The testimony in the record brings the case before us clearly within the rules of law to which we have referred. The conclusion, therefore, is that the appellant acquired title to the derelict land under the conveyance from Bonnell, and that consequently the decree must be affirmed.
18 New York, 147. - 1858.
Pratt, J. - It was settled by this court, when this cause was before it upon a former occasion, that the plaintiff's south line did not originally extend to the centre of the creek, but only to the line of low water on the north bank. Assuming this to be settled, the plaintiff does not claim that, as the creek originally ran, the land in dispute was embraced within the boundaries of his lot. But if I understand it, he claims that the land in dispute is alluvion, and he is entitled to it as a riparian owner. But to acquire title to land as alluvion it is necessary that its increase should be imperceptible - that the amount added in each moment of time should not be perceived. When the change is so gradual as not to be perceived in any one moment of time, the proprietor, whose land on the bank of a river is thus increased, is entitled to the addition. Ang. on Water Courses, § 53; 2 Bl. Com. 262; 3 Kent, 519.
It is enough that no such fact is found in this case as that this piece of ground is alluvion - that it was formed by imperceptible accretion. The evidence shows that it was not thus formed. Mc-Cormick deepened the bed of the stream on the south side, and placed stones along the centre so as to confine the water in the channel thus deepened, and by this means the land in question was left bare. He may have been guilty, by these acts, of a violation of the riparian rights of the plaintiff or his grantors, but I know of no rule of law which would constitute an illegal act of the kind a transfer of the title.
As the case stands, it is not necessary to pass upon the question whether there is a distinction between the case of alluvion formed by natural or artificial means. I find no such distinction in the books. If, by some artificial structure or impediment in the stream, the current should be made to impinge more strongly against one bank, causing it imperceptibly to wear away, and causing a corresponding accretion on the opposite bank, I am not prepared to say that the riparian owner would not be entitled to the alluvion thus formed, especially as against the party who caused it.
If the accretion was formed under all the other circumstances necessary to constitute it alluvion, I can scarcely suppose that a person could successfully resist the otherwise valid claim of the riparian owner, by alleging his own wrong, by showing that the accretion would not have thus formed if he had not himself wrongfully placed impediments in the stream. But that question is not before us. It is enough that this case does not show that the land in question was alluvion.
The judgment, therefore, must be affirmed, with costs.
III. Title by adverse possession.1
1. Preliminary Considerations. a. Mere possession as a title.
36 Minnesota, 152. - 1886.
Berry, J. - This is an action in the nature of ejectment, in which the plaintiffs, seeking to recover possession of a strip of land, alleged that on October 1, 1885, and long before, they were and now are owners thereof; and further that they and their ancestors, from whom they derive title, have been in the actual, peaceable, open, notorious, adverse, and continuous possession thereof for more than twenty-five years prior and up to October 8, 1885; that on that day, while they were in such actual possession, defendant unlawfully entered upon said strip of land and wrongfully ejected them therefrom, and ever since wrongfully detains possession thereof.
Doubtless the intent of the pleader was to set up title in fee based upon what is called adverse possession. But as the greater includes the less, the complaint sufficiently pleaded actual possession at the time of the defendant's alleged entry, so that if upon the trial the plaintiffs failed to make out adverse possession, such as would give them title as against the holder of the paper title, still, if they proved actual possession, they might properly insist that they were within the allegations of their complaint, and had made out a case as against a mere trespasser. For as against one showing no title in himself, possession is title. Wilder v. City of St. Paul, 12 Minn. 116, (192); Rau v. Minnesota Valley R. Co., 13 Minn. 407, (442); Sedg. & W. Tr. Title Land, §§717, 718.
1 This is not. in and of itself, a complete and perfect title. It arises on a disseisin or ouster of the true owner, and consists in an adverse holding subsequent thereto, and is good as against all the world, except the true owner, or one claiming under him; it may become perfect by an estoppel or by the operation of a statute of limitations. See below and compare title by prescription It is to be noted that immediately upon the disseisin the estate of the disseisee is turned into a right of entry and later the right of entry may be tolled in one way or another. The. disseisee then has a mere right of action, which a statute of limitations may ultimately cut off. - Ed.
The evidence upon the trial below in the case at bar showed that plaintiffs were in possession of the strip of land in controversy at the time of defendant's entry upon it, and defendant gave no evidence of any right or title in himself. In this state of the evidence the plaintiffs were entitled to judgment, and hence the trial court erred in dismissing the action at the close of the plaintiffs' testimony. As this point is insisted upon by plaintiffs, it cannot be disregarded, and so there must be a new trial.
This disposes of the present appeal, but, as we surmise, not of the real merits of the controversy, and, therefore, with reference to a new trial, we deem it expedient to determine certain other questions raised upon the argument.