State v. Imlah
| Decision Date | 03 January 1931 |
| Citation | 294 P. 1046,135 Or. 66 |
| Parties | STATE v. IMLAH ET AL. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Polk County; Arlie G. Walker, Judge.
Action by the State against James Imlah and others. Judgment for defendants, and plaintiff appeals.
Affirmed.
I. H Van Winkle, Atty. Gen., for the State.
Oscar Hayter, of Dallas, for respondents.
This is a suit by the state to quiet title to what it claims is an island which has been formed by the current in the bed of the Willamette river. The Willamette river at that place is a navigable fresh-water stream, and the state claims title by virtue of its ownership and sovereignty over the beds of navigable streams within its borders. The defendants severally own the lands bordering on the west bank of the river directly opposite to the premises in controversy, and claim the same as an accretion to their lands. From a decree holding that the same does constitute an accretion to defendants' land, the state has appealed.
It appears from the evidence that defendants are the several owners of all the lands bordering on the west bank of the Willamette river in the north 1/2 of section 22, township 7 south, range 3 west, and that adjacent to said lands and between the present river bank on defendants' premises and the waters of the river is a strip of sand and gravel containing about sixteen acres, which has been formed by water and slightly raised above the surface of the water when the river is at its mean low water level. It also appears that there is a slight depression between the premises in controversy and defendants' uplands, but the undisputed evidence shows that this depression, like the premises in controversy, is all uncovered when the waters of the river are at mean low water level. The evidence further shows, both upon the part of the state, as appears from Plaintiff's Exhibit A, a map of the premises in controversy, and upon the part of the defendants, that the depression referred to is all within the boundaries of the lands owned by the defendants, and that, when the exterior boundaries of their lands are traced upon the ground, there is nothing between such boundaries and the waters of the river except a flat level surface of sand and gravel. It also appears from the evidence that, at higher stages of the water, the depression referred to will be first submerged then the remainder of the premises in controversy, and, when the water is of sufficient height in the river, at times parts of defendants' uplands will also be submerged. Because of the fact that at certain stages of the river this slight depression is filled with water, when other parts of the property in controversy are uncovered, the state contends that the subject-matter of the suit is an island in the river and must be treated as such in determining its ownership.
It also appears from the evidence that, between 1882 and 1886, a small surface of sand and gravel was raised above the water somewhere west of the center of the river, and that at that time there were two navigable channels of the river, one to the east and the other to the west of said small island, and that said west channel continued to exist and be navigable during high-water stages of the river until about 1908. There is no evidence in the record from which can be determined with any degree of certainty the location of this small island or of said west channel although the state claims that the island first appeared somewhere near the northeast corner of the premises in dispute. The evidence shows that said west channel to which we have referred was about one hundred feet in width, and that during the time of its existence, as testified to by one of the operators of river craft at that time, the banks of the island and the mainland were so pronounced that one could step from the boat either on to the mainland or on to the island.
The evidence shows that there has been, in recent years, much washing away of islands and bars in the river and of the banks on defendants' premises, and, if it should be assumed from the evidence that the west channel referred to followed the course of the slight depression to which we have referred, then two facts are established by the evidence. First, the channel has entirely filled up and no longer exists, and, second, the channel itself was on defendants' premises and above the meander line of the river which the evidence shows was established by the federal government at the time the public surveys were extended thereover and is wholly within the boundaries of the lands now owned by defendants. Hence, should it be first assumed that the west channel of the river was situated between a part of the premises in controversy and the present high river bank on defendants' premises, which banks, as we have stated, have been washed away in recent years, then the evidence shows that the lands thus lost by the defendants through the action of the water in washing away the banks of the river have been restored to them by the deposit of alluvion thereon by the current of the river, and what was once the bed of the stream has now become dry land during the low-water stages of the river.
The evidence shows that the lands now severally owned by the defendants Imlah and Hodge are parts of the donation land claim No. 67 patented February 9, 1866, to Jesse Harriott and wife, and that one of the boundaries of said donation land claim as patented was one of the meander lines of the river and that a considerable part of the area in controversy here lies on the upland side of said meander line. The lands jointly owned by defendants Albert and Wallace are a part of donation land claim No. 51 patented August 5, 1871, to James White and wife. One of the boundaries of said donation land claim, as patented, the evidence shows was also one of the meander lines of the river. Plaintiff's Exhibit A wholly fails to show the lands owned by the defendant Dibble and wife. They own fractional lot 8 of section 22. It contains twenty acres of land and is bounded by the north line of section 22, the river, and one of the easterly lines of the Harriott donation land claim. Plaintiff's Exhibit A shows that, if said lot 8 had been delineated thereon, it also would have included a part of the premises in controversy.
The state's principal contention is that the small island first appearing in 1882, or shortly thereafter, somewhere west of the center of the river, continued to exist as an island and to become...
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