Younie v. Sheek

• Citation: 44 Idaho 767,260 P. 419
• Decision Date: 14 October 1927
• Docket Number: 4608
• Parties: ALEX YOUNIE, Respondent, v. HENRY SHEEK, JOHN SHEEK and JOHN REES, Appellants
• Court: United States State Supreme Court of Idaho

260 P. 419

44 Idaho 767

ALEX YOUNIE, Respondent, v. HENRY SHEEK, JOHN SHEEK and JOHN REES, Appellants

No. 4608

Supreme Court of Idaho

October 14, 1927

NAVIGABLE WATERS-MEANDER LINE-RIGHT OF PATENTEE-MISJOINDER OF PARTIES WAIVED-NEW TRIAL-SURPRISE-NEWLY DISCOVERED EVIDENCE-DENIAL OF MOTION-NO ABUSE OF DISCRETION.

1. Patentee of lots abutting on west meander line of a navigable river, in absence of claim by United States, takes to the west bank of the permanent channel, though between it and the meander line was a so-called channel which was filled with water in late spring and early summer and dry the remainder of the year.

2. Misjoinder of parties must be deemed waived, defendants having answered jointly after their joint demurrer was over- ruled, and such misjoinder not being raised either by demurrer or answer.

3. There was no error in refusing new trial on ground of surprise because of witness having made a map in a manner contrary to movants' instructions; any surprise being partially due to their own negligence, and the correction desired having no bearing on the result.

4. Abuse of discretion does not appear from denial of new trial for newly discovered evidence where it is merely cumulative.

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Ralph W. Adair, Judge.

Action to enjoin use of certain lands. Judgment for plaintiff. Affirmed as modified.

Kenneth S. Mackenzie and W. P. Hanson, for Appellants.

The Snake River has been declared by the supreme court of this state to be a navigable stream. (Miller v Lewiston-Clarkston Canning Co., 35 Idaho 669, 209 P 194.)

In an action of this nature, plaintiff must recover, if at all upon the strength of his own title, and not upon the weakness of that of his adversary. (Ibid.)

That patent to land bordering on a navigable stream extends no farther than the natural high-water mark. (Callahan v. Price, 26 Idaho 745, 146 P. 732; A. B. Moss & Bros. v. Ramey, 25 Idaho 1, 136 P. 608.)

When a stream divides into two distinct channels forming an island, and constituting a well-defined stream, on either side, during a considerable portion of the year, the boundary line of the land granted, extends only to the natural high-water mark. (Authorities cited above.)

Thomas & Andersen, for Respondent.

It is the settled law of this state that the owner of the shore along navigable water owns to the ordinary high-water mark, or the natural or average high-water mark of such water. The state holds title to the beds of navigable streams below the average high-water mark. (Callahan v. Price, 26 Idaho 745, 146 P. 732; Northern Pacific R. Co. v. Hirzel, 29 Idaho 438, 161 P. 854; Burrus v. Edward Rutledge Timber Co., 34 Idaho 606, 202 P. 1067; Raide v. Dollar, 34 Idaho 682, 203 P. 469; Miller v. Lewiston-Clarkston Canning Co., 35 Idaho 669, 209 P. 194.)

The riparian owner may maintain an action to enjoin interference with his use of riparian lands. (Hasbrouck v. Cavill, 54 Cal.App. 1, 200 P. 979.)

Where there is no error or fraud in the government survey and such survey was honestly made, no person may maintain an action for possession of land lying between the meandered line of survey and the natural or average high-water mark of the stream as against the abutting lot owner. (Hanson v. Thornton, 91 Ore. 585, 179 P. 494.)

Alleged newly discovered evidence which is merely cumulative and which was not beyond the reach of the parties at the time of the trial is not ground for a new trial. (Knollin & Co. v. Jones, 7 Idaho 466, 63 P. 638; Heckman v. Espey, 12 Idaho 755, 88 P. 80; Hall v. Jensen, 14 Idaho 165, 93 P. 962.)

Newly discovered evidence which would not be decisive upon another trial is insufficient to require a reversal and order for a new trial. (Turner v. Stevens, 8 Utah 75, 30 P. 24; Clements v. Stapleton, 136 Iowa 137, 113 N.W. 546; Spelling, New Trial and Appellate Prac., sec. 221.)

Courts look with distrust and disfavor upon motions for new trial based upon the ground of newly discovered evidence and such motions should not be granted by trial courts unless the new evidence is such as to make it reasonably probable that it would change the result upon another trial. (Estate of Emerson, 170 Cal. 81, 148 P. 523.)

