Hale v. Sengstacken

• Decision Date: 11 December 1911
• Docket Number: 3,660.
• Citation: 192 F. 641
• Parties: HALE v. SENGSTACKEN et al.
• Court: U.S. District Court — District of Oregon

192 F. 641

HALE v. SENGSTACKEN et al.

No. 3,660.

United States Circuit Court, D. Oregon.

December 11, 1911

Dolph Mallory, Simon & Gearin, for complainant.

Cassius R. Peck, for defendants.

WOLVERTON District Judge.

This is a suit to enjoin the defendants, including the port of Coos Bay, from exercising the power of taxation, whereby the complainant's property is being taxed for the use and benefit of the port. Many objections are urged against the validity of the act of the Legislature authorizing the organization of the port, and the regularity of the organization itself. All the questions, however, which are sought to be presented and settled in this case, have been adjudicated in the state court, except one which relates to the natural watershed of the drainage basin of Coos Bay. The bill of complaint is challenged by a demurrer, and this is the only question now presented for determination.

The bill shows that the complainant is the owner of certain real property situated, as it is alleged, 'upon the watershed of what is known as 'South Slough,' the south inlet putting into Coos Bay at the extreme west end thereof, where the same puts out into the ocean. ' And it is further alleged that complainant is not interested in the improvement of the portion of Coos Bay situate on the Upper Bay and that it would be grossly unjust to permit complainant's property to be taxed for such an improvement.

The act of the Legislative Assembly of the state of Oregon (Laws 1909, p. 78) under which the taxation complained of is sought to be levied is entitled:

'An act to provide for incorporation under general law of ports in counties bordering upon bays or rivers navigable from the sea or containing bays or rivers navigable from the sea, and to provide for the manner of incorporating such ports and defining the powers of ports so incorporated and declaring an emergency.'

The first section provides that:

'Municipal corporations designated as ports may be incorporated in counties bordering upon bays or rivers navigable from the sea or containing bays or rivers navigable from the sea in manner as in this act hereinafter provided.'

The second section, after prescribing the form of petition for incorporating the ports, provides that:

'Where a petition is filed for the incorporation of a port under the provisions of this act, the territorial limits of which do not include such county as a whole, the limits proposed by such petition shall not extend beyond the natural watershed of any drainage basin whose waters flow into another bay, estuary or river navigable from the sea situate within such county.'

Now, it is contended that South Slough extends beyond the natural watershed of the drainage basin of Coos Bay, or, in other words, that South Slough constitutes a drainage basin within itself, and separate and distinct from the drainage basin of Coos Bay, and therefore it was not intended that the lands lying within the watershed of South Slough should be taxed for improvements in Coos Bay, or, to be more explicit, in Upper Coos Bay.

To understand the matter fully, it is necessary to describe Coos Bay and the waters tributary thereto. The bay is a body of water navigable from the sea. It is fed by a number of estuaries and streams extending in different directions from it, some a considerable distance inland. Among these may be mentioned North Slough, which enters Coos Bay from the extreme north. This slough is navigable from the bay a distance of about 2 1/2 miles. Next south of North Slough and entering the bay near its mouth, is Haynes Slough, which a stream bearing no name enters at the head. The slough is navigable for a distance of approximately 3 1/2 miles from the bay. Another slough enters this, known as 'Larsen Slough,' which is navigable from the former for a distance of a mile and half. Some two miles south of the mouth of Haynes Slough, Kentuck Slough puts into the bay, extending therefrom in a northeasterly direction. This is navigable for 2 1/2...