Rue v. Oregon & W.R. Co.

• Decision Date: 13 January 1920
• Docket Number: 15467.
• Citation: 186 P. 1074,109 Wash. 436
• Court: Washington Supreme Court
• Parties: RUE v. OREGON & W. R. CO.

186 P. 1074

109 Wash. 436

RUE v. OREGON & W. R. CO.

No. 15467.

Supreme Court of Washington

January 13, 1920

Department 2.

Appeal from Superior Court, Clallam County; John M. Ralston, Judge.

Suit by Stener O. Rue against the Oregon & Washington Railroad Company. Decree for plaintiff, and defendant appeals. Affirmed.

Bogle, Merritt & Bogle, of Seattle, for appellant.

Rose &amp Lewis, of Port Angeles, for respondent.

HOLCOMB C.J.

Respondent sued to quiet title to lot 3, section 22, township 28 north of range 15 west W. M., describing the lot by metes and bounds according to the lines and water boundary shown on the government plat. Appellant answered that it claimed no interest in any land in section 22 other than as thereinafter affirmatively alleged, and then pleaded that it was the owner of lots 1 and 2 in section 22, not alleging anything as to the boundary of the lots, but setting up its ownership according to the technical description according to the survey and plat and deraigning its title from the United States, and praying that its title be quieted in lots 1 and 2 and the accretions thereto. In reply, respondent, as to the affirmative defense alleged in appellant's answer, denied that the description of the property therein embraced any part of the real property described in respondent's complaint. At the trial appellant claimed and attempted to prove that there was error in the survey and plat in the meandering and location of the Dickodochteder or Dickey river; that by reason of this error the erroneous meander line was the true western boundary of its lot 2; and claimed that lot 2 in fact extended across and beyond the river (Dickey), so that the river, instead of flowing along the western boundary of lot 2, would flow through the lot and put respondent's lot almost entirely away from the stream. Respondent shows title by mesne conveyances of lot 3 from certain lands patented by the United States to one Erickson of date November 23, 1891. The patent covered 163.95 acres according to the official plat thereof, but the only portion involved here is lot 3. The plat of the lands on file and return to the United States Land Office recites the acreage of lot 3 as being 39.50 acres.

Appellant shows title by mesne conveyances of lot 2, section 22, back to a patent dated August 12, 1892, to Sarah C. Pullen. The plat of the land on file and returned to the General Land Office shows the acreage of lot 2 to be 35 acres. There are no accretions involved in the case.

The situation is that, if the eastern boundary of respondent's lot 3 be fixed easterly of the line shown as the boundary line on the plat or the meander line of the river as shown on the plat, then respondent's acreage will be increased, and appellant's acreage will be decreased proportionately.

While the original government plat shows the meander line of what was then called the Dickodochteder or Dickey river as the boundary line between lots 2 and 3, section 22, it appears that sometime since the survey the Quillayute river, into which the Dickey river flows, has changed its course through the western portion of the section so that, instead of flowing in a curve around lot 9, south of these lots, it now flows almost directly west through lots 5 and 6 immediately south of lots 3 and 2, making the junction with the Dickey river at a point east of the west line of lot 3; that the Dickey river has not changed its course since the original survey, but by reason of the change in the course of the Quillayute river it has become the boundary line for a portion of the south boundary of lot 3 instead of the Dickey.

The original call of the lines of respondent's lot 3, according to the government survey and plat, would have been as follows:

'Commencing at the northwest corner of said lot 3, section 22, township 28 north, range 15 west W. M.; thence easterly, along the north line of said lot 3 to the west bank of the Dickey river; thence southwesterly (or southerly) along the west bank of the Dickey river to the west line of said of lot 3; thence northerly to the place of beginning.'

Since the change of the course of the Quillayute river, a resurvey has been made by the United States government which still shows the meander lines of the streams as by the original survey, but respondent in describing the land to which he desired to quiet title alleged and described it according to the following calls:

'Commencing at the northwest corner of lot 3, section 22, township 28 north, of range 15 west W. M.; thence easterly, along the north line of said lot 3, to the west bank of the Dickey river; thence southerly along the west bank of the Dickey river to the Quillayute river; thence westerly along the north bank of the Quillayute river to the west line of said lot 3; thence northerly along the west line of said lot 3 to the place of beginning.'

The land in controversy lies between the boundary line as it appears in the plat of the survey and the actual meander line of the Dickey river. If acreage, as shown by the patent of respondent, is to prevail, then the land in controversy belongs to appellant as part of lot 2, while if the natural monument, the Dickey river actual stream line, is to prevail, then the land in controversy is part and parcel of respondent's lot 3. Appellant's contention is that the meander lines as shown on the government's original plat and resurvey are not true, but that the Dickey river, instead of flowing southwesterly from the point in the east line of lot 3 and west line of lot 2 some distance south of the north line of the section, in fact, at about the place where the survey line between the two lots would cross the meander line, turns somewhat east of south.

To prove that condition, appellant offered the evidence of a civil engineer named Hageman, to the effect that he had examined the territory in question and found that the course of the stream was no as shown on the government plat, but as he describes it on a plat which he produced which shows the stream flows east of south instead of southwesterly into the Quillayute river, and that as a result thereof lot 3, if extended to the actual stream, would contain a little more than 82 acres of land instead of 39.50 acres, and that lot 2 of appellant would be diminished by that much. Appellant from this contends that the acreage is so excessive, if the actual stream is fixed as the boundary line of lot 3, that it must be considered that the survey is fraudulent, and that therefore the actual and legal boundary between the lots should be as fixed by the meander lines of the survey.

The trial court rejected the plat made by Hageman and his evidence as to the correct course of the stream and the amount of land which respondent would acquire by having the boundary fixed by the actual stream.

It was shown that Hageman made no instrumental survey of the territory or the stream, but merely a visual survey without any actual measurements and without determining the exact course, sinuousities, and location of the stream. He had never even made any land surveys, although he was probably professionally competent to do so. What he did in this matter, however, was merely nonexpert, and we cannot consider that his evidence was competent to prove the facts which it was offered to prove or sufficient to contradict or impeach the official government survey. Cragin v. Powell, 128 U.S. 691, 9 S.Ct. 203, 32 L.Ed. 566, and cases cited; Johnson v. Hurst, 10 Idaho, 308, 77 P. 784.

Appellant relies largely upon the case of Security, etc., Co. v. Burns, 193 U.S. 167, 24 S.Ct 425, 48 L.Ed. 662. That was a case arising in Minnesota and tried by the Minnesota courts and taken thence to the United States Supreme Court, where the original survey showed the fourth side of a tract of land to run to the margin of a lake, and meandered the margin of the lake. It was indisputably shown that the lake on that side was more than one-half of a mile from where the...