Moss v. Ramey

• Decision Date: 23 March 1908
• Court: Idaho Supreme Court
• Parties: A. B. MOSS & BROTHER, a Copartnership Consisting of A. B. MOSS and FRANK C. MOSS, Appellants, v. A. H. RAMEY, Respondent

95 P. 513

14 Idaho 598

A. B. MOSS & BROTHER, a Copartnership Consisting of A. B. MOSS and FRANK C. MOSS, Appellants, v. A. H. RAMEY, Respondent

Supreme Court of Idaho

March 23, 1908

1. The decision in the case of O. P. Johnson, Appellant, v. Wm. M Johnson and Walter Gridley, Respondents, ante, p. 561, 95 P 499, followed and approved.

(Syllabus by the court.)

APPEAL from the District Court of Seventh Judicial District for Canyon County. Hon. Frank J. Smith, Judge.

Action to quiet title. Judgment for defendant. Reversed.

Judgment reversed, and a new trial ordered. Costs awarded to appellants.

Richards & Haga, for Appellants.

In surveying fractional portions of public lands bordering upon rivers, meander lines are run not as boundaries of the tract but for the purpose of defining the sinuosities of the stream and as the means of ascertaining the quantity of the land and the fraction subject to sale, and which is to be paid for by the purchaser. (Johnson v. Hurst, 10 Idaho 308, 77 P. 784; Railroad Co. v. Schurmeier, 7 Wall. 272, 19 L.Ed. 74; Albany Bridge Co. v. People, 197 Ill. 204, 64 N.E. 350; Hansen v. Rice, 88 Minn. 279, 92 N.W. 982.)

When the government has surveyed its lands along the bank of a river and has sold and conveyed such lands by government subdivisions, its patent conveys the title to all land and islands lying between the meander line of the government survey and the meander thread of the river. (Butler v. Grand Rapids etc. R. R. Co., 85 Mich. 246, 24 Am. St. Rep. 84, 48 N.W. 569, 159 U.S. 87, 15 S.Ct. 988, 40 L.Ed. 85; New Orleans v. United States, 10 Pet. 662, 9 L.Ed. 573; Houck v. Yates, 82 Ill. 179; Fuller v. Dauphin, 124 Ill. 542, 7 Am. St. Rep. 388, 16 N.E. 917; Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 35 L.Ed. 428; Mitchell v. Smale, 140 U.S. 406, 11 S.Ct. 819, 840, 35 L.Ed. 442; Whitaker v. McBride, 197 U.S. 510, 25 S.Ct. 530, 49 L.Ed. 857; Gleason v. White, 199 U.S. 54, 25 S.Ct. 782, 50 L.Ed. 87; St. Clair Co. v. Lovington, 23 Wall. 46, 23 L.Ed. 59; Jefferis v. East Omaha Land Co., 134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872; Middleton v. Pritchard, 4 Ill. 510, 38 Am. Dec. 112; Knudson v. Omanson, 10 Utah 124, 37 P. 250.)

In this state the common-law rule prevails that the title to nontidal streams rests in the riparian owners, with an easement in the public to use the waters of such stream for navigation where such streams are navigable. (Secs. 18, 2934, Rev. Stat.; Goff v. Cougle, 118 Mich. 307, 76 N.W. 489, 42 L. R. A. 161, and cases cited in notes; Hanlon v. Hobson, 24 Colo. 284, 51 P. 433, 42 L. R. A. 502, and cases cited in note; Chandos v. Mack, 77 Wis. 573, 20 Am. St. Rep. 139, 46 N.W. 803, 10 L. R. A. 207, and cases cited in note; note to 1 L. R. A., N. S., 762.)

One of the important rights of a riparian owner is access to the navigable part of the river from the front of his land. (St. Louis v. Rutz, 138 U.S. 226, 11 S.Ct. 337, 34 L.Ed. 941, 949; Dutton v. Strong, 66 U.S. (1 Black) 23, 17 L.Ed. 29; St. Paul & R. R. Co. v. Schurmeier, 7 Wall. 272, 19 L.Ed. 74; Yates v. Milwaukee, 77 U.S. (10 Wall.) 497, 19 L.Ed. 984, 986; Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 35 L.Ed. 428, 436; Shively v. Bowlby, 152 U.S. 1, 14, 14 S.Ct. 548, 38 L.Ed. 331, 337; Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. Cas. 418; 1 Farnham on Waters, pp. 180, 283; Lamprey v. State, 52 Minn. 181, 38 Am. St. Rep. 541, 53 N.W. 1139, 18 L. R. A. 670; Kirwan v. Murphey, 83 F. 278; Knudson v. Omason, 10 Utah 124, 37 P. 250.)

Where the government has not reserved any right or interest that might pass by the grant, nor done any act showing an intention of reservation, such as platting or resurveying, the grant must be construed most favorably to the grantee, and that the government intended to pass all that might pass by such grant. (Hardin v. Jordan, supra; Middleton v. Pritchard, 4 Ill. 510, 38 Am. Dec. 112; McBride v. Whitaker, 65 Neb. 137, 90 N.W. 966; Lamprey v. State, 52 Minn. 181, 38 Am. St. Rep. 541, 53 N.W. 1139, 18 L. R. A. 670.)

