Western Invest. Co. v. Farmers' Nat. Bank, 57 P. 912

Western Invest. Co. v. Farmers' Nat. Bank

57 P. 912 | Or. | 1899

Mr. Justice Bean,

after stating the facts, delivered the opinion of the court.

1. The decree of the court below must be affirmed. The mortgages of the plaintiff and defendant do not, on their face, cover the same property. If any conflict exists between them, it is because the property described in defendant’s mortgage abuts on a non-navigable body of water. This is denied by the plaintiff, and thus an issue of fact is presented. Upon this issue the burden of proof is on the defendant, and it has failed to sustain its claim either by the allegations of its answer or by the evidence. The averment of the answer is “that the lands described in the defendant’s said mortgage border upon and lie in what is known and platted upon the said surveys as Tule Lake, and the borders of said Tule Lake were, in said surveys, meandered by the United States surveyor, and the meander line of said lake, as shown by the field notes' and plat of said survey on file in the United States Land Office, and in the office of the Surveyor-General of Oregon, were and are as follows.” In view of the contention of the parties, and of the real issue sought to be litigated, this averment ought not, it seems to us, to be construed as an allegation that what is known and platted upon the public surveys as “Tule Lake” was or is a body of water. It is not so stated, and the mere fact that it was meandered is by no means conclusive on that point: Grant v. Hemphill, 92 Iowa, 218 (59 N. W. 263).

2. But, conceding the pleadings to be sufficient, the only evidence on the question is a copy of the plat of the public survey, which shows that a certain portion of the township was not sectionized, but meandered and designated as “Tule Lake,” and the stipulation that the land department of the general government has held the *302portion so designated to be swamp and overflowed land granted to the state by the act of March 12, 1860. Any claim that can be made for the plat as prima facie evidence is manifestly overcome by the ruling of the land department that the disputed tract was in fact swamp and overflowed land. So that from the record it is impossible to determine the question in controversy, even if it is a proper subject of judicial inquiry while the matter is pending on appeal to the Secretary of the Interior.

3. The court will take judicial notice of the government surveys, and the manner in which they are required to be made (Atwater v. Schench, 9 Wis. 164), but not of the character of the territory over which they have been extended, unless a part of the prominent geographical features of the country. In this case the defendant bank claims that Tule Lake was a non-navigable body of water, and bases its prayer for relief on this fact, while the plaintiff contends and alleges that it was not a body of water at all, but swamp and overflowed land. This presents a clear cut issue of fact, which can only be determined from testimony, and not from the judicial knowledge of the court. It follows, therefore, that, whatever the right of the owner of property bounded by a non-navigable lake may be, the judgment of the court below must be affirmed, because there is no proof in the record that Tule Lake is or was a body of water.

Aeeirmed.