Cook v. Dabney

• Decision Date: 17 March 1914
• Citation: Cook v. Dabney, 70 Or. 529, 139 P. 721 (Or. 1914)
• Parties: COOK v. DABNEY ET AL. v. CITY LAND CO. v. DABNEY ET AL.
• Court: Oregon Supreme Court

139 P. 721

70 Or. 529

COOK v. DABNEY ET AL. v. CITY LAND CO. v. DABNEY ET AL.

Supreme Court of Oregon

March 17, 1914

In Banc.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Suits by James W. Cook against P. P Dabney and others, and by the City Land Company against the same defendants.From decrees for plaintiffs, defendants appeal.Modified.

Because these two cases involved identical questions, they were heard together on the same testimony by consent of the parties and of the court.The Willamette river, a navigable stream, is divided into two channels, north of and below the city of Portland, by Swan Island.The west branch passing this point is about 2,000 feet wide.The lands of the plaintiffs abut upon the west bank.Some years prior to the commencement of this suit there was erected a dike extending southerly from the upper end of Swan Island to the west bank of the river designed to turn most of the water down the east channel.Apparently as the result of this structure, shoals began to form to the westward of Swan Island.In time at low water a sedimentary deposit began to appear, and the defendant Dabney had it surveyed, and, representing to the state land board that it was tideland, purchased it in two tracts for $24.The plaintiffs complain that the occupation of this alluvial deposit by private parties will interfere with the right of plaintiffs, as riparian proprietors, to have access to the navigable water of the stream washing their premises, and so have brought this suit to declare void the deeds from the state and the right of those claiming under them.The complaint was traversed in material particulars, and the defendants, by affirmative allegation, trace their title through the deeds by the state land board, based upon petitions for the purchase thereof, describing the land as tideland.The new matter of the answer was denied by the reply.From a decree in favor of the plaintiffs, the defendants have appealed.

C. W Fulton, of Portland (Fulton & Bowerman, of Portland), for appellants.A. E. Clark, of Portland (J. H Middleton and M. H. Clark, both of Portland, on the brief), for respondents.

BURNETT J.(after stating the facts as above).

The testimony shows that the premises described in the deeds under which the defendants claim are for the greater part within the harbor lines established by the general government for purposes of navigation.It is also true, as a matter of fact, by the undoubted weight of the testimony that during most of the year the disputed tract is wholly submerged, and that water craft navigating the channel in the towage of logs and lumber, and for other purposes, daily pass over the place in question.It appears likewise that the form of this so-called island is continually changing by the action of the water, especially since a large section of the dike already mentioned has been removed.When not actually submerged, the tract, even at its highest point, is a great deal of the time barely awash.

For the reason that the place is not alternately covered and exposed every 24 hours by the action of the tide, it is manifestly not tideland; but this is not necessarily decisive of the question.If, in fact, the state had the right to sell the property so as to place it entirely in private ownership, it matters not to the plaintiffs under what name it was alienated if they themselves had no interest or estate in the demised premises.If the plaintiffs had no right there they would have no...