#### ALLARD, Appellants, v. CURRAN et al, Respondents.

(168 N. W. 761).

(File No. 4324.

Opinion filed September 3, 1918.)

Ripai’ian Rights — Submerging Plaintiffs’ Land and Section Line, Then Part of Defendants’ — Recession of Submergence Restoring Plaintiffs’, Part of Defendants’, Land — Tax Title to Latter — Riparian Ownership, Whether Involved.

Where plaintiffs’ tract of land was bounded on the south by the Missouri River and north by defendants’ quarter section, and the river cut away its bank along the south side and gradually eroded away the surface of said land until it became entirely submerged, such action continuing until portions of defendants’ land was also washed away; and thereafter the river receded, and, by a gradual deposit of silt and alluvium, restoring all the washed-away portion of defendants’ land and also that of plaintiffs, held, in a suit to quiet title to a part of that portion of what had been plaintiffs’ land which had been restored and to which plaintiff held- tax title, under an assessment made subsequently to the restoring of the land, defendants contending that such title is void for the reason that there was no such land as described in the tax deeds in existence at the time of assessment, held, that such contention is erroneous; the rule, held by some courts, where by such submergence 'the boundry line between the riparian estate and adjacent estate* is obliterated and lost, not being applicable, since, the boundary line in the instant case being a government section line, it can be re-established without difficulty; that the land involved, after it had been restored by the river, did not belong to defendants merely because the river had at some previous time touched their land in the eroding process; that defendants’ land never by reason of the washing away of plaintiffs’ land became riparian to the river; and that when restored it belonged to plaintiffs, the original owners thereof; since defendants, after their land had been restored, had all they were entitled to or in good conscience could demand; that after plaintiffs’ land had been so restored, being capable of identification, it should be treated as though it had never been submerged; that the taxes on which plaintiffs’- deeds are baseu were valid.

*74Appeal from -Circuit Court, -Urn-on -County. Hon. Joseph W. Jones, Judge. ’

Action (by D-onia Allard and Vale-d-a Allard, against Mary Curian an-d others, to quiet title to-, realty. From a judgment for defendants, and f-rorni am (ard'er -denying >a new trial', plaintiffs appeal.

Reversed!, arid remanded1 -with directions.

*Gantt &*Bilis, for Appellants.-

*Thomas Mclnerny,*for Respondents.

Appellants cited: ' ’ ’

Sec. 288, Ciy. Co-d-e; Bates vs. Illinois .Cent. R. R. Co., (U. S.) 1 Black, 204, 28 Myers- ped-era-l Decisions, 707; Railroad Co. v. Schurmeir, (U. S.) 7 Wallace, 272-, 28 Myer’s- Fed'. Dec., 709; M-aw v. Brun-eau, • (-S. D.) 156 N. W., 792-;. Fowler v. Wood, 73 Kansas, 511-, 85 Ph'c., 763, 6 L. -R.-A. (N. S.), 163; 13 D. R. A., 61, 687-.

Respondent -cited:.

' .Cox v. Arnold, (Mo-.) 31 S. W., 592; Naylor v. Cox, (Mo.) 21 S. W., 589-, 592; Welles-v. Bailey, 55 Conn,., 292, 10 Atl., 565; New Orleans v. United States-, 10 Pet., 662. Welles v. Bailey, 55 Conn., 566; xo Atl., 565; Peu'ker. v. Canter, (Ras.) 63 Rae., 617; Note 93 to page 352, Vo-1. 29 Cy-c.

PODLE'Y, J.

T-his, action was-- brought to quiet title to a tra-ct of land claimed -b-y appellants and described' as lots 5 and 7 in section 31, in ,a -certain township in Union county. As originally surveyed, said tract led? land was- bounded- -on tibe south by the Missouri river and! -on the north; by the southwest quarter of section 30, in th-e same township-, -and which, belongs- to- respondent. During t-he ten-year period between 1878 and 1888, the river -cut away its bank along the sout-hl side -of lots 5 andl 7, -in section 31, and, -by gradual -and imperceptible -degrees, eroded and washed away the surface of saidl land- -until it -became entirely -submerged 'b-y the riv-er. .Suiclhi .a-ction lof the river 'continued! -until -same portions of respondent’s land were also washed' away, though to- what extent does not appear, nor is it material. Some time after 1888, the river -commenced to recede from- the land thus submerged and, by the 'gradual 'deposit of silt and alluvium-, restored the -land that had been washed, away. Not only .was .the -land- in -Section 30 restored, but the river continued to recede until, by the year 1900, lots 5 and 7 in section 31 had also- been fully restored. Appellants *75now claim- that, when, said) land was- thus restored, they were and are the owners thereof and' entitled to its possession,. On the other hand1, respondent claims that, when the river, by washing away appellant’s land, had reached her land, her land then became riparian to the river, and that she became clothed with, all the rights of riparian ownership-; that, as a ne'cessary result of such riparian ownership, she has a right to follow the river bank, as it rece,dies, as the boundary of her land; and that she is the owner of all the land that was created in- front -of her land as it existed at the time the river commenced to- recede. ' This contention necessarily includes the proposition that, when the river washed away the surface -of appellant’s land, the land .itself -was utterly destroyed, and that appellants had- nothing left that -could’ be the subject of ownership or that could be added to- or restored when the river receded and replaced the portion of the land that 'had been carried away. It appears in the record1 that appellants are claiming under tax -deeds based upon taxes levied upon: said1 lots 5 and 7, subsequent to the restoration of the sa-i-d land-^ Respondent -claims that these deeds are void, for the reason tba|: there was no such land as lots 5 and 7 in existence at the time’ said taxes were attempted to be levied.

