Washougal & L. Transp. Co. v. The Dalles, P. & A. Nav. Co.

• Decision Date: 05 March 1902
• Citation: 68 P. 74,27 Wash. 490
• Court: Washington Supreme Court
• Parties: WASHOUGAL & L. TRANSP. CO. v. THE DALLES, P. & A. NAV. CO.

68 P. 74

27 Wash. 490

WASHOUGAL & L. TRANSP. CO. v. THE DALLES, P. & A. NAV. CO.

Supreme Court of Washington

March 5, 1902

Appeal from superior court, Clarke county; A. L. Miller, Judge.

Action by the Washougal & Lacamas Transportation Company against The Dalles, Portland & Astoria Navigation Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Carey &amp Mays, for appellant.

Coovert & Stapleton, for respondent.

FULLERTON J.

This is an action to remove a cloud from title to real property. The respondent, who was plaintiff below, claims title to the property in question by virtue of a deed from the state of Washington, dated October 1, 1898, granting to it 'all shore land of the second class situated in front of, adjacent to, or abutting upon that portion of the United States government meander line described according to the certified copy of the surveyor general's field notes as follows Beginning at a point on said meander line on the right bank of the Columbia river in front of section 17, township 1 north, range 4 east, W. M., where the east boundary line of the Richard Ough donation land claim, No. 53, intersects same; thence along said meander line in front of sections 17 and 18, said township and range, as follows: N., 56 1/4~&gt W., 20.00 chains, to the meander corner to fractional sections 17 and 18, which meander corner is 19.50 chains south of the corner to sections 7, 8, 17, and 18; thence N., 65~ W., 11 chains; thence N., 62 1/4~ W., 8 chains, to a point on said meander line in front of said Richard Ough donation land claim; being a total length of 39.00 chains, as measured along said meander line in front of said sections 17 and 18, township 1 north, range 4 east, W M.' The meander line mentioned is the usual meander line which is run by the government surveyors along the banks of navigable streams to mark the sinuosities of such streams, and for the purpose of determining the areas of the fractional subdivisions of the public lands bordering thereon. The uplands bordering on this part of the Columbia river were originally conveyed by the United States to Richard Ough and wife as a donation land claim, by patent bearing date December 22, 1865. In 1880, Richard Ough and wife conveyed by warranty deed a part of this claim--a tract containing some seven acres--to Joseph E. C. Durgin and Lewis Love. The description of this tract was by metes and bounds, the south boundary of which was described as running along the right bank of the Columbia river at low-water mark. At the time of the execution of this deed, Ough and wife leased to the grantees named therein the free use of the bank of the river from a point commencing at the southeast corner of the seven-acre tract, and running thence upstream for a distance of 200 feet. Afterwards one S. G. Reed became the owner, by certain mesne conveyances, of the seven-acre tract, and of the rights granted by the lease, whereupon he purchased from Mrs. Ough, who succeeded to the interests of Richard Ough in the donation land claim, a tract described as beginning at the southeast corner of the seven-acre tract above mentioned, and running from 'thence upstream in said river, and following the low-water line thereof, 200 feet; thence north or back from said river, at right angles with the same, a sufficient distance to include one-half acre of land; thence westerly and parallel with low-water line of said river generally to the east line of said seven-acre tract; thence southerly along said east side line to place of beginning; containing one-half acre, together with riparian rights.' Both of these tracts were afterwards conveyed by Reed to the appellant in this action. The corners of the Ough donation land claim bordering on the Columbia river were long since washed away and obliterated. The evidence shows that measurements made from existing monuments set by the government surveyors at the time of the original surveys would place them in the river below what is now low-water mark. The original meander corner between sections 17 and 18 is also destroyed. This the surveyors employed by the respondent sought to re-establish by measuring from the section corner to sections 7, 8, 17, and 18. This corner was also destroyed, and it became necessary to re-establish it in order to get a base for the measurement. This they did by running a right line between the nearest existing section corners, and setting the last corner at a point proportionate to the distances given in the field notes of the original survey. From the corner thus established they measured south 19.50 chains, and established the meander corner. From the corner thus established they projected the meander line according to the calls in the original field notes given for that line at that point. Between the line thus projected and the present low-water mark of the river is a strip of land varying in width from 50 to 75 feet, extending across the south end of the half-acre and seven-acre tracts included with the appellant's deed. The respondent claims that this strip of land is shore land, and is included within its deed from the state of Washington, and that the appellant's deed thereto is a cloud upon its title. There was a sharp conflict between the testimony of the surveyors testifying on the part of the respondent and those testifying on the part of the appellant as to the true location of the meander line. The respondent's surveyors located it in the manner we have above indicated. The appellant's surveyors proceeded by a different method. They sought to establish the line by re-establishing the corners to the Ough donation land claim, and projecting the meander line according to its courses and distances as given in the field notes between these corners. This survey located the original line below what is now ordinary low-water mark of the river. They also tested their work by pursuing the methods adopted by the surveyors employed by the respondent. In so doing they located the section corner to sections 7, 8, 17, and 18 some 20 feet further south than the respondent's surveyors located it. They also testified that existing monuments set by private surveyors at an early time, when the original surveys were comparatively new, and probably easily traced,--such, for example, as the monuments marking the boundaries of the town of Washougal,--would indicate that the section corner had been set originally further south than even their surveys located it, and sufficiently far to place the meander corner below what is now ordinary low-water mark on the river. There was much uncontradicted evidence also introduced on the part of the appellant tending to show that the river had gradually encroached upon the donation land claim. It was shown that the corners of the claim, including the witness trees, had been washed away; that a house constructed by the Oughs, which was originally some 300 feet or more distant from the bank of the river, is now about 15 feet distant therefrom; that an orchard paralleling the river bank had as many as three rows of its trees washed away. It was also shown that the banks of the river, particularly in front of the land in dispute, were originally perpendicular,--so much so, in fact, that there was little or no difference horizontally between ordinary low and ordinary high water mark; that steamboats drawing from 2 1/2 to 3 feet of water, plying on the river, landed directly against the bank at all seasons of the year, and discharged and took on freight directly from the bank. It was further shown that in 1880 some of the appellant's grantors had...