
    MAW, Appellant, v. BRUNEAU, Respondent.
    (156 N. W. 792)
    (File No. 3788.
    Opinion filed March 4, 1916.)
    Waters — Shaftings of Missouri River — Accretions—Erosions as Affecting Rands on North. Bank, Subsequently Becoming Rands on South. Bank, then Again on North Bank — Ghang© of State Rinei — Permanency of Island, as Nucleus of Accretions — Sufficiency of< Evidence.
    Defendant, who in a suit to determine adverse right and possession of, and .to quiet title to certain lands, of which plaintiff claimed ownership derived through patent from the United States, defendant claiming title by and as accretions to riparian lands owned by him and then located in Nebraska, recovered judgment establishing title in him. The lands in dispute were originally separated from lands owned by defendant and to which he claims the lands in dispute became accretions, by the channel of the Missouri'River; which stream afterwards, and between 1869 and 1900, veered northward until it flowed around north of the .land in dispute and to which plaintiff held title, so that the situs of plaintiff’s land, included .the land in dispute was, for a time, located in Nebraska, while the old channel gradually became partly filled with sand and soil and formed a bayou, which bayou then lay between defe'ndant’s riparian land and that ■ claimed by both parties. About 1900 the channel of the river again changed, at a point substantially where it had previously changed and turned northward, and again ran eastward and south of the original channil which had become a bayou, so that defendant’s riparian land was thrown into the state of South Dakota. The evidence was conflicting as to whether an alleged island, situated close to and north .of the original channel thus partially filled, was completely eroded away by said, movement of the channel northward. Held, in view of evidence showing that there existed at the locus of said island a point of ground higher than that of the surrounding land, and that there stood upon it many clumps of ash trees 16 to 18 years old, which were sprouts from roots of stumps, some of which trees were 16 to 18 inches in diameter, t'he trees that grew upon these stumps being from 40 to 5 0 years old when cut down, that tihe facts preponderate in favor of the theory that said island did exist, and that a portion of ether land belonging to plaintiff was never at any time between 1869 and 19 00 eroded, washed away and destroyed by the change of the bed and channel of the river, and therefore never became a portion of defendant’s riparian land as an accretion thereto, bu.t that the portions of said accretions lawfully attached to said island area became vested in plaintiff or her predecessor in interest as accretions to her land; and this notwithstanding the locus of the lands in controversy was for a time in Nebraska.
    Appeal -from Circuit Court, Union. County. Hon. Joseph W. Jones, Juldge.
    Action by Emily S. Maw, against Henry Bruneau, to determine adverse right and possession, and to quiet title to roaltv From a judgment for defendant, and from an order denying new trial, plaintiff appeals.
    Reversed and remanded.
    
      Chas. SHckney, C. N. Jepson, and C. M. Stihvitt, for Appellant.
    
      Thomas Mclnerny, and Bckvin J. Stason, for Respondent.
    Appellant cited: Ocean City Ass’n vs. Sfariver, 51 R. R. A 425; St.' Louis vs. Ru'tz, 138 U. S. 226; C. J. Holman vs. Jas. M. Hodges, 58 L. R- A. (Ta.) 673; Stocldey v. Cissna, (Tenn.) 104 S. W. 8024 Widdecorobe vs. Rosemiller, 118 Fed. 295.
    Respondent 'cited; Nebraska v. Iowa, 143 U. S. 358, 36 L-Eid. 186; Civ. Code, Sec. 900; Crandall v. Allen, (Mo.) 22 L. R. A. 591; Cox v. Arnold, (Mo.) 50 Am. St. Rep. 450, 452; Holman v. Hodges, 112 Iowa, 714, 718; III. Farnhami on Waters, p. 2494; St. Louis v. Rutz, 138 U. S. 226, 11 S'up. Ct. 337; Bouvier v. S'tricklett, (Nelb.) 59 N. W. 550; Quinlan v. Bartley, (la.) 80 N. W. 405; Rober v. Mickelsen, (Neb.) 116 N. W. 949; Coulthard v. McIntosh, 122 X. W. 233, 143 Iowa, 389; O’Connor v. Petty, (Xeb.) 146 X. W. 947; Kitte-•r'idg-e v. Ritter (-la.), 151 X. W. 1097; Sítate of Nebraska v. State of Iowa, 143 U. S. 358, 36 L. Ed. 186; State of Iowa v. Carr, 112 C. C. A. 477, 481, citing; New Orleans v. United States, 10 Pelt. 662, 9 L: E'd. 573; .Kinkead v. Turgeon (Nelb.), 109 NI W. 744; Topping- v. Cohn (Neb.) 99 N. W. 372; Babson ■v. Tainter, 79 Me. 368, 375, 10 Atl. 63.
   McCOY, J.