That respondent’s -contention relative to her riparian rights is. supported 'by some of the courts cannot be questioned. In Welles v. Bailey, 55 Conn. 292, 10 Atl. 565, 3 Am. St. Rep. 48, the rule applicable -to such cases is stated as follows :

“If a particular tract was entirely -cut -off from a river b-y an | intervening tract, and1 that intervening tract should be gradually) washed -a-way until- the remoter tra'ct was reached- by the river, -the latter tra-ct would beclome -riparian as much, as if ■ it had been origin-ally such. This follows necessarily from tibe ordinary application- o-f the principle. All -original lines -submerged- by the river have ceased to- exist; the river is' itself -a natural boundary, and every changing condition -of the river in relation to- adjoining lands is treated as a natural relation, and is not affected- in- -any manner by the relations of the river -and the fend- at any former period. If, after washing -away the intervening lot, it- should encroach upon the remoter lot, and should begin to change its- movement in t-h-e other direction, gradually restoring what it 'had taken from the remoter lot, and finally all that it had taken from- the in-*76tervening lot, the whole, by the law of accretion would belong to the remoter, but now proximate, lot. However having become riparian, it has all riparian rights. This general principle is recognized- 'by all the text-writers and by numerous decisions of the English and American courts. The river boundary i© treated in all cases as a natural boundary, -and the rights of the parties a©' changing with the change -of its bed.”

In Peuker v. Canter, 62 Kan. 363, 63 Pac. 617, the Missouri river washed away all of the tract that was riparian tci the ri-ver and for some distance into the remoter tract. The liver then receded- and, by accretion, restored: all of -both tracts precisely as was done in this case. The Supreme Court. of Kansas followed the rule announced in Welles- v. Baile)'-, supra, above quoted. This rule appears, as is indicated 'by 'some of the above ¡quoted language, to have sprung- from the fact that, when- the riparian estate is destroyed! and- parried away, the boundary line between -that and the adjacent estate is obliterated and lost, and1 that, in case of restoration by accretion or reliction, there is no way of identifying the -original estate, and' therefore it is deemed to have- been entirely destroyed and lost. B-ut no such reason exists in this case, '.¡'lie ¡boundary line .between- the lands of appellant and- respondent was a government section line, and of -course- ¡can be re-established without difficulty. In the absence of the reason, -there is no justification for the rule. Without holding that, in all -cases where land has been carried away or submerged1 by the action of the water in a lake or river and ¡afterward restored by the -action- of snob water, isuichl land belongs to- the original owner thereof, we -can see no reason», in justice -or equity, why the land involved in this case, after it had been restored by the river, should be given to- respo-n-d'enifc merely because the -river had -at s-otoe -time touched her land. After her land had been fully restored to¡ her, s'he had all that she- was entitled! to -o-r in glciod ¡conscience -could demand'. What seem© to us to- he the ¡rational' ru-le applicable to the facts- as they appear in this' case is that -announced in Association v. Shriver, 64 (N. J. L.) 550, 46 Atl. 690, 51 L. R. A. 425. This case is supported by a fo-iunidab-le array -oif authorities ¡which ¡are -collected and reviewed in the opinion of the court a-nid -cited in the note appended thereto in 51 L. R. A. These -cases- fully sustain appellant’s contention. We believe that, after -appellant’s land had been *77restored1 -by the action of the river, being capable of identification, it belonged! to¡ appellant and should be treated as though' it bad never been submerged.

[2] From this it follows that the taxes on -which appellant’s tax deeds are basedl were valid1 'and, under the facts' found by the trial court, judgment should have been in favor icif appellants.

The judgment and order appealed from are reversed, and the cause is remanded! to the trial court, with directions to enter a decree quieting title in the appellants to the disputed premises.