Transcriber's note: The following opinion letter was found in the archives and does not appear to be available through the website of the Missouri Attorney General's Office. The opinion expressed in regard to the question posed is not so much of interest as are the references to court cases regarding railroad rights-of-way and the principles of accretion and avulsion.
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Attorney General of Missouri
Jefferson City
John C. Danforth
Attorney General
May 18, 1971
OPINION LETTER NO. 69
Mr. Joseph Jaeger, Jr.
Director of Parks
Missouri State Park Board
P. O. Box 176
Jefferson City, Missouri 65101
Dear Mr. Jaeger:
You have requested my opinion as to the true ownership of accreted land formed along the bank of the Missouri River in St. Charles County fronting land held by the Missouri State Park Board as the site of the First Missouri State Capitol.
We have examined the three deeds by which the State of Missouri and the Park Board claim ownership of the land in question. They are herewith summarized:
(1) Elbert Haenssler and Mona Lou Haenssler
to the State of Missouri; Warranty Deed of
December 31, 1960, recorded January 4, 1961
at Book 354, Page 579; A lot in Block 13, City
of St. Charles, fronting 23 feet on Main Street
on western end of lot and 23.5 feet on Missouri,
Kansas and Texas Railway right of way on eastern
end of lot. (Hereafter referred to as Lot 1)
(2) City of St. Charles to Missouri State Park
Board; Warranty Deed of March 20, 1962, re-
corded May 31, 1962 at Book 374, Page 600; A
lot in Block 13, City of St. Charles, fronting
25.60 feet on Main Street on western end of
lot and 25.69 feet on right of way line of
Missouri, Kansas and Texas Railroad on eastern
end of lot. (Hereafter referred to as Lot 2)
(3) St. Charles County Historical Society to
Missouri State Park Borad; Warranty Deed of
October 26, 1965, recorded same date at Book
439, Page 601; Lot in Block 13, City of St.
Charles, fronting 101.9 feet on alley on western
end of lot and eastern end fronting on right
of way of Missouri, Kansas and Texas Railway
Company from Haenssler lot (Lot 1) north to
Madison Street. (Hereafter referred to as Lot 3)
According to the survey of Robert L. Elgin, Registered Land Surveyor, concluded on June 17, 1969, the State of Missouri and the Missouri State Park Board through these deeds own land fronting approximately 150 feet north to south on the railroad right of way. Mr. Elgin notes on his survey map that the eastern line of the property was established by a plat showing right of way of Missouri, Kansas and Texas Railway on property in Block 13, City of St. Charles dated November 25, 1892, with revisions to correspond with the condemnation, Central Missouri Railway Company v. Bernard Feuerstein of September 7, 1888, entered in Book W, Page 101 of the St. Charles County Circuit Court Records.
We have also examined the abstract of title to Lot 3, certified by the Emmons Abtract Company to October 18, 1965. According to this abstract the eastern boundary of Lot 3 up to the year 1888 was the Missouri River. The abstract reflects a conveyance on September 6, 1888, recorded on February 1, 1893, Book 58, Page 293 from Bernard and Victoria Feuerstein to the Cleveland, St. Louis and Kansas City Railway Company of a strip of land 100 feet in width on the eastern edge of the north 77 feet of present Lot 3 "for the purpose of right of way for a Railroad and for no other purpose." The only other reference in the abstract to the manner of creation of the railroad right of way is a warranty deed from Louisa Heye to Bernard Feuerstein on June 14, 1892, recorded June 15, 1892 at Book 59, Page 45, conveying a lot that included the south 29 feet of present Lot 3. This deed recites that the eastern boundary of the conveyance was the "ground sold by grantor for railroad purposes and now occupied by the Missouri, Kansas and Eastern Railway Company."
Conveyances subsequent to the year 1888 affecting Lot 3 have uniformly called to the railroad right of way for the eastern boundary of Lot 3.
Railroad companies exercising the power of eminent domain are limited to the taking of easements only (Article I, Section 26, Constitution of Missouri, 1945; Article II, Section 21, Constitution of Missouri, 1875). Although such companies may purchase a fee interest in land through voluntary sale, we do not believe the acquisition of "right of ways" on the eastern edge of Lot 3 was for any greater interest than an easement (Schuermann Enterprises, Inc. v. St. Louis County, 436 S.W.2d 666 (Mo. 1969)). Therefore, the underlying fee remained in the railroad company's grantors and has passed by mesne conveyances to the Missouri State Park Board (American Steel & Wire Co. v. City of St. Louis, 190 S.W.2d 919 (Mo. 1945)). As riparian owners on a navigable stream, the holders of the fee would be entitled to all additions to the land formed by gradual and imperceptible action of the river, otherwise known as accretion (Bixby v. Backues, 144 S.W.2d 112, 114 (Mo. 1940)). They would not be entitled to additions formed through sudden action of the river, otherwise known as avulsion, most typically represented by the abandoned channel upon a sudden change in the course of the river (Cooley v. Golden, 23 S.W. 100, 107 (Mo. banc 1893)).
You attached to your letter requesting our opinion a letter dated February 17, 1969, from Colonel R. L. Anderson, Jr., District Engineer, Kansas City District, Corps of Engineers. Colonel Anderson states that in 1940 construction on two Missouri River dikes was commenced, one adjacent to St. Charles, and one downriver of the St. Charles highway bridge. He further states that these dikes were repaired and raised in ensuing years, and that "in 1952 two additional dikes were constructed to maintain the accretion."
"Certainly if the area which constituted the
chute was the main channel and was caused to
fill up gradually because of the building of
the revetments by the Army Engineers, it did
not suddenly change its course. Whether or
not the river changes its channel gradually
or suddenly as the result of the engineering
efforts of man, does not affect property
rights or the line between the states. If
the channel of the river was caused to move
slowly because of the revetments, the property
lines would follow it. If it was caused to
move suddenly, they would not follow it."
(Duke v. Durfee, 215 F.Supp. 901, 907 (W.D.
Mo. 1961); Rev'd 308 F.2d 209 (8th Cir. 1962);
Aff'd 375 U.S. 106, 11 L.Ed.2d 186 (1963))
It would appear from the statement of Colonel Anderson that the land added to the left bank of the Missouri River opposite Block 13 in the City of St. Charles was caused by accretion, and not avulsion. Assuming this to be the fact, we are of the opinion that this added land adjacent to what we herein refer to as Lot 3 now belongs to the Missouri State Park Board.
Although we have seen no abstract of title for Lots 1 and 2, we would surmise from the statement of Robert Elgin on his survey map that the railroad only acquired right of way easements across these lots as well and under those circumstances, our views of ownership of the land formed in the river opposite these lots would be the same.
Yours very truly,
JOHN C. DANFORTH
Attorney General
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transcribed by Steven E. Weible
