Argument for Appellant.

reports of surveys and soundings made by government authority and even in the works on geography used in the public schools. They are also shown by reference to histories and works of travel and description. They are within the knowledge of all persons living in this region. But, waiving for the present the common and general knowledge of these matters, the bill itself supplies us with such information as is needed for our present purpose.

It appears that between 1851 and 1877 the river moved north a distance of one mile. It is said that this was done so slowly as to be imperceptible at any one time. Then suddenly it cut through its banks at a point some miles south but yet further up the river as it then existed and left its old bed. and courses and made for itself a new one at this great distance.

These allegations show that this river is one, the changes in whose channel are frequent, rapid and very great. Its course is tortuous, and it flows through a wide valley of soft, sandy loam. We also know that at certain seasons of the year it has a very rapid current and large volume. Its waters are turbid with mud and washings from the mountains. Much of the soil of the bed is of that character called quicksand, the particles of which glide easily upon each other, causing large tracts of land to fall into the river, thus cutting and changing its banks. The current of the river impinges first upon one side and then upon the other, so that sometimes in a single season new land of great extent is formed. The land which is washed away upon one side of the river is usually carried by the current a great distance and then thrown up as a sand-bar upon the other side.

Some care ought to be exercised in applying the doctrine of accretion in such a region. The law on this subject is borrowed from England where it was applied to tidal rivers. It is well known that the rivers of England in which the tide ebbs and flows are rivers in whose banks the changes are very slight and cover a long period of time.

The test of the applicability of the doctrine is, whether the land is formed so slowly as to be imperceptible. If the new

Argument for Appellant.

formation can be discerned the doctrine does not apply. Imperceptible, in this sense, means what is not discernible when the situations at two periods, somewhat apart, are compared. Rex v. Yarborough, 3 B. & C. 91; S. C. (House of Lords) 2 Bligh (N. S.) 147.

While it is true that a case can be imagined where the made land had formed in such a slow and gradual manner as to be accretion and be governed by the law thereof upon the banks of the Missouri River, yet taking the known character of that river in connection with the allegations of the bill, which show affirmatively that this river is one in which the changes are frequent, rapid and great, and that the land in question formed with a rapidity which, in England, would have been contrary to all ideas of accretion, we submit that the bill shows on its face, in connection with the facts of which judicial notice is taken, that the doctrine of accretion does not apply to the land in dispute. As "imperceptible" means, what is not discernible when the situation at two periods not widely apart is compared, it would seem to be a great hardship to apply the doctrine of accretion to such changes, where what is formed on one side and lost on the other is transferred so rapidly, and where the land is easily identified as being the quarter section or the fractional lot which, last year, belonged to a neighbor on the opposite side of the stream.

The words "slow" and "imperceptible," as understood by a conservative English landowner, mean quite different ideas from what they do to an active denizen of Omaha, Nebraska. The word "slow" as applied to changes in the banks of the Thames from Blackwall to its mouth may have quite a different meaning from that of the same word applied to changes in the Missouri River. The bill shows a change of a mile in about nineteen years, "imperceptible" at any one moment of time. The law of accretion can have no application to such changes.

II. Taking the allegations of the bill most strongly against the pleader we have a right to assume that some area, however narrow, had formed between the original lot four (4) and the river after the date of the survey and before the time

Opinion of the Court.

when the land was entered. If so, said strip belonged to the United States, and the accretions, if any, subsequently formed should go to the government. The right to alluvion depends on contiguity, and the accretions belong to the land immediately adjoining the water, however narrow it may be, or whatever may be the size of the parcel behind it. Saulet v. Shepherd, 4 Wall. 502; Granger v. Swart, 1 Wool. C. C. 88.

III. Conceding that the entry of Edmund Jefferis passed from the government to Edmund Jefferis all the land to the river, still the bill fails to show that the deed of Jefferis to Still and Town by apt words described the land which may have formed between the date of his entry and the date of the deed. The bill states that by several mesne conveyances the complainant acquired the title to lot four (4) in the year 1886. It also states that between 1853 and 1877 some forty (40) acres of land were formed between the lot line and the river line of 1877, but it fails to state that any of the chain of deeds under and through which complainant claims title, contained descriptive words covering and including any part of these forty (40) acres of added land. The question is: What passed by the successive deeds of lot four (4) under which complainant claims?

