site, it is too plain for discussion that what is termed 'the island' now is not an accretion to section 21 or section 16. The doctrine of accretion will scarcely admit of jumping a slough forty to sixty yards wide. In a word, there is nothing saltatory about accretion": Crandall v. Smith, 134 Mo. 633, 640, 36 S. W. 612.

Of course, the plaintiffs were obliged to recover upon 551 the strength of their own title. This they did by connecting themselves with the allottees of the Armstrong grant under the partition proceedings of 1867. The views of the law herein expressed were substantially given to the jury by well-drawn instructions. The period of time within which an owner may reclaim land after it has been submerged is not a question for determination in this action. The plaintiffs show a title good against the defendants. The state has not intervened, and whether it has any rights is immaterial to the present decision. If it really holds the paramount title the defendants cannot take advantage of the fact: MeBride v. Steinweden, 72 Kan, 508, 83 Pac. 822.

One hundred and ninety-eight special questions were answered by the jury. The court has considered them all, and finds them to be harmonizable with each other and with the general verdict. Many pitfalls were prepared for the jury by using the terms "washing away" and "washed away, but they made themselves entirely clear with reference to the precise effect of the action of the water upon the plaintiffs' land. The argument that there was not sufficient land remaining when the partition suit was commenced from which an island could be cut off and leave two hundred and eight acres was doubtless submitted to the jury, the proper tribunal to determine the fact.

Eighty-eight instructions were given to the jury, and numbers of requests for instructions were refused. The instructions given and those refused have been examined, and no error prejudicial to the defendants is discovered. In view of the findings of fact several matters argued relating to instructions become immaterial. Defenses were fairly submitted. The jury evidently gave the water company full benefit of its special defense that the accretion in front of its lot abutted upon the Kansas and not upon the Missouri river bank. Unwarranted assumptions of fact were 552 not made in the instructions. It was the duty of the court, and not of the jury, to interpret the partition proceedings.

The petition names a large number of persons as plaintiffs, and describes them as cotenants of the tract sued for. The verdict was in favor of all these parties. The petition further names a number of persons as defendants who are described as cotenants with the plaintiffs. The verdict was also in favor of "those defendants who are tenants in common with the plaintiffs," evidently meaning those named in the petition. The right to the possession of the land described was a matter of common interest to many persons. One tenant in common may recover the entire estate from a trespasser for the benefit of all. Any fractional interest in land is sufficient upon which to base a judgment of ouster against a trespasser. This being true, the plaintiffs in error suffered no material injury because the jury did not catalogue the names of the prevailing defendants and specify the precise proportional share of each plaintiff and prevailing defendant. The plaintiffs in error are not at all solicitous because the names of some five or six persons appear to have been written in the judgment whose right to recover may not be supported by the record, but they seek to overturn the entire judgment because the verdict is in the form described. This they cannot do. Some of the plaintiffs below may be injured. The plaintiffs in error cannot be.

Those who were given acre quantities in the original partition suit had no interest in the unpartitioned common lands when their demands for specific measures were satisfied. Therefore they and their successors have no interest in the litigation. The land recovered is sufficiently described in the verdict.

The one hundred and seventy assignments of error in the briefs have been duly considered, and none of them requires the case to be tried again. The foregoing observations, which 553 already transcend the proper limits of a written opinion, express the views of the court with reference to those which are of greatest importance.

The judgment of the district court is affirmed.

All the justices concurring.

The Law of Accretion and Reliction is discussed in the notes to Coulthard v. Stevens, 35 Am. St. Rep. 307; Bellfontaine Imp. Co. v. Niedringhaus, 72 Am. St. Rep. 280. If one's land is bounded by a navigable river, it remains his boundary no matter how far it shifts, subject to be again shifted by accretion or recession: Frank v. Goddin, 193 Mo. 390, 112 Am. St. Rep. 493. To give a littoral proprietor title

to land by accretion, the inrease must be in imperceptible degrees: Saunders v. New York etc. R. R. Co., 144 N. Y. 75, 43 Am. St. Rep. 729; Freeland v. Pennsylvania R. R. Co., 197 Pa. 529, 80 Am. St. Rep. 850.

An Island Which Springs up in a Navigable Stream does not belong to the owners of contiguous lands; and if by accretion it finally joins the main land, the title to the whole of the soil thus formed belongs to the state: Holman v. Hodges, 112 Iowa, 714, 84 Am. St. Rep. 367; Moore v. Farmer, 156 Mo. 23, 79 Am. St. Rep. 504. And if the shore line is washed away and the space thus created becomes a river bed on which new land forms, such new land does not necessarily belong to the owner whose lands were washed away. If added to his shore by accretion or reliction, it will belong to him; but if, on the other hand, a nucleolus appears in the channel off the shore, which swells to a nucleus, and thereafter, by accretion, reaches the dignity of an island, it does not inure to the riparian owner: Frank v. Goddin, 193 Mo. 390, 112 Am. St. Rep. 493.