This suit was instituted to determine adverse right and possession and to q,uidt title to certain lands claimed to be owned iby both plaintiff and defendant, now situated in Union county, S. D. The plaintiff is in possession and claims title by and through patents from the United States and other mesne conveyances. The defendant claims tilble by and as accretion to riparian lands owned by him in the state of Nebraska. These lands in dispute are what are sometimes termed “bottom lands,” and at different times within the last 60 years have been on both sides o-f the main channel of the Missouri river, a part of /the time being in the territory and state of South Dakota, and a part of the time in the state of Nebraska, due1 to the shifting and chang-, ing of the bed and main channel of’ the river. A noted humoro-lrs author, .in relation to the habits and eccentricities- of the Missouri river, among other things-, has most aptly written:

“It is a perpetual dissatisfaction with its bed that is the greatest peculiarity of the Missouri. It is harder to suit in the matter of beds- than a traveling man. Time after time -it has gotten oulb of its bed in the middle of the night, with no apparent provocation-, and has hunted up a new 'bed, all litered with forests, cornfield’s, brick houses, railroad ties, and telegraph -poles. * * * Then it has suddenly taken a fancy to its old bed, which by this time has been filled with suburban architecture, and back it has gone with -a whoop and a rush-, as 'happy as if it had really found something worth while.
“Quite -naturally this makes -life along the Missouri a little bit uncertain. Ask the citizen of a Missouri river town on which side of 'the river he lives, and (he will look worried, and will say: 'Chi the -east side when I came away.’ Then he will go home to look the matter up, and; like as not, will find' the river on the other sildte of his humble home, and a government steamboat pulling snags out of his erstwhile cabbage paitch.
“It makes fanning as fascinating as gambling, too: You never know whether you are going ¡to harvest corn or catfish. The farmer may go blithely forth of a morning with a twine binder to cut bis wheat ¡only to come back at noon for a trout-line; his wheat having gone down Ithe river the night before.
“These facts lead us naturally to the subject of the Missouri’s appetite. It is the hungriest river ever created. It is eating all •the time, eating yellow clay banks and cornfields, 80 acres at a mouthful, winding up its banquet with a truck garden, and picking its teeth with the timbers of a big red barn. Its yearly menu is 10,000 acres of good, rich, farming land, several miles of railroad, a few hundred- houses, a forest or two, and uncounted miles of sand -bars.
“This sort of thing makes the Missouri valley farmer philosophical in the extreme. The river may take away half his farm this year, but he feds sure tihialt next year it will give him 'the whole -farm of the fellow above him. But he must not be too certain. At this point the law steps in and does a more remarkable thing than the river itself may hope to- accomplish. It decrees that so long as there is a single yard of an owner’s land left —nay, even bo long as there is a strip wide enough to' balance'a calf upon — he is entitled to all the land that the river may deposit in front of it. But,, when that last yard is easten up, even though ithe river may repent and replace the farm in as good order as when it took it, the land 'belongs to the owner of the land behind it.”

