Catherine M. O'Connor et al., appellees, v. Ada M. L. Petty et al.; Leary P. Hall et al., appellants, 95 Neb. 727

Rose, J. This is a suit to quiet in plaintiffs title to lands between an abandoned channel of. the Missouri river and its present channel. Plaintiffs claim to be riparian owners of definitely described, separate tracts in Dakota county, Nebraska. Defendants allege that the land in controversy is in Woodbury county, Iowa. The rival parties claim the territory in controversy as accretions to their riparian lands. From á decree in favor of plaintiff's, defendants have appealed.

One of the defenses pleaded is that the land in controversy is in Iowa, an'd that therefore the Nebraska courts are without jurisdiction to determine the issues. This defense seems to be established. Referring to the boundary line between the states as running north and south, the present channel is in places two miles east of the abandoned channel, and the river was formerly still farther east. For many years prior to 1893 the river gradually changed from its extreme eastern channel westward beyond the present channel to the abandoned channel along the Nebraska’bank.

In the brief of plaintiffs it is conceded, that the river in working westward moved gradually. This is shown by the evidence. Under well-settled principles of law, therefore, the boundary line between the states followed the center of the main channel to its western extremity. Rober v. Michelsen, 82 Neb. 48. The course of the river, the velocity of the current where it washed the Nebraska bank, maps, and convincing proof of witnesses lead inevitably to the conclusion that the center of the main channel, or the boundary between the states, was, in 1893, west of the land claimed by defendants.

During that year, and for some years prior thereto, what is called in the record a “chute” marked the course of the present channel. The testimony indicates that, during floods, water poured through this chute, that in ordinary stages of the river there was little or no current there, and that in dry periods the water disappeared, or stood in pools. The parties do not agree as to how or when this chute was formed. Plaintiffs contend that it was never land as distinguished from riverbed, and that it was the natural result of continuous action of the waters of the stream.

The position of defendants seems to be that the chute was made in dry sand by the action of the wind after the river had passed its location in gradually working westward. Whatever the proper explanation may be, it is clear that the chute, before it was appropriated by the river as the present channel, which it now is, was not the main channel forming the boundary line between the states. Prom all of the evidence it seems clear that the change from the western channel to the chute occurred during a flood in 1894. It is certain that the old channel was abandoned.

It is equally clear' that the chute was an inviting course for a sudden change during a flood. While river waters occupied the western or abandoned channel during the years 1895 and 1896, and perhaps longer, the main channel suddenly changed from the old to the new, within the meaning of the law of avulsion, without changing the boundary between the states. Nebraska v. Iowa, 143 U. S. 359; Missouri v. Nebraska, 196 U. S. 23.

The land in controversy being- between the abandoned channel and the present one, plaintiffs argue that, prior to the change, the disputed territory was riverbed as distinguished from land, that the river shifted its course about sand bars and that therefore the state boundary followed such changes in the channels. In discussing this phase of the case, however, plaintiffs do not question proof that, out of a tract consisting- of more than 1,200 acres, at least a body of 100 acres was not swept away by the flood of 1894, though the river shifted its course two miles in places.

The conclusion is that the land claimed by defendants is in Iowa, and that the district court was without jurisdiction. The judgment is therefore reversed and the action dismissed. Reversed and dismissed. Letton, Fawcett and Hamer, JJ., not sitting.