Johnson v. Tomlinson, 68 P. 406

Johnson v. Tomlinson

68 P. 406 | Or. | 1902

Mr. Chief Justice Bean

delivered the opinion.

1. The defendant insists that the only controversy in the case is as to the true location of the boundary of lot 10, and defendant’s adverse possession to the property in dispute, and that both of these questions are purely legal, and should be tried at law. But we do not so construe the pleadings. The suit, in form and substance, is one to quiet title. The plaintiff alleges, in effect, that there is a strip of upland, not in possession of another, between the meander line and the line of ordinary high water, and that he is the owner thereof. The answer denies plaintiff’s ownership of such strip of land, and sets up a claim in fee to all the land up to the meander line as actually *200established by the government survey. In other words, the plaintiff, by his pleadings, asserts title in the upland to the line of ordinary high water, notwithstanding the fact that the United States meander line does not coincide therewith, but is some distance backfrom the stream, while thedefendant alleges that the meander line and the line of ordinary high water .coincide, but in any event he has title by virtue of a conveyance from the state to all the land up to the actual meander line. The dispute, therefore, is not as to the location of the boundary, but as to whether there is any upland between the meander line and the line of ordinary high water, and, if so, as to whom it belongs.

2. Under the law, as settled in this state, where a stream is intended to be meandered by public surveys, the stream, and not the actual meander line as run on the ground, is the true boundary of the riparian owner: Minto v. Delaney, 7 Or. 337; Weiss v. Oregon I. & Steel Co. 13 Or. 496 (11 Pac. 255); French Live Stock Co. v. Springer, 35 Or. 312 (58 Pac. 102). It is stipulated and agreed that plaintiff is the owner of a certain described portion of lot 10, and, as a consequence, it necessarily follows from the rule stated that his title is not confined to the meander line, but extends to the stream, and includes all of the upland, if any, between the meander line and the line of ordinary high water. It is only important, then, to ascertain whether there is any such upland, and this is a question of fact, to be determined from the testimony.

3. Mr. Austin, county surveyor, who in March, 1899, at the request of the plaintiff, surveyed or attempted to survey the tract of land in controversy, testifies that he is acquainted with the location of the meander line as actually run on the ground, and that between such line and ordinary high water there is a strip of land, not covered by ordinary tides, which produces grass and other vegetation such as usually grows on the land above high water in that vicinity. Mr. Stillwell, who testifies that he has known the land in controversy for twelve or fourteen years, and was one of the chain carriers who assisted Austin in making his survey, says that the line run by *201Austin for ordinary high-water mark is some distance outside of the meander line, and the land between the two lines is covered with grass, similar to that grown on high lands; that it is not reached by the ordinary tide, although covered when freshets and extraordinary tides are combined. Mr. Davies, -who operates a sawmill near the land in controversy, and has known it for four years, testifies to substantially the same state of facts. The witness Olds says that he had known the land for fifteen years, and lived on it for some time; that he does not remember of the tides ever being over a part of the land in controversy; that it was covered with vegetation, and he had it fenced and used it for pasture; that red top and red clover, and other grasses such as are grown only above high water, were raised on the land.. This witness and James Wilson both testify that they were acquainted with Squires, the predecessor of the defendant, and that he (Squires) pointed out to them the line of his tide land, and, as so pointed out, it did not include any of the grass land or land in dispute. The plaintiff testifies that he built a salt house on the land in controversy about three years ago, and a small cabin about six years ago, and that it is only at new and full moon tides and during storms that the land is overflowed; that an ordinary tide does not come up onto the land, and that it is covered with velvet grass, red clover, and some wild grasses, and a mowing-machine could be run over it. From this testimony, which is not substantially contradicted by the defendant, it is quite clear that there is a body of upland lying between the meander and actual line as run by the government and the line of ordinary high water, which, under the authorities cited, belongs to the plaintiff.

Both brief and argument have placed much stress upon the question of the accuracy of the description of the land as set out in the complaint and decree of the court below, but we do not regard that question as at all material at this time. As already suggested, this is not a suit to establish the boundary between plaintiff’s upland and defendant’s tide land, and the decree of the court below is so framed as to limit plaintiff’s *202title “to line of ordinary high water.” The courses and distances, as given in the decree, are controlled at each step by this phrase, and therefore any error therein is immaterial. The decree settles the contention between the parties, as made by the pleadings, by determining (and, we think, rightfully) that the plaintiff owns to the line of ordinary high water. This is all that can be gathered from a careful reading of it, and all that is involved in this suit. The defendant’s adverse possession, as set up in the answer, was not insisted upon at the hearing. Indeed, there is no evidence in the record showing or tending to show that defendant ever had or claimed possession of any land above the line of ordinary high water. From these views it follows that the decree of the court below should be affirmed, and it is so ordered. Affirmed.