Hobart-Lee Tie Co. v. Grabner , 206 Mo. App. 96 ( 1920 )

The plaintiff, respondent, instituted an action to enjoin the defendant, appellant, from landing ties at a certain point on the Gasconade River in Pulaski County, Missouri. One C.J. Miller owns the land at the point in question on the north side of the river, and prior to the institution of this suit had executed a lease to plaintiff purporting to give it the right to tie up rafts to land and draw ties at the points on the land of said Miller. The trial court, after hearing the evidence, made perpetual a temporary writ of injunction which had been issued on the filing of the cause. The plaintiff and defendant were both engaged in the business of buying ties and floating them down the Gasconade river to the point concerning which this controversy arises. From the evidence it appears that the Gasconade river, as it ran at the time of the trial, made a bend to the south, beginning at a point on Miller's land which plaintiff had leased, the thread or current of the stream veers off to the south, making a large bend to the south and east. The evidence clearly shows that originally the north bank of the river was some distance north of its present north bank, or place where the land and water meet now when the river is low or at a normal stage. In this bend which the river has made there was formed a gravel bar or, as appellant designated it, an island. The evidence shows that a good many years ago a small tow-head was formed in the stream which afterwards grew to the proportion of a sand bar several hundred feet long, and that for a time water ran on both sides of this sand bar, that is, one part of the stream running between this tow-head or sand bar and Miller's land, and the other part of the stream going to the south of the sand bar. As time went on, the north part of the stream filled up so that at the present time no water can go between Miller's original south line and the place where the tow-head formed without a rise of from five to six feet in the river. The whole stream now at normal times runs on the south side of this tow-head or gravel bar which formed. Respondent, who leased from Miller, claimed to have a lease on all of this gravel bar to the present thread of the stream, all of which, as before stated, lies south of this gravel bar, and seeks in this action to prevent the defendant from landing his ties out of the river on this gravel bar and hauling them in wagons on same to a public road running practically north and south and crossing the river.

Appellant contends that the Gasconade river, at this point, is a navigable stream; that the island or the bar which formed in the stream did not become the property of the adjacent landowner on the north and that therefore the title never vested in plaintiff's line of title, and that it has no right to complain of defendant's use of this gravel bar in hauling ties along it up the river to the public road.

The plaintiff contends that the Gasconade river, at this point, is not a navigable stream in the sense that the title to the bed of the river is retained in the State, but is in the adjoining owners of the bank to the thread of the stream.

Appellant, to sustain his position, calls our attention to the record made in the trial court in this case in which it was admitted by both parties that the Gasconade river, at this point, was a navigable stream. By this admission, he contends that the title to this gravel bar or island which formed never having been owned by respondent's lessor, respondent has no right to complain of his use. There can be no doubt that appellant would be correct in the stand taken if the Gasconade river at this point was such a navigable stream as that the title to the bed of the river was retained in the public and not in the adjoining landowners. It is equally true that if the river at this point is a nonnavigable stream in the sense that the State or government has not the title to the river bed, then the adjoining landowners' ownership runs to the thread of the stream, and such ownership is subservient only to the rights of the public to use such stream as a highway upon which it can float logs, ties and such other merchandise as the volume of water will carry during certain seasons of the year.

