Stern v. Fountain , 112 Iowa 96 ( 1900 )

Ladd, J.

1 2 The plaintiff and one J ones, who afterwards transferred his interest iii the tract in controversy to the plaintiff, acquired the paper title to lots 1 and 2 in.-section' 30 in township 78 N. of range 45 W. of the fifth P. M.; for the Cedar Rapids & Missouri River Railroad Company convoyed to them any title it may have obtained under the act of congress of 1864, and, if a part of the swamp land grant, they procured that title, through mesne conveyances, of Americus Overton, to whom Harrison county had deeded the lots in October, 1864. The eastern boundary of these lots, as surveyed by the government in 1858, was the Missouri river, and the land in controversy is conceded and proven to have been added thereto by the process of accretion. As the original lots were at no time wholly carried away, it is immaterial to the present inquiry how or when this happened, or whether the space on which the particles accumulated was once the bottom of the river. No survey appears to have been made by the county, and the deed to Overton described the lots by number, and was without limitation. It carried title thereto as they then existed, with the high-water mark of the river, not the meander line of the survey, as the true boundary; and the subsequent accretions belonged to the owner of the lots, and not to the county. Kraut v. Crawford, 18 Iowa, 549 ; Musser v. Hershey, 42 Iowa, 356; Steele v. Sanchez, 72 Iowa, 65; Ladd v. Osborne, 79 Iowa, 93; Coulthard v. Stevens, 84 Iowa, 241. The county parted with all its interest, and thereafter had no more right to the accretions to land it had sold than a stranger. The conveyance then by the county to Chase in 1868 of the S. "W. :} of the N. W. ¿ of this section, if conceded sufficiently definite in description, as Avas held in Egan v. Fountain *(Iowa), 78 N. W. Rep. 912, in so far as it included this added land, passed no title, and the defendant acquired nothing under his deed, of the same year, from Chase. If, then, he is entitled to that part of the accretions in controversy at all, it must be because of title acquired by adverse possession. Rut the evidence utterly fails to support this defense. It rests on tlie testimony of Fountain alone, which, in so-far as bearing thereon, may be set out: “I took possession of the land described in said deed after receiving the same. The land ivas timber land. I used it for the purpose of getting firewood and fencing. I got wood oil' it, off and on, at different times from the timo I owned it up to the .time I was enjoined. “ * At the time this injunction was served I had hauled a load of' lumber and unloaded it upon the ground, and had á tenant to take possession. j was 110t 0;Q †]1(3 ian¿ Gyery year.” Cross-examination: “In 1868 I had the land surveyed by Samuel Dewcll. I think we started from the section comer of I and 8, and ran south one mile and a half, then run east 80 rods. This is all the survey we made. The land I claimed ivas right south of the survey. I wás on the land in the winter of 1868. The land I claimed is 80 rods south of the north line of section 29, and is a square 40 acres. The river never ran over this land to my knowledge. I ivas not on the land every year. * * * I ivas on the land one year ago. I saw stumps there, — some of them, I think, 20 inches across. The timber growing on- the land is cottonwood. I do not know as I have taken any timber off that land since 1868, but I sent others down there. Did not go there to see where they went. Did not send any one to show them where the land was. I ivas down there once with Ft. McCabe. That ivas- about four years ago. I could not tell whether I ivas on this land in either the years 1868, 1869, or 1810. * * I never caused the land to be fenced.” Redirect: “I cannot 'say I have seen that land every year since 1868. I have probably seen it half the time. The land that I now claim ivas never in the river that I know of.”

3 4 5 The defendant. also claims to have paid taxes on the property assessed according to the description in his deed, but the receipts are for taxes, levied on lot 1 in section 29. It will be observed that the land surveyed -by Dewell ivas at least three-fourths of a mile north of that in controversy, and there is no evidence that the defendant ever made any use of this tract. True, as a conclusion he declared that he got firewood and fence posts from it, but on cross-examination admitted that he had no personal knowledge of any timber being removed therefrom since 18G8. .The land was not inclosed by fence, and no part of it under cultivation. On the other hand, four witnesses testified that it was under water in 186S, and another thought it was either a low sand bar or in the river. Four declared there were no trees on it in 1880, and another that in 1882 the growth of timber was not high enough to obstruct the view of a person on horseback. The timber is shown to be willow and cottonwood, about six or seven inches in diameter, and, where standing apart, about double that. Several witnesses say no wood had been removed until the past three or four years. So that, in whatever light Fountain’s testimony be regarded, his claim of adverse possession is refuted by a decided preponderance of the evidence. Merely going on this land every other year, and directing employes occasionally to cut and remove timber therefrom fell far short of pointing him out to the world as its owner. See Barr v. Potter, ^* (Ky.) — (57 S. W. Rep. 478). If he may be said to have assumed possession, it was neither continuous nor open and notorious. The acts of ownership, when there is no actual occupancy, must be such as are necessary to the enjoyment of the use, and to acquire the profits the land may yield in its present condition. Rogers v. Turpin, 105 Iowa, 186. Going on it occasionally, and supposing employes, so directed, have cut and hauled wood therefrom, do not meet this requirement. In Egan v. Fountain, supra, a plea of former adjudication was sustained, and what was said concerning adverse possession was not essential to reaching the result announced. Moreover, the doctrine of stare decisis has no application to findings of fact, and these furnish no obstruction to the correction of mistakes, which, in spite of ceaseless vigilance, will creep into the work of all courts not above the limitations of human nature. — Eeversed.

Granger, O. J., not sitting..