Rasmussen v. Walker Warehouse Co.

• Decision Date: 02 December 1913
• Citation: 136 P. 661,68 Or. 316
• Parties: RASMUSSEN v. WALKER WAREHOUSE CO. et al. [d]
• Court: Oregon Supreme Court

136 P. 661

68 Or. 316

RASMUSSEN v. WALKER WAREHOUSE CO. et al. ^[d]

Supreme Court of Oregon

December 2, 1913

Department 2.

Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Suit by Chris Rasmussen against the Walker Warehouse Company and another. From a decree for plaintiff, defendants appeal. Affirmed.

This is a suit to quiet title to certain real estate. From a decree in favor of plaintiff, defendants appeal.

The pleadings, in so far as is necessary to refer to them, show as follows: Plaintiff alleges that he is the owner and in possession of the following described premises "Commencing at the southwest corner of lot 2, block 3 in Woodland addition to the town of Bandon, in Coos county Or., as laid out, platted, and recorded by Robert Walker, his wife, Mary E. Walker, R.H. Rosa, and others, running thence northerly along said west line of said lot 115 feet and to the northwest corner of said lot as platted; thence northerly on said west line of said lot extended to navigable water of the Coquille river, to wit, to ship's channel of said stream; thence easterly along said ship's channel to the east line of said lot 2 extended northerly in a straight line; thence southerly on said line to the northeast corner of said lot 2; thence southerly and along the east boundary line of said lot 2, 127.5 feet, and to the southeast corner of said lot; thence west to the southwest corner of said lot and to the place of beginning. That plaintiff is likewise the owner and in possession of all the water and wharfage rights easements, privileges, hereditaments, and appurtenances thereunto belonging and in front of and between said lot 2 and ship's channel of the Coquille river. That said Coquille river is a navigable stream."

The defendants answered separately, Mary E. Walker claiming a right of dower in the disputed tract not yet assigned or set off to her. They deny the title of plaintiff to that portion of the real estate lying between lot 2, as platted, and the navigable water of the Coquille river. They allege: That Robert Walker, now deceased, was during his lifetime the owner in fee simple of the lots mentioned in the complaint and of other adjacent lots, all of which property he, by the dedication, plat and survey filed and recorded in the office of the county clerk of Coos county, Or., as Woodland addition to Bandon, divided into streets, blocks, lots, and alleys, in which plat and addition Robert Walker was joined by R.H. Rosa and other platters, owners of other property lying back of and away from the river. That said Walker was the owner and the holder of the legal title of that part of the addition affected in any way by this suit and bordering on the Coquille river, including lot 2, block 3; and all of said lands, rights, title, interest, and riparian and other rights in front of such lot. That the said plat, as duly filed and recorded, indicates lot 2 as a piece of clear and well-defined limits. That it clearly and definitely shows a tract of land lying in front of said numbered lot of substantially the following description, which is the tract in dispute, to wit: "Commencing at the northwest corner of said numbered lot, running thence north 50 feet to the navigable channel of the Coquille river; thence east 50 feet thence south to the northeast corner said numbered lot; thence westerly along the northern boundary said numbered lot to the place of beginning." That it was the intention of Robert Walker and all parties to the plat and dedication to sever the riparian and wharf rights from all land lying back of the latter tract, and to attach the riparian rights to the last-mentioned tract of land. That by such act of dedication the land so dedicated on the plat as lying between lot 2 aforesaid and the navigable channel of the river was the property of the deceased. That plaintiff acquired title from Robert Walker to lot 2, block 3, according to the plat thereof, relying upon such for the description of the land, and not otherwise. That plaintiff should be estopped from alleging that he is the owner of the land fronting on lot 2 or of any rights outside the boundaries thereof as shown by the plat. Plaintiff filed a reply putting in issue the new matter contained in the answer, and alleging in effect that lot 2 was contained in a parcel of land (which was particularly described) containing 39.89 acres, which was platted and dedicated as a part of Woodland addition into lots, blocks, and streets embracing all that portion of the parcel of land lying above low-water line of the Coquille river. That the northerly row of blocks numbered respectively 1, 2, 3, and 4, and the streets dedicated between such blocks extended and still extend to low-water line of the Coquille river as shown by the plat. That defendant should be estopped from alleging that Robert Walker, now deceased, platted and dedicated said lots so that the same cannot be reached or touched by any street, alley, or highway.

