further proceedings in accordance with the views here expressed. Reversed and remanded.

(181 III. 426)

BELLEFONTAINE IMP. CO. et al. v. NIEDRINGHAUS et al.

(Supreme Court of Illinois. Oct. 16, 1899.) ADVERSE POSSESSION-POSSESSION AND PAYMENT OF TAXES - WATERS AND WATER COURSES-ISLANDS-ACCRETIONS-EVIDENCE

-STATEMENTS OF GRANTOR-STATE BOUNDARIES-RIPARIAN BOUNDARIES.

1. Complainants and the S. Co. claimed title to land, sections 2 and 3, by seven-years payment of taxes and continuous possession under claim of title, and by a continuous adverse possession by them and their grantors for 20 years, and, in support of color of title, introduced deeds in evidence showing the complainants and the S. Co. derived title to section 2 through mesne conveyances from a government patentee, and that they derived title to section 3 through mesne conveyances from a grantee in a tax deed executed by the state auditor in 1843; both sections being united in one of said mesne conveyances in 1857, and in all other mesne conveyances, down to the conveyance to plaintiffs and the S. Co., which was made prior to 1880. Subsequently a deed was executed for section_3 to the S. Co. by a successor in title to one B. Defendant claimed title to section 3 under mesne conveyances from a government patentee, and in his chain of title was a judgment rendered in 1874 against said B. for the possession of section 3, and in favor of one under whom defendant claimed. Said sections were occupied by complainants and said company, and their predecessors in title, as one farm, under claim of ownership, and had been inclosed and occupied by one of said predecessors, continuously, for nearly 30 successive years, and complainants and said company paid taxes thereon from 1885 to 1891, both inclusive, and were in possession when they sued to quiet title, in 1896. Held, that complainants and said company had paid taxes under color and claim of title for seven consecutive years.

2. The complainants and said company were in adverse possession of said land under claim of ownership, and therefore were entitled to a decree quieting title as against defendants.

3. One acquiring title to land by possession and payment of taxes for seven successive years under color of title is entitled to all accretions to said land to the same extent as though the title came to him directly from one holding the patent title.

4. Title to land, acquired by adverse possession for more than 20 years, relates back to the inception of possession, and is sufficient to maintain title to accretions to said land.

5. Where several contiguous tracts of land are conveyed in one deed, and the grantee takes possession under said deed, and remains in the actual, open, notorious, and adverse possession of said tract for more than 20 years, such possession draws to it, and is possession of, all the lands described in the deed.

6. The middle of the Mississippi river was made the western boundary of Illinois by Act Cong. April 18, 1818, authorizing that state's admission into the Union. "The middle of the main channel" of that river was made the east boundary of Missouri by Act Cong. March 6, 1820, admitting Missouri into the Union. G. island, lying on the Illinois side of said river, existed since the river was known, and there were fluctuations in the channel between said island and the Missouri shore. W. island formed in said river west of G. island, and the navigable channel of the river, before W. island was

formed, and for a greater portion of time since, was on the western side of the river. From 1847 to the time of trial, said channel was west of W. island, and at times the water so receded that G. and W. islands were connected; but one witness swore that W. island formed in the middle of the river, leaving a channel on both sides. Between 1878 and 1883, for a period of two consecutive years, the channel was east of W. island. The evidence conflicted as to whether W. island was formed by the sinking of boats or by other natural causes, but shows that the wrecks of boats were still visible at low water, west of W. island, and that W. island at the time of trial was separated from the Missouri shore by the main channel, and from the Illinois shore by only a shallow stretch of water. Plaintiff, owning G. island, claimed W. island as an accretion thereto, and defendant claimed W. island by virtue of a confirmed Spanish grant covering lands in Missouri opposite G. island. Held, that the boundary between Illinois and Missouri was the thread of the river between G. island and the Missouri shore at the time of trial, as said boundary changed with the change of the center of the river's main channel.

7. Held, also, that the boundary between plaintiff's and defendant's land was the thread of the river between G. island and the Missouri shore at the time of trial, as said boundaries changed with the change of the center of the river's main channel.

