Kingsley v. Jacobs

• Decision Date: 27 June 1944
• Citation: 149 P.2d 950,174 Or. 514
• Parties: KINGSLEY ET AL. <I>v.</I> JACOBS ET AL.
• Court: Oregon Supreme Court

174 Or. 514

149 P.2d 950

KINGSLEY ET AL.

v. JACOBS ET AL.

Supreme Court of Oregon.

Argued May 9, 1944.

Reversed June 27, 1944.

Waters and water courses

1. When realty is conveyed by a description which actually coincides with a nonnavigable stream, stream is boundary and grantee takes title to the center or thread thereof.

Waters and water courses

2. Land, to be riparian to a nonnavigable stream, must be in actual contact with water, and mere proximity without contact is insufficient.

Waters and water courses

3. Conveyance describing land conveyed as being bounded by west bank of east channel of Willamette river conveyed riparian land absent language showing an intention of grantor to reserve land lying between bank and thread of stream.

Waters and water courses

4. Where plaintiff and third party, who jointly owned riparian land, divided land and plaintiff caused a definite line to be surveyed as his boundary without reference to situation of river bank, which line did not coincide with river bank, third party was riparian owner and plaintiff was not entitled to claim, as against defendants, who were adjoining riparian owners, ownership of land which, by accretion and reliction, was afterward added to bank of river.

Waters and water courses

5. In action to quiet title to channel of former river which divided adjoining property, evidence failed to sustain finding that existing slough, claimed by one of the parties as a boundary, was part of river channel in view of map of survey made by U.S. engineers showing slough as a high water slough and not a part of river.

Waters and water courses

6. Where land was added to that of riparian owner by accretion before river cut new channel, plaintiff as purchaser from heir of deceased riparian owner, was entitled to such accretions upon establishing extent thereof.

Boundaries

7. The "right bank" of a stream as used in land description is bank on right hand as one faces downstream.

Waters and water courses

8. Adjoining riparian owners took title to center or thread of stream subject to exception that each became owner of those accretions

which attached to bank on his side of stream irrespective of where center or thread may have been.

Adverse possession

9. In action to quiet title to lands formerly occupied by river which separated the lands of respective parties, evidence was insufficient to establish title in either party by adverse possession.

Boundaries

10. In dispute over title to lands formerly occupied by river which separated the lands of respective parties, where parties never disputed as to location of boundary or agreed upon a boundary, doctrine of "practical location" did not apply.

Boundaries

11. The doctrine of practical location, being in the nature of estoppel, must be pleaded to be relied upon to fix a boundary.

Appeal and error

12. Where boundary of adjoining lands was fixed by nonnavigable river which later cut a new channel, trial court was required to appoint a competent and disinterested surveyor to determine upon the ground, location of river, and thereafter to take evidence to fix location and extent of whatever accretions may have formed and decree to whom accretions and derelictions of former stream bed belonged.

Quieting title

13. Where defendants in quiet title action disclaimed any interest in plaintiff's tract, plaintiff was entitled to a decree confirming him in his ownership thereof as against any claims on defendants' part.

                  Specific description with reference to water, in conveyance of
                riparian land, as marking the extent of grantee's ownership of
                the submerged land and the shore, note, 74 A.L.R. 597. See, also
                8 Am. Jur. 761
                  11 C.J.S., Boundaries, § 27
                

Appeal from Circuit Court for Lane County.

G.F. SKIPWORTH, Judge.

Suit by F.R. Kingsley against Joe Jacobs and others to quiet title to certain realty, wherein defendants cross-complained. From a decree for defendants, the plaintiff F.R. Kingsley and defendant Lula Kingsley appeal.

REMANDED WITH DIRECTIONS.

L.L. Ray, of Eugene, for appellants.

Lawrence T. Harris, of Eugene (Harris & Bryson, of Eugene, and Reese Wingard, of Eugene, on the brief), for respondents.

Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY and HAY, Associate Justices.

HAY, J.

The plaintiff, F.R. Kingsley, brought this suit to quiet title to certain real property. The amended complaint sets forth that the tract in dispute is a part of the west half of the Alexander Goodpasture and Wife Donation Land Claim, in Lane County, Oregon. In the neighborhood of the northwest corner of this claim, it was bounded for a short distance by the right bank of the meandered channel of the Willamette River. Some time prior to 1894, the river cut a new channel, traversing the claim from south to north, and thereafter ceased to flow in the meandered channel. About the year 1900, the river divided into two channels at a point about a mile south of the south line of the D.L.C., cutting a new channel northwesterly, west of the original meandered channel. Thereafter, for some time, it followed both channels, but gradually abandoned the east channel (that which traversed the claim), until eventually no water flowed through it except at times of flood.

