McAdam v. Smith

• Decision Date: 23 March 1960
• Citation: 350 P.2d 689,221 Or. 48
• Parties: Robert H. McADAM and Addie McAdam, Respondents, v. Wilbur J. SMITH et al., Appellants.
• Court: Oregon Supreme Court

Page 689

350 P.2d 689

221 Or. 48

Robert H. McADAM and Addie McAdam, Respondents, v. Wilbur J. SMITH et al., Appellants.

Supreme Court of Oregon, Department 1.

Argued and Submitted March 2, 1960.

Decided March 23, 1960.

John F. McCarthy, Longview, Wash., for appellants. With him on the briefs was Joe F. Walker, Rainier.

Paul J. Jolma, Clatskanie, for respondents.

Before McALLISTER, C. J., and ROSSMAN, PERRY, O'CONNELL and HARRIS, JJ.

O'CONNELL, Justice.

The plaintiffs bring this suit to quiet title to certain tidelands along the Columbia river abutting upon upland title to which is vested in the plaintiffs. The defendants appeal from a decree for the plaintiffs.

At one time the upland and tideland were in separate ownership. By patent issued in 1882 Jacob S. Rinearson acquired title to the following land:

'* * * the West half of the South West Quarter. And the Lots numbered two and four of Section Thirty-four in Townshop Eight North of Range Three West of the Willamette Meridian in Oregon containing One Hundred and Fifty-nine acres and Ninety Hundredths of an acre.'

Although meander lines were run along the sinuosities of the river, the patent was effective to grant to Rinearson the title to the high-water mark of the river. Jefferis v. East Omaha Land Co., 1889, 134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872. The land below high-water mark, including the tideland in question, was vested in the state of Oregon.

In 1890 the state of Oregon conveyed to Rinearson 'All the tideland fronting and abutting upon Section Thirty Four * * * containing 1.32 acres.'

In 1896 Rinearson executed a deed to the Astoria and Columbia River Railroad Company conveying the following described land:

'* * * a right of way and a strip of land one hundred feet in width, being fifty feet on each side of the center line of the railroad, of the said Railroad Company, as the same is now located, across, over and through the following described real estate, situate in County of Columbia and State of Oregon, to-wit: [describing land including Lot 4].'

In 1900 Rinearson died testate leaving all of his estate except a small parcel of land not involved in this suit to three devisees.

On April 9, 1901, the executor filed his final account reciting that the only real property belonging to the estate consisted of the land described in the patent. No mention was made of the tideland. On the same date an order was entered approving the sale by the executor of the land described, and on April 19, 1901, he executed a deed to Amos N. King which contained a description essentially the same as that set out in the patent. By mesne conveyances the title to the land so described vested in the plaintiffs. None of the deeds in the chain of title mention the tideland, nor does the description refer in any way to the Columbia river or its bank or shore.

We are called upon to decide whether a conveyance of the upland without reference to a water boundary passes title to abutting tideland owned by the grantor.

There is a dictum in Richards v. Page Investment Co., 1924, 112 Or. 507, 228 P. 937, 941, which could be regarded as expressing the view that a conveyance of the upland, without more, does not operate to pass title to the tideland. In that case the conveyance which the court was called upon to construe described the land as 'commencing on the right bank of the Willamette river, on the north side of a cottonwood tree five (5) inches in diameter and 30 feet south of the south line of block No. 11 in East Portland; thence east and parallel with the streets of said town plat, 193 feet to a point 30 feet south of the southwest corner of block No. 12; thence south on an extension of the east line of Water Street, 260 feet; thence west 164 feet to the bank of the river; thence by the bank of the river 262 feet to the place of beginning, containing 1.06 acres.' The court held that the deed did not operate to convey the land between the high and the lower water mark. In so holding the court emphasized the fact that the deed used the word 'bank' as one of the calls in the description, and regarded the use of that term as indicative of an intent to establish a definite line along the bank. The court said, 'The bank is a fixed line, capable of definite location.' 112 Or. at page 519, 228 P. at page 941. There is authority for the view that the use of words such as 'bank,' 'edge,' 'margin' and the like indicate an intention to exclude land past the designated call. Tuskegee Land & Security Co. v. Birmingham Realty Co. 1909, 161 Ala. 542, 49 So. 378, 23 L.R.A.,N.S., 992; 5 Ala.App. 499, 59 So. 557, 558; Alameda Macadamizing Co. v. Williams, 1886, 70 Cal. 534, 12 P. 530; Rockwell v. Baldwin, 1869, 53 Ill. 19; Cottle v. Young, 1871, 59 Me. 105; Hunt v. Brown, 1892, 75 Md. 481, 23 A. 1029; Inhabitants of Lynnfield v. Inhabitants of Peabody, 1914, 219 Mass. 322, 106 N.E. 977; People v. System Properties, Inc., 1916, 2 N.Y.2d 330, 160 N.Y.S.2d 859, 141 N.E.2d 429; Trowbridge v. Ehrich, 1908, 191 N.Y. 361, 84 N.E. 297; Welder v. State, Tex.Civ.App.1917, 196 S.W. 868; Whittier v. Montpelier Ice Co., 1916, 90 Vt. 16, 96 A. 378; Commissioners, etc., King County v. Seattle Factory Sites Co., 1913, 76 Wash. 181, 135 P. 1042; Allen v. Weber, 1891, 80 Wis. 531, 50 N.W. 514, 14 L.R.A. 361, 27 Am.St.Rep. 51. The cases so holding have been widely criticized and we think, justifiably. 4 Tiffany on Real Property (3d ed.), §§ 995, 996; Comment, 79 Pen.L.Rev. 818 (1931); Note, 7 Tex.L.Rev. 493, 502 (1929); 28 Ky.L.Rev. 487 (1940).

