Hirt v. Entus

• Citation: 224 P.2d 620,37 Wn.2d 418
• Decision Date: 24 November 1950
• Docket Number: 31311.
• Court: United States State Supreme Court of Washington
• Parties: HIRT, v. ENTUS.

224 P.2d 620

37 Wn.2d 418

HIRT, v. ENTUS.

No. 31311.

Supreme Court of Washington.

November 24, 1950

Department 2.

Clark W. Adams, Aberdeen, Theodore B Bruener, Aberdeen, of counsel, for appellant.

Poyhonen and Stritmatter, Hoquiam, Donn F. Lawwill, Aberdeen, for respondent.

ROBINSON, Justice.

In this action, the plaintiff, George Hirt, claiming ownership of Government Lots 4 and 7, Section 2, Township 19 North, Range 11, West W. M in Grays Harbor county, state of Washington, demanded treble damages for alleged wilful trespass by the defendant Anton Entus, in the cutting of timber thereon. Defendant, the owner of Lot 6, and the former owner of Lot 5, which are adjacent to these two lots, admitted the cutting of the timber, but denied plaintiff's claim of ownership and alleged trespass, and asserted that plaintiff was claiming beyond his proper boundaries. Defendant further prayed that the Humptulips river be found and adjudged to be the boundary line between the property of the respective parties. In his reply, the plaintiff joined with the defendant in requesting the court to fix and determine the correct boundary line.

The Humptulips river is a non-navigable stream which courses irregularly through the area in question. Government surveyors, in 1858, sketched in meander lines purporting to show the then course of the river, designating the property west of such meander lines as Lots 4 and 7, and the property east of them as Lots 5 and 6. The present location of the river, as determined by the court, is approximately five hundred feet west of the meander lines as drawn by the Government surveyors. The sketch below, while not accurate in detail, will suffice to show the relative positions of the river, the meander lines, and the various lots:

(Image Omitted) Government Lots 4, 5, 6, and 7 became the property of the First National Bank of Hoquiam, and title thereto vested in the Shareholders' Fund, Inc., a holding corporation for the bank. Lots 4 and 7 were conveyed to Hirt by deed, dated March 18, 1939, describing the property as follows: 'Lots numbered One (1), Three (3), Four (4), Seven (7) and Eight (8), less County Road, and the West one-half of the Northeast quarter (W 1/2 of NE 1/4) and the Northwest quarter of the Southeast quarter (NW 1/4 of SE 1/4), all in Section Two (2), Township Nineteen (19) North of Range Eleven (11) West of the Williamette Meridian.'

Lots 5 and 6 were conveyed to Priscilla Sankus by deed, dated May 2, 1939, describing the property as follows: 'Lots numbered Two (2), Five (5) and Six (6), in Section Two (2), Township Nineteen (19) North of Range Eleven (11) West of the Willamette Meridian, containing fifty-two (52) acres more or less.'

Mrs. Sankus was housekeeper for Entus, and admittedly purchased the property in his behalf. She conveyed Lots 5 and 6 to Entus by deed, dated June 19, 1939, describing the property in the same manner as indicated above. Lot 5 was later lost to the county for non-payment of taxes.

Trial was held to the court which found in favor of Hirt, adjudging him to be the owner of the territory in dispute. Accordingly, the court determined that Entus had cut the timber in question without warrant, and awarded to Hirt treble damages, as claimed in his complaint. The court did not attempt to fix the boundary between Lots 4 and 5 because the county of Grays Harbor, which now owns the latter lot, was not a party to the action; but it established the boundary between Lots 6 and 7, not along the course of the Humptulips as it presently flows, but along the mid-meander line of the same river as it was surveyed in 1858. From this judgment, defendant, Entus, has appealed.

In analyzing a case of this kind, it is important to take note of several significant general principles. In the first place, as appellant asserts, it is true that meander lines are not ordinarily regarded as boundary lines, and that, in the usual situation, the watercourse itself will mark the boundary. Washougal & LaCamas Transportation Co. v. Dasses, Portland & Astoria Navigation Co., 27 Wash. 490, 68 P. 74. In Ghione v. State, 26 Wash.2d 635, 652, 175 P.2d 955, 965, we said: 'We must, therefore, here consider briefly the force of the government survey meander lines. In surveying fractional portions of public lands bordering upon streams, meander lines are run, not as boundaries of tracts of land, but for the purpose of defining the sinuosities of the banks of the stream, and as a means of ascertaining the quantity of land in the fractions. In the absence of special circumstances not relevant here, the watercourse itself provides the natural boundary. St. Paul & P. Railroad Co. v. Schurmeir, 7 Wall. 272 19 L.Ed. 74; 8 Am.Jur. 766, Boundaries, § 29; 11 C.J.S., Boundaries, § 30b, page 573. This court has affirmed that rule. Rule v. Oregon & Washington R. Co., 109 Wash. 436, 186 P. 1074; Harper v. Holston, 119 Wash. 436, 205 P. 1062.'

