Muckle v. Good

• Decision Date: 01 August 1904
• Parties: MUCKLE et al. v. GOOD.
• Court: Oregon Supreme Court

77 P. 743

45 Or. 230

MUCKLE et al. v. GOOD.

Supreme Court of Oregon

August 1, 1904

Appeal from Circuit Court, Columbia County; Arthur L. Frazer, Judge.

Suit by James Muckle, Jr., and another against James Good. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

W.B Dillard, for appellants.

S.H Gruber, for respondent.

BEAN J.

This is a suit to quiet title to a tract of land on the Columbia river, in front of the town of St. Helens. The plaintiffs do not assert any record or paper title, but base their right alone on an alleged adverse possession for more than 10 years. The defendant denies that the plaintiffs are the owners or in possession of the property, and asserts title in himself by mesne conveyances from the grantees of the state alleging that it is tide land, and as such was conveyed by the state to his predecessors in interest in 1883. The land in question lies along the margin of the Columbia river, between low-water mark and a precipitous ledge of rock about 150 feet distant therefrom. This ledge of rock is practically parallel with the river, and forms the east line of the Strand--a street in St. Helens--and the west bank of the river, making the line of high water. The Columbia river at St. Helens is a tidal stream, and at an ordinary stage of the water is affected by the diurnal tides from the ocean. At extreme low water the tide rises perpendicularly from 1 to 4 feet, and a space of from 50 to 60 feet wide of the land in controversy is alternately covered and uncovered by the ordinary fluxes and refluxes of the tides. During the winter and spring freshets, however the rain and melting snows cause the river to rise to such a height that for a month or two in the winter and two or three months in the summer the effect of the tide is not perceptible. During such time the water extends up to the perpendicular bank of the stream, and the land in controversy is entirely covered. The land covered and uncovered by the tide at extreme low water becomes submerged whenever the river has risen from 2 to 4 feet. The water is still affected by the tides, however, though in less degree; another but narrower strip of land, farther up the shore, being covered and uncovered by it. As the water continues to rise, the tides flow and reflow over another still narrower strip of shore, until the perpendicular bank is reached. For the plaintiffs it is contended that, upon this state of facts the deed from the state to the defendant's grantors conveyed no title, because the land is not tide land, within the meaning of the act of 1878 (Laws Or. 1878, p. 41) authorizing the sale of such land. We do not think it necessary in this case, however, to determine that question. The land lies between ordinary high and low water, and was therefore, in any event, the property of the state. Hinman v. Warren, 6 Or. 408; Parker v. Taylor, 7 Or. 435; ...