Switzler v. Earnheart

• Decision Date: 05 July 1911
• Citation: 59 Or. 344,117 P. 296
• Parties: SWITZLER v. EARNHEART.
• Court: Oregon Supreme Court

117 P. 296

59 Or. 344

SWITZLER v. EARNHEART.

Supreme Court of Oregon

July 5, 1911

Appeal from Circuit Court, Umatilla County; G.W. Phelps, Judge.

Action by John B. Switzler against F.E. Earnheart. Judgment for plaintiff, and defendant appeals. Affirmed.

This is a suit to restrain defendant from interfering with plaintiff's possession of certain lands situated upon Beavert Island in the Columbia river. The island in question is unsurveyed government land, and has been occupied for several years by different persons. In the year 1895 it was in the possession of M.D. Beavert, who improved it by planting a garden and putting several acres into alfalfa, and constructing a comfortable four-room dwelling house. In 1896 he sold his rights to plaintiff, who entered upon the land built a fence so as to inclose, together with the natural inclosure made by the water, about 80 acres, and cultivated it principally in alfalfa. At the time of the alleged trespasses by defendant, the land produced about $800 worth of hay a year. He had a house, stables, corral, and garden. The house was furnished with beds, marble top furniture, and was a comfortable residence. The improvements exceeded $1,000 in value.

About January, 1908, plaintiff leased the place to John D. Hatter for a period of five years, but subsequently the term was reduced to one year, and at the expiration of the year the term was extended for three months, expiring March 31, 1909 at which date Hatter was to surrender the premises to plaintiff. The defendant had taken a homestead containing about 142 acres immediately adjoining that arm of the Columbia river which separates Beavert Island from the mainland, and subsequently commuted it, after a residence of 14 months, receiving his final certificate from the government. He was residing upon this land immediately preceding the alleged trespass complained of.

In March, 1909, defendant moved his family upon Beavert Island and located in a tent near plaintiff's dwelling house. By agreement with Hatter, he purchased Hatter's hay, cows and chickens, and Hatter vacated the premises, leaving defendant in possession. Defendant thereupon took possession of the house, threatening to shoot plaintiff if he attempted to enter, and entirely excluded him therefrom. Plaintiff harvested his hay crop, and thereafter brought this suit. There was a decree in his favor in the circuit court, and defendant appeals.

D.W Bailey and J.B. Perry, for appellant.

Fee &amp Slater, for respondent.

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

The land actually occupied and cultivated by plaintiff comprises about 80 acres, and is unsurveyed government land, separated from the land of defendant by a navigable slough or arm of the Columbia river, and there is nothing in defendant's contention that his line extended beyond this slough so as to include any portion of the land occupied by plaintiff.

Defendant's boundary extended only to ordinary high-water mark of the stream, separating Beavert Island from the mainland. Oregon v. Portland General Electric Co., 52 Or. 502, 95 P. 722, 98 P. 160.

Neither was he entitled to take the land as an additional homestead. The right to enter land as an additional homestead cannot be exercised upon unsurveyed land. In addition to this fact,...