Salem Imp. Co. v. McCourt

• Citation: 41 P. 1105,26 Or. 93
• Parties: SALEM IMP. CO. v. McCOURT et al. [1]
• Decision Date: 05 July 1894
• Court: Oregon Supreme Court

41 P. 1105

26 Or. 93

SALEM IMP. CO. v. McCOURT et al. ^[1]

Supreme Court of Oregon

July 5, 1894

Appeal from circuit court, Marion county; George H. Burnett, Judge.

Action by the Salem Improvement Company against one McCourt and others to quiet title. From a decree for defendants plaintiff appeals. Reversed.

This is a suit to quiet title. The facts show that on September 8 1857, in pursuance of an act of the legislative assembly of the territory of Oregon, passed January 26, 1856, the superintendent of common schools of Marion county, Or., sold as school land to one John A. Johns the S. 1/2 of the S.W 1/4 of section 28, in township 7 S., of range 3 W. of the Willamette meridian, in said county, together with other real property, and on October 20, 1860, the full consideration therefor having been paid, executed and delivered a deed to him, purporting to convey said land in pursuance of such sale. The west 40 of said tract was made fractional by the main channel of the Willamette river, and that portion lying east of the river was surveyed and platted as lot 6 of said section, containing 23.06 acres. When the government survey was made, an island existed in said river, opposite said lot 6, which was surveyed and platted as lot 9 of section 28 containing 17.20 acres, and lot 3 of section 29, containing 5.42 acres. The description of land contained in said deed embraced a part of said lot 9, triangular in form, its north and west lines extending about 6.43 chains from the northwest corner of said west 40, which, together with the accretions thereto, forms the subject of this suit. Julia A. Johns, having acquired the interest of John A. Johns in said school lands, applied to the board of commissioners for the sale of school and university lands for a confirmatory deed for the S.E. 1/4 of the S.W. 1/4, and lot 6 of section 28, but made no application for any part of lot 9, and said board, on February 9, 1880, executed and delivered to her a deed to the property applied for. Said lot 9 was selected by a duly-authorized agent of the state in lieu of school lands lost to the state by sale or otherwise, and said selection was, on May 27, 1891, duly approved by the secretary of the interior, subject to any valid interfering rights which may have existed at the date of the selection. The said board of commissioners for the sale of school and university lands, on June 21, 1892, executed and delivered to George D. Goodhue and others a deed purporting to convey said lot 9 to them. The plaintiff has, by mesne conveyances, acquired their title thereto, while the defendants, by mesne conveyances, have acquired what title Julia A. Johns had to the triangular tract forming a part of said lot 9. When the deed to Johns was executed, the main channel of the Willamette river lay between lot 6 and said island, the center of which formed the boundary line between the counties of Marion and Polk; but during a freshet in said river the current changed its course, and thereafter flowed west of said island, creating a new channel, and the old channel gradually filled up, so that a large part of the sand and gravel therein is now uncovered at low water. The defendants, at the commencement of this suit, claiming authority so to do under the Johns' deed and subsequent mesne conveyances through which they claim title, were digging and carrying away sand, loam, and gravel from the triangular tract embraced in said lot 9, and the accretions thereto, in the old ehannel. The plaintiff alleges ownership and possession of said lot 9 and the accretions thereto, and that the defendants claim to have some adverse interest or estate in some part thereof, and, said allegations of ownership and possession having been denied by the defendants, the case was referred to W.P. Williams to take testimony, and upon the report thereof by the referee the court found for the defendants, and decreed that they were the owners in fee, and entitled to the possession of the lands in controversy, and awarded them their costs and disbursements, from which decree the plaintiff appeals. Reversed.

Tilmon Ford and S.T. Richardson, for appellant.

Bonham & Holmes, for respondents.

MOORE, J. (after stating the facts).

The plaintiff contends that the superintendent's deed conveyed no title, while the defendants contend that Johns their grantor, having obtained a deed which purported to convey the fee-simple title to the land in controversy, the state is estopped from claiming any after-acquired title, and that, plaintiff's grantors having obtained their deed from the state with notice of the prior recorded deed, the legal title inured to the defendants. Section 20 of the act of congress approved August 14, 1848 (9 Stat. 323), reserved sections numbered 16 and 36 in each township in the territory of Oregon for the support of schools therein, and on January 7, 1853, another act of congress was approved (10 Stat. 150), which authorized the legislative assembly of the territory to appoint the county commissioners of the several counties, or such other officer as it should direct, to select lands in lieu of sections 16 and 36, when they had been taken under the donation law, or were otherwise disposed of; whereupon the legislative assembly, in pursuance of this authority, passed an act, January 31, 1855 (Sess.Laws 1855, p. 465), appointing the school superintendent of each county to select lands in his county in lieu of lands in sections 16 and 36, lost to the territory by donation or otherwise, and on January 26, 1856, passed another act (Sess.Laws 1856, p. 69), which authorized the said superintendent to sell the school lands in their respective counties, for cash or upon time, and upon the payment of the purchase price to execute deeds thereto. Section 4 of the act of congress approved February 14, 1859 (11 Stat. 383), granted sections numbered 16 and 36 in every township to the state of Oregon, and it was provided therein that, where either of said sections, or any part thereof, had been sold or otherwise disposed of, other lands equivalent thereto should be granted, upon certain conditions therein named. These conditions were accepted by the legislative assembly of the state of Oregon June 3, 1859 (Hill's Code, § 125), and the state thereupon became vested with the legal title to sections 16 and 36 and such other land as had been selected by the school superintendents in lieu thereof. It will thus be seen that the school superintendent of Marion county had authority, under the acts of congress, and of the legislative assembly of the territory of Oregon, to select such lieu lands in his county, but that at the time his deed was executed the state had no title to any part of lot 9, which was situated in the county of Polk, and the question to be decided is, would the title to the triangular tract on the island, embraced in the superintendent's deed, inure to Johns when the state acquired the legal title?

Section 6 of the act of January 26, 1856, authorized the school superintendent to execute and deliver to the purchaser of school lands a bond conditioned that he and his successor in office would execute and deliver to such purchaser or his assigns a proper deed in fee simple, upon the payment of the purchase price and interest. Section 5 of article 8 of the state constitution created a board of commissioners for the sale of school and university lands, consisting of the governor, secretary of state, and state treasurer, and provided that its powers and duties should be such as might be prescribed by law; but no statute authorizing said board to make sale of school lands, or to execute deeds to purchasers thereof, was enacted by the legislative assembly of the state until October 22, 1864. Deady's Code Or. 1845-64, p. 884. Section 7 of article 18 of said constitution provided that all laws in force in the territory of Oregon when the constitution took effect, and consistent therewith, should continue in force until altered or repealed. The state having acquired the legal title to ...