Sengstacken v. McCormac

79 P. 412 | Or. | 1905

Mr. Justice Bean

delivered the opinion of the court.

This is a suit to enjoin the construction and maintenance of a boom in the Coquille River in front of lots 7 and 8, section 7, and lots 4 and 5 in section 3, township 28 south, range 13 west, in Coos County. The defendant owns or has license to occupy the water front, and permission from the United States government to construct and operate the boom. The plaintiff claims to be the owner, as the successor in interest of the grantees of the State, of a narrow strip of tide land, alleged to be from one to fifteen feet wide, and about a mile long, lying between the upland and the river, and that the proposed boom will interfere with the ingress to and egress from such tide land. The defendant denies the existence of the alleged tide land. Upon the testimony the court below found that the strip of land in controversy “varies in width, at some places not exceeding three inches in width, at others the bank is perpendicular, and its greatest width in any place does not exceed sixteen feet,” and that it was not tide land, and therefore dismissed the complaint.

1. Several questions were presented at the argument, but, as we are in accord with the trial court upon the facts, it is unnecessary to consider them. There is no substantial controversy in the testimony, and no useful purpose can be served by referring to it in detail. It is sufficient to state merely our' conclusions derived from an inspection of the record. The land, in controversy is situated a short distance below the City of Coquille, and about thirty miles from the mouth of the river. At this point during the summer months there is a tidal rise and fall of about three -feet, which daily covers and uncovers a narrow strip of land, varying in width from a few inches to perhaps ten or twelve feet in places, between the foot of the bank and low water. During five or six months in the winter this land is entirely submerged. No part of it is daily covered and uncovered by the ebb and flow of the tide during the whole year. The bank of the river is ste.ep and even perpendicular in some places, and of a sandy soil. The wash of the water caused by the winds, tides, and passing steamers has a constant tendency to undermine the hank and cause it to cave in and to cast sediment and silt up against the shore, thus forming a narrow strip of earth, which is at times exposed at low water, hut which has no real permanent situs, but is shifted and changed more or less from time to time by the action of the water. Under these facts, the case is, in our opinion, ruled by the decision of this court in Andrus v. Knott, 12 Or. 501 (8 Pac. 763), and the doctrine there announced is controlling here.

2. A contention is made that the defendant is estopped to deny that the land is in fact tide land because some of the deeds in his chain of title refer to the grantor’s right and interest in or to the tide land lying in front of the upland. The defendant does not hold or claim title as a grantee of the State. His title or right is based upon the ownership of the upland, and the reference to tide land in some of the deeds in the chain of title was evidently intended as a mere matter of precaution, and not as an admission or statement that there was in fact any tide land. Without further discussion of the testimony or of the law, we'aré agreed that, under the facts, the land claimed by the plaintiff is not tide or overflowed land, within the meaning of the law authorizing the sale and disposition of such land.

The decree of the court below is affirmed. Aebirmeu.