We have quoted the foregoing for the sole purpose of illustrating the. natural and well-known changing and varying conditions of the Missouri, and not for the purpose of approving the legal proposition therein referred to-, as we find some considerable diversity of judicial opinion to -exist regarding the legal status where one’s surface soil has been completely eroded- and washed away, and' then, by accretions, having been replaced with other surface -s-oil so as to restore such land to- substantially its- former condition. Wells v. Bailey, 55 Conn. 292, 10 Atl. 565, 3 Am. St. Rep. 48; Peuker v. Canter, 62 Kan. 363, 63 Pac. 617; Association v. Shriver, 64 N. J. Law, 550, 46 Atl. 690, 51 L. R. A. 425, and note; Gilbert v. Eldridge, 47 Minn. 210, 49 N. W. 679, 13 L. R. A. 411. However, as we view the evidence, this particular question is not a controlling or vital proposition as applied to the facts of this case.

The foregoing plat will be referred to for convenience in showing the approximate locations of lands and niver. The parcels of land in dispute are marked with “X,” and are all situated in section 1, noiv situated in the state of South Dakota. The defendant owns riparian lands formerly in the stalte of Nebraska on the opposite side of the original main channel of ithe Missouri as located prior to 1869, but which lands since the year 1900 have been on the north side of the main channel, and now are in the state of South Dakota. Prior to' 1869, and again from the spring of 1900 to the present time, the main channel was to1 the south and east of the land's in 'dispute. For some 20 or more years next previous to the year 1900 the main channel ’bad been west and north of these lands. In the spring' of 1900 the river suddenly left its channel west and north -of the lands in dispute and went to the south of its original bed an/d channel, occupied by it prior to 1869, and there cut out a new channel to the south of the riparian lands owned by defendant, where it ever since has remained. The defendant, who is respondenlfc in this court, contends that, beginning about the year 1869, -the north shore line of the river, as then located, and being between points A and E, as indicated on the plat, -began to gradually and slowly move northwestward, that the action of the waiters pressing against this entire north shore line gradually and slowly ate into, 'eroded, and washed away the adjoining soil, and at the same time the opposite south shore, bounding the north line of defendant’s land then in Nebraska, also began to move northwestward, by a filling in and adding to of alluvial soil, sand, and drift sediment, and by natural accretions-defendant’s lan/ds followed the south shore line in its northward course over and across the said lands in dispute in said section 1, and that this washing- -and eroding away on the north shore line, and the alluvial deposits adding to on the south shore line by said accretions, continued for something like 20 years or more, and until by such processes the entire portion of said section 1 on the Dakota side was completely and wholly washed and eroded awajT; in other word’s, that the main channel of the river, by cutting out and- completely -destroying and washing away all surface soil on the north side, and by depositing and filling in on the south side, moved the entire river channel north to the position ii occupied in the spring of 1900, and that the entire surface soil that prior to 1869 occupied the same position as occupied now by the surface soil of the said -parcels of land in dispute was wholly and completely destroyed and eroded away, and that the surface soil now on said land was added thereto by deposits and accretions to the riparian lands of defendant, formerly situated in -the state of Nebraska.

The learned trial court found in favor of defendant on this contention, and the plaintiff, who is appellant in (this court, now urges as error that such finding is not supported by the preponderance of the evidence; that .the clear preponderance of the evidence is against said finding. I't is the contention of appellant 'that, when in 1869 the waters commenced cutting into the north and west shore 'bank, upon portions of lots 1, 2, and 3, indicated on the plat, there was then a growth of trees, cottonwood, .and 'ash; that the land on which these trees grew, a narrow crescent shaped strip' of some 25 acres, was- several feet higher in altitude than the s-urrounding- surface of the soil to1 the north and west, and that soon after the beginning of such cutting in and washing away process a small channel broke through somewhere between points B and ’C, shown on the plat, into the lower ground, and ran around west and north of the narrow strip, on lots 1, 2, and 3, on which the trees grew, leaving this narrow strip for some years as an island, (but that the channel, small at first, which ran around to the west and north of the strip on which the trees grew, continuing to cut ouit and wash away to the west and north, soon- became 'the main channel, and the opening into' the old channel between points B and F soon thereafter became closed with deposits of sand and upon which willows and small trees and shrubs thereafter grew; that this old channel was thereafter for many years known ais a bayou, and contained dead and sluggish waters, but finally became practically filled up with sand, soil, and sediment, so that at -most times of the year persons might travel across the place of the old channel with teams and vehicles, the main channel, ih the meantime, having gone nearly a mile further to the northwestward ; that this strip of land- designated as an island at times when there was still a current in the old channel was often submerged, and was at times referred to as the “towhead” in the river; and 'that by reason of said portions of said lots 1, 2, and 3, never having been eroded and washed away the same never became a portion of defendant’s riparian lands as an accretion thereto.