Plaintiff testified that he was the owner of lot 2, in block 3, and of the rights and privileges between such lot and the navigable channel of the Coquille river; that that space between the north line of the lot and the river is covered by water about two feet deep at ordinary low tide, and that various persons had used such space for several years, with his permission; that the driving of piling or the erection of a building of any kind or a structure between the north end of lot 2 and the navigable channel interfered with his ingress to and egress from said channel and would cut off all access, unless he crossed the private property of others; that there was no road or street touching said land, and the only ingress and egress was by the way of the Coquille river, a navigable stream in which the tide ebbs and flows; that he had been in possession of this lot, wharfage rights, and privileges, rights of ingress and egress, for about 3 1/2 years.

Mr. S.B. Cathcart, county surveyor, testified in substance that he surveyed Woodland addition for R.H. Rosa and Robert Walker; that in such survey he marked a small street along the water front between the low-water line and the line of the lots; that Walker objected to the same, stating that he did not want any street there. The surveyor does not remember all the details, but the plat filed for record shows no such street.

R.H. Rosa testified in effect that he owned an interest in Woodland addition with A.M. Crawford and Robert Walker, who, for convenience, held title to the tract as trustee for himself and the two others, they having bought the land together; that afterwards this addition was laid off to low tide line; that there is water on the north end of the Rasmussen lot at ordinary low tide; that he was in possession of the lot before Rasmussen owned it, and permitted various boats to use this space; that the ground in front of the lots is exposed for about 60 feet at the very lowest of the tides, which occur about once or twice a month; that Walker rubbed off the street that they had placed upon the plat, as he thought one Dwyer would have a monopoly of the water front in case a street was laid there. Rosa further testified that he and Walker wanted the lots in the north end of the addition to be water front lots; that Walker never represented during his lifetime that there was any strip of land in front of the lost, except that in front of the woolen mill; that the lots would not have been of any value to anybody unless there had been some means of ingress or egress. He stated: "We dedicated those lots so as to get in to them from the river; sure, there was no other street to them, no other way to get out of there."

Harry Walker testified on behalf of defendants to the effect that he could not see any change in the formation now and when he first saw it; that he was 26 years old; that when the tide is at zero on the government gauge there is probably 50 feet of land bare in front of the Rasmussen land and 60 or 75 feet on the lower tides; that the Walker Warehouse Company is in possession of the land in front of the Rasmussen lot and have been using it for coal; that a stream about 200 yards above goes through this mud flat, flowing into the river; that the Trow bridge tide table is commonly used; that when the tide is at zero there are 40 feet exposed; that the land is a very gradual slope; that a foot above zero mark would cover the low-tide flat in front of the Rasmussen lot; that in order to expose this land in front of the latter lot it is almost necessary for the tide to go to zero on the government gauge; that the Walker Warehouse Company's wharf was built for the purpose of holding possession.

On the 20th day of October, 1890, Robert Walker, R.H. Rosa, and A.M. Crawford entered into a trust agreement, in which they recite that "the parties to this indenture were desirous of having the legal title in and to all of the said premises hereinafter described in the name of the parties of the first part (the Walkers) for convenience so that the parties of the first part could cause said premises to be surveyed into town lots and blocks, and properly dedicate the same and make conveyances of the same for the use and benefit of all parties interested in said premises according to their respective rights therein," and describe the 39.89-acre tract as extending to low-water line. Walker and wife accepted the trust and platted the tract, conveying the lots in accordance therewith.

G.T. Treadgold, of Bandon, for appellants.

F.J. Feeney, of Bandon, and A.J. Sherwood, of Coquille (L.A. Liljeqvist, of Coquille, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

It appears from the record that the plat of Woodland addition was filed December 15, 1890....