Micelli v. Andrus

• Decision Date: 30 January 1912
• Citation: 61 Or. 78,120 P. 737
• Parties: MICELLI et al. v. ANDRUS.
• Court: Oregon Supreme Court

120 P. 737

61 Or. 78

MICELLI et al. v. ANDRUS.

Supreme Court of Oregon

January 30, 1912

Appeal from Circuit Court, Douglas County; Lawrence T. Harris Judge.

Suit by Frank G. Micelli and others against Frank Andrus. From a decree dismissing the complaint, plaintiffs appeal. Reversed and decree entered for plaintiffs.

This is a suit to enjoin an alleged trespass on real property and to recover damages for injury thereto. It is stated in the complaint in effect that plaintiffs are the owners in fee and in the possession of a tract of land in Roseburg particularly describing the premises, the west boundary of which is the "middle of the channel of the South Umpqua river," setting forth such line by courses and distances; that the defendant unlawfully entered upon the premises described, and dug and removed therefrom soil and gravel to plaintiff's damage in the sum of $100; and that he threatens to continue such trespass, which menace he will carry out unless restrained. The answer denies each averment of the complaint and for a further defense alleges in substance that the river mentioned is a navigable stream the banks of which were meandered by the United States government; that the title to the lands lying between ordinary high-water mark and the middle of such stream is not owned by plaintiffs and can never be acquired by them; that the premises described lie between the center of the South Umpqua river and the east meander line thereof which original angular survey forms the west boundary of the donation land claim of Aaron Rose and his wife, under whom plaintiffs claim as successors in interest, and they, as riparian proprietors assert a claim to such soil and gravel which were taken from the bed of the stream, within the lines of ordinary high water and west of the middle of such stream in its natural stage. The allegations of new matter in the answer were denied in the reply, and the cause having been tried the suit was dismissed, and plaintiffs appeal.

O.P. Coshow (Coshow & Rice, on the brief), for appellants.

C.S. Jackson, for respondent.

MOORE J. (after stating the facts as above).

It appears from the testimony that at the place described in the complaint the South Umpqua river flows northerly. Its western bank is high and abrupt. The width of the stream at low water is about 65 feet, and the flow is always close to the west bank. The surface of the land, immediately east of the stream at its low stage, gradually ascends to the well-defined right bank which the water reaches at its flood in the wet season when the stream attains to a width of about 500 feet. The title asserted by plaintiffs to the premises described was obtained by a conveyance executed to them by the administrator of the estate of Aaron Rose deceased. A part of the description in their deed reads as follows: "Thence along the north side of said Micelli Brothers land to the east bank of the South Umpqua river, thence following the meanders of said river, north"--giving courses and distances. The patent from the United States to Rose and his wife for the entire tract, including the premises described in the complaint contains calls and distances in part as follows: "Running thence west 22 chains and 91 links to the right bank of South Umpqua river; thence with the meanders of said river up stream," stating courses and distances, "thence leaving said river east," etc. These grants extend the north and south boundaries of the respective tracts to the same bank of the river, thence following the meanders of that stream, etc.

The testimony fully supports the findings made by the trial court to the effect that the South Umpqua river, at the place indicated is a nontidal, unnavigable stream, though it had been used at times for floating logs and wood; and that the soil at the place from which the defendant dug and removed earth and gravel is not properly an accretion to plaintiff's premises. The controverted findings are in substance that the evidence did not show where the middle line of the river should be located when that stream was at an ordinary stage; that it could not be determined whether the material was taken from a place east or west of such line, and that for these reasons plaintiffs had failed to substantiate their cause of suit. It is admitted, however, that the gravel was obtained from a bar which is covered during floods, but when the river is low the place from which the sand and small pebbles were secured is several feet east of the water as it flows at that stage.