Evidence cannot be deemed newly discovered where there was ample time within which the party might have ascertained all the facts before the trial. (Gallatin v. Corning Irr. Co., 163 Cal. 405, 126 P. 864.)

If no objection be taken either by demurrer or answer, the defendant must be deemed to have waived the same, save only objection to the jurisdiction of the court and that the complaint does not state facts sufficient to constitute a cause of action. (C. S., sec. 6693.)

Failure on the part of defendant to raise, by demurrer or answer, the question of defect or misjoinder of parties must be deemed to be a waiver of the right to thereafter raise such question. (Trask v. Boise King Placer Co., 26 Idaho 290, 142 P. 1073; Smith v. Rader, 31 Idaho 423, 173 P. 970; Valley Lumber & Mfg. Co. v. Driessel, 13 Idaho 662, 93 P. 765, 15 L. R. A., N. S., 299; Bonham Nat. Bank v. Grimes, etc., 18 Idaho 629, 111 P. 1078.)

GIVENS, J. Wm. E. Lee, C. J., and Taylor and T. Bailey Lee, JJ., concur.

OPINION

GIVENS, J.--

Respondent, owner of four fractional lots bounded by the west meander line of Snake River, brought this action for the purpose of enjoining appellants from occupying certain lands lying between the government west meander line and Snake River, on which appellants had filed possessory claims in 1923. The appeal is from a judgment for respondent and an order denying a motion for a new trial.

The evidence showed that the bulk of the land in question lay between a so-called west channel of the river (see Defendant's Exhibit 4), varying in width from 100 to 300 feet and from 3 to 8 feet in depth, which was filled with water in late spring and early summer and dry during winter and early spring, and the east or main channel of the river.

Appellants base their case in the main on the rule announced in A. B. Moss & Bros. v. Ramey, 25 Idaho 1, 136 P. 608, and Callahan v. Price, 26 Idaho 745, 146 P. 732, that the patentee of lots abutting on the meander line of a navigable stream does not take title to an island in the stream lying opposite his lots. The 3d, 4th, and 5th findings of the court based upon somewhat vague but sufficient evidence directly answer appellants' contention as follows:

[SEE DEFENDANT'S EXHIBIT 4 IN ORIGINAL]

"That the land lying between the meandered lines of the lots and legal subdivisions hereinabove described in Finding No. 1, and the westerly bank of the main channel of Snake River as described in Finding No. 5, is not and was not at the time Idaho was admitted as a state of the United States, an island, but that said land overflowed practically every year during high water season since the year 1883, and is such that the possession and use thereof belongs to the plaintiff and that the plaintiff is the riparian owner and proprietor thereof; that said land or any part thereof is not unsurveyed government land of the United States."

"That during the high or flood water season there are high water channels crossing said land at various places and at least in one place crossing the meandered lines of the United States survey, but for the greater part of the year these channels are dry."

The court further found that the average or natural high-water mark was along the northwesterly side of the main channel of Snake River entirely on the south and southeasterly side of the land in dispute. (See Defendant's Exhibit 4.)

Appellants' Exhibit "B1," a certified copy of the original government plat of township 2 south, range 36 east, Boise meridian, shows respondent's fractional lots and that Snake River was meandered. The court having found that the so-called west channel was dry a greater portion of the year and that the land in dispute was not an island the recent pronouncement of this court in Stroup v. Matthews, ante, p. 134, 255 P. 406, must control. That case quoting from and following Johnson v. Hurst, 10 Idaho 308, 77 P. 784, as follows:

"It is conceded as the general rule of law that the meander line run in surveying public lands bordering upon a navigable river is not a line of boundary, but one designated merely to point out the sinuosity of the bank of the stream, and as a means only of ascertaining the quantity of land in the fraction that is to be paid for by the purchaser, and that the water course, and not the meander line as actually run on the land is the true boundary line."

No resurvey or correction of the old survey was made herein and from the certified copy of the plat and the evidence introduced it is apparent that the river in 1922, several years after the original survey by the government, lies within the meander lines.

Johnson v. Hurst, supra, is similar to the case herein considered. Lattig v. Scott, 17 Idaho 506, 107 P 47, Johnson v. Johnson, 14 Idaho 561, 95 P. 499, 24 L. R. A., N. S., 1240, and A. B. Moss & Bros. v. Ramey, supra, involved islands in a navigable stream and the latter cases following the reversal of Lattig v. Scott, supra, by the supreme court of the United States, Scott v. Lattig, 227 U.S. 229, 33 S.Ct. 242, 57 L.Ed. 490, 44 L. R. A., N. S., 107, were by this court in a clear and lucid opinion, Callahan v. Price, supra, overruled. Callahan v. Price, supra, was an island case...