Elizabeth Gillespie, (relict of Alexander Goodpasture), then owner of the D.L.C., on March 26, 1904, conveyed to Richard H. Shacklett all the land therein lying west of the east channel. The description follows:

"Beginning at the southwest corner of the Alexander Goodpasture donation land claim, being claim No. 58 in t 17 s r 4 w., and claim No. 78 in t 17 s r 3 w., thence east on south line of said claim about 50 chains to the west bank of the east channel of the Willamette River, thence northerly along said bank to the north line of said claim, thence westerly along the north line of said claim to the northwest corner thereof thence south to the southwest corner and place of beginning, containing 30 acres of land more or less, in Lane County, Oregon.

"Together with right of way from these premises on the present travelled roadway eastward to the county road."

The east channel at that time was in fact non-navigable.

On October 1, 1909, Shacklett conveyed to plaintiff real property described as follows:

"Beginning at the N.W. corner of the Alex King Donation Land Claim No. 55 in T. 17 S.R. 3 W. thence South 102 links; thence S. 63° 05' W. 4.67 chains; thence S. 37° 34' W. 8.40 chains; thence west 16.50 chains to the East line of sec. 13 T. 17 S.R. 4 W.; thence N. 12° 3' W. 5.41 chains; thence N. 29° 55' W. 8.35 chains; thence N. 50° E. to intersection of North line of the Alex Goodpasture Donation Land Claim No. 78 in said Township; thence Easterly on North boundary of said claim No. 78 to intersection of a line extending N. 18° 52' W. from a point of North line of said claim No. 55, 5.32 chains East of N.W. corner thereof; thence S. 18° 56' E. to a point 1.92 chains North of said North line of Cl. No. 55; thence S. 27° 04' W. 1.77 chains; thence N. 88° 24' W. 1.30 chains; thence S. 87° 10' W. 2.34 chains to place of beginning containing 48.73 acres more or less, in Lane County, Oregon."

It is alleged that the east line of this tract, running from the south to the north line of the Goodpasture D.L.C., was surveyed and ran along the west bank of the east channel, as it then existed, and that the land conveyed actually bordered on said stream. It is alleged further that, long prior to October 1, 1909, the meandered channel of the Willamette River, which formed the north boundary of the premises conveyed by Shacklett to plaintiff, had been abandoned by the river and had become filled in. A portion of the dry bed of the meandered channel was purchased by plaintiff from the State Land Board. Shacklett died in 1919, and his property passed to his widow, Amelia Shacklett. Thereafter, Amelia Shacklett died testate, and, by her will, she devised her entire estate to her daughter, Susie Larsen. On April 2, 1941, Susie Larsen and her husband quitclaimed to plaintiff the following described property:

"Beginning at a point on the South line of the Alexander Goodpasture D.L.C., being claim number 58 in Township Seventeen (17) South Range 4 West of Willamette Meridian, and claim number 78 in Township Seventeen (17) South Range 3 West of Willamette Meridian 2923.8 feet East from the Southwest corner thereof, which point is also the Northwest corner of the Alex A. King D.L.C. number 55, thence East 650.0 feet, more or less to the West side of a slough which was formerly the Willamette River and then the East Channel of the Willamette River, thence in a northerly direction meandering the West side of said slough to a point where said line intersects the North line of said Alexander Goodpasture D.L.C., thence West on the North line of said Alexander Goodpasture D.L.C. 842 feet more or less to a point which is 396 feet south and 8533.8 feet West of the Northeast corner of said Alexander Goodpasture claim number 78, thence South 28° 30' West 248.26 feet, thence South 18° 56' East 940.0 feet, thence South 27° 04' West 116.82 feet, thence North 88° 24' West 85.8 feet, thence South 87° 10' West 154.44 feet to the point of beginning, all in Section 18, Township 17 South of Range 3 West of the Willamette Meridian, in Lane County, Oregon, together with all the littoral, riparian and shore rights thereunto belonging or in any wise pertaining."

It is alleged that, at the time of the delivery of the deed from Shacklett to plaintiff, the east channel of the Willamette River, where it crossed the Donation Land Claim, was a flowing stream which, at normal high water, filled its entire bed. The flow gradually decreased and finally ceased altogether except at times of flood. As the water receded, it formed a slough along the east side of the bed of the channel, and water stands in this slough throughout the year. The westerly portion of the bed of the stream, from the...