The question to be considered is the proper location on a nonnavigable river, above tide water, of the boundary of land of a riparian proprietor whose chain of title discloses that the bank of the stream on his premises was meandered when the original government survey was made, and the patent granting the land conforms to such measurement. When public lands bordering on bodies of water are meandered by direction of the surveyor general, the angular lines are thus run to denote the medium of the windings of the banks, and as a means of ascertaining the superficial contents of each governmental subdivision of the premises, the outlines of which, along the margin of the water are thereby rendered devious. Railroad Co. v. Schurmeier, 7 Wall. 272, 19 L.Ed. 74; Hardin v. Jordan, 140 U.S. 371, 11 Sup.Ct. 808, 838, 35 L.Ed. 428; Barnhart v. Ehrhart, 33 Or. 274, 54 P. 195. If pursuant to the field notes of the original measurement the United States grants a tract of land, described as extending to the bank of the water and thence with the meanderings thereof by course and distance, the boundary of the real property is not to be determined by the marking on the ground of such angular lines but by the commercial importance of the body of water which either forms the margin, or a part of the premises conveyed. Thus if a grant by the general government describe the land as extending to the bank of a navigable river and thence with the meanders thereof, specifying them, the boundary of the premises conveyed is, by the controlling rule established in Oregon, coincident with the line of ordinary high water in that stream. Johnson v. Knott, 13 Or. 308, 10 P. 418; Montgomery v. Shaver, 40 Or. 244, 66 P. 923; Oregon v. Portland Gen. Elec. Co., 52 Or. 502, 95 P. 722, 98 P. 160; Webb v. Demopolis, 95 Ala. 116, 13 So. 289, 21 L.R.A. 62; Hardin v. Jordan, 140 U.S. 371, 11 Sup.Ct. 808, 838, 35 L.Ed. 428.

Such line is also, by the great weight of authority, the limit of the estate of the general government which never held a legal title to any part of the bed of navigable streams, except possibly in trust for a territory prior to its admission as a state. Hinman v. Warren, 6 Or. 408; Bowlby v. Shively, 22 Or. 410, 30 P. 154; Astoria Exchange Co. v. Shively, 27 Or. 104, 39 P. 398, 40 P. 92.

At common law the bed of navigable rivers was owned by the king who held the title for the benefit of the common people. The immigrants to the American colonies brought with them to our shores the principles of the common law and when the independence of the United States was declared, the rights of the citizens to the beds and waters of navigable bodies of water became vested in them as a rule of property, subject, however, to the superior right of navigation. In Martin v. Waddell, 16 Pet. 367, 410, 10 L.Ed. 997, Mr. Chief Justice Taney, discussing this topic and declining to consider the authority of the king of England, since Magna Charta, to grant some particular subject a priority exclusive of the common privilege in and to navigable waters, says: "And we the more willingly forbear to express our opinion on this subject, because it has ceased to be a matter of much interest in the United States. For when the Revolution took place, the people of each state became themselves sovereign; and in that character held the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the Constitution to the general government. A grant made by their authority must, therefore, manifestly be tried and determined by different principles from those which apply to grants of the British crown when the title is held by a single individual, in trust for the whole nation." To the same effect, see Pollard's Lessee v. Hagan, 3 How. 212, 11 L.Ed. 565; Goodtitle v. Kibbe, 9 How. 471, 13 L.Ed. 220; Shively v. Bowlby, 152 U.S. 1, 14 Sup.Ct. 548, 38 L.Ed. 331; Johnson v. Knott, 13 Or. 308, 10 P. 418.

The legal principle thus declared forms the basis of the right of a state to the beds of navigable rivers which, according to the rule established in Oregon, extend to the lines of ordinary high water from bank to bank constituting the true meander lines. Parker v. Taylor, 7 Or. 435; Johnson v. Knott, 13 Or. 308, 10 P. 418; Parker v. West Coast Packing Co., 17 Or. 510, 21 P. 822, 5 L.R.A. 61; Salem Improvement Co. v. McCourt, 26 Or. 93, 41 P. 1105; Lewis v. City of Portland, 25 Or. 133, 35 P. 256, 22 L.R.A. 736, 42 Am.St.Rep. 772; Montgomery v. Shaver, 40 Or. 244, 66 P. 923; Johnson v. Tomlinson, 41 Or. 198, 68 P. 406; Muckle v. Good, 45 Or. 230, 77 P. 743; Hume v. Rogue River Packing Co., 51 Or. 237, 83 P. 391, 92 P. 1065, 96 P. 865, 31 L.R.A. (N.S.) 396, 131 Am.St.Rep. 732; Oregon v. Portland Gen. Elec. Co., 52 Or. 502, 95 P. 722, 98 P. 160; Sun Dial Ranch Co. v. May Land Co., 119 P. 758.

Though the title to the soil under navigable rivers is not involved herein, the subject has been mentioned in...