Sartori v. Denny-Renton Clay & Coal Co.

• Decision Date: 31 December 1913
• Citation: 137 P. 494,77 Wash. 166
• Parties: SARTORI et ux. v. DENNY-RENTON CLAY & COAL CO.
• Court: Washington Supreme Court

137 P. 494

77 Wash. 166

SARTORI et ux. v. DENNY-RENTON CLAY & COAL CO.

Supreme Court of Washington

December 31, 1913

Department 2. Appeal from Superior Court, King County; King Dykeman Judge.

Action by Ignacio Sartori and wife against the Denny-Renton Clay &amp Coal Company. From judgment for plaintiffs, defendant appeals. Affirmed.

Ballinger Battle, Hulbert & Shorts, of Seattle, for appellant.

Peters & Powell, of Seattle, for respondents.

MORRIS J.

This is an action to establish the boundary line between the lands of the parties hereto, located upon opposite shores of Cedar river not far from Renton, the respondents' lands being upon the north side, and the appellant's upon the south side, of the river. The contention of respondents was that the center line or thread of Cedar river as it existed January 1, 1908, should be held to be the true boundary line, while appellant contended that the true boundary line should be fixed as the thread of Cedar river as it existed long prior to 1908 and as far back as 1865 when Cedar river was meandered, and that the thread of the stream as shown by these meander lines, except as modified by adverse possession, estoppel, and accretion, should now be held to be the true line. In addition to praying for the establishment of the boundary line, respondents alleged that appellant was engaged in the manufacture of brick and clay products, and that for some years past it had deposited large quantities of earth and stone in the river and along the south bank, until it had filled in the natural channel of the river opposite respondents' lands to such an extent as to impede the natural flow of the river and deflect the force of the stream upon and against the lands of respondents upon the north bank, and as a consequence thereof, during a period of high water in November, 1911, the waters of the river cut into and washed away the fertile surface soil of respondents' lands to the extent of 11 acres, causing damage in the sum of $16,500. Issue was framed upon these contentions, and the case went to trial, resulting in a decree establishing the boundary line between the lands of appellant and respondents as the thread of Cedar river as found by a survey made in December, 1906, and as it was also found to exist for many years prior thereto. The decree also awarded respondents damages because of the acts of appellant in extending the south bank of the river, to the consequent injury of respondents' lands in the sum of $1,200. The decree fixed the course of the north and south banks of the river and the course of the thread of the stream, and further enjoined appellant from depositing earth, stone, or other material in the channel of the river as defined by the courses fixed in the decree. From this decree appeal has been taken.

There can be no dispute but that the thread of Cedar river was fixed as the true boundary line between the lands of appellant and respondents. The difficulty is in now determining, where was Cedar river, and where was the thread of the river at the time it was so fixed. In determining this question one might as well look for the proverbial needle in the haystack as to now attempt to fix this original boundary with any degree of certainty, due to the fact that Cedar river is a rapidly flowing mountain stream having an average fall where it passes through these lands of 27 feet to a mile, and has a had habit of changing its location and flow and establishing a new channel every few years. A number of maps are in evidence showing the location of the stream in various years, from which it...