Miller v. Lewiston-Clarkston Canning Co., Ltd.

• Decision Date: 27 July 1922
• Citation: 35 Idaho 669,209 P. 194
• Parties: EDNA PEARCY MILLER and FRANK MILLER, Appellants, v. LEWISTON-CLARKSTON CANNING COMPANY, LTD., a Corporation, and J. ALEXANDER COMPANY, LTD., a Corporation, Defendants and Respondents; JOHN B. MORRIS, as Mayor-Trustee of the City of Lewiston, Intervenor and Respondent
• Court: Idaho Supreme Court

209 P. 194

35 Idaho 669

EDNA PEARCY MILLER and FRANK MILLER, Appellants, v. LEWISTON-CLARKSTON CANNING COMPANY, LTD., a Corporation, and J. ALEXANDER COMPANY, LTD., a Corporation, Defendants and Respondents;

JOHN B. MORRIS, as Mayor-Trustee of the City of Lewiston, Intervenor and Respondent

Supreme Court of Idaho

July 27, 1922

EJECTMENT-TITLE TO LAND LYING UNDER NAVIGABLE WATER-COLLATERAL ATTACK-NECESSITY OF PLACING PARTIES IN STATU QUO.

1. In an ejectment action the plaintiff must recover upon the strength of his own title, and not upon the weakness of that of his adversary.

2. When land bordering upon navigable water is granted by a patent of the United States government, the adjacent land under the navigable water does not pass by virtue of the patent alone.

3. In this jurisdiction the state holds title to the beds of navigable streams below the ordinary high-water mark for the use and benefit of the whole people.

4. Void acts of public officials are not immune from collateral attack.

5. Where plaintiff in an ejectment action relies upon a void deed, executed by the mayor of a city as trustee for the inhabitants thereof, a subsequent mayor may attack the deed as void without returning or offering to return the consideration paid therefor.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action in ejectment. Judgment for defendants and intervenor. Affirmed.

Judgment affirmed, with costs to respondents.

Benj. F. Tweedy, for Appellants.

The mayor-trustee acts as an agent for, and instead of, the officers of the general land department of the United States and the same conclusive presumptions arise from his execution of a deed as arise from the execution of a deed by officers of the general land office. (Anderson v. Bartels, 7 Colo. 256, 3 P. 225; Chever v. Horner, 11 Colo. 68 7 Am. St. 217, 17 P. 495; Lamm v. Chicago etc. R Co., 45 Minn. 71, 74 N.W. 455, 10 L. R. A. 268; Green v Barker, 47 Neb. 934, 66 N.W. 1032.)

The execution of the deeds makes them final (Clear Lake Power & Imp. Co. v. Chriswell, 31 Idaho 339, 173 P. 326); and, though there is actually no land above ordinary highwater mark, yet the mayor-trustee held and owned riparian rights (Northern Pacific R. Co. v. Hirzel, 29 Idaho 438, 161 P. 854), which he could sell and convey to Edmond Pearcy (Eisenhart v. City and County of Denver, 27 Colo. App. 470, 150 P. 729), vesting in him and in his heirs the right to use and occupy the land below ordinary high-water mark for public warehouses, public wharves and public ferry and the right to charge and collect rents and compensation from the general public, which public use in no way conflicts with the state or the general public.

We can assume, if necessary, that the mayor-trustee decided that there was some land within the deed description which, at that time, in 1879, was above the ordinary high-water mark, and, as the high-water mark line constantly is changing (City of Oakland v. Buteau, 180 Cal. 83, 179 P. 170), the evidence considered by the court is not sufficient to reverse the mayor-trustee's decision, nor sufficient to prove that in 1879 there was no land within the deed description that was above the ordinary high-water mark.

The mayor-trustee is absolutely bound, in the absence of fraud, by the deeds executed to Edmond Pearcy. (C. S., sec. 5378; Anderson v. Bartels, supra; Callahan v. James, 7 Cal. Unrep. 82, 71 P. 104.)

After laches attach, the mayor-trustee for fraud cannot attack his deeds in equity (Emerson v. Kennedy Min. etc. Co., 169 Cal. 718, 147 P. 939; Marysville Investment Co. v. Holle, 58 Kan. 773, 51 P. 281); nor can the mayor-trustee have the deeds set aside for fraud while he and the beneficiaries keep the money paid for the land. (Andola v. Picott, 5 Idaho 27, 46 P. 928.)

At the time of taking proceedings to sell the land to Mr. Pearcy, the United States and the mayor-trustee were the proprietors of the Lewiston town site; and the proprietor can divide his lands into upland tracts and water tracts, and sell and convey them separately. (Northern Pacific R. Co. v. Scott etc. Lumber Co., 73 Minn. 25, 75 N.W. 737; Dawson v. Broome, 24 R.I. 359, 53 A. 151; 29 Cyc. 372, subd. E.)

The water lots were defined and as well platted and described, especially the one sold and conveyed to Mr. Pearcy, as was the tract sold to the city of Denver, embracing the bed of Cherry Creek. (City of Denver v. Pearce, 13 Colo. 383, 22 P. 774, 6 L. R. A. 541.)