A Riparian Owner Whose Land is Submerged does not lose his property therein if he afterward reclaims it, either by natural or artificial means: Chicago v. Ward, 169 Ill. 392, 61 Am. St. Rep. 203; although it has been said that where a part of a tract of land bordering on a navigable river is submerged or washed away, the owner cannot regain it except by accretion beginning at the water's edge: Cox v. Arnold, 129 Mo. 337, 50 Am. St. Rep. 450.

CASES

IN THE

SUPREME COURT

OF

KENTUCKY.

GARTH v. DAVIS.

[120 Ky. 106, 85 S. W. 692.]

STATUTE OF FRAUDS-Verbal Agreement to Form Partnership-Enforcement of Contract of Purchase.-If two persons make a verbal agreement to form a partnership and each to buy in his own name certain town lots, both thereafter to pay for and own them as copartners, such agreement constitutes a partnership and is not within the statute of frauds, and if after they make such purchase at auction sale, the owner of the lots tenders them a joint deed thereto and demands a compliance with the terms of the sale, which is refused, he is entitled to enforce a specific performance of the contract in a joint action against them. (p. 572.)

STATUTE OF FRAUDS.-Auctioneer's Memorandum, signed by him, describing the lots sold and stating the terms of the sale, is sufficient to bind both the seller and the purchaser, and is a compliance with the statute of frauds. (p. 572.)

STATUTE OF FRAUDS-Real Estate Partnership.-An agreement to become partners in dealing in real estate is neither a contract to buy nor a contract to sell real estate, as between the parties to it, and is not within the statute of frauds, and need not be in writing if it is to be begun and may end within a year, although as a fact it may not be terminated for more than a year. (p. 573.)

STATUTE OF FRAUDS-Partnership.-If a partnership is formed, though by parol, and the status of the copartners has become thereby fixed, the firm's transactions as between it and others concerning lands are subject to the same terms under the statute of frauds as individuals are. The firm, if it proposes to buy or sell land, will be bound or not in the transaction as an individual would be under the same circumstances. (p. 574.)

W. E. Garth, for the appellant.

S. D. Hines, for the appellee.

108 O'REAR, J. Appellant owned a tract of land in the city of Bowling Green, Kentucky, which he caused to be divided into town lots. A plat was recorded. He advertised the lots by descriptions as indicated in the recorded plats for sale at public auction. The advertisements were printed, and stated the terms of the sale, which were, that part of the purchase price was to be cash and balance in notes due at stated intervals. At the sale appellee John D. Davis became the purchaser of some of the lots, being the highest bidder, and appellee Henry J. Johnson became the purchaser of others of the lots. The auctioneer at the time entered a memorandum of each of the sales upon his book, and signed it. Appellant tendered a joint deed to appellees, conveying to them jointly all the lots bought by them respectively, and demanded a compliance on their part with the terms of the sale. They refused to accept the deed tendered. This suit against them is for the specific execution of the contract of sale. The petition avers that appellees Davis and Johnson, by parol agreement between themselves, entered into a copartnership, to buy, own, and use all the lots bought by them respectively; that it was part of the agreement between them that each was to buy in his own name for the partnership certain of the lots, which they each did buy and that both were thereafter to pay for and own all of them as copartners. A demurrer was sustained to the petition, and it was dismissed because the circuit court conceived that the transaction and agreement were within the statute of frauds and perjuries, and were therefore void. There was not a tender of 109 deeds to each of the appellees for the several lots bid in by each. So, unless the alleged parol agreement to enter into a partnership to buy the lots, and to hold them for the joint account of the partners, is enforceable, the judgment will have to be affirmed.

The auctioneer's memorandum, signed by him, describing the lots sold, and stating the terms of the sale, is sufficient to bind both seller and buyer, and is a compliance with the statute: McBrayer v. Cohen, 92 Ky. 479, 13 Ky. Law Rep. 667, 18 S. W. 123; Gill v. Hewett, 7 Bush, 10. The question is, Who was the buyer? Nominally, Davis bought certain lots, and Johnson certain others. So far as the auctioneer's memorandum goes, none of the lots were sold to both Davis and Johnson. However, if, as a matter of fact, they were