the same to said Heinrich Feldmann; that said land is situated on the north side of the middle of the main channel of the Missouri River, and is, and always has been, a part of Warren County, Missouri; that it was assessed for taxes as a part of said Warren County; and that since 1870, these defendants and their predecessors in title, have paid taxes to and in Warren County, Missouri, etc.
The answer, after following the above with a general denial, concludes with a prayer, in which the trial court was asked to enter a decree in their behalf, etc.
The plaintiff, by way of reply, put in issue the new matter set up in said answer.
The testimony, as disclosed in the abstract of record, covers about 300 pages of printed matter, aside from certain exhibits offered in evidence. Plaintiff's claim of title to the land described in the petition is based on a patent issued to him on April 7, 1919, by the County Court of Franklin County, Missouri. It appears from respondent's evidence that the County Court of Franklin County, on November 14, 1913, made and entered of record an order for a survey of accreted lands in said county, occasioned by the abandonment of the waters of the Missouri River therein as provided in Section 8036, Revised Statutes 1909. Upon a return of the surveyor, the county court of Franklin County, acting under the provisions of the Act approved April 8, 1895, sold to plaintiff at $1.50 per acre the lands described in the patent issued by said county to plaintiff as aforesaid. The defendants claim title to the lands described in their answer, through patents issued by the United States to their predecessors in title in 1834, which said patents were read in evidence. Whatever title was conveyed by
said patents, by mesne conveyances, etc., passed to these defendants. The evidence of the latter discloses that they have been in possession of the land claiming title thereto adversely to the world since 1870. The second count of the petition alleges that the defendants, on April 8, 1919, entered into the possession of the land described in the petition, and have unlawfully withheld from plaintiff the possession thereof.
Both plaintiff and defendants waived a jury and tried the cause before the court. The trial court, as a matter of law, declared that plaintiff was entitled to recover, refused all of defendants' instructions, and rendered judgment for plaintiff upon both counts of the petition, etc.
Defendants' motions for a new trial and in arrest of judgment were filed and overruled and the cause duly appealed by them to this court.
Such other matters as may be deemed important will be considered in the opinion.
I. This is an action at law as to both counts of petition, and was tried as such in the court below without a jury. If there was substantial evidence offered at the trial showing jurisdiction of the subject-matter in the Cole Circuit Court, andSubstantial that the land in controversy belonged to respondent,Evidence. it would be our duty to affirm the judgment, unless error was committed by the trial court in the admission or rejection of testimony, or in respect to the giving or refusal of instructions. [Barr v. Stone, 242 S.W. l.c. 663 and numerous cases cited.]
II. The petition charges that the lands in controversy are located in Franklin County, Missouri. The answer tenders an issue on this question, and alleges that said lands are in Warren County, Missouri. The burden of proof devolvedJurisdiction: upon plaintiff to show that said lands wereWrong County. located in Franklin County, when this action was brought. In other words, if the lands in controversy are located in
Warren County, the Circuit Court of Franklin County was without jurisdiction to try this cause, and of course could confer no jurisdiction on the Cole Circuit Court by changing the venue. [Sec. 1179, R.S. 1919; Sec. 1753, R.S. 1909; Vogelsmeier v. Prendergast, 137 Mo. 271, l.c. 287-8; State ex rel. v. Baker, 129 Mo. l.c. 488.]
The boundaries of Warren County were defined by Section 44, at page 194, of the General Statutes of 1865. This section appears as 44, in Volume I of Wagner's Statutes of 1872, at page 366. The boundaries of Franklin County were defined by Section 66, at page 200 of the General Statutes of 1865. This section appears as 66, in Volume I of Wagner's Statutes of 1872, at page 374. The boundaries of said counties as disclosed by Sections 44 and 66 of the General Statutes 1865, read as follows:
"Sect. 44. WARREN — Beginning at a point in the middle of the main channel of the Missouri River, where a southern prolongation of the fifth principal meridian would intersect the same; thence north on said meridian line, to the northeast corner of township forty-seven, range one, west; thence west on the township line between townships forty-seven and forty-eight, to the southeast corner of section thirty-five, township forty-eight, range two, west; thence north with the subdivisional lines, to the northeast corner of section fourteen, township forty-eight, range two, west; thence west with the subdivisional lines, to the northwest corner of section eighteen, township forty-eight, range two, west; thence north on the range line between ranges two and three, west, to the northeast corner of section twenty-five, township forty-nine, range three, west; thence west with the subdivisional lines, to the northwest corner of section twenty-eight, township forty-nine, range three, west; thence south with the subdivisional lines, to the southwest corner of section nine, township forty-seven, north, range three, west; thence west with the subdivisional lines, to the northwest corner of section eighteen, township forty-seven, range four, west; thence south with the range line between ranges four and five, west, to the middle of the main channel of the Missouri River; thence
down said river, in the middle of the main channel thereof, to the place of beginning.