If the land in question is to be regarded as accretion, we claim that it does not pass by a deed describing only the land to which such accretion has been made. Granger v. Swart, ubi sup.; Lammers v. Nissen, 4 Nebraska, 245; Lamb v. Rickets, 11 Ohio, 311; Jones v. Johnston, 18 How. 150.

Mr. J. M. Woolworth and Mr. C. J. Greene for appellee.

MR. JUSTICE BLATCHFORD, having stated the case as above reported, delivered the opinion of the court.

The grounds upon which the Circuit Court proceeded in overruling the demurrer to the bill are stated by it in its opinion to be these: (1) It being alleged in the bill that the added land was formed by "imperceptible degrees," although the increase was great, resulting in the addition of many acres, yet the time during which it was made was nearly twenty

Opinion of the Court.

years, and an increase might have been going on, impercepti ble from day to day and from week to week, which, during the lapse of so many years, might result in the addition of all the land; and hence the averment of the bill cannot be overthrown, notwithstanding what is known of the character of the Missouri River and of the soil through which it flows, and of the rapid changes in its banks which are constantly going on. (2) Where a water line is the boundary of a given lot, that line, no matter how it shifts, remains the boundary; and a deed describing the lot by number or name conveys the land up to such shifting water line, exactly as it does up to the fixed side lines; so that, as long as the doctrine of accretion applies, the water line, no matter how much it may shift, if named as the boundary, continues to be the boundary, and a deed of the lot carries all the land up to the water line.

The propositions contended for by the defendant are these: (1) Taking the allegations of the bill with those facts in relation to the Missouri River of which the court will take judicial notice, it appears that the formation in question was not accretion. (2) Taking the allegations of the bill most strongly against the plaintiff, it must be assumed that some area, however narrow, had formed between the time when the survey was made, in 1851, and the time when the land was entered by the patentee, in October, 1853. (3) The patentee, by the deed made by him to Still and Joseph I. Town, conveyed only "lot 4;" and, while the successive grantees held the title to that lot, accretions were formed of greater or less extent, which were never conveyed to the plaintiff, the deeds to it calling only for lot 4. The substance of this contention is that, as the conveyance by the patentee to Still and Joseph I. Town described the land simply as "lot 4," it passed the title to that lot as it was at the date of the survey in 1851, and not at the date of the deed, in 1856, and thereby excluded the new land formed after the survey of 1851; and that, as accretions of greater or less extent were formed while the several successive grantees held the title, such accretions did not pass by their respective deeds, and the title thereto has not come to the plaintiff.

Opinion of the Court.

It is distinctly alleged in the bill, that the new land is an accretion to that originally purchased by the patentee from the United States. The rule of law applicable to such a state of facts is thus stated by this court in New Orleans v. United States, 10 Pet. 662, 717: "The question is well settled at common law, that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations, shall still hold by the same boundary, including the accumulated soil. No other rule can be applied on just principles. Every proprietor whose land is thus bounded is subject to loss by the same means which may add to his territory; and, as he is without remedy for his loss in this way, he cannot be held accountable for his gain." And in Banks v. Ogden, 2 Wall. 57, 67, it is said: "The rule governing additions made to land bounded by a river, lake or sea, has been much discussed and variously settled by usage and by positive law. Almost all jurists and legislators, however, both ancient and modern, have agreed that the owner of the land thus bounded is entitled to these additions. By some, the rule has been vindicated on the principle of natural justice, that he who sustains the burden of losses and of repairs, imposed by the contiguity of waters, ought to receive whatever benefits they may bring by accretion; by others it is derived from the principle of public policy, that it is the interest of the community that all land should have an owner, and most convenient that insensible additions to the shore should follow the title to the shore itself."

It is contended by the defendant that this well-settled rule is not applicable to land which borders on the Missouri River, because of the peculiar character of that stream and of the soil through which it flows, the course of the river being tortuous, the current rapid, and the soil a soft, sandy loam, not protected from the action of water either by rocks or the roots of trees; the effect being that the river cuts away its banks, sometimes in a large body, and makes for itself a new course, while the earth thus removed is almost simultaneously deposited elsewhere, and new land is formed almost as rapidly as the former bank was carried away.