Callahan v. Price
| Decision Date | 06 February 1915 |
| Citation | 146 P. 732,26 Idaho 745 |
| Parties | WILLIAM F. CALLAHAN, Appellant, v. STERLING G. PRICE, Respondent |
| Court | Idaho Supreme Court |
Rehearing Denied March 10, 1915.
APPEAL from the District Court of the Sixth Judicial District for the County of Lemhi. Hon. J. M. Stevens, Judge.
Action to quiet title. Judgment of nonsuit for defendant. Affirmed.
Judgment affirmed. Costs awarded to respondent.
A. C Cherry, for Appellant.
The defendant on motion for nonsuit must admit all the facts which the evidence tends to prove; and in determining the propriety of a nonsuit at the close of plaintiff's case the evidence most favorable to the plaintiff must be accepted as true; for the motion of nonsuit admits the truth of plaintiff's evidence and every inference of fact that can be legitimately drawn therefrom. (McDaniel v. Moore, 19 Idaho 43, 112 P. 317; Mineau v. Imperial etc. Co., 19 Idaho 458, 114 P. 23; Hoff v. Los Angeles P. Co., 158 Cal. 596, 112 P. 53; Lawyer v. Los Angeles P. Co., 161 Cal. 53, 118 P. 237.)
The case at bar is not within the purview of the case of Lattig v. Scott, but is governed rather by the cases of Grand Rapids etc. R. R. Co. v. Butler, 159 U.S. 87, 15 S.Ct. 991, 40 L.Ed. 85, and United States v. Chandler-Dunbar Water Power Co., 209 U.S. 447, 28 S.Ct. 579, 52 L.Ed. 881.
F. J. Cowen, for Respondent.
There are no differences which would take this case out of the rule laid down in the Scott v. Lattig case and the rule announced in the later case of Moss & Bro. v. Ramey, 25 Idaho 1, 136 P. 608.
The Salmon river is a navigable stream under the decisions of this state. (Idaho Northern R. R. Co. v. Post Falls Lbr. Co., 20 Idaho 695, 119 P. 1098, 38 L. R. A., N. S., 114.)
For the plaintiff to recover in this case it would be necessary for him to show that at the time of the patent to McCain this island was not in fact an island but constituted a part of the land conveyed to McCain by that patent. This the plaintiff has not attempted to do, for the earliest date that a witness of the plaintiff remembers having seen the island in question was about the year 1887 or 1888, and that is stated only from recollection. (29 Cyc. 349, 353; Fowler v. Wood, 73 Kan. 511, 117 Am. St. 534, 85 P. 763, 6 L. R. A., N. S., 162; 40 Cyc. 625.)
This action was brought in the district court of the sixth judicial district, for Lemhi county, to quiet title to the following described lands, situate, and being in Lemhi county, to wit: All the upper portion of that certain island lying and being in the Salmon river just opposite lot 14, of section 6, and lot 1 of section 7, township 21 N., range 22 E., Boise meridian.
The appellant claims title to the upper portion of said island by virtue of a patent from the United States to Sylvester McCain and to the lower portion of the island by virtue of a deed from Thomas Elder, probate judge of the county of Lemhi to Sylvester McCain; said Elder being the successor in office to one Ellwood T. Beatty, to whom a patent was issued by the United States conveying the land in question to be held in trust for the several use and benefit of the occupants of the townsite of Salmon City; said patents conveying to the patentees the lands bordering along the Salmon river. The particular deed in controversy in this action is appellant's exhibit "C," a deed executed by Thomas Elder, as probate judge, to Sylvester McCain, appellant's predecessor, conveying the land bordering along the bank of the Salmon river described as follows, to wit:
This cause was tried to the court with a jury upon the complaint of the appellant and the answer and cross-complaint of the respondent. The complaint set out a description of the island in question and a statement of the facts upon which the appellant relied to establish his title to said island and lots 14 and 1. Appellant further alleged that the respondent, Price, claimed and asserted an estate in and to said island and had entered into possession of the island without right, title or license and wrongfully withholds the possession of the same, to appellant's damage in the sum of $ 200; that since entering upon said island, respondent has cut a large number of valuable trees into cordwood and hauled the same away, and that by reason thereof large portions of said island are liable to be washed away, to the irreparable loss and injury of the appellant.
Upon filing the verified complaint together with affidavit of C. G. Mathewson, an injunction was issued in this cause and served upon the respondent, restraining him from further committing the acts complained of in the appellant's complaint. Respondent, in his answer, denies that the appellant or his grantors or predecessors in interest, have been or were the owners for a long time hitherto, or at all, of the island as described in the appellant's complaint, or any portion thereof, and alleges that he entered into possession of said island rightfully and is lawfully seised and possessed of the same. The respondent admits that upon entering into possession of the island in controversy he cut timber and trees and hauled the same away, but denies that the appellant has been damaged in the sum of $ 200 or in any other sum.
In respondent's cross-complaint he alleges that he is the owner, in the possession and entitled to the possession, subject only to the paramount title of the United States, of the following described real estate, situate in the county of Lemhi, to wit: All that certain island consisting of about 100 acres of land lying and being in the Salmon river, just west and opposite appellant's lot 14, in section 6, and lot 1 in section 7, township 21 north, range 22 east, Boise meridian.
After the appellant had introduced his testimony, the respondent moved for a nonsuit, "On the grounds of insufficiency of evidence," which motion was granted and judgment of nonsuit entered.
There are two assignments of error:
First, that the court erred in granting the motion for nonsuit.
Second, that the court erred in striking out the evidence of Chat Mathewson and in sustaining respondent's objection to certain evidence.
The lands lying on the east side of the Salmon river opposite the island involved in this litigation were surveyed in 1881, while the lands lying on the west side of the river opposite the island were surveyed in 1890 or 1891. From the record it would seem that the surveyor who made the survey of the east bank of the river mentioned no islands, while the surveyor who surveyed the lands on the west side of the river noticed two islands and indicated the same upon the map filed with his field-notes.
The evidence offered on the part of the appellant establishes the fact that he is the owner of a considerable tract of land bordering along the eastern bank of the Salmon river and abutting the same, including lots 1 and 14, and is in the possession of all of the lands covered by his patents and deeds except possibly a small portion that may have been eroded away from the main land by the action of the river. The respondent in this case has located upon the island west and across the east branch of the Salmon river from said lots 1 and 14.
The real question involved in this litigation is the west boundary line of appellant's land. If this west boundary line extends to the thread of the stream of the west channel of the Salmon river, appellant would then be entitled to the possession of all of the upper portion of the island in controversy. This island is not contained either in acreage or description, in the patents or mesne conveyances to appellant's predecessors in interest, and if it should be determined that the appellant is entitled to the island, it must be upon the theory that his west boundary line extends across the east channel of the Salmon river. In Packer v Bird, 71 Cal. 134, 11 P. 873, it was held that a patent from the United States for land bounded on a river which is actually navigable, extends no farther than the edge of the stream, and does not include an island separated from the upland by a slough forming part of such river, although the slough is not ordinarily navigable, or not navigable at all. In Steinbuchel v. Lane, 59 Kan. 7, 51 P. 886, it is held that a patent for lands bordering on a stream, both banks of which were meandered by the government, without any reference to a large island therein composed of primitive soil, includes no part of the island opposite such land as an appurtenance thereof, whether the stream be navigable or not, where it separates at the head of the island into two distinct channels, constituting a well-defined stream on either side, and it is not...
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