Seabrook v. Coos Bay Ice Co.

• Decision Date: 09 April 1907
• Parties: SEABROOK v. COOS BAY ICE CO. [a1]
• Court: Oregon Supreme Court

89 P. 417

49 Or. 237

SEABROOK v. COOS BAY ICE CO. ^[a1]

Supreme Court of Oregon

April 9, 1907

Appeal from Circuit Court, Coos County; Lawrence T. Harris, Judge.

Action by E.B. Seabrook against the Coos Bay Ice Company. From a judgment in favor of defendant, plaintiff appeals. Reversed and remanded for new trial.

Action in ejectment. Plaintiff's grantor, Charles E. Fox, on November 25, 1874, purchased from the state tide lands described in his deed as: "Beginning at the meander post on the line between sections 26 and 27, Tp. 25 S., R. 13 W Will. Mer., and running along the meander line S. 58~> E 22.30 chs.; S. 51~ E., 10 chs.; S. 9~ E., 1.74 chs.; thence east, 4.50 chs., to low-water line; thence, along low-water line, N. 9~ W., 1.74 chs; N. 51~ W., 10 chs.; N. 45~> W 20 chs.; thence west, 8.50 chs., to place of beginning." And on April 10, 1873, the state conveyed to G. Webster certain tide lands described as: "Beginning 2.21 chains northward from a post at angle in meander line of Coos Bay--said post being 7.50 chains, N. 17~ E. from the N.E. corner of lot No. 2 in section 26, Tp. 25 S., R. 13 W., Will. Mer., and running northward along the meander line 16.75 chains; thence east 4.50 chains to low-water mark; thence southward, along low-water line, 16.75 chains; thence west 4.50 chains, to place of beginning." On February 9, 1883, the state conveyed to the plaintiff's grantors, Lapp and Hall, the following described tide lands, viz.: "All of the tide lands lying in front of, and abutting on, lot 4 of sec. 26, Tp. 25 south, range 13 west, except that tract heretofore, on the 25th day of Nov. 1874, sold to Chas. E. Fox, and excepting that tract sold to G. Webster, April 10th, 1873." Plaintiff claims that there is a tract of tide land about 82 feet wide lying between the Fox and the Webster tracts, and that defendant's buildings extend over upon said strip about 20 feet south of the south line of the Fox tract.

J.S. Coke, for appellant.

E.L.C. Farrin and J.M. Upton, for respondent.

EAKIN J. (after stating the facts).

The most important issues in the case are (1) is there a strip of tide land between the Fox and the Webster tracts; and if so (2) is the south line of the Fox tract south of defendant's buildings? And both depend upon the proper and accurate tracing upon the ground of the boundaries of the tracts as given in the deeds.

1. Defendant claims that plaintiff has no standing in this court, because he has not established the existence of any tide lands between the Fox and the Webster tracts. The location of the Webster tract is not traced by the witness Whereat from the beginning point named in the deed. The survey of this tract, as set out in the deed, is tied to an angle in the government meander line; the call being: "Beginning 2.21 chains northward from a post at angle in meander line of Coos Bay." It is conceded in the evidence and disclosed by the plaintiff's Exhibit 10, that there is an angle in the government meander line 63.9 feet northerly from the point adopted by Whereat as the tie corner, which last point is not an angle in the meander line, and Whereat evidently justifies himself in ignoring this angle by reason of the further description in the deed of that angle post as "being 7.50 chains north 17~ east from the northeast corner of lot 2 in section 26"; but the northeast corner of lot 2 is not a corner in the United States survey, and it can only be ascertained by a subdivision of section 26 in the manner provided by the United States Land Department. It may be conceded as to all government surveys that there will be some discrepancies both as to measurements and courses between the field-notes and the measurements on the ground, and the surplus or shortage must be apportioned in subdividing the section, which in this case is liable to make lot 2 more or less than 20 chains wide, and thus vary its point of intersection with the meander line; that is, quarter quarter corners must be established at points midway between section and quarter section corners: See Gen. Land Office Circular, Restoration of Lost Corners and Subdivision of sections, dated March 14, 1901, p. 15. And in a fractional quarter section each of such subdivisions will constitute a lot; and as neither the west nor the south lines of the northwest quarter of section 26 is full, that fractional quarter should constitute lot 4, and the reference in the deed treats it as one lot.

Both the witness Whereat and the deed refer to the northeast corner of lot 2 as an established corner; but it is not a corner of the public survey, and must be ascertained by the established method. The surveyor, in testifying in relation thereto, must state more than the result; he must detail his survey in locating such corner, and it will then be a legal question whether his method is correct and a question of fact whether the result is correct. 5 Cyc. 967; Radford v Johnson, 8 N.D. 182, 77 N.W. 601; O'Brien v. Cavanaugh, 28 N.W. 127, 61 Mich. 368. Here Whereat's method was incorrect. He establishes the tie corner from the northeast corner of lot 2, without disclosing that such corner is correctly determined, but when determined, it does not control the tie corner. The Webster deed fixes the starting point at 2.21 chains northward from the post at angle in meander line. That angle post in the meander line of the public survey was adopted by the county surveyor as the basis of his survey of the Webster tract, and his starting point is the point to be ascertained, and must control now; and if that angle exists, and is known, it is not necessary to look further. If lost or obliterated, it must be found or reestablished from some known corner by the approved methods. The reference in the deed to the...