Sun Dial Ranch v. May Land Co.

• Decision Date: 02 January 1912
• Citation: 119 P. 758,61 Or. 205
• Parties: SUN DIAL RANCH v. MAY LAND CO.
• Court: Oregon Supreme Court

119 P. 758

61 Or. 205

SUN DIAL RANCH v. MAY LAND CO.

Supreme Court of Oregon

January 2, 1912

Appeal from Circuit Court, Multnomah County; Earl C. Bronaugh Judge.

Action by the Sun Dial Ranch against the May Land Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action upon a contract. The cause was tried by the court without the intervention of a jury. From a judgment in favor of plaintiff for $8,671.93, defendant appeals. On February 7 1907, negotiations were pending between plaintiff and defendant for the purchase of a certain tract of land owned by the latter in Multnomah county, Or., at the confluence of the Sandy and Columbia rivers, and fronting on the Columbia river, which is navigable at that point. Owing to the topography of the land and the impossibility of determining the number of acres owned by defendant without a survey plaintiff and defendant entered into an agreement in writing the substance of which is as follows: "Whereas the May Land Company has agreed to sell, and the Sun Dial Ranch has agreed to purchase, certain lands in Multnomah county Oregon, at $55.00 per acre, the acreage to be determined by survey, and whereas the May Land Company, in pursuance of its agreement to sell, has furnished the Sun Dial Ranch with a survey of said land, made by Philo Holbrook, Jr., surveyor, which said survey shows ownership in the May Land Company of 1809.05 acres of land, and whereas the purchasers raise a question as to the ownership in the May Land Company of said number of acres: Now, therefore, in order to expedite the consummation of the contemplated transaction, that being the consideration moving from each party hereto to the other, the parties hereto agree that based upon the amount due under said survey at $55.00 per acre, the deed to said 1809.05 acres shall be executed by the May Land Company; the cash payment agreed upon be made by the Sun Dial Ranch and the notes and mortgages for unpaid balance in accordance with the agreement executed, with the understanding that, if it shall be hereafter determined as surveyed, said company will refund to the Sun Dial Ranch at the rate of $55.00 per acre for each acre less than 1809.05 to which it has not title; and if it shall be determined hereafter that said May Land Company is actually the owner of more than said 1809.05 acres, the Sun Dial Ranch will pay and agree to pay for any excess additionally at the rate of $55.00 per acre. The determination above referred to, to be made within a reasonable time as per agreement hereto attached. [Signed] May Land Company, by E. May, President. Sun Dial Ranch, by H.C. Campbell, President." Thereafter, the parties being unable to agree in regard to the number of acres or the line upon the north of the land to which the survey should be made, plaintiff proceeded to fix and establish the line of ordinary high water of the Columbia river as it claimed the same existed at the time of the conveyance. The survey was made by Mr. R.S. Greenleaf, a civil engineer, and the line established by him, as described in the record by metes and bounds and shown on the maps in evidence, is called the "Greenleaf line." According to his measurements, the tract contained 1,658.08 acres, and, according to the line upon the north of said land as surveyed by Mr. Philo Holbrook, county surveyor of Multnomah county, which is also described in the record and shown on the maps in evidence, the tract contained 1,805.05 acres, making a difference of 146.97 acres, which latter amount plaintiff alleges to lie between the lines of ordinary high water and ordinary low water on the Columbia river, and belongs to the state of Oregon. Therefore the only issue upon the trial was as to the location of the ordinary high-water mark on the Columbia river.

Upon the main issue the findings of the trial court were as follows:

"That the north boundary line of said tract owned by defendant at the time of said conveyance and intended to be purchased by the plaintiff, and conveyed by defendant, was and is the line of ordinary high water of the Columbia river, and that, in pursuance of said agreement so entered into at the time of said conveyance, plaintiff, by its surveyor, R.S. Greenleaf, proceeded to run fix, and establish said north boundary line of said tract of land, and said line as so fixed by the said Greenleaf is described as follows, to wit: [Here follows the description of the Greenleaf line and survey.]

