Home/Supreme Court of Kansas/Stark v. Meriwether

Stark v. Meriwether

163 P. 152, 99 Kan. 650
Supreme Court of Kansas·Decided February 10, 1917·No. No. 19,888·Published·Cited by 8 cases

Opinion

The opinion of the court was delivered by

Porter, J.:

A rehearing was granted upon the complaint of counsel for Meriwether that the former opinion (Stark v. Meriwether, 98 Kan. 10, 157 Pac. 438) overlooked his main contention. Counsel insists that he “relied chiefly, aggressively, and most confidently throughout the entire litigation upon one specific and most prominent fact which appeared in the findings of the trial court.” The complaint then proceeds:

“And this was the omission. The findings refer to the Coulter map thereto attached. The fifth finding refers to island ‘B’ as shown on [651] said map. . The island as shown by the map was right there, directly in front of the Stark land, before any accretions began to form, and directly between Stark’s frontage and the land in dispute, and 700 feet nearer to the Stark land than was the land in dispute. The question was, whether or not the land in dispute was an accretion to Stark’s original frontage. The Coulter map also shows that island ‘B’ as originally formed, and before any accretion began, extended both farther upstream and farther downstream than did the Stark frontage. Also the court shows that island ‘B’ never washed away, but continued to grow eastwardly. Your opinion gives the findings except that they do not show the Coulter map. Consequently, the size and location of the island ‘B’ as herein stated, upon which my contention was based, are not shown in your opinion. Upon the hearing I earnestly- contended that this island' ‘B,’ permanently located as it was, and lying directly in front of the Stark land as it did, and extending as it did both higher up and lower down than Stark’s frontage, and this too, before accretions began forming, was an insuperable obstacle in the way of accretions advancing from the Stark lands in the direction of the lands in dispute which lay 700 feet still farther east.”

This action was commenced October 16, 1906. Meriwether’s answer, filed in December, 1907, set up a general denial, a claim of possession of the lands in dispute, and the further claim that there was a suit then pending in the federal court which involved the title and ownership of all the lands described in plaintiff’s petition. On March 11, 1913, and after an amended petition had been filed, an answer was filed for Meriwether by his present counsel, which, after admitting possession of the lands in controversy, denied the other averments of the petition, set up the fifteen-year statute, of limitations, and further alléged that “the land in controversy is an accretion to an island which arose in the bed of the Missouri river, to which island the defendant had title and which never belonged to plaintiff.” The island mentioned in the answer, was obviously the one referred to in the evidence and findings as the Howe Island, or “Island A.” However, we shall assume that the answer is broad enough to include not only that particular island, but any other to which the defendant could show that the lands accreted. A copy of so much of the Coulter map as is necessary to show the locality and surroundings is reproduced on page 652.

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Stark v. Meriwether, 163 P. 152, 99 Kan. 650 (kan 1917).

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