"Sect. 66. FRANKLIN — Beginning at a point in the middle of the main channel of the Missouri River, where the prolongation north of the range line between ranges two and three, east, would intersect the same; thence south with the said range line, to the southeast corner of township forty-three, range two, east; thence, in a direct line, to a point sixteen chains north of the quarter section corner on the line between sections fourteen and fifteen, in township forty, range two, east, it being the northeast corner of Washington County; thence due west, to the middle of range four, west; thence north with the subdivisional lines, to a point in the middle of the main channel of the Missouri River; thence down said river, in the middle of the main channel thereof, to the place of beginning."
The above quoted sections were in full force and effect when our present Constitution went into operation on November 30, 1875. Section I of Article 9 of above Constitution reads as follows:
"The several counties of this State, as they now exist, are hereby recognized as legal subdivisions of the State."
Section 3 of Article 9 supra, provides that: . . . "No county shall be divided or have any portion stricken therefrom without submitting the question to a vote of the people of the county, nor unless a majority of all the qualified voters of the county or counties thus affected, voting on the question, shall vote therefor."
Section 4 of Article 9 aforesaid reads as follows: "No part of the territory of any county shall be stricken off and added to an adjoining county without submitting the question to the qualified voters of the counties immediately interested, nor unless a majority of all the qualified voters of the counties thus affected, voting on the question, shall vote therefor."
According to our conception of the law, when the Constitution went into operation on November 30, 1875, it then definitely fixed the boundary line between Warren
and Franklin Counties, which could not be changed except by a majority of the qualified voters of the counties immediately interested, etc., voting therefor. Unless it therefore appears from the evidence, that on November 30, 1875, the land in controversy was located on the south side of the middle of the main channel of the Missouri River, as described in Section 66, at page 200, of General Statutes of 1865, the Circuit Court of Franklin County was without jurisdiction to try this cause and, hence, conferred no jurisdiction on the Circuit Court of Cole County, Missouri, by changing the venue.
The respondent recognizes the law as above declared, under proposition three at page 9 of his brief, which reads as follows:
"When the middle of the channel of a navigable (or other) river is by law made the boundary line of lands, and afterwards by avulsion a new channel is made, then even though the new channel becomes the main channel, the boundary line remains in the middle of the channel in which it was established, even though the waters of the river depart from that channel leaving it dry land. [Missouri v. Kentucky, 11 Wall. 395, cited in State of Washington v. State of Oregon, 211 U.S. 127 and 214 U.S. 205; State of Nebraska v. Iowa, 143 U.S. 359 and 145 U.S. 519; Missouri v. Nebraska, 196 U.S. 23.]"
Counsel for respondent cite Section 3 of Article 9 of the Constitution of 1875, heretofore quoted, and rely upon same to show that the present boundary of the Missouri River should not be taken as the boundary between Warren and Franklin counties.
Appellant in their brief, quote the above Sections 1, 3 and 4 of Article 9 of our Constitution, and claim that: "The boundary line, between Warren and Franklin counties, at the date of the adoption of the present Constitution, was he middle of the main channel of the Missouri River." This line has never been changed, in the manner provided by the Constitution; nor in any other way.
In State ex rel. v. Baker, 129 Mo. l.c. 486-7, GANTT, J., in declaring a statute unconstitutional which undertook
to establish the boundaries between New Madrid and Mississippi counties, said:
"It has been suggested in this connection that the provision of the Constitution of 1875, found in Section 1 of Article 9, may have the effect of validating this originally futile effort to change the boundary line between New Madrid and Mississippi counties. That section is as follows: `The several counties of this State, as they now exist, are hereby recognized as legal subdivisions of the State.'
"Exist, how? Unquestionably as they existed at that date by virtue of the laws of the State, not by invalid and void enactments on the statute books."
We have carefully read the abstract of record and briefs in this cause; and have likewise examined the exhibits offered in evidence. Upon a consideration of all the facts, we have reached the conclusion that no substantial evidence was offered or produced in the case, showing that the lands described in the petition were on the south side of the middle of the main channel of the Missouri River between Warren and Franklin counties, on the 30th day of November, 1875, when the present Constitution went into operation. [In re Lankford Estate, 272 Mo. 1, 197 S.W. 147.] In other words, the plaintiff has failed to prove the allegations of his petition to the effect that the lands in controversy are in Franklin County, Missouri. The plats offered in evidence relating to surveys made in 1879, 1883, 1895 and other years, do not show that on November 30, 1875, when the Constitution became effective, the lands described in the petition were then located in Franklin County, Missouri. It cannot be presumed that the middle of the main channel between Warren and Franklin counties remained in 1879 and other years as it was at the time of the adoption of the Constitution.
In one of the cases relied on by respondent, to-wit, Vogelsmeier v. Prendergast, 137 Mo. l.c. 277, GANTT, J., in discussing the channel of the Missouri River in 1875, between St. Charles and St. Louis counties, said:
"The location remained practically the same until 1875, when a very marked change occurred in the course and location of the main channel of the river at the point in question.