But we need not concern ourselves here with the application of that rule because there is no reference in the deed before us to a part of the surface of the land which could be regarded as indicating the outside limits of the land intended to be conveyed. However, the Richards case does contain a statement which, if taken out of context, supports defendants' contention. After referring to the legislation of 1872 as amended in 1874 and 1876, which granted to the upland owners the lands in the Willamette river lying between the high and low water marks, the court said, 'but no construction of those acts has made such lands merely appurtenant to the upland so that conveyance of the latter by metes and bounds would carry the former by implication.' 112 Or. at page 521, 228 P. at page 942. As we have already indicated, the deed which the court was called upon to construe contained language which the court regarded as specifically limiting the metes and bounds description. The statement is, therefore, at most, a dictum.

In contrast to the Richards case we have Rasmussen v. Walker Warehouse Co., 1913, 68 Or. 316, 136 P. 661 which was relied upon by the trial court as the basis for his decision. In that case the land in question was platted as an addition to the city of Bandon. The plat showed seventeen lots in the blocks bordering on the Coquille river to the north. The plat showed these lots without a line across the north side, the side lines of the lot being shown as extending to the river. The land in dispute was tideland touching the lots on the north. The court held that the conveyance of the lots carried with it a conveyance of the tidelands. The court said:

'In order to accomplish a separation, the intention to effect it must be made distinctly to appear. If the grant is in the ordinary form bounded only by the water, the land below, as well as that above the water, will pass.' 68 Or. at page 326, 136 P. at page 665.

The deed by which plaintiff in that case claimed title contained no reference to the water, the description being by reference to the plat. The defendants point out that in the Rasmussen case the plat (which becomes incorporated into the deed by reference) showed on its face that the lots were intended to extend to and under the waters of the Coquille river. We agree with the defendants' contention that the Rasmussen case is distinguishable from the Richards case and the case at bar. And, as we have already indicated, we are of the opinion that the case at bar is distinguishable from the Richards case.

What then is the appropriate rule when upheld bordering on tideland is conveyed without reference in the deed to the tideland or the water which affects it? We assume, of course, that the upland and tideland is in common ownership at the time of the conveyance.

Where the description in a deed calls for a line running to a named river, title to the bed of which is in private ownership, the conveyance is regarded as passing title to the center of the river, in the absence of evidence showing a contrary intent. Hanlon v. Hobson, 1897, 24 Colo. 284, 51 P. 433, 42 L.R.A. 502; Kerr v. Fee, 1917, 179 Iowa 1097, 161 N.W. 545; State ex rel. Com'rs of Land Office v. Warden, 1948, 200 Okl. 613, 198 P.2d 402; Kingsley v. Jacobs, 1944, 174 Or. 514, 149 P.2d 950; Wyckoff v. Mayfield, 1929, 130 Or. 687, 280 P. 340; State ex rel. Davis v. Superior Court, 1915, 84 Wash. 252, 146 P. 609; ORS 93.310.

In the usual circumstance where the grantor owns the entire bed but no land on the opposite shore, it would seem clear that the title to the entire bed would pass. Similar rules are applied where the description calls for a line running to a designated street, alley or, in some jurisdictions, a private way. 1 Patton, § 143, p. 373. Title to the land in the street passes to the grantee; in the usual case the land up to the center line is deemed to pass: McGee v. Swearengen, 1937, 194 Ark. 735, 109 S.W.2d 444; Skrmetta v. Moore, 1947, 202 Miss. 585, 30 So.2d 53; Stockhold v. Jackson Tp., 1947, 136 N.J.L. 264, 55 A.2d 241; Nickson v. Garry, 1947, 51 N.M. 100, 179 P.2d 524; Buel v. Mathes, 1949, 186 Or. 160, 197 P.2d 687, 205 P.2d 551; Cross v. Talbot, 1927, 121 Or. 270, 254 P. 827, or where the grantor owns the entire underlying area and no land on the opposite side of the street, all of the underlying area passes to the grantee. Taylor v. Armstrong...