Hanson v. Thornton

179 P. 494 | Or. | 1919

McBRIDE, C. J.

Defendant states his first contention as follows:

‘ ‘ That where a large body of land intervenes between the meander line and the water’s edge, the grantee takes to the meander line only and not to the water’s edge. ’ ’

Conceding this to be the law, there is no evidence that a large body of land intervened between the meander line and the water’s edge when the government survey was made in 1872. The preponderance of the evidence, in fact all the competent evidence on this subject, indicates that the meander line was run as near to the waters of the lake as practicable or possible, and that the quantity of land lying in front of the line was negligible, possibly an acre or so.

1. The fact that insignificant spots of land are left between the meander line and the water, will not impeach the survey or confine an adjacent upland owner within the limits indicated by the meander line, but the waters of the lake itself will constitute his true boundary.

This is the rule laid down in Cawlfield v. Smyth, 69 Or. 41 (138 Pac. 227), which cites all previous holdings by this court on that subject. We conclude, therefore, that the true boundary of the lots in question was the lake itself and not the meander line.

2. The next contention of defendant is stated as follows :

“That in order to enable respondent to acquire title to the land between the meander line and the water’s edge, the recession of the water must have been gradual and imperceptible and must have been caused largely by natural means. ’ ’

This contention, with exceptions hereafter noted, practicálly states the law. The rule is derived from the Eoman law and is stated in the Institutes as follows :

“Moreover that ground which a river hath added to your estate by alluvion becomes your own by the law of nations. And that is said to be alluvion which is added so gradually that no one can judge how much is added at each moment of time”: Cooper’s Justinian, Lib: II, Tit. I, Section XX.

3. Technically speaking, land uncovered by a gradual subsidence of the water is not an accretion but a reliction, but the terms are often used interchangeably and the law relating to accretions applies in all its features to relictions: Gould on "Waters (3 ed.), § 155.

4, 5. The reliction is said to he imperceptible when it is not discemable in its progress, though the fact that there has been an increase may be perceptible year by year or at shorter intervals: Gould on Waters, §155.

The contention that the reliction must result purely or largely from natural causes, must be received subject to many restrictions. One who purchases land abutting upon a lake or watercourse, usually considers his right of access to such waters as an element of value in the purchase. When we speak of riparian rights, we are not considering a mere shadowy privilege but a substantial property right, the right of access to and a usufruct in the water. To say that the owner of such a right may without his consent be deprived of it by the state or the general government permitting some other person to obtain title to the accretion formed -by an impounding or diversion of part of the waters that previously washed the shore of his land, does not appeal to our sense of justice and we do not believe that the authorities generally support such a doctrine. Mr. Gould, speaking of the rule of accretion, says:

“In general it applies to artificial ponds as well as to natural waters, and to changes made by artificial as well as natural causes, if the artificial cause is not itself unlawful and the gradual acquisition of the new soil, results from the exercise of lawful rights of property and not from operations tending or intended to produce the change”: Gould on Waters, § 155; Adams v. Frothingham, 3 Mass. 352, 362 (3 Am. Dec. 151); County of St. Clair v. Lovingston, 23 Wall. 46-66 (23 L. Ed. 59).

6. But even were it conceded that a reliction caused by artificial diversion of streams emptying into a lake and thereby diminishing its water supply, would not accrue to the riparian owners of the adjacent hank, the evidence is not sufficient here to establish the fact that the recession of the waters of Goose Lake is due to that cause.

One witness who was bom in the vicinity and had known the premises from 1889, which was evidently long before any artificial interference with the flow of water into the lake, testified that in that year its waters were as low as they were when this suit was tried; that their height fluctuated more or less with the quantity of snow that fell in the mountains. Another witness testified that there had been a gradual decrease in the height of the water for many years, the rise and fall fluctuating with the snowfall. Another witness testified to a gradual recession of the water for a great many years. On cross-examination he stated that the recession had been greater since the Drews Valley reservoir had been put in, but stated that there had been no winters since that event that would bring much water into the lake. The capacity of the reservoir and the quantity of water diverted, are nowhere shown and we are fairly justified in concluding that the quantity absolutely lost to the volume of the lake, is inconsiderable.

When we take into consideration the size of the lake, twelve miles in width and thirty-five miles in length, this must necessarily be the case. The third .and last contention of defendant is practically a repetition of the first contention and need not be further considered.

From all the testimony, we conclude that the original meander line in front of sections 17 and 20, was honestly and correctly run; that these fractional sections abutted upon the actual waters of Goose Lake; that the accretions to plaintiff’s land have been from natural canses and have been gradual and imperceptible and are therefore a part of his estate.

It therefore follows that the decree of the Circuit Court should be affirmed and it is so ordered.

Affirmed.