"So strong was the force of the current against Case Island, located just above Holmes Island, that Case Island was entirely washed away. The removal of Case Island left the St. Charles County shore above Holmes Island more exposed to the swift action of the current. The result was that in 1875 the river cut away about one hundred and fifty acres from the north side of Holmes Island and about fifty acres from the lower end thereof, leaving about one hundred acres. At the same time the sinuous and insatiable stream was swallowing at huge gulps the valuable lands on the St. Charles shore, and in that year completely shifted its channel from the south or St. Louis County side of Holmes Island to the north or St. Charles County side of said island. The river, having thus cut itself a new channel, entirely abandoned its old bed, which had existed at the head of Holmes Island and between the south shore thereof and St. Louis County on the south, as it was shown in Diagram 2."
The above observations in respect to the river in 1875, disclose the necessity of proof, as to the middle channel of same between Warren and Franklin counties on November 30, 1875. It is possible that plaintiff may be able to make the above proof, and show that the land described in the petition was located in Franklin County on November 30, 1875, and, hence, the cause is remanded for a new trial.
III. At the trial of this case, the court below admitted in evidence, over the objection of defendants, the record and proceedings of the Circuit Court of St. Louis County, Missouri, in the case pending therein on change of venue from Franklin County, Missouri, wherein said Elias W.Res Adjudicata. Northstine, the respondent herein, was plaintiff and Warren County, Missouri, was defendant. The appellants in this action were not parties to said cause, nor do they claim title to the
lands in controversy under either Northstine, Warren County or Franklin County. On the contrary, appellants claim title to said lands under and by virtue of patents issued by the United States in 1834 to Alexander McKinney, through whom they deraign title by mesne conveyances.
It is not claimed that the defendants herein participated in the trial of above cause in the St. Louis Circuit Court, nor that they even knew of said litigation. In a re-trial of the issue, as to whether the lands described in petition were in Franklin County on November 30, 1875, when the Constitution became effective, the record and proceedings in the case of Northstine v. Warren County, supra, should be excluded as evidence in respect to said issue. [Henry v. Woods, 77 Mo. l.c. 280-1; Quigley v. Mexico Southern Bank, 80 Mo. l.c. 296; Atkison v. Dixon, 96 Mo. l.c. 587; State ex rel. v. Johnson, 123 Mo. l.c. 54-5; State ex rel. Subway Co. v. St. Louis, 145 Mo. l.c. 567-8; Womach v. St. Joseph. 201 Mo. l.c. 490.]
In State ex rel. Subway Co. v. St. Louis, 145 Mo. 567, BURGESS, J., after reviewing the authorities relating to above subject, said: "It is manifest that the parties to the two suits in question are not the same. Respondents were strangers to the first suit, and none of them were necessary parties thereto, or privy to any party to that suit. Nor does it appear that the respondents or any of them participated in the trial of that suit, or that they were in any way connected with its management. Our conclusion is that the judgment in that case is not resjudicata."
The other authorities cited are to the same effect.
IV. If it should be found upon a re-trial of the case, that the lands in controversy were located in Franklin County, Missouri, on November 30, 1875, the court, in passing upon the merits of the case, should keep in mind the law as declared byAccretions. this court in Vogelsmeier v. Prendergast, 137 Mo. l.c. 288-9, where we said:
"The court was amply justified by the evidence in finding that in 1875 there was an abrupt and violent change of the river from its old bed and the making of a new channel, and that this change did not effect a change of the boundary between the two counties. The abandoned river bed lies between the island and the land in suit. This old bed still bounded plaintiff's land on the island and the sudden avulsion did not extend plaintiff's bounds beyond the north edge of that abandoned bed. [Rees v. McDaniel,115 Mo. 145; Cooley v. Golden, 117 Mo. 33; Naylor v. Cox, 114 Mo. 232.]
"The first instruction for plaintiff is clearly erroneous. It asserts the doctrine that if one own the land in a given survey, being an island in a navigable river, and a portion of said survey is entirely washed away, giving place to the channel of the river, and at any subsequent period new land be formed within the area of the original survey and away from the main shore or the remainder of the survey and not as an accretion thereto, such new made land will become the property of the owner of the island. Such is not the law in this State. When a navigable stream forms a boundary, as in case of this island, his line extends to the water's edge, and not to the center of the stream. If part be washed away the river still remains his boundary. He loses the land that is washed away. He can only extend his boundaries by gradual accretion or gradual reliction, just as other riparian owners. He cannot claim new made land which is not an accretion merely because it forms within the lines or area of his original survey. This must now be considered settled in this State. [Naylor v. Cox, 114 Mo. 232; Cooley v. Golden,117 Mo. 33.]"
V. Upon a re-trial, the court should ascertain and determine definitely, whether the lands sued for, and described in petition, are the same lands described in appellants' answer and claimed to be owned and controlled by them. If it cannot be determined from the pleadings, whether the sameDetermining lands are described in the petition and answer, theLands. court
should call upon plaintiff and defendants to clarify this issue and, if necessary, appoint a competent surveyor or engineer to investigate the facts and report to the court.
VI. For the reasons heretofore assigned, we reverse and remand the cause for a new trial to be proceeded with, in conformity to the views heretofore expressed. Reeves and Davis, CC.,
concur.