8. Ield, further, that plaintiff was entitled to W. island as an accretion to G. island.

9. Where a grantee of land bordering on a navigable stream claims title to the island by accretion, evidence that his grantors never claimed said island while they owned said bordering land is inadmissible, as a grantee's title cannot be prejudiced by such statements by his grantor.

10. Evidence that proprietors of land bordering on a navigable stream did not claim that an island, formed in the same, was a part of their land, is inadmissible against their grantees, who subsequently claimed said island as an accretion to said bordering land, as title by accretion is determinable solely by reference to the fact of accretion, and not by an assertion of a claim of ownership.

Appeal from circuit court, Madison county. Bill by F. G. Niedringhaus and others against the Bellefontaine Improvement Company, Jonathan B. Turner, St. Louis Stamping Company, and others. There was judgment for plaintiffs, and defendants appeal. Affirmed.

Julian Laughlin, E. C. Springer, and J. G. Irwin, for appellants. Travous & Warnock, for appellees F. G. Niedringhaus and others.

PHILLIPS, J. Appellees filed a bill for partition of, and to remove a cloud from, certain lands situated in township 3 N., range 10 W. of the third principal meridian, in Madison county, Ill. The land is bounded on the south by the north line of the S. 2 of section 23, and the western continuation thereof to the main channel of the Mississippi river; on the north by land of the Granite City, Madison & Venice Water Company; on the east by a channel of the Mississippi river known as "Gaboret Slough"; and on the west by the thread of the stream in the main channel of the Mississippi river The bill alleges that the complainants and

the defendant the St. Louis Stamping Company are the owners of the land in equal portions, as tenants in common, by title derived through a regular chain of conveyances from the government, and by open, continuous, and adverse possession of the same, by them and their respective grantors, for upwards of 20 years, and by possession under claim and color of title, made in good faith, with seven years' payment of taxes, as required by the statute. Appellants and about 150 other persons were made defendants. The object and purpose of the bill are for partition of a tract of land known as "Gaboret Island," and what are claimed and known as lands and accretions thereto.

Appellant the Bellefontaine Improvement Company, a corporation of the state of Missouri, answered the bill, claiming ownership of a part of the lands sought to be partitioned, known as "Willow Bar Island," and which is by it claimed to be situated in township 46 N., range 7 E. of the fifth principal meridian of Missouri; that it is bounded on the cast by the old main channel of the Mississippi river, and on the west by a new channel, known as "Sawyer's Bend"; that it also owns the bar lying immediately south of, and until recently a part of, the firstmentioned tract; that the improvement company claims the island and bar are in the state of Missouri, and constitute a part of that state, and claims its title is a Missouri title, derived by regular chain of conveyances from the Spanish government. Appellant Turner also answered the bill, claiming title to fractional section 3, sections 10 and 11, and all of fractional sections 14 and 15, lying north of a line running east and west, parallel to, and 5.28 chains south of, the south line of said sections 10 and 11, in the state of Illinois.

There were numerous disclaimers filed and numerous defaults entered. A decree was entered in accordance with the prayer of the bill, and the defendants the Bellefontaine Improvement Company and J. B. Turner prosecute an appeal to this court.

The determination of the controversy between the Bellefontaine Improvement Company and appellees depends on whether the island and bar are in the state of Illinois or in the state of Missouri; or, in other words, where the thread of the stream of the main channel is with reference to the lands in controversy. As a part of the controversy, it is necessary to determine whether Willow bar became and was a part of lands attached to the Missouri shore, and constituted a part of the Missouri lands at any time, and whether it was separated therefrom by avulsion. The question in dispute between Turner and appellees is based on the claim of the former to title by reason of certain conveyances, and an alleged judgment in ejectment on January 30, 1874, and is a controversy depending on the title of the respective parties.