Upon reading the decisions cited by the attorneys in this case, it is apparent that the courts have used the word navigable in dealing with the various cases that have arisen before them concerning the rights of riparian or adjoining owners, going to the questions relating to title to land, the rights of navigators, or those using the stream as a highway, and the rights to the banks, both as to such navigable streams as the Missouri and Mississippi Rivers and as to streams which will float logs and commerce and used as a highway though the title to the river bed be in the adjoining owners, and on questions relating to egress and ingress to the stream; and in determining just what was meant by the word navigable, when used in the opinions in this State, thought must be given to the question which was involved in the particular litigation. For illustration, were this case one in which the right of the defendant to float his ties down this river along this land was involved, then an admission by the parties that the river was navigable would be an admission that would make the stream navigable or floatable and hence subject to be used by the defendant and the general public as a highway; that is, the use of the stream or so much thereof as is necessary to float his commerce and to do the necessary and incidental things along the banks and shores which go with floating that character of commerce. In other words, he would have a right to float, to tie up for repairs or in emergencies on the banks and to do anything which is incidental to travel of that character on that stream, and such an admission would be binding upon both parties as to that question. But, where the court must, as we are bound to do, take judicial notice of the navigable streams of Missouri, when used in the broad sense, where the bed of the river is retained in the public and not deeded to the adjoining landowners, an admission by both parties hat such a stream was navigable would not and could not bind the courts in determining the issues in the case. And neither will the courts be bound by an admission that a stream in which the term navigable is limited, in that it is merely a highway and one in which the bed of the river is owned to the thread by the adjoining owners subject to the rights of the public to use it as a highway, and be required to decide the cause as though the bed of the stream belonged to the public. This is clearly the rule laid down for us to follow by the Supreme Court in the recent case of Wright Lumber Company v. Ripley County, 192 S.W. 996, and cases therein cited. [See, also, State ex rel. v. Taylor, 224 Mo. 393, l.c. 483, 123 S.W. 892, l.c. 907; State v. Wright, 208 S.W. 149; Northcut v. Lumber Company, 187 Mo. App. 386, 173 S.W. 15; Weller v. Lumber Company,176 Mo. App. 243, 161 S.W. 853.]

We must, therefore, hold that the river, at the point where this controversy arises, is navigable or floatable in the sense that it may be used as a highway, but not in the sense that the bed of the stream was retained in the public and that any islands formed in the stream would become the property of the public.

In quoting from Farnham on Water Water Rights, Vol. 1, sec. 25, in dealing with the rights concerning a stream such as we have under consideration, in the case of McKinney v. Northcutt,114 Mo. App. 146, l.c. 157, 89 S.W. 351, the court says: "But the right of navigation does not authorize interference with the bed of the stream or with the banks or the destruction of property on the banks. The right to float is but a right of passage, and includes only such rights as are incident to the use of the stream for that purpose and necessary to render such use reasonably available."

We take judicial notice of the fact that the point on the Gasconade river, where this cause of action arose, is near its source; that on the topography of the country is stamped the grandeur of the magnificient Ozark uplift; that the stream throughout the country of Pulaski is at many places narrow and its waters swift and beautiful; that in the beds of the Ozark Streams there are shoals and bars which furnish a happy camping ground for the erstwhile fisherman; an occasional rapid joins in the chorus of nature, and that while actually capable of floating logs, ties and commerce of this character, they are not navigable streams with the bed of the river in the public. In State ex rel. v. Taylor, 224 Mo. 485, 123 S.W. 892, the definition of a navigable stream, in the broad sense, where the title to the bed is in the public is a stream such as will permit and bear the passage of ordinary boats of commerce upon the bosom of its waters. This case was quoted from and approved in Wright Lumber Company v. Ripley County, 270 Mo. 121, 192 S.W. 996.

The law is well settled that when the United States surveyed its lands along the banks of a navigable river, and has sold and conveyed such lands by sub-divisions, its patent conveyed the title to all the lands lying between the meandering line and the thread of the river, unless previous to the issuance and delivery of such patent it had also surveyed such lands as government sub-divisions or had expressly reserved them when so surveyed. [See Wright Lumber Co. v. Ripley County, 270 Mo. 121, 192 S.W. l.c. 998. See, also, Benton v. Morrow, 61 Mo. 350.]

The evidence in the case before us shows that the fractional quarter section adjacent to this sand bar was originally surveyed by the government, containing some twenty one acres, whereas all of the land including the sand bar now owned by plaintiff's lessor is a little over eighteen acres, which would indicate that at the time the government surveyed this land the thread of the river was then even farther south than the place where it now runs. In a case where land is patented to a riparian owner by the government, and part of it is washed away and it is afterwards restored by accretion, the riparian owner acquires the title thereto. [Minton v. Steele, 125 Mo. 181, 28 S.W. 746.]

We must, therefore, hold that the land here in question, over which the defendant seeks to drive his teams with his ties in order to get them from where they are pulled out of the river to the public road, is on the land now leased and controlled by the plaintiff; that such use is broader than a mere right of passage over the stream as a highway; that the river at this point is navigable or floatable; is a highway with the ownership to the bed of the river to the thread of the current in the adjoining landowners, and that the use sought to be put to the sand bar by the defendant is a constant trespass of the plaintiff's acquired rights. The judgment of the trial court will, therefore, be affirmed.

Sturgis, P.J., and Bradley, J., concur.