The conclusion of the mayor-trustee that the patent from the United States conveyed to him the land that he sold and conveyed to Mr. Pearcy, especially all of it below ordinary high water, has been favored by this court in the construction of other patents, conveying riparian upland. (Johnson v. Hurst, 10 Idaho 308, 77 P. 784; Lattig v. Scott, 17 Idaho 506, 107 P. 47; Johnson v. Johnson, 14 Idaho 561, 95 P. 499, 24 L. R. A., N. S., 1240; Ulbright v. Baslington, 20 Idaho 539, 119 P. 292, 294.)

Eugene A. Cox and Chas. H. Chance, for Respondents.

The lands sued for were and are below natural high-water mark of the Snake River, a navigable stream. At the date of the pretended deeds Idaho was a territory and the title was in the United States. (29 Cyc. 355, 357, 367; Farnham, Waters and Watercourses, 49; St. Paul etc. R. R. Co. v. Schurmeier, 7 Wall. U.S. 272, 19 L.Ed. 74; Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331; Morris v. United States, 174 U.S. 196, 19 S.Ct. 649, 43 L.Ed. 946.)

The lands, therefore, could not be disposed of by the mayor-trustee of the city of Lewiston town site. The title to the lands is still in the state of Idaho, there never having been any act authorizing their disposal. (Northern Pacific Ry. Co. v. Hirzel, 29 Idaho 438, 161 P. 854.)

The deeds under which appellants claim are illegal, collusive and void. (28 Cyc. 337, 650; Coles v. Trustees of Village of Williamsburgh, 10 Wend. (N. Y.) 659; McQuillin, Mun. Corp., p. 1318.)

RICE, C. J. Budge, McCarthy, Dunn and Lee, JJ., concur.

OPINION

RICE, C. J.

This is an action in ejectment, originally brought by appellants Edna Pearcy Miller and Frank Miller, her husband, against the Lewiston-Clarkston Canning Co., Ltd., and J. Alexander Co., Ltd., domestic corporations, to recover possession of certain land occupied by respondents situated on the Snake River waterfront. The mayor of the city of Lewiston was permitted to intervene as trustee for the city and the inhabitants thereof.

The appellant Edna Pearcy Miller claims title to the land by inheritance from her father, Edmund Pearcy, now deceased, to whom two deeds were executed by the mayor-trustee of the city of Lewiston, one in the year 1872 and the other in the year 1882, which purported to convey title to the land in controversy. Respondents Lewiston-Clarkston Canning Co., Ltd., and J. Alexander Co., Ltd., claim the right to possession by virtue of certain leases executed by the mayor-trustee of the city of Lewiston, which at the time of the commencement of the action were still in force. In his complaint in intervention the mayor-trustee alleged that in 1875 the United States issued patent under the act of March 2, 1867, and amendments thereto, to Henry W. Stainton, mayor-trustee of the city of Lewiston, for certain lands constituting the town site of Lewiston, which included the land along the Snake River opposite the land in question. He also set out certain acts of the legislature of Idaho territory and the state of Idaho, giving him, as he claims, the right of possession and control of the lands in controversy.

Snake River is a navigable stream. The court found, on the testimony of certain witnesses, naming them, that all of the land in controversy was below the ordinary high-water mark of the Snake River. Although the court enumerates the witnesses relied upon, it will not be presumed that it did not take into consideration all of the evidence presented in determining the fact, and the evidence as a whole is amply sufficient to sustain the finding.

In view of the conclusion we have reached, it is unnecessary, and perhaps would be confusing, to detail additional facts found by the court. The court decreed that appellants had no right, title or interest of any kind or nature whatsoever in or to the lands or premises or any part thereof described in the complaint, and that the deeds executed to Edmund Pearcy in 1879 and 1882 were and are wholly void. It was also decreed that the fee title to such lands and premises is in the state of Idaho, and that the intervenor and his successors in office are entitled to possession and control of all of said lands and premises and to all riparian rights incident thereto or connected therewith, subject to the paramount fee title of the state of Idaho and to the rights of navigation in accordance with the constitution and laws of the United States.

The appeal is from the decree so entered.

In an ejectment action the plaintiff must recover upon the strength of his own title, and not upon the weakness of that of his adversary. (9 R. C. L. 838.)

When land bordering upon navigable water is granted by a patent of the United States government, the adjacent land under the navigable water does not pass by virtue of the patent alone. Whether the owner of the shore along navigable water owns the lands lying thereunder depends upon the law of the jurisdiction in which the same is situated. (Scott v Lattig, 227 U.S. 229, 33 S.Ct. 242, 57 L.Ed. 490, 44 L. R. A., N. S. , 107; Hardin v. Shedd, 190 U.S. 508, 23 S.Ct. 685, 47 L.Ed. 1156; United States v. Chandler-Dunbar Water Power Co., 209 U.S. 447, 28 S.Ct. 579, 52 L.Ed. 881; St. Paul & P. R. Co. v. Schurmeir, 74 U.S. 272, 7 Wall. 272, 19 L.Ed....