Johnson v. Knott

• Decision Date: 31 March 1886
• Citation: 13 Or. 308,10 P. 418
• Parties: JOHNSON v. KNOTT and others.
• Court: Oregon Supreme Court

10 P. 418

13 Or. 308

JOHNSON v. KNOTT and others.

Supreme Court of Oregon

March 31, 1886

Geo. W Yocum and W. Scott Beebe, for appellant.

C.B Bellinger, for respondents.

THAYER J.

The appellant commenced an action against the respondents in the court below to recover the possession of certain real property described as fractional lots 3 and 4, in block 2, of East Portland, alleged to be wrongfully withheld from him by the respondents and to recover $500 damages for such withholding. The respondents denied appellant's ownership of the premises and interposed a plea of the statute of limitations. The action was tried by jury, who returned a verdict for the respondents, and upon which the judgment appealed from was entered.

It is conceded by all parties that James B. Stephens settled upon a donation land claim upon the right bank of the Willamette river, under the donation law, approved September 27, 1850, and by virtue of such settlement and residence and cultivation, in accordance with the requirements of said law, obtained a patent to such claim, which was duly issued to him January 24, 1866; that the claim extends on the west to the meander line of the Willamette river, which is a navigable stream; that a part of the town of East Portland was laid off upon said claim in blocks and lots, and in which said block 2, or a part thereof, is included, which block is situated at the north-west corner of said claim, between K and L streets, in said town. In 1864 said Stephens, after his four years' residence and cultivation, sold off lot 5 of said block; and that the respondents, through mesne conveyance from him, obtained title to it in 1874. In 1871 said Stephens executed a deed of conveyance to the appellant, which purported to convey to him fractional lots 1, 2, 3, and 4, and whole lots 6, 7, and 8, in said block 2, and under which he claims ownership to the property in controversy. In 1852 the legislature of the then territory of Oregon granted to the said James B. Stephens an exclusive right of a public ferry across the Willamette river, which the respondents have obtained title to from said Stephens and his grantee thereof, and which is located on the east side of said river, at the foot of said L street. The respondents' lot 5 lies along said last-mentioned street, on the north side thereof, and contiguous thereto, and fronts Water street upon the east. Said fractional lot 4 is immediately west of lot 5, and fronts the river, and said fractional lot 3 adjoins it on the north. The respondents, and those under whom they claim, have driven piling north of the foot of L street across the front of said lots 3 and 4, in order to sheer their ferry-boat into the slip at the foot of L street as it approaches the same from the west side, which appears to be the wrongful withholding of possession complained of.

The real question in the case was whether said fractional lots were above or below the said meander line. If above, they were within the description contained in the patent; but if below it, they were not, though Stephens may have been the owner of the frontage as riparian proprietor until he sold off said lot 5. It is well settled that the United States never owned the land between high and low water mark. It was decided a great many years ago by the supreme court of the United States that the shores of navigable waters, and the soils under them, were not granted by the constitution to the United States, but were reserved to the states respectively. Pollard's Lessee v. Hagan, 3 How. 219. That decision has ever since been adhered to; and in Railroad Co. v. Schurmeir, 7 Wall. 272, the same rule was declared to apply to fresh-water steams that were navigable. The language used in the latter case is that the title of the United States to lands bordering on navigable streams stops at the stream. The main inquiry at the trial should have been to ascertain the line of high-water mark in front of said block 2. A jury is an excellent institution to determine such a question. The only matter to be decided in such a case is the location of the line indicating high-water mark; and that involves a discrimination between the upland and the bank proper of the stream. The banks of a river serve, of course, to hold its waters within its bed, and the point to which the water usually rises, in an ordinary season of high water, I would regard as high-water mark, and that it constituted the true meander line. This line is easily observed by an examination of the banks of a river long after the water subsides, and an intelligent jury, when permitted to view the locality, will have no difficulty in detecting it.

The appellant was obliged to show upon the trial, in the first instance, that the premises in controversy were above the line referred to. He could not trace his title back to the United States without showing that fact, and before he could prove by a witness that the premises were included in the description contained in the patent, he should have shown that the witness knew where the line of high-water mark was in the immediate locality. The jury having passed upon the question, their verdict must be regarded as conclusive; and it can only be impeached by showing from the record that the jury were misled by the admission of improper evidence, erroneous instructions, or that proper evidence upon the subject was excluded by the court.

The jury were instructed, substantially, that in case they found that the premises in question were included in the description contained in the said patent to Stephens, it passed to Stephens under the patent, provided it was not below high-water mark of the Willamette river. This instruction was clearly correct, and involved the main point in the case. The instruction that the bank of a river was that part of the land between ordinary high and ordinary low water mark, and belonged to the state, was as favorable to the appellant as could properly have been required. The instruction that there was no testimony to warrant the jury in finding that there was no such land where the premises in controversy were situated, as would pass by the act of the legislature referred to by the court, was doubtless correct. At least, there is nothing in the bill of exceptions showing to the contrary. The act referred to was the act of October 26, 1874. It granted to the riparian proprietors upon the Willamette river all right and title of the state in the tide and overflowed lands in front of them. This evidently referred to such tide and overflowed lands as were the subject of sale, and could be rendered susceptible of cultivation by reclamation. It...