Harper v. Holston
| Decision Date | 08 April 1922 |
| Docket Number | 16657. |
| Citation | 119 Wash. 436,205 P. 1062 |
| Parties | HARPER et ux. v. HOLSTON et al. |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, Yakima County; Harcourt M. Taylor Judge.
Action by Arthur Harper and wife against W. N. Holston and others. From judgment for defendants, plaintiffs appeal. Reversed and remanded, with directions.
Grady Shumate & Velikanje, of Yakima, for appellants.
H. J Snively, of Yakima, for respondents.
This is an action of ejectment, brought by the appellants Harper against the respondents Holston and Woodall to recover possession of a tract of land described as parts of lots 2 and 3 in section 28 in township 11 north of range 20 east of the Willamette meridian. The complaint was in the usual form in such cases. The answer put in issue the allegations of the complaint, and as an affirmative defense alleged that the land claimed by the appellants was without the boundary lines of the lots named, and was unsurveyed, unappropriated, and unpatented land belonging to the government of the United States. Further matters were alleged tending to show that the respondent's occupancy of the land was lawful and of right. The trial was had by the court sitting without a jury, and resulted in a judgment in favor of the respondent. To review the judgment this appeal is prosecuted.
The facts giving rise to the controversy are in substance these: The Yakima river flows through the township of which the land in controversy forms a part in a general southeasterly direction. This is an unnavigable stream, although it flows a considerable body of water. In extending the interior surveys over the township named, the government treated the river as it usually treats a navigable stream; it caused the parts of the township into which the river divided it to be separately surveyed, projecting the section lines which intersected the stream in the northerly part from north to south and from east to west, and those which intersected it in the southerly part from south to north and from west to east, causing the stream to be meandered on both of its banks. The northerly part of the township was surveyed in 1865, and the southerly part in 1874. The measurements reported by the surveyors show a considerable shifting of the channel of the river between the time of these surveys. Measuring south from the northeast corner of section 28, the section in which the lands in controversy are situated, the surveyor surveying the northerly part reported that he intersected the north bank of the river at 23.27 clains, while the surveyor measuring north from the southeast corner of the same section, reported that he intersected the south bank of the river at 37.51 chains, which, ignoring the width of the river and assuming that the section was of the usual size, would indicate a shifting of the channel of the river to the south at this point between the time of the surveys some 20 chains. The meander lines also indicate such a shifting. Projecting the courses and distances westerly, they gradually approach each other, reaching the approximate width of the river as the west boundary line of the section is reached. Projecting them easterly the approach of the lines is more rapid, practically coinciding at a point some one-fourth of a miles east of the east line of section 28. From this point they again diverge, the first of the surveys extending in a general easterly direction, while the second extends to the south and southeast. The evidence also shows that there has been since the last survey a further shifting of the main channel of the river to the south. A recent survey made by an engineer who testified at the trial shows that the meander corner set as the south boundary of the river by the surveyor who surveyed the south part of the township was set to the north of the present main channel, and that his meander line for considerable distances both each and west of the meander corner is also to the north of the present channel, at one point more than 20 chains to the north.
The recent survey also shows other changes in the channel of the river. Neither of the surveyors making the original surveys reported finding more than one channel, while the recent survey shows three, although two of these practically coincide at the place where the east line of section 28 crosses the main or southernmost channel. Evidence that the two northerly clannels had no existence at the time of the original surveys is also furnished by the field notes of the surveyors making the surveys. The surveyor surveying the north part of the township in projecting his meander lines twice crossed places where the north channel now exists and crossed one place where the center channel now exists without mention of either, and the surveyor surveying the south part or the township twice crossed places where the middle channel is now found, likewise without noting it in his field notes. That the failure to mention the streams if they then existed could have been no mere inadvertence is evidenced by the fact that the field notes of each of the surveyors are replete with references to much less minor objects, some of which are water courses. It may be stated here that there is nothing in the...
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...688 (1921); Nolte v. Sturgeon, 376 P.2d 616, 619-21 (Okl.1962); Buchheit v. Glasco, 361 P.2d 838, 841 (Okl.1961); Harper v. Holston, 119 Wash. 436, 205 P. 1062, 1064 (1922). Cf. Coastal Indus. Water Auth. v. York, 532 S.W.2d 949, 952 (Tex.1976); Jourdan v. Abbott Constr. Co., 464 P.2d 311, ......
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