Johnson v. Hurst

• Decision Date: 06 July 1904
• Citation: 10 Idaho 308,77 P. 784
• Parties: JOHNSON v. HURST
• Court: Idaho Supreme Court

77 P. 784

10 Idaho 308

JOHNSON v. HURST

Supreme Court of Idaho

July 6, 1904

GOVERNMENT SURVEYS-MEANDER LINES-BOUNDARY LINES-ACTION TO QUIET TITLE-COLOR OF TITLE.

1. Where it appears from the notes and official plat founded thereon that all the lands within the legal subdivisions, as authorized to be laid out by section 2395, United States Statutes, have been returned to the government as surveyed and the remainder of the subdivision is shown to be the waters of a navigable stream, and the government issues its patent to a settler or purchaser for fractional subdivisions thereof abutting on a line which purports to meander such stream, the meander line will not be the true boundary line but the patentee will take title to the stream.

2. Where the government has parted with a larger acreage than it has received pay for, by a patent to fractional lots abutting on a meandered stream, and the patentee takes possession under his patent, of the lands between the meander line and the stream, he is entitled to be protected in his title and possession as against any and all third persons who do not claim title from the government.

3. Id.-In such case no one but the government or its grantee can be heard to question the title or right of possession.

4. Under section 4538, Revised Statutes, an action may be maintained to quiet the title to any interest or estate a person may have in lands of which the law takes cognizance.

5. Color of title exists wherever there is a reasonable doubt regarding the validity of an apparent title, whether such doubt arises from the circumstances under which the land is held, the identity of the land conveyed, or the construction of the instrument under which the party in possession claims his title.

(Syllabus by the court.)

APPEAL from District Court of the Fourth Judicial District in and for the County of Lincoln. Honorable Lyttleton Price, Judge.

STATEMENT OF THE FACTS.

After the trial of this case the district judge filed an opinion in writing, from which we take the following statement as to the issues made in the court below: "This action was commenced February 8th, this year, to quiet title to certain lands mentioned and referred to as lots 7 and 8 of section 6 and lots 5. 6 and 7 of section 5, township 9 south, of range 15 east, county of Lincoln, containing 111.38 acres. Plaintiff alleges ownership of the premises and sets forth his deraignment of title from the United States. He also alleges his open and notorious possession and cultivation and farming of the premises since January, 1887--the date of his succession to the title by conveyance from the patentee from the government. He alleges that about November 1, 1903, the defendant stealthily took possession of the premises during the temporary absence of the plaintiff therefrom. He further alleges that about October 14, 1903, the defendant first made a claim of title to the premises, and that he ever since and now maintains and claims title thereto and to the exclusion of the plaintiff's title, and asserts that defendant's said claim is without right, and that he has no estate in or right to the premises. Plaintiff alleges further that ever since defendant so obtained possession of the premises he has maintained such possession by threats of personal violence, refuses to quit such possession, and threatens to continue such possession. Plaintiff further alleges that at the time defendant took possession the plaintiff had on the premises valuable growing crops and several hundred tons of hay which defendant refuses to permit plaintiff to use for feeding his sheep."

Then follow allegations intended to show the necessity for the immediate restoration of the premises to the plaintiff for preparation of the same for farming and irrigating them the present year; also an allegation of the defendant's insolvency and inability to respond in damages and of consequent irreparable injury from the facts alleged.

Plaintiff prays that defendant may be required to set forth the nature of his claim, and that it may be determined, and that it be decreed, that defendant has no estate nor interest in the land and that the plaintiff's title is good; and that defendant be enjoined and debarred from asserting any adverse claim of title thereto. He also asks that a writ of injunction or restitution be issued ejecting the defendant and restoring the possession to the plaintiff.

To this complaint the defendant answered denying the plaintiff's ownership of the several lots mentioned for want of sufficient information. Defendant further denies that he first made claim to the premises on October 14, 1903, or that he made claim to them at any other time, or that on November 1st, or at any other time, he stealthily or at all took possession of the same, or that he ever refused to quit or deliver up the same to plaintiff.

Defendant pleads also by cross-complaint, in which he sets up that on October 15, 1903, he being a citizen of the United States entered upon certain unoccupied, unsurveyed lands of the United States, in said county, describing them by metes and bounds, containing not more than 160 acres, and recorded a notice of possessory claim and posted it on the land and entered into possession and still holds the same, and that within ninety days afterward he built a house and other improvements thereon of the value of $ 200, and that he marked and staked the corners, and that he therefore is entitled to the possession of such land, subject only to the paramount title of the United States. He alleges that those lands so taken by him lie immediately south of the lands described in the complaint, and between said lands claimed by the plaintiff and the north bank of Snake river, and in his said cross-complaint he states that plaintiff claims and maintains title thereto adverse and to the exclusion of the defendant.

He prays that plaintiff be declared to have no estate or interest in the land claimed by the defendant, and that defendant be adjudged to be the owner of the land so taken by him.

It will be observed that the lands claimed by plaintiff are fractional subdivisions designated by lot numbers; also that defendant does not claim any part of them, but asserts that the land which he claims is other and different land lying between said lots and Snake river.

During the trial, and before defendant had offered any evidence, the plaintiff asked and obtained leave to amend his complaint, which he did by interlineation, adding to the description of the land by lot numbers, as stated, the words: "according to the official plat of the survey of said land returned to the General Land Office by the Surveyor General," and then further describing the said lots by the boundary line which would make the north bank of Snake river the southern boundary line of said lots.

To this amended complaint the defendant forthwith answered denying plaintiff's ownership of said lots (by number) for want of sufficient information, and further specially denying that they are bounded as set forth in the said amendment, and alleging that if they were so bounded, the land contained therein would amount to over four hundred acres. In other particulars defendant's answer to the amended complaint is substantially the same as to the original.

At the same time the defendant abandoned his cross-complaint and announced that he stood on the answer to the amended complaint alone.

From the same opinion we quote the following as the statement of evidence introduced upon the trial: "The evidence shows that Granville Brown entered the lots mentioned, and afterward, in October, 1889, secured a patent from the United States for them, in which they are described substantially as in the original complaint in this action, by number, section and township and 'according to the official plat,'" etc. The patent and a certified copy of the official plat are in evidence. On the plat these lots are shown as and appear to be bounded on the south side by what purports to be Snake river. Each of the lots, as platted thereon, is marked with the area in acres contained therein, and together they aggregate the area stated in the complaint--111.38 acres. From the plat it appears that there is no land between these lots and the river bank. This constitutes the plaintiff's case as far as this branch of it is concerned.

The defendant put in evidence a certified copy of the field-notes of the survey and in connection therewith, testimony as to the situation of natural landmarks and roads relative to the river bank and a bluff or declivity of lava rocks on the premises, from which it must be concluded that notwithstanding appearances from an inspection of the plat, there is in fact a larger area of land between the river bank as it really exists, and the meander line river margin as it is shown on the plat, than the total area of the lots conveyed by the patent. This evidence is not specific as to courses and distances and area of land; and it is not from qualified surveyors. But the description of the premises by the witnesses with relation to established and recognized lines of public survey, roads and the bluff mentioned in the field-notes in section 5, and the actual width of the river between its banks, makes it sufficiently clear that there is at least 160 acres of land between the south boundary line of the plaintiff's lots, as surveyed and shown on the plat, and the real river bank. Besides, the plaintiff practically concedes such to be the fact, and rests his claim of ownership of it upon legal conclusions from the other facts in the case discussed below.

It is further shown in the evidence that the plaintiff has been in possession of all the land to the river, cultivating and growing alfalfa...