Seabrook v. Coos Bay Ice Co.

89 P. 417 | Or. | 1907

Opinion by

Mr. J ustice Eakin.

The most important issues in the case are (1) is there a strip of tide land between the Fox and the Webster tracts; and, if so (2) is the south line of the Fox tract south of defendant’s buildings? And both depiend upon the proper and accurate tracing upon the ground of the boundaries of the tracts as given in the deeds.

Defendant claims that plaintiff has no standing in this court, because he has not established the existence of any tide lands between the Fox and the Webster tracts. The location of the Webster tract is not traced by the witness Whereat from the beginning point named in the deed. The survey of this tract, as set out in the deed, is tied to an angle in the government meander line; the call being: “Beginning 2.21 chains northward from a post at angle in meander line of Coos Bay.” It is conceded in the evidence and disclosed by the plaintiff’s Exhibit 10, that there is an angle in the government meander line G3.9 feet northerly from the point adopted by Whereat as the tie corner, which last point is not an angle in the meander line, and Whereat evidently justifies himself in ignoring this angle by reason of the further description in the deed of that angle post as “being 7.50 chains north 17° east from the northeast corner of lot 2 in section 26”; bnt the northeast corner of lot 2 is not a corner in the United States survey, and it can only be ascertained by a subdivision of section 26 in the manner provided by the United States Land Department. It may be conceded as to all government surveys that there will be some discrepancies botu as to measurements and courses between the field-notes and the measurements on the ground, and the surplus or shortage must be apportioned in subdividing the section, which in this case is liable to make lot 2 more or less than 20 chains wide, and thus vary its point of intersection with the meander line; that is, quarter • quarter corners must be established at ¡Joints midway between section and quarter section corners: Gen. Land Office Circular, [Restoration of Lost Corners and Subdivision of Sections, dated March 14, 1901, p. 15. ■ And in a fractional quarter section each of such subdivisions will constitute a lot; and as neither the west nor the south lines of the northwest quarter of section 26 is full, that fractional quarter should constitute lot 4, and the reference in the deed treats it as one lot.

1. Both the witness Whereat and the deed refer to the northeast corner of lot 2 as an established corner; but it is not a corner of the public survey, and must he ascertained by the established method. The surveyor, in testifying in relation thereto, must state more than the result; he must detail his survey in locating such comer, and it will then be a legal question whether his method is correct and a question of fact whether the result is correct: 5 Cyc. 967; Radford v. Johnson, 8 N. D. 182 (77 N. W. 601); O’Brien v. Cavanaugh, 61 Mich. 368 (28 N. W. 127).

2. Here Whereat’s method was incorrect. He establishes the tie corner from the northeast comer of lot 2, without disclosing that such corner is correctly determined, but when determined, it does not control the tie comer. The Webster deed fixes the starting point at 2.21 chains northward from the post at angle in meander line. That angle post in the' meander line of the public survey was adopted by the county surveyor as the basis of his survey of the Webster tract, and his starting point is the point to be ascertained, and must control now; and if that angle exists, and is known, it is not necessary to look further. If lost or obliterated, it must be found or re-established from some known corner by the approved methods. The reference in the deed to the northeast corner of lot 2 is only as a witness corner to identify and aid in finding the angle mentioned, and not to control it; and Whereat’s survey or tracing is erroneous in adopting as a tie corner the point 63.9 feet southward on the meander line from the angle mentioned. But this error in tracing the Webster tract does not necessarily determine that plaintiff had not a prima facie case, at least it is not here for decision by this court.

3. The case was tried in the lower court upon the theory that the calls in the deed to Fox for the west line of the tract should give way to the meander line of the public survey, which would locate the south line of the Fox tract about 60 feet south of its location by the calls of the deed. By Section 7 of the “act to provide for the sale of tide and overflowed lands of the seashore and coast” (Laws 1872, pp. 129, 132), under which the Webster and Fox deeds were issued, it is provided that the applicant to purchase such land shall, at his own expense, cause the same to be surveyed by the county surveyor, such survey to conform to and connect with the survey of the United States so far as may be practicable, describing the lands by metes and bounds, and this provision has been retained in all amendments and subsequent acts relating thereto. This survey is presumed to be the true meander line of the bay at that date, and such survey constitutes the basis upon which the state land board acts in making the deed, and, there being no ambiguity in the deed, its calls must control. It is settled in this state that where a stream, lake or bay is meandered by the public survey, the shore becomes the real boundary, and not the meander line as surveyed, if there is found to be a discrepancy between the two: French Livestock Co. v. Springer, 35 Or. 312 (58 Pac. 102); Johnson v. Tomlinson, 41 Or. 198 (68 Pac. 406). The county surveyor in this case determined that there was a discrepancy between the meander line of the public survey and the shore line. His decision was accepted and acted upon by the state land board, and is final until an error is shown and the deed corrected in some manner authorized by law. If permanent and visible or ascertained boundaries or monuments are mentioned in the deed as the boundary or corners of the survey, such boundary and monuments should control (though this rule is not an inflexible one (Hale v. Cottle, 21 Or. 580: 28 Pac. 901; Baker County v. Benson, 40 Or. 207, 218: 66 Pac. 815); but in this deed, the only reference is “along the meander line,” which can only mean the actual meander line of the bay, because the meander line of the public survey is not a permanent visible or. ascertained boundary.

4. In Railroad Co. v. Schurmeier, 74 U. S. (7 Wall.) 272 (19 L. Ed. 74), it is held: “Meander lines are run in surveying fractional portions of the public lands bordering upon navigable rivers, not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream”; and this is the rule generally, both in the state and federal courts. Therefore the court erred in admitting evidence tending to establish the west boundary of the Pox tract upon the meander line of the public survey, and also erred in instructing the jury to the effect that they might ignore the calls in the deed.

5. As to the question of adverse possession by the defendant, the only proof is the te.stimony of Patrick Hennessey, superintendent of the Oregon Coal & Navigation Co., the defendant’s grantor, and he says the company had possession of some tide land there.

“About all I did was to pay the taxes on it. There were no buildings on it, some piling. We received rent money for scows and a piledriver, tied up there two or three years ago. These houseboats were occupied as dwellings. I do not know where-the piles were driven, as it has been a long time ago. It is more than 10 years since they were driven. The houseboats were not there continuously. Once in a while they were tied up there during 'this period. The piles were not connected with each other in any way.”

This evidence does not tend to establish adverse possession: Montgomery v. Shaver, 40 Or. 251 (66 Pac. 923). Actual occupancy, pedis possessio, is necessary to constitute such possession as will ripen into title. Therefore, it was error for the court to submit the question of adverse possession to the jury.

6. It was also error to admit in evidence Exhibits K and L, defendant’s testimony, for the reason that such exhibits are only competent as evidence, when identified, as disclosing relatively the situation upon the ground. Such a map is intended to demonstrate to the jury the actual condition upon the ground and the true relative positions of lines or objects mentioned, but when so identified by one competent witness, it may be admitted, and if its correctness is disputed, it is a question for the jury to determine the fact: Hays v. Ison (Ivy.), 72 S. W. 733; Donohue v. Whitney, 133 N. Y. 178 (30 N. E. 848). The witness who drew this map says he made no measurements on the ground as to lines and angles or the relative positions of defendant’s property or buildings, 'but used as his data the boundaries mentioned in the deeds, the city plats, and the field notes of the meander line of the public survey. From such data it is impossible for him to locate the exact relative positions of defendant’s buildings and the south line of the Fox tract.

The judgment is reversed, and the cause remanded'to the lower court for a new trial. Reversed.