It was admitted by both appellants in open court, on the hearing, that on the 28th day of January, 1896, immediately preceding the commencement of this suit, the complainants and the defendant the St. Louis Stamping Company had title to all the real estate involved in this suit by the deeds introduced in evidence as color of title, with seven years' continuous possession under claim of title, and payment of taxes successively for said period, and by continuous adverse possession for a period of twenty years immediately preceding said January 28, 1896, except fra tional section 3 of lot 3 of the Woolridge subdivision, known as the "Beckman Tract." and accretions thereto, and the island known as "Willow Bar Island," and the lands lying west of the west high bank of Gaboret island. The appellant Turner claims that Gaboret island, with the exception of fractional section 2, was patented to William Rector. Rector conveyed the N. %, to wit, fractional sections 3, 10, and 11, and the north parts of 14 and 15, to William O'Hara, in 1820. Helen O'Hara Harrel, as sole heir at law of William O'Hara, conveyed the same, along with other property, to one Kibbe, in 1868. Kibbe recovered a judgment in 1874 against Beckman for possession of fractional sections 3, 10, and 11 and the north part of 14 and 15. Kibbe conveyed the same property, in 1877, to the appellant Turner. Appellees' title to section 3 (which is claimed by Turner) is based upon a tax deed made in 1843, while their title to section 2 originates from the government. The two sections were united in October, 1857, in the conveyance from Hawkins and others to Hopkins, and passed by mesne conveyances to complainants below and the St. Louis Stamping Company, each deed describing both tracts. The two fractional sections adjoin, and were used and occupied by appellees and their grantors as one farm. They were so inclosed and used by the Fishers under proper deed and claim of ownership continuously for nearly 30 years. It is shown that fractional section 2 was conveyed to appellees by mesne conveyances from John Stein, who was the patentee thereof. Fractional section 3 was conveyed to appellees by mesne conveyances from Thomas F. Purcell, who acquired the same by a tax deed from the auditor of state, of date August 12, 1816. Subsequently the appellees, seeking to further protect their title, offered in evidence a deed of date September 17, 1880, from Frederick Beckman and wife to John Schenk, conveying lot 3. Schenk conveyed to his wife, by will, all his real estate, and June 4, 1887, she conveyed to Peter Schenk, and Peter Schenk and wife conveyed to the St. Louis Stamping Company on May 22, 1891. These latter-mentioned conveyances show color of title in the St. Louis Stamping Company, who, with ap pellees, claim to own the land in controversy, a partition of which is sought. With these conveyances, the evidence shows that appel lees and the St. Louis Stamping Company paid

taxes on fractional sections 2 and 3 from 1885 to 1891, inclusive. This is, as to these lots, color and claim of title and payment of taxes for seven successive years. Fractional sections 2 and 3 having been used continuously under proper deeds and claim of ownership for nearly 30 years as one farm by parties in privity with the title of appellees, appellees, with their grantors, were in adverse possession of fractional sections 2 and 3 for more than 20 years. This possession was with claim of ownership.

Appellants contend that a claim of title by accretion cannot be sustained where the accretion is to land held by claim and color of title and payment of taxes, or to lands held under 20 years' limitation. When adverse possession has ripened into a title, that title relates back to the inception of the possession. It is not necessary that a party should have lands inclosed before he can be said to be in actual possession. It was said in Fisher v. Bennehoff, 121 Ill. 426, 13 N. E. 150 (on page 439, 121 Ill., and page 153, 13 N. E.): "When he has color of title, possession may be shown by the constant and uninterrupted use through a series of years; and of timber land, by taking therefrom wood for fuel, fences, and other purposes; or it may be shown by an actual occupancy of a portion of a tract for which he may have a deed, under which possession is held. In such cases, the deed may be regarded as enlarging the possession to all the land it includes." It was held in Dills v. Hubbard, 21 Ill. 328: "If he makes entry under a conveyance of several adjoining tracts, his actual occupancy of a part, with a claim of title to the whole, will inure as an adverse possession of the entire tract. Possession is to be regarded as coextensive with the description in the deeds under which he enters, and the original entry as a disseisin of the owner to the same extent." It was held in Saulet v. Shepherd, 4 Wall. 502: "Where one has been in the uninterrupted and peaceable possession, for more than twenty years, of the property or real estate to which the accretions sued for are attached, as long as they existed he owns such accretions."