The United States supreme court has either limited the riparian owner to the meander line or else extended to him the full benefit of his riparian rights. The few cases where he has been limited to the meander line are those exceptional cases where the survey was fraudulent or where such an obvious mistake had been made therein as to justify the government in making a new survey. (Security etc. Co. v. Burns, 193 U.S. 167, 24 S.Ct. 425, 48 L.Ed. 662, 87 Minn. 97, 63 L. R. A. 157; Horn v. Smith, 159 U.S. 40, 15 S.Ct. 988, 40 L.Ed. 68; Hardin v. Jordan, supra.)

About the only cases where this particular doctrine has been applied are those involving the ownership of lake-beds. In Stoner v. Rice, 121 Ind. 51, 22 N.E. 968, 6 L. R. A. 387, it is expressly stated that it did not apply to rivers, but only to lakes, but it has been repudiated by most states even as to lakes.

Frank Harris, for Respondent.

Navigability or non-navigability of Snake river is an immaterial issue in this case, for the reason that in any event the west line of the appellants' premises does not extend west of the east channel of Snake river. (Johnson v. Hurst, 10 Idaho 308, 77 P. 784; Horne v. Smith, 159 U.S. 40, 15 S.Ct. 988, 40 L.Ed. 68; Bates v. Railroad Co., 1 Black, 204, 17 L.Ed. 158; Whitney v. Detroit Lumber Co., 78 Wis. 240, 47 N.W. 425; Niles v. Cedar Point Club, 175 U.S. 300, 20 S.Ct. 124, 44 L.Ed. 174; Glenn v. Jeffery, 75 Iowa 20, 39 N.W. 160; Bissell v. Fletcher, 19 Neb. 725, 28 N.W. 303; Fulton v. Frandolig, 63 Tex. 330; Lammers v. Nissen, 4 Neb. 245.)

Appellants base their claim in this case upon the familiar rule that a meander line is not a line of boundary, but one designed to point out the sinuosities of the bank of a stream, and is the means of ascertaining the quantity of land in the fraction which is to be paid for by the purchaser, and that the patent for the tract of land bordering upon the river conveys the land, not simply to the meander line, but to the water line, which in this case they insist is the main channel of Snake river. We concede the rule, but deny its application to this case for the reason that the facts in this case bring it clearly within the exception to the rule, which exception is as well established as the rule. Where the lots conveyed by the patent are in one section or subdivision and the land claimed is within another, as in this case, the rule does not apply, but the exception does. Again, where the official plat shows that the meander line was intended to meander a body of water, and such meander line does approximately meander the bank of a body of water as in this case, such body of water actually meandered is the boundary, notwithstanding it may have been misnamed by the government surveyors or may have been mistaken for a larger or different body of water, and the rule insisted upon by the appellants does not apply but the exception does. And again, when the area of the lots patented is shown by the official plat to be less than the lots claimed as in this case, the authorities are divided as to whether the rule or the exception shall control. However, in this case, all of these conditions which take a case out of the rule and bring it within the exception are combined. (Horne v. Smith, 159 U.S. 40, 15 S.Ct. 988, 40 L.Ed. 68; Glenn v. Jeffery, 75 Iowa 20, 39 N.W. 160; Whitney v. Detroit Lumber Co., 78 Wis. 240, 47 N.W. 425; Lally v. Rossman, 82 Wis. 147, 51 N.W. 1132.)

STEWART, J. Ailshie, C. J., concurs. Sullivan, J., dissents.

OPINION

STEWART, J.

This is an action to quiet title to lots 3 and 4 in sec. 22, lots 1 and 2 in sec. 27, lots 1 and 2 in sec. 28, and lot 1 in sec. 33, all in township 8 north, of range 5 west, Boise meridian.

The plaintiffs claim to be the owners in fee of this property, and allege that the defendant claims an interest therein, to that portion of said lots lying along and bordering on the right bank of the main channel of Snake river and extending from near the south line of lot 1 in sec. 33, northerly to a point some distance south of the north line of lot 3. sec. 22, and extending easterly from the said right bank of the main channel of Snake river to a ravine or slough passing through and lying wholly within said lots and connecting it at both ends of such ravine or slough with the main channel of Snake river, but allege that said claim of the defendant is without right, is unjust and unfounded and a cloud upon plaintiffs' title thereto. The plaintiffs further allege that the portion of the main channel of Snake river lying within the north and south boundaries of the tract of land described is not navigable, and the westerly limits of said lots extend to the center line of the main channel of said Snake river, and that said Snake river in the vicinity of said lots is not a navigable stream.

The defendant specifically denies the allegations of the plaintiffs' complaint, and alleges affirmatively that the defendant has had continuous, actual, open, adverse notorious and exclusive possession of all of that certain island involved in this case, lying west of and adjoining the channel of Snake river, west of sec. 27; and that the plaintiffs and their predecessors in interest are barred of any right to bring this action under the provisions of secs. 4036, 4037, and 4043, Rev. Stat. of Idaho. The defendant further alleges that there is an island bordering upon and lying west of the east channel of Snake river, west of the lots described in the plaintiffs' complaint, and that said island is claimed, owned and occupied by the defendant and has been in his possession under claim of ownership since 1893, with full notice and knowledge to the plaintiffs; that on October 5, 1868, the lots described in plain...