54 P. 195 | Or. | 1898
delivered the opinion.
This is an action to recover damages for an alleged trespass. It is alleged in the complaint that about July 1, 1896, plaintiff was the owner and in the possession of lots 8 and 4 of section 21, and lots 5, 6, 7 and 8 of section 22, in township 3, of range 33 E. of the Willamette meridian, in Umatilla County; that about July 1, 1896, defendant wrongfully entered upon said premises, broke down the enclosures thereof, trampled upon the grass, dug up the soil, and erected a building thereon, to plaintiff’s damage in the sum of $250. The answer having put in issue the allegations of the complaint, a trial was had, resulting in a verdict and judgment for plaintiff in the sum of $5, from which defendant appeals.
The evidence tends to show that plaintiff is the owner
The course’of Wild Horse Creek was meandered in
It will be observed from this testimony and other evidence that plaintiff contended at the trial that the lots described in the complaint extended to Wild Horse Creek, while defendant maintained that lying between these lots and said creek was a tract of % government land upon which he sought to perfect a homestead entry. Under the theories advanced by the respective parties, the location of the line as it was run upon the ground in 1871 became important, and was necessarily decisive of the action. If plaintiff had described the several lots by metes and bounds in such a manner as to make Wild Horse Creek the southern boundary thereof, the evidence of the trespass would not be confined to the particular lots mentioned in the complaint, but might apply to any part of the land included within such boundaries. Poor v. Gibson, 32 N. H. 415. But, inasmuch as the premises are described as lots, the court properly gave the jury the following instruction: “Before you can find for the plaintiff, you must find that the trespass was committed and the injury done to the lots described in plaintiff’s complaint, or upon some one of them. If you find the injury was done or the trespass committed upon lots or lands other than those described in the complaint, though the plaintiff may have been in possession of such other lots or lands, yet plaintiff cannot recover under the allegations of the complaint.’’ An action of trespass for injury to real property is properly brought to recover damages arising from a deprivation of the possession thereof, in which case the title thereto is not an import
As tending to support defendant’s theory of the southern boundary of said lots, his counsel requested the court to give, among others, the following instructions to the jury, which it refused, towit: “ I instruct you further that if you find from the evidence offered in this case that there existed at the time of the government survey and plat of the meander line of the reservation a quantity of upland between the meander line and the channel of Wild Horse Creek, covered with a natural growth of vegetation, and such tract of land was equal to or greater in area than the adjacent lots lying north of the meander line and claimed by plaintiff, then you may consider this fact as a circumstance tending to show that the meander .line was intended as the south boundary of the lots claimed by plaintiff, regardless of the location of the creek. I instruct you that a meander line is a line run by the surveyor for the purpose of determining the sinuosity of the stream and the area of the lots, and where such line in fact meanders the stream, under the laws of this state the boundary of the lots described would be the center of the channel of the stream, and not the meander line as run on the shore. If, however, you find from the evidence in this case that there is a wide and material divergence between the meander line as run by the surveyor and the north bank of the stream, as it existed at the time of the survey, then I instruct you, as a
In making the original survey of public land bordering upon arms of the sea, lakes, and navigable rivers, the surveyor is required to run meander lines for the purpose of fixing the general average of the sinuosities of the shores or banks of such bodies or streams of water as a means of ascertaining the area of each tract the contour of which is rendered irregular by such obstacles, and from the field notes of the survey an official plat is prepared, which, when approved by the surveyor-general, usually represents the meander line as the border of the water, and demonstrates that the water course or body of water, and not the meander line as actually run on the land, constitutes the boundary thereof: Railroad Co. v. Schurmeir, 74 U. S. (7 Wall. 272); Hardin v. Jordan, 140 U. S. 406 (11 Sup. Ct. 808-838). But when, for any reason, the surveyor omits to include large tracts of land lying between the meander line as surveyed or as pretended to have been run upon the ground and such streams or bodies of water, the patents for the lots, though • referring to the official plat of such survey for identification, are not equivalent to a conveyance of the premises to such navigable stream, lake, or bay, but are grants limited by such meander line : Fulton v. Frandolig, 63 Tex. 330 ; Granger v. Swart, 1 Woolw. 88, 90 (Fed. Cas. No. 5,685); Lammers v. Nissen, 4 Neb. 245; Bissell v. Fletcher, 19 Neb. 725 (28 N. W. 303); Glenn v. Jeffrey, 75 Iowa, 20 (39 N. W. 160); James v. Howell, 41 Ohio St. 696 ; Shoemaker v. Hatch, 13 Nev. 261; Martin v. Carlin, 19 Wis. 454 (88 Am. Dec. 696); Fuller v. Shedd, 161 Ill. 462 (52 Am. St. Rep. 380, 33 L. R. A. 146, 44 N. E. 286); Ayers v. Watson, 137 U. S. 584 (11 Sup. Ct. 201).
Plaintiff contended that, inasmuch as the channel of Wild Horse Creek formed the boundary of the Indian reservation, the survey of the latter in 1871 must be regarded as the meander of said creek, and, this being so, that stream forms the south boundary of his land ; while defendant maintains that the boundary line of the reservation was located on the ground at such an unreasonable distance from the creek as to show that said boundary, and not the creek, formed the south boundary of the lots described in the complaint. The person who, in 1871, surveyed the boundary of the reservation, was a deputy surveyor-general, and, being a public officer, it will, under the presumption that official duty has been regularly performed, be presumed that the line so run by him was the meander of Wild Horse Creek ; but such presumption is disputable, and defendant, having introduced testimony tending to show that such boundary line was located from about one-fourth to one-third of a mile from the creek, was entitled to an instruction upon the effect of such survey, if the jury found that it had been so made. The boundary of an Indian reservation is treated as an obstacle to the survey of public lands by legal subdivisions. Rev. St. § 2895. True, the second instruction requested seems to treat such boundary as a non-navigable river, but when it is remembered that the boundary was indicated as ‘ ‘ the bed of a dry creek ’ ’ we think the proposed instruction contains, in the main, such a statement of the law applicable to defendant’s theory of the boundary line of said lots as should have
Reversed.