STATE OF KANSAS v. MERIWETHER et al., 182 F. 457

ADAMS, Circuit Judge (after stating the facts as above). Some argument is made by counsel for Meriwether that the land was washed away by a great storm or flood which lashed the shore, tore away the land, and made a sudden and immediate change in the channel of the river. It is contended that this constituted an avulsion which, notwithstanding the fact that the lower remaining land became the bed of the river and remained so for 20 years, did not vest title in the state, but left it, and its upper surface when restored, the property of the original owner.

Assuming the facts to be as just stated, the proposition of law contended for cannot be doubted. A destruction of land lying on the shore of a river, by such a sudden and destructive process, does not destroy the title of the owner, and, even though it becomes the bed of the river for a time and presumptively the property of the state, its subsequent restoration whenever it occurs inures to him who originally owned it. However strongly we may be persuaded from tradition and judicial decision (Fowler v.

Wood, 73 Kan. 511, 85 Pac. 763) that the surface of the land in question was destroyed by an avulsion and that Meriwether's title was never in fact disturbed, we are prevented from disposing of the case on that ground. No such claim, was made by Meriwether in his cross-bill, and that fact must conclude our further consideration of it now. The next" proposition advanced by counsel for the state is that as Meriwether admitted in his cross-bill that the site of the land was for many years the bed of a navigable stream, and as the state of Kansas was the owner of that bed (Illinois Central R. R. v. Illinois, 146 U.

S. 387, 456, 13 Sup. Ct. 110, 36 L. Ed. 1018; Fowler v. Wood, supra; and Peuker v. Canter, 62 Kan. 363, 63 Pac. 617), and as there was no pleading of an avulsion, the title to the land belongs to the state because it is not averred or proved that it became Meriwether’s by accretion. Is it so averred ? The law is well settled that in order to vest title in the riparian, owner by accretion the constitutive sedimentary deposits along the shore of the river must be gradual, imperceptible, and natural. County of St. Clair v. Lovingston, 23 Wall. 46, 23 L. Ed. 59; Warren v. Chambers, 25 Ark. 120, 91 Am. Dec. 538, 4 Am.

Rep. 23; Peuker v. Carter, supra. Applying this conceded test, we do not discover the claimed infirmity in Meriwether’s pleading of title by accretion. His cross-bill, which has been set forth in considerable detail, tenders a clear, definite, and certain issue that the land was formed by accretion to his riparian holdings. This ,was denied by the state, and, in its cross-bill, it alleged that the land arose from the bed of the river as an island. This in turn was denied by Meriwether. We fail to see how any plainer issue of fact could be joined. Is it so proved?

After sufficient perusal of the evidence to assure us that there was substantial support for the conclusions reached by the master and the trial court, and that no obvious or serious error has intervened, we shall, in answering this question, follow the established rule and take the findings of fact, so far as made, to be true.

The master found and reported that, cotemporaneously with the shallowing and recession of the channel of the river in 1887, “a sand bar accretion to said bank began to form, * * * and also a sand bar began to form on the northern and eastern side of the channel as it then existed, and from thence on said sand bar accretion and sand bar extended north and east and substantially parallel with the south bank and increased in height and width, and with their extension and growth the channel of the river grew shallower and receded in a northerly and easterly direction.” Also, that the accretion to the shore was accompanied by a like accretive action on the west and south side of an island situated across the state line in Missouri, and that the land was left at a lower level along the riprapped bank than further north, near to the newly made channel where the sand bar was discovered.

Because of this last-mentioned fact, among others, it is contended by learned counsel for the state that the land condemned was not an accretion to the shore, but was an isolated growth, an island rising from the bed of the river. We, however, are unable to agree to this.

Not only did the special master and the trial court find against it, but, by reason of the claim that their findings are uncertain and inconclusive, we have examined the evidence including several authentic topographical surveys and plats made between the years 1886 and 1892 while the land was forming, and from them all we are satisfied that the accretion theory is sustained by the proof' and that the insular theory is not sustained.

The fact' that the land along the new channel is a little higher in elevation than that which lies further inland, nearer to the riprapped bank, is a condition not inconsistent with the conclusion reached. The evidence tends to show that in the process of land formation by accretion it is not uncommon to find higher levels next to the channel and a recession to lower levels further inland. Certainly the slight difference of elevation in the surface of the new formation relied on by counsel is not sufficient to establish their contention.

The fact that the accretion resulting in the land in controversy was partly to the Missouri island as well as to the shore, as indicated in the findings of the master, makes no difference in the rights of the parties. It appears that Meriwether is the owner of the island also. It is next contended that the cross-bill of Meriwether discloses that the land was formed, not by the gradual, imperceptible, and natural deposit of sand and dirt brought down by the waters of the river, but by artificial means resorted to by Meriwether and those under whom he claims.

We have already considered the facts disclosed by the findings of the master and the proof and have reached the conclusion that it was not in fact formed by any artificial devices. Nevertheless it is contended that Meriwether pleaded himself out of court by admitting that it was. After a careful analysis of the pleading, we find this contention untenable.

In stating the issues joined, we quoted from Meri-wether’s cross-bill, among other things, the' following: “In tiie year 1888 tlie said river began anew to change its course, and new land or accretions were gradually deposited against and added to the remaining portion of said land on the south side of said river, such accretions and additions continuing from time to time until all of the tract hereinafter described (being that now in controversy) had thereby been created.” Independent of what follows, the allegations just quoted undoubtedly tendered the issue that the land condemned consisted of accretion to the upland.

