United States v. Otley, 9677.

CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)
Citation34 F. Supp. 182
Docket NumberNo. 9677.,9677.
PartiesUNITED STATES v. OTLEY et al.
Decision Date08 January 1940

J. Mason Dillard, Asst. U. S. Atty., of Portland, Or., Benjamin Catchings, Senior Atty., United States Department of Agriculture, of Washington, D. C., and Hugh L. Biggs, Sp. Atty., United States Department of Agriculture, of Portland, Or., for plaintiff.

J. W. McCulloch, of Portland, Or., Robert M. Duncan, of Burns, Or., and Joseph McKeown, of Marshfield, Or., for defendants.

JAMES ALGER FEE, District Judge.

The United States seeks to quiet title to certain lands lying within a meander line run by John H. Neal, defining Malheur Lake, against certain patentees of land lying above and touching this line and against certain other persons who have occupied lands within this line. In a previous controversy between the general government and the State of Oregon it was determined that this body of water is unnavigable, and that Oregon owns no property within this meander line. The rights of private claimants to property rights within the line were specifically reserved for future determination. United States v. Oregon, 295 U.S. 1, 12, 55 S.Ct. 610, 79 L.Ed. 1267. This suit was brought to settle the questions thus reserved.

Since grants of the general government are to be construed, the intention evinced by its acts, laws and declarations in the light of all the surrounding circumstances must be found.1 The establishment of a meander line under the direction of the Land Department shows a belief that there was a body of water of a permanent character.

A meander line follows the contour of such a body at mean high water in general outline, with disregard for elevations and slight variations of the shore, to set off a body of upland for which the United States may receive payment from patentees.2

The existence of a permanent body of water is an essential to a proper meander line. The water found in the Malheur Lake Division has been designated as Malheur Lake since the earliest exploration of that region, in documents, maps and surveys. It has been called a swamp or marsh.3 Scientifically, it is a playa or the flat-floored bottom of an undrained desert basin or shallow lake. For a proper decision, these designations must not be permitted to tryrannize over the actualities. The conditions themselves must be squared with the legal concepts.

From the Rocky Mountains to the Cascades lies a region of which Malheur Lake Division is a part, which is desert in character. The whole area has experienced irregular cycles of wet and dry years in historic times. A detailed study of the tree rings in Great Salt Lake area in the basin of the Columbia River to approximately 13004 and in the Malheur vicinity until 1735 have projected this experience into the past. Studies of geology, precipitation, evaporation and plant growth reinforce the conclusions and establish an essential correlation over the entire region. The quantity and flow of water in the Malheur Lake Division has been governed by the climatic conditions, modified locally. It is important to note that such conditions have not varied essentially in progression since Oregon was admitted to the Union, since observations were made upon the visits by Antoine Sylvaille and Peter Skene Ogden in 1825, nor even for hundreds of years before. The scientific data proves there has been more or less water in the basin during this time. Generally, there has been a lake.

The whole interior region has been undergoing a periodic dry cycle and the Columbia River and other bodies of water have been extremely low since 1928. The Malheur Lake Division was dry in 1931. But it is interesting to note that 1894, the memorable flood year of the Columbia River, probably also set a high water mark on Malheur Lake. In wet years the lake may cover over 60,000 acres and its contour would then measure over 80 miles. It is fed by living streams, the Silvies on the north and the Donner und Blitzen on the south, with an outlet through The Narrows. Even in the dry years, except 1931, it has been a considerable body of water and if the wet cycle recur, as the scientific data indicate, there may again appear a great sheet of water sixteen miles long by six in the broadest dimension.

This evidence leads the court to conclude that there was at the time of the survey,5 and still is, a permanent6 body of water in the Malheur Lake Division which is called Malheur Lake.7 Opinions predicated upon the fact that no permanent body of water could be found within a meander line are thus distinguished.8 Since such a lake existed, a proper meander line could be drawn.