The oral testimony, in relation to whether or not there ever was an island or towhead in the river occupying a portion of said lots 1, 2, and 3 in section 1 was conflicting and attended with muoh uncertainty. This conflict and uncertainty in the oral testimony was naturally and necessarily ¡due to the length of time that lias 'elapsed since this particular lateral location! was within the shore lines of the main channel. The witnesses who testified1 and who are1 now under 60 years of age were then hoy's' in their “teens.” After the ‘ current ceased to run in the old channel, which then filled with sand and debris between points B and F, and which occurred in the early 70’s, this, particular location passed ‘to the south bank of the main channel, with the bayou between it and defendant’s riparian lands. After such lapse of time it is a very easy matter to see how different witnesses might honestly, but mistakenly, say there was or was not an island at said location. If there was no other testimony- in this case as to .the existence of the island or towhead than that contained in the oral testimony, the conflict therein is such that we would be inclined to not disturb the findings of fact; tout there has been shown to exist some natural physical facts which have a more conclusive and substantial effect than any of the oral testimany, and which physical íacts, as we view them, clearly preponderate in favor of the proposition that there was a narrow slightly orescent-shaped strip of land of some 25 acres, more or less, located on lots 1, 2, and 3, that was never eroded, washed away, and destroyed by the currents of the river in its said gradual northwestward change of bed and channel between 1869 and 1900. The contour and outline of the body of this crescent-shaped strip of -land, called the island, still exists, and is bounded and marked at the -present time by the surrounding raised banks froth 2 to 6 or more feet in attitude; the whole of the island area being higher than the immediately surrounding lands- as at present existing. This raised, island area has growing upon it many fclumps of ash trees 16 to 18 years of age, which clumps of trefes are sprouts from the roots of stumps some of which stumps are from 16 to 18 inches in diameter. The trees that grew upon these stumps were from 40 to 50 years old at the time they were cut 'down. It is contended by -respondent that these stumps from which the present growing sprouts originated were washed out and carried down from some other place upstream, and were lodged and1 deposited at the place where now found by the action and currents of the waters of the stream. While such a thing' might occasionally -happen, still iit is hardly within the range of reasonable possibility that some 50 or m-ore instances of such transplanting of stumps in vertical, upright, na-•tu-ral positions would occur on so small an area of land. We are of the view that ¡these physical facts clearly preponderate in favor of the theory that a portion of the surface soil of said lots i, 2, and 3 was never at any time between 1869 and 1900 eroded, washed away, and destroyed by the changing of the 'bed' and channel of the Missouri, and therefore never became a portion of defendant’s riparian lands as an accretion thereto, but that whatever portions of such accretions lawfully attached to said island or towhead area became vested in and inured to the benefit of plaintiff or her predecessors in interest as accretion to said lots 1, 2, and 3.

If said portion of said lots 1, 2, and 3 always remained intact, and ¡it never became an accretion to defendant’s riparian lands, then plaintiff’s predecessors in interest never lost title thereto, and this would be true no matter if, for a time, the situs of said lots was located in the state of Nebraska. If all portions of section I had been entirely and completely eroded and washed away, and the eiltus thereof had thereafter been rebuilded with a new surface soil by means of deposits of sand and soil, then we would have 'before us for consideration the proposition about which there seems to be -much diversity of judicial opinion hereinbefore referred to, but which proposition is not necessary to be decided in this cause when we conclude that a portion of said lots 1, 2, and 3 was never eroded or washed away, but remained intact. Farn-ham on Waters, vol. 1, pp. 331, 332, and vol. 3, pp. 2484 to 2490.

The judgment and order appealed from are reversed, and the cause remanded for further procedure consistent with this decision.  