The state undoubtedly so understood it. It denied that the land was an accretion and explained its denial by advancing its own theory, namely, that it was an island which had risen from the bed of the river. ■Mériwether after tendering this issue proceeded with other allegations showing that the land had'been reclaimed by driving piles across the n'ewly made accretion to hold it in position and accelerate the further deposit' and did' other like things for the same purpose.

From allegations of this kind the contention is that Meriwether pleaded himself out of court by admitting that the land was formed by artificial means adopted ■ by him to produce the formation. The intent and meaning of the pleading as a whole, however, is to the effect that, after the natural accretive action had progressed so far that land had appeared in the place where the water stood, certain work was done to solidify and make it available for practical use. The legal significance of these allegations appears from the further averment that all this work was done with the knowledge and consent of the state.

In view of these- facts,-Meriwether predicated a further claim to the land by estoppel- so far as the state was concerned. It is always permissible in pleading to present as many different legal theories as the facts of the case permit, provided they be not inconsistent. These clearly were not so. The first was that the land belonged to Meriwether because it was formed by gradual and natural process of accretion to his shore land.

The next was that after the land was so formed Meriwether performed certain expensive work upon it with a view of making it permanent and thus reclaiming what had been lost, and that this was so done with the knowledge and consent of the state, by reason whereof the latter is estopped in equity from asserting any title as against him. The contention, therefore, that Meriwether admitted in his pleadings that the accretion was produced by artificial means cannot be sustained.

It is, however, unnecessary to rest our judgment upon any debatable view of the pleadings, and lest the implication be indulged that, except for the pleading of the two defenses, the acts of Meriwether would have defeated his title by accretion, we proceed a step further. • Counsel for the state make no contention that the alluvial deposit along the southern shore, in so far as it was caused or accelerated •by the projection either of the dyke of the waterworks company or the sewer of the city, was produced by any such artificial means as affected Meriwether’s title.

He or those under whom he claims were not responsible for and had no control over those works, and most obviously their rights cannot be affected by them. County of St. Clair v. Lovingston, 23 Wall. 46, 50, 66, 23 L. Ed. 59. Their sole contention is that those facts pleaded as an estoppel by Meriwether disclose the employment of such artificial means in securing the sedimentary deposit against his upland as destroys his title by accretion. We have carefully examined the authorities cited by them on this proposition, and in our opinion they fail to support it.

They announce the proposition that a riparian owner along a navigable stream cannot fill out his bank with dirt or debris taken from the shore and thus encroach upon the bed of the stream belonging to the public and thereby secure title by accretion. See Board of Park Commissioners v. Taylor, 133 Iowa, 453, 108 N. W. 927; Saunders v. N. Y. C. & H. R. R. R. Co., 144 N. Y. 75, 83, 38 N. E. 992, 26 R. R. A. 378, 43 Am. St. Rep. 729; People ex rel. Blakslee v. Commissioners, 135 N. Y. 447, 32 N. E. 139; and In re Driveway in City of New York, 46 Misc. Rep. 157, 93 N. Y. Supp. 1107.

But these and other like cases in our opinion have no application to the facts disclosed in Meriwether’s second claim to the money. In the aspect most favorable to the state, he did nothing but accelerate in a perfectly lawful way the deposit of sediment which was being washed down in physical solution with- the waters of the river. This, according to the law of nations as- shown by Mr. Justice S wayne, who wrote the opinion in the Rovingston Case, supra, belongs of right to the owner of the upland against which it may be deposited.

It is in the nature of compensation for the loss he is constantly sustaining by the erosion of his banks. New Orleans v. United States, 10 Pet. 662, 9 L. Ed. 573. He most obviously can stay the erosive action by any lawful means, and why may he not in like manner aid the restoration of what had been taken from him? Provided the proximate cause of the restoration be the deposits of sand and dirt brought down by the current of the river, we think any lawful means for accelerating such deposits or confining them when once in place present no bar to acquisition of title by accretion. Mr.

Justice Swayne in the Lovingston Case states,the rule thus: ‘.‘It is insisted by tbe learned counsel for tbe plaintiff in error that tbe accretion was caused wholly by obstructions placed in tbe river above, and that bence tbe rules upon tbe subject of alluvion do not apply. If tbe fact be so, tbe consequence does not follow. There is no warrant for tbe proposition. Tbe proximate cause was the deposits made by the water. Tbe law looks no further.

Whether tbe flow of tbe water was natural or affected by artificial means is immaterial. * * * In tbe light of the authorities, ‘al-luvion’ may be defined as an addition to riparian land, gradually and imperceptibly made by tbe water to which the land is contiguous. ⅜ * * Whether it is tbe effect of natural or artificial causes makes no difference.” See, to the same effect, Tatum v. City of St. Louis, 125 Mo. 647, 28 S. W. 1002; Whyte v. City of St. Louis, 153 Mo. 80, 54 S. W. 478;.Gould on Waters (3d Ed.) § 155; Steers v. City of Brooklyn, 101 N. Y. 51, 4 N. E. 7; Black v.

Diver, 68 Kan. 204, 74 Pac. 1123; Halsey v. McCormick, 18 N. Y. 147. Many other questions were ably argued by counsel; but, as the casé-is disposed of on grounds already considered, we refrain from protracting this opinion further. The conclusion reached by the learned trial judge was right, and the decree is affirmed.