In Benne v. Miller, 50 S. W. 824, decided by the supreme court of Missouri, March 31, 1899, in speaking of the character of possession necessary to constitute adverse possession, the court say, quoting from Ewing v. Burnet, 11 Pet. 53: "To constitute adverse possession, there need not be a fence, building, or other improvement, and it suffices for that purpose that visible and notorious acts of ownership are exercised over the premises in controversy for the time limited by the statute; that much depends upon the nature and situation of the property, the uses to which it is applied, and to which the owner or claimant may choose to apply it; that it is difficult to lay down any precise rule in all cases, but that it may be safely said that where acts of ownership have been done up

on land which, from their nature, indicate a notorious claim of property in it, and are continued sufficiently long with the knowledge of the adverse claimant, without interruption or an adverse entry by him, such acts are evidence of the ouster of the former owner, and an actual adverse possession, provided the jury shall think that the property was not susceptible of a more strict or definite possession than had been so taken and held; that neither actual occupancy, cultivation, nor residence are necessary where the property is so situated as not to admit of any permanent useful improvement, and the continued claim of the party has been evidenced by public acts of ownership such as he would exercise over property which he claimed in his own right and would not exercise over property which he did not claim." In speaking of possession as applied to accretions, the court said: "An accretion becomes a part of the land to which it is built, and follows whatever title covers the mainland, whether it be title by deed or title by possession. In its nature it is not susceptible, during its forming, of that kind of possession which distinguishes the occupation of dry land. But it attached to the dry land even while it is under water, and belongs to the owner of the land, and is in the actual possession of him who holds the actual possession of the mainland. If the mainland is in fact unoccupied, it is in the constructive possession of the owner of the true title, and that gives constructive possession of the forming accretion. But, if the mainland is held in adverse possession to the true owner, he is not in constructive possession of the accretion; and, since the accretion in its formative state is not susceptible of actual occupancy in the sense of a pedis possessio, the indicia of the actual possession of him who held on the mainland are extended over the forming accretion, and bring it within his actual possession. And it is not necessary that such possession of the accretion should be held for ten years to give a possessory title, because title to it follows title to the mainland; and, when the latter is held under the conditions and for the length of time required by law to vest the tltle in the possessor, the title to the accretion follows, even though the deposit had been made but a year or a day. One who acquires title to the mainland by ten years' adverse possession acquires title to cover deposits made and making on his front and during the period in which his possessory title was forming. The accretion grows into the land, and grows into the title of him who holds the land as the title itself grows, and, when the title to the mainland has become perfect, it extends over the accretion, however recent its formation."

Under these authorities, it is clear that a title by possession, merely, is sufficient to maintain title to accretions to land the title of which is so held by possession. Where one acquires title by reason of color of title and

payment of taxes, accretions to land to which the title is thus held go with the land to which it is such an accretion, to the same extent as to a title obtained directly from one holding the patent title.

The evidence showing that, as to fractional sections 2 and 3, there was color of title and payment of taxes, with open, notorious, exclusive, hostile, and adverse possession on the part of appellees, their title was sufficient to authorize the decree as to these tracts. Further than that, the title to fractional section 2 is shown to be in appellees by transfers from the patentee of the same, and that it, with fractional section 3, was for a period of about 30 years a part of one farm, and together were conveyed by deed by various grantors who were in privity with the title of appellees, and there being such actual, open, notorious, and adverse possession for the period of more than 20 years, with claim of title, that possession and claim of title were sufficient, and would draw to the possession all the lands described in the deed, and this would authorize the decree as entered as to these two tracts. It was held in Zirngibl v. Dock Co., 157 Ill. 430, 42 N. E. 431: "It is, of course, settled law that possession of part of a tract of land under color of title to the whole tract is possession of the whole tract described in the deed."

