Beasley v. Shively

• Decision Date: 30 April 1891
• Citation: 20 Or. 508,26 P. 846
• Parties: BEASLEY v. SHIVELY.
• Court: Oregon Supreme Court

26 P. 846

20 Or. 508

BEASLEY v. SHIVELY.

Supreme Court of Oregon

April 30, 1891

Appeal from circuit court, Clatsop county; FRANK J. TAYLOR, Judge.

(Syllabus by the Court.)

When it appears from the record that the real merits of the suit cannot be determined without essentially affecting the rights of persons in the subject-matter, who are not parties, and whose names nowhere appear in the record, this court will refuse to examine the facts, but dismiss the complaint for want of parties.

Geo. H Burnett and A.R. Kanaga, for appellant.

Sidney Dell, for respondent.

BEAN J.

John M Shively, being the owner of the donation land claim upon which the city of Astoria is now located, prior to 1881 laid the same out into lots, blocks, and streets, and caused a plat thereof to be duly recorded. The plat of the town as laid out by Shively included, not only his donation claim but the tide-land on the Columbia river in front of the same. Upon this plat is block No. 4, containing 12 lots, numbered from 1 to 12, respectively. Lot No. 2 of this block is situate and lying on the bank of the river, and extends below the line of ordinary high tide. Immediately in front of block No. 4 is a street named "Hemlock Street," and between this street and the channel of the river is block 146, which is on the tide-land, and extends into the river below the line of ordinary low water. Prior to May 6, 1881 Shively sold and conveyed the whole of block 146, and the purchasers have since acquired tide-land deeds from the state for the same. On May 6, 1881, lot No. 2 of block 4, together with the appurtenances thereto belonging or in any wise appertaining, was conveyed to Elias Hoff, who assuming that he was the owner of the riparian and wharfage rights in front thereof, conveyed the same to plaintiff. The defendant is the owner by mesne conveyances of whatever riparian and wharfage rights, if any, Shively had after conveying away lot 2 in block 4, and his interest in block 146, and by virtue thereof is laying claim to the riparian and wharfage rights on the Columbia river in front of block 146. The object of this suit is to enjoin defendant from erecting wharves on said property, and that plaintiff be decreed to be the owner of the riparian and wharfage rights lying in front of lot 2, block 4, below the line of ordinary low tide of the Columbia river. From this statement it will be noticed that the property in controversy is not adjoining any land owned by either of the parties to this suit, or by their predecessors in interest. This is not the case of a shore owner claiming the right to erect wharves in front of his property, but is a controversy between plaintiff and defendant as to who shall construct a wharf in front of tide-land purchased of the state, and owned by strangers to this suit. The proposed wharf is to be constructed below the line of ordinary low tide, and in front of block 146, which is held by persons who are not parties to this suit, and whose names nowhere appear in this record under deeds from the state, as tide-lands. A...