A meander line properly drawn must bear some relation to the shape of the lake.9 But it is the shape of the lake at mean high water which governs. An extremely difficult task was here presented for the surveyor. The whole area where untouched by water is desert in character and bears only sage-brush, greasewood, cacti and sand flowers. But the lands if watered are extremely fertile, especially where peat beds have developed. In its natural state growths of tules, rushes and water grasses covered the basin and fine tendril-like weeds covered the open water. Malheur Lake is like the Nile, for in the desert country fertility follows its overflow. The bed of the lake, where water stands almost continuously, will raise ordinary agricultural crops, if it become dry. In 1931 when there was practically no water there a crop of grain was raised, partially below the 4090 foot contour. Conditions are thus entirely reversed from those prevailing upon lakes not subject to great rises and in fertile country. There, the bed of the lake will not raise agricultural crops while the surrounding country does.10 The criticism of the Neal Meander upon precedents based upon utterly different conditions is unsound when applied to this peculiar situation. It is true the line in question generally does not mark any bank on the ground nor any change in the vegetation. The Meldrum line generally delineated the high ground and divided desert and agricultural lands. But the United States abandoned this line and surveyed a new one.

The flatness of the terrain raised another difficulty. A seven foot rise of water in the lake marks the distinction between a small pool covering about 30 acres and a sheet of water expanding over 60,000. The lake is of a different conformation not only at every different level of a foot but at every inch. At 4090 it is almost circular. From 4092 to 4095 it is of an irregular eliptical shape. The Jessup report indicates that even in high water the level has never risen above 4095, but at times the water probably spread as far as the town of Lawen. At various levels more or less ground is exposed. Suffice it to say, that at 4093 there are 7991.6 acres thus exposed, at 4094, there are 1396.75 and at 4095 only a few high points. It is of course miles from the meander line to the water surface when the lake is very low, but this circumstance under the conditions is not a badge of fraud.11 Any one who has seen the vast stretches between mean high and low water on the Columbia River would not be astonished at this feature.12

Wherever the meander line was drawn, here, at every recession of the water more land would appear next to the line or separated by water a few inches deep.13 The designation of these as "promontories" and "islands" verges upon absurdity. If the meander line approximately bounded the lake at mean high in this flat country this result is inevitable. There are scattering high ridges and points, which are probably never covered with water, which are properly called "islands". There are none which could properly be called "promontories", which are "high points of land or rock jutting into the sea, or headlands". The use of this term to characterize a few square feet of soil arising from an inch or so to two feet above the assumed level of the Neal line is certainly improper. Neal is not to be criticized because he conquered this difficult problem created by the conditions he found.14

The Neal line was not run on any level of the water. The elevations vary from below 4092 to above 4094. But it is not required that such a line be at a specified elevation. If properly laid, such a line usually will not be level. The Jessup report indicates that high flood stage was somewhat under 4095.15 The accompanying exhibit shows a water chart where in the available years the water is often shown as rising above 4094.16 While the Jessup report indicates that at some time the water may have reached the town of Lawen,17 it must be assumed this was under exceptional circumstances. Yet the fluctuations caused by evaporation and absorption as well as discharge are very great, and are not entirely accurately reflected at The Narrows, owing to the shoal imposed north of the Sod House. Even if Neal drew the meander somewhat beyond the exact line touched by ordinary high water, the government was the gainer and the patentees simply paid slightly more for land which might be covered for long periods of time in wet years.

The fact that there is no definite boundary line between agricultural lands and lake bed, the fact that it is at times miles from the line to the water of the lake, the fact that vast stretches of land attached to or separated from the uplands appeared at various stages of the water, constitute no valid criticism. The actual conditions on Malheur Lake can not be measured by the ordinary standard. But the line drawn met the essential test. Neal's line certainly bounded the shore line of a lake existing at time of survey at mean high water, whether that be assumed at 4093 or 4094. The result is that there was no gross error or fraud18 in his work.19

In order to discover the intention of the United States at the time the meander line was drawn and patents issued thereon, it is necessary to review the history in the light of the conditions...

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