"That said line so fixed by said Greenleaf, as last above described, marks the ordinary high-water line of the Columbia river in front of said tract of land, excepting that there are two small parcels of land, aggregating 8 1/2 acres, which are excluded by said Greenleaf, and which should not have been so excluded, but should be included within the boundaries of the land conveyed by defendant to plaintiff, and that at the time of said conveyance the tract of land so owned and conveyed by defendant contained 1666.58 acres, and no more, and that the space between said last-described line marking said line of ordinary high water and the line fronting on the Columbia river, as surveyed and claimed by the defendant at the date of said conveyances above mentioned, amounts to 138.47 acres, all of which now lies, and at the date of said conveyance lay, between the lines of ordinary high water and ordinary low water on the Columbia river.

"That this court, at the request of the parties herein, and pending the hearing herein, in company with counsel for said respective parties, personally visited said premises on or about the ______ day of October, 1908, at a time of ordinary low water in the Columbia river, and again about the ______ day of May, 1909, at the season of the spring freshets in the Columbia river and from the testimony herein, aided by said examination and inspection, the court finds that said line so surveyed by said Greenleaf, and as described in finding No. 4, marks the line of ordinary high-water mark, and the north boundary line of said tract as owned by said defendant at the time of said conveyance, excepting as to the two small parcels containing in the aggregate 8 1/2 acres, as hereinabove found, and that said 138.47 acres lying north of said lines are covered by the waters of the Columbia river from two to four months of each recurring year and during the growing season of vegetation, and same is barren sand and gravel by reason thereof and wholly wrested from vegetation.

"That said sand bar, consisting of 138.47 acres, lies at an altitude varying from two to nine feet above the low-water mark of the Columbia river fronting thereon. That said sand bar is a permanent bar, consisting, for the most part, of hard, firm sand and gravel, varying but slightly from year to year in its general outline for many years past, but that the surface thereof changes with the recurring periods of overflow by the erosion of the surface and the depositing of sand and gravel thereon by the action of the floods and currents of the Columbia river during the spring and summer rises of said stream.

"That during the period of ordinary low water said sand bar extends considerably further north of the said Holbrook line before reaching the line of ordinary low water, and from a point about where the said Holbrook line runs, out to the ordinary low-water line, there is a marked difference between the character of said bar and the character of that part south of the Holbrook line, said outer portion of said bar being very soft, partaking of the nature of quicksand and mire.

"That immediately south of said Greenleaf line marking said line of ordinary high water the land rises in most places abruptly, forming a bank above which vegetation grows, and the dividing line between said land and sand bar is practically identical with the said Greenleaf line described in finding No. 4, and is apparent and discernible."

Alexander Bernstein, Otto J. Kraemer, and Will R. King (Bernstein & Cohen, on the brief), for appellant.

E.E. Coovert (Coovert & Stapleton, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

At the conclusion of plaintiff's testimony, defendant moved for a nonsuit, and assigns as error the judgment of the court in overruling the same, contending upon this appeal: (1) That the findings of facts made by the trial court were not supported by any evidence; (2) that the findings of facts do not support the decree.

The Sandy river branches a short distance above its mouth; the western fork thereof forming the Little Sandy river. These with the Columbia into which they flow, embrace an island of about 447 acres, and several small islands south of the Greenleaf line. For several years there has been a bar, opposite the large island in the Columbia, the area and elevation of which has been increased to a large extent by the alluvion brought down by the Sandy river and augmented by that washed by the waters of the Columbia. This bar is about 1,000 feet across from north to south at the widest part, tapering toward the mouth of the Little Sandy river, and being narrower and of very irregular shape at the outlet of the Sandy. This bar, with some other small strips, constitute the basis of the controversy in this case. High water, which at times covers the bar and many low lands in the vicinity, is chiefly caused by the rise of the Columbia river, which is some 1,200 to 1,400 miles in length. The large watersheds of this river and its tributaries account for the rise of the water at different seasons of the year. In the regions drained by the Snake river, which is some 1,100 miles in length, and its tributaries flowing from the south, the spring seasons are early. Therefore the melting of the snow and ice,...