Swetman v Holbrook

SWETMAN v. HOLBROOK(Filed January 16, 1897— Not to be reported.)
1. One acquires title by acrretion when real estate owned by him is gradually added to by alluvial deposit. But when a stream which forms the line between two estates suddenly changes its course, as by a freshet, the original thread of the stream continues to mark the line between the estates: and therefore, in this action, involving the title to a point of land which had thus been cut off from the main body of plaintiff's land and joined to the land of defendant, it was misleading to instruct the jury as to title by accretion.
2. Adverse Possession - It was error to give an instruction to the jury from which they might have believed that it was necessary for plaintiff to show, in order to recover, that he had been in the "actual, continual adverse possession of the tract of land" for fifteen years next before the suit was brought. If he acquired title to the land by possession or by deed, he might have been out of possession for any period short of fifteen years next before the suit was brought, and defendant might have been in possession for the same period, and still he would have been entitled to recover.
3. Testimony as to land that had been added by accretion to plaintiff's land at some other point on the stream than that in controversy was incompetent, but there seems to have been no objection thereto.

F. R. Moore, J. M. Riffe, H. T. Burns and Wm. H. and M. J. Holt for appellant.
G. E. Fugett, G. W. Skaggs and Alexander Lackey for appellee.

Appeal from Lawrence Circuit
Opinion of the court by Judge Paynter.

Since 1833 the appellant has lived within a boundary of land situated on the north side of Big Blaine creek in Lawrence county, claiming it as his own. Some time after he had thus taken possession of the land his father made him a deed thereto, which described the southern boundary line of the land as follows, to wit: "Beginning on top of the bank of Blaine on the northwest side of the upper end of the farm now occupied by C. L. Sweatman on a stone set up for a corner; thence three poles to the middle of Blaine; thence with the meanders of said creek * * * to the mouth of Hood's fork of Blaine; thence, etc.," giving the courses and distances of the other lines of the tract.

Those under whom appellee Holbrook claim owned bind on South side of Big Blaine, opposite that belonging to Sweatman, claiming as did Sweatman to the meanders of Big Blaine creek. In fact the deeds conveying land on the south side of the creek call for C. L. Sweatman's line.

Some time between the close of the late civil war and 1876 there was a freshet in Big Blaine creek that caused it to leave its original channel and make a new one through the lands of Sweatman, thus cutting off a point of his land and leaving it on the south side of the new channel. Upon this point thus cut off trees were left standing, and which were remaining on the point when this cause was tried.

The petition alleges that Holbrook has wrongfully taken possession of the land, and Sweatman asks to have it restored to him. The land in controversy was on the north side of the creek before the freshet, and it is not pretended that Holbrook or those under whom he claims owned or had possession of any of the land which was situated on the north side of the creek as the channel originally existed. The witnesses for both plaintiff and defendant who testify in relation thereto prove that the point of land in controversy was left on the south side by the creek changing its channel in the manner stated. The point was not added to the south side of the creek by accretion.

When one acquires title by accretion is where real estate possessed is gradually added to by alluvial deposit. When a stream changes its course so as to perceptibly cut off a point of the property of a land owner and leave it beyond the thread of the stream the ownership will not be changed. There are two acres and three roods in controversy. The original channel still exists. From the undisputed testimony the land wasadded to the south side of the thread of the stream not by accretion but by
avulsion.

If the change is violent and visible, and arises from a known cause, such as a freshet or a cut through which a new channel is formed, the original thread of the stream continues to mark the limit between the estates." (Gould on Waters, section 159.)

The only way Sweatman has been deprived of his right to the possession of the land in controversy, if at all, is by continuous, adverse possession. While it was proper for the court to tell the jury the effect of the freshet in leaving the parcel of land on the south side of the thread of the present channel as to its ownership, it was improper to give instructions Nos. 4 and 5 as to the subject of title by accretion. The undisputed facts, as we have said, show the land was not added by
accretion; therefore, it was misleading to the jury to instruct them on that question. Besides, undue prominence was given in these instructions to a question not involved, because instructions 4 and 5 as copied in the record are literally the same. They were calculated to mislead the jury.

As instruction No. 1 was offered by the appellant no reversal could be had because the court gave it. It is inartificially drawn. Under it the jury might have believed that before Sweatman was entitled to recover it was necessary for him to show that he had been in the "actual, continuous, adverse possession of the tract of land" for fifteen years next before the suit was brought.
If he acquired the title to the land by possession or the deed from his father, he might have been out of his possession for fourteen years and 364 days next before the suit was brought, and for the same period it might have been in the possession of Holbrook and still he would have been entitled to recover. There seems to have
been no objection to the admission of testimony as to land which had been added by accretion to Sweatman's land at a point on the creek other than the one in controversy; in fact it is proven by appellant and his witnesses. Of course this testimony was incompetent and misleading.

The fact that Sweatman gained land by accretion at another point on the creek did not affect his title to the land which had been left on the south side of the stream by the freshet.

The judgment is reversed, with directions to grant appellant a new trial and for further proceedings consistent with this opinion.

The court delivered the following response to petition for rehearing February 25, 1897:
The court understand that Sweatman is seeking to recover the land which lies between the thread of the channel of Big Blaine creek as it ran before the freshet and the thread of its present channel — that is to say the point of land which was left on the south side by avulsion. If this point of land has been added to by accretion since the avulsion then Sweatman became the owner of the soil thus added by accretion much so as if such addition had been made by accretion on the other side of Blaine, opposite the point in question, for he owned the land on both sides of the new channel at that point.

The court on another trial of the case can give an instruction embodying the principle we have stated as to the right of Sweatman to the land which may have been added by accretion to the point which was left on the south side by Blaine changing its channel in the manner stated.

The deed of C. L. Sweatman to A. M. Holbrook purports to convey an undivided interest in certain lands, and it was made before the freshet. It calls to run to the mouth of Spring branch, "thence meandering Blaine to the beginning," and conveys an interest in land on the south side of Blaine creek.

[The Kentucky Law Reporter, By Kentucky Court of Appeals, Published by G. A. Lewis, 1897, V. 18, pp. 870-873]