But should the course of the river be changed, the boundary of lots bordering upon the old channel may or may not shift with the river. In the language of Harper v. Holston, cited in the quotation immediately preceding:

'Another rule is that, when grants of land border on running water, and the course of the stream is changed by that process known as accretion--that is to say, the gradual washing away on the one side and the gradual building up on the other--the owner's boundary changes with the changing course of the stream. * * *

'On the other hand, it is equally the rule that when a stream, which is a boundary, from any cause suddenly abandons its old channel and creates a new one, or suddenly washes from one of its banks a considerable body of land and deposits it on the opposite bank, the boundary does not change with changed course of the stream, but remains as it was Before . This sudden and rapid change is termed in law an avulsion, and differs from an accretion in that the one is violent and visible, while the other is gradual, and perceptible only after a lapse of time.' 119 Wash. at pages 441, 442, 205 P. at page 1064.

Assuming for the moment that the court was correct in its finding that the river had moved some five hundred feet west from its location at the time of the survey in 1858, it became necessary for it to determine the history of the change. If it was brought about as the result of gradual accretion, the boundaries of the lots moved with the river bed, and Lots 5 and 6 were correspondingly enlarged. Harper v. Holston, supra; Glenn v. Wagner, 199 Wash. 160, 90 P.2d 734; 4 Tiffany, Real Property (3d ed.), 613, § 1219. However, if the change was the result of avulsive action, the boundaries remained as they were formerly located. State of Missouri v. Nebraska, 196 U.S. 23, 25 S.Ct. 155, 49 L.Ed. 372; Smith v. Miller, 105 Iowa 688, 70 N.W. 123; affirmed 105 Iowa 693, 75 N.W. 499; Brown v. Wilson, 348 Mo. 658, 155 S.W.2d 176.

The trial court found that the change in the course of the river had been brought about by avulsive action; and we think this finding borne out by the evidence. Appellant's original theory, as set forth in his answer, was that the change was brought about by process of accretion. Even if this were shown to have been the case, appellant's trespass on the alleged accretion to Lot 5 would not have been justified, for he had lost title to Lot 5 itself through non-payment of taxes, and, therefore, could on no possible theory be entitled to any accretion thereto. But the testimony of respondent's expert witness, which was apparently believed by the court, was to the effect that he had made soil boring tests and observations of the age of the trees in the area over which the river was alleged gradually to have shifted; and he testified that, in his opinion, the river could not have flowed over this territory within two hundred years, and that, in all probability, it had not done so for at least five hundred years.

It is possible, of course, that the river never ran in the approximate area marked out by the meander lines, and that, even in 1858, it was flowing close to its present course. This is the theory upon which appellant appears to have come chiefly to rely in the later phases of the case, and it is by no means untenable. In support of this view, appellant cities testimony indicating that old trees were growing in the meander strip. But this does not necessarily indicate that the meander lines did not closely approximate the former course of the river. Meander lines established by government survey are usually a short distance back from the water's edge. They disregard the minor sinuosities of the shore and merely mark the general contour. Patton to Titles, Part 1, ch. 4, p. 247, § 66. On occasion, streams may be found at places entirely without meander lines, and, just as in this case, old stands of timber are sometimes discovered growing within their limits. Sartori v. Denny-Renton Clay & Coal Co., 77 Wash. 166, 137 P. 494.

Appellant's position seems to be that, since, as the court put it, it was 'generally agreed' that the river might not have been exactly within the meander lines, it must have been where it now is at the time of the government survey. This, of course suggests that the surveyors made a not inconsiderable error in their establishment of the lines. A perusal of the relevant cases and texts suggests, in fact, that errors of this magnitude, or even much greater ones, were not uncommon, and cases have often arisen in which it has been quite clearly demonstrated that meander lines were run a substantial distance back from the actual water lines, the area between them in some instances amounting to many more acres of land than are involved here. The force of the rule that meander lines are not...