Gaboret island, lying in the Mississippi river on the Illinois side thereof, has been in existence as an island since the river was known, so far as the evidence in this record shows, and was surveyed and platted by the United States government as a part of Illinois. Opposite Gaboret island, in the state of Missouri, a tract of land was granted to Hyacinth St. Cyr before the purchase of the Louisiana territory by the United States government, and the tract so granted to St. Cyr was confirmed as United States survey No. 3, and through mesne conveyances the Bellefontaine Improvement Company claims title to that tract. Gaboret island was patented to William Rector by the United States, and through mesne conveyances from him, and through color of title, payment of taxes, and by possession and limitation, the greater portion thereof became the property of appellees and the St. Louis Stamping Company. By the enabling act of April 18, 1818, under which Illinois was organized as a state and admitted to the Union, the middle of the Mississippi river was made its western boundary. By the enabling act of March 6, 1820, under which Missouri was organized as a state and admitted to the Union, the middle of the main channel of the Mississippi river was made its eastern boundary. An island was formed in the Mississippi river between Gaboret island and the western bank of the Mississippi river, which appellees claim is in the state of Illinois, and appellants insist is in the state of Missouri. This island is known as "Wow Bar Island." Taking into consideration the man

ner of its formation and its extent, it is clear that it is an island in the Mississippi river, and its ownership is to be determined by the determination of the question whether it is an accretion to lands on the Missouri side or to Gaboret island.

As to the formation of the island, it is shown that between Gaboret island and the Missouri shore there were fluctuations in the channel which rendered the navigation of the river difficult. The weight of evidence, however, shows that the navigable channel was on the western side of the river prior to the formation of this island, as it has been a greater part of the time since. The evidence with reference to the time when it first was formed is conflicting. The appellants claim that the island was formed by reason of the sinking of certain boats, the first of which sank about 1853. The evidence is, in substance, as follows: William Marcum, who moved with his parents upon Gaboret island in 1344, testified that he saw Willow Bar island there as early as 1847, and that he saw the boat Altona sink on the west side of the bar in 1856, in what was then the main channel. Capt. Seeborn Miller, an old pilot, who knew the river intimately in 1847, swears that Willow bar was there at that time, and that the main chaunel was always west of it. Capt. Parker, an old pilot whose recollection of the river extended back to 1850, swore that Willow bar was there then, having trees upon it. His brother, Capt. Thomas Parker, who knew the river since the early 40's, testified that Willow bar formed before the sinking of the boats, and that the main channel was always west of it. Henry Cremer, a resident and former landowner on Gaboret island, knew Willow bar since 1854, and had on different occasions seen the water in Pocket chute so low that Gaboret island proper and the bar were practically connected, and states that the channel was always on the west side. Henry Kueter, another old pilot, whose knowledge of the river dates from 1854, says the channel was always west of Willow bar. Buttron, who testified for the appellants, swore the island formed in the middle of the river, leaving a channel on both sides. both sides. Marsh, a witness for appellants, said he did not know what caused the bar, but that, to his knowledge, the channel had been west of it for upwards of 20 years. Appellants' witness Montgomery, who knew the river intimately from 1852, swore that they always ran west of the bar, and that it formed east of the main channel in which the boats sank. Monroe, a witness for appellants, and who was upon Willow Bar island as early as 1858, a year before one of the boats (the Baltimore) sank, says there were then trees from four to six inches in diameter upon it. The testimony of Pepper, Leverett, Schenk, Pitzman, Roberts, Hirt, and other witnesses shows that the channel was always to the west of the island as far

back as any of them could remember. There is testimony in the record showing that between 1878 and 1883 (the time not being fixed with certainty), for a period of about two years consecutively, the channel was on the east side of Willow bar.

The evidence with reference to the wrecks of the boats is that the Cornelia sank in 1853, near the Missouri shore, and the Altona two or three years after, 500 or 600 yards east of the Missouri shore; that the Baltimore, the largest boat, sank in 1859, about 200 feet west of the Altona; that the Badger State sank on top of the Altona; that the M. M. Runyan struck on the Baltimore, and sank below her; that the Keithsburg sank in the same neighborhood. All of these boats sank In the winter, when the water is generally lowest, and when the boats must follow the main channel most closely. Not only did these boats all sink as stated, but some of the wrecks are still west of the Willow Bar island, the largest (the Baltimore) being at the extreme western side, and visible only when the water is so low as to be only two or three feet above zero on the St. Louis gauge. Willow Bar island at present is separated by the main deep-water channel from the Missouri shore, while only a shallow stretch of water separates it from the Illinois shore. A number of witnesses have testified to occasions when it was so connected with Gaboret island proper that persons could walk from one side to the other. Being so connected that there was land, sometimes free of water and sometimes submerged, actually connecting it with Gaboret island, constituted it an accretion to the latter.

It has been the uniform rule of this court that the title of Illinois proprietors to land on a river extends to the thread of the current or main channel. Middleton v. Pritchard, 3 Scam. 510; President, etc., v. McClure, 167 Ill. 23, 47 N. E. 72; Buttenuth v. Bridge Co., 123 Ill. 535, 17 N. E. 439; Fuller v. Shedd. 161 Ill. 462, 44 N. E. 286; Griffin v. Kirk, 47 Ill. App. 258; Griffin v. Johnson, 161 III. 377, 44 N. E. 206. And his boundary changes with the changes of the center of the river's main channel. Houck v. Yates, 82 Ill. 179; Nebraska v. Iowa, 143 U. S. 359, 12 Sup. Ct. 396. In Nebraska v. Iowa, supra, it was held: "Frequently, where, above the loose substratum of sand, there is a deposit of comparatively solid soil, the washing out of the underlying sand causes an instantaneous fall of quite a length and breadth of the substratum of soil into the river, so that it may, in one sense of the term, be said that the diminution of the banks is not gradual and imperceptible, but sudden and visible. Notwithstanding this, two things must always be borne in mind, familiar to all dwellers on the banks of the Missouri river and disclosed by the testimony: That, while there may be an instantaneous and obvious dropping into the river of quite a portion of its banks, such

portion is not carried down the stream as a solid and compact mass, but disintegrates and separates into particles of earth borne onward by the flowing water. The

falling bank has passed into the floating mass of earth and water, and the particles of earth may rest one or fifty miles below and upon either shore. There is, no matter how rapid the process of subtraction or addition, no detachment of earth from one side and deposit of the same upon the other. The one thing which distinguishes this river from the other streams in the matter of accretion is in the rapidity of the change caused by the velocity of the current, and this, in itself, in the very nature of things, works no change in the principle underlying the rule of law in respect thereto." The court sums up the controversy in this language: "Our conclusions are that, notwithstanding the rapidity of the changes in the course of the channel and the washing from the one side and onto the other, the law of accretion controls on the Missouri river as elsewhere, and that not only in respect to the rights of individual landowners, but also in respect to the boundary lines between the states."

On the same character of question, this court held in Buttenuth v. Bridge Co., supra (page 552, 123 Ill., and page 446, 17 N. E.): "Commercial considerations make it imperative, where states or nations are divided by a navigable river, each should hold to the center thread of the main channel or current along which vessels in the carrying trade pass; that is the 'channel of commerce,'not the shallow water of the stream, which at some seasons of the year may be impossible of navigation,-upon which each nation or state demands the right to move its products, without any interference from the state or nation occupying the opposite shore." The court also said in that case: "Where a river is a boundary between states, as is the Mississippi between Illinois and Missouri, it is the main-the permanent-river which constitutes the boundary, and not that part which flows in seasons of high water and is dry at other times."

Under the rule announced in these cases, it is clear that the boundary line between Illinois and Missouri is, and by the weight of evidence has always been, west of Willow Bar island, as the thread of the stream is west of that island. Willow Bar islands are about two miles long, and, if any other rule were adopted than that here declared, then the boundary between the state of Missouri and the state of Illinois would, for a distance of two or three miles, not be the thread of the stream, as the thread of the stream would be wholly in the state of Missouri. It is true that in the uncommon case of avulsion, where a considerable tract of land is, by the violence of the stream and in consequence of its cutting a new channel, separated from one tract of land and joined to another, but in