Seabrook v. Coos Bay Ice Co.

Mr. Justice Eakin

delivered the opinion of the court.

1. There are but two principal issues involved here: (1) Is there a tract of land between the Fox and Webster *175 tracts that may be included in the State deed to plaintiff’s grantor? (2) As to the true location of the south line of the Fox tract. Defendant also pleads title by adverse possession. The grounds of the motion for nonsuit, relied upon, are: (1) That neither the pleading nor proof identifies the property described in the complaint with the property described in the deed to the plaintiff from his grantor, Lapp; (2) that plaintiff has only proved title to the tide land, namely, land above low tide, while it contends that the premises sought to be recovered are below low tide, therefore incorporeal, and not recoverable in ejectment.

Plaintiff’s property is described in the complaint from the southeast corner of block 66 of Nasburg’s addition to the city of Marshfield, and plaintiff offered in evidence a copy of the plat of that addition, evidently for the purpose of identifying the property described in the complaint. This plat contains no explanation of its contents, statement of survey, or reference to any government corner by which it can be located. There is a line thereon marked as the west line of section 26, townsship 25 S., range 13 W., but only a fraction of it. We might assume that a certain small red circle indicates the intersection of that line with the meander line of the bay, and we might assume that the south line of block 66 extended east is the south line of the Fox tract; but it would only be an assumption. There is nothing on the plat which would justify it, and the complaint in no way connects the property described with the Fox tract; but this defect in description is aided by the answer in which the defendant’s property is described, evidently by reference to the same plat, and alleges that the lands described in the complaint are a portion of the lands described in the answer, and both descriptions are aided by the Whereat plat, and, in view of the fact that this is the second trial upon these pleadings, we will assume that the point of beginning of the description of the property *176 claimed by plaintiff, is intended by him to describe a point on the south line of the Fox tract, and that the north line of Delta street by which defendant describes its property is several feet south of the south line of block 66, and is also intended to describe a point on the south line of the Fox tract. The trial proceeded upon the theory that the south line of the Fox tract is the true line between the properties of plaintiff and defendant.

The answer concedes that the premises sought to be recovered are tide lands; defendant claiming title thereto by conveyance from the State, thus admitting that the premises in controversy are above low tide. The evidence therefore upon that question was immaterial, and the motion for nonsuit was properly denied.

2. As to the plea of adverse possession, on the former appeal we held that the proof was not sufficient to establish adverse possession, and the proof upon the second trial is no stronger in defendant’s favor than at the first trial, and that plea need not be further considered.

3. A map, identified by witness Polley, was offered in evidence, but was excluded by the court, and Polley was not permitted to testify as to whether or not he found a tract of tide land between the Fox and Webster grants, and this is assigned as error. But Polley’s survey of the Fox tract is based on the fact that the metes and bounds thereof, as set out in the deed from the State, do not close; the east line thereof being too great, and the distance in the last call of the survey being insufficient to reach the place of beginning. Therefore he swings the whole survey south and west to correct this error, by dividing the errors in the manner, as he says, the government permits correction back in sectionizing lands of the government; but in the public survey the first lines and corners are only temporary, and the result of the correction back becomes the permanent lines and corners; but such a rule cannot apply in retracing permanent surveys *177 to the extent of moving out established boundaries, so as to include territory not within the original survey, and Polley’s map was drawn on the theory of this correction, and both it and his testimony based theron were properly excluded.

4. The evidence offered to establish the angle in the government meander line, to which the survey of the Webster tract is anchored, does not appear to be complete. The government meander line through section 26, as shown by the field notes, is 80.80 chains,'viz: “From the meander post between sections 26 and 27; thence in section 26, S. 58 degrees E. 22.30 chs.; S. 41 degrees E. 15.00 chs.; S. 6*/4 degrees E. 15.00 chs.; S. 17 degrees W. 15.00 chs.; S. 10 degrees W. 13.50 chs. to meander post between sections 26 and 35.” The northwest corner of the Webster tract is 47.46 chains along the meander line northerly from the meander post between sections 26 and 35, and the west line of the Fox tract extends southeasterly from the meander post between sections 26 and 27, along the line of the survey of that tract is 34.04 chains, although diverging from the government meander line, making the whole line, without allowing for any vacant tract, 81.50 chains, which' exceeds the length of the meander line .70 chains. Making allowance for the increased length of the west line of the Fox tract on account of its divergence from the. government line, which will not exceed probably 15 or 20 feet, still it would overlap the Webster tract. Again, the witness Whereat locates the angle post to which the Webster tract is anchored from the northeast corner of lot 2 of section 26, alone, and has ignored the measurements and angles of the meander line in which this angle occurs. We stated in the former opinion “that the reference in the deed to the northeast corner of lot 2 is only as a witness corner to identfy and aid in finding the angle mentioned, and not to control it.” It was not a "government witness corner to that angle, but a reference by the *178 county surveyor to identify the government angle to which he anchored the Webster survey. The north line of lot 2 was an unsurveyed line and no part of the government survey. Its point of intersection with the west line of the section was unidentified, as well as its point of intersection with the meander line. Therefore, if 7.50 chains north 17 degrees E. from the point established by the witness as the northeast corner of lot 2, locates that angle more or less than 48.50 chains, according to the course of the meander line from the meander post between sections 26 and 35, then it cannot control. Measurements from the northwest corner of the section must also be consulted. Polley’s testimony as to his location of that angle is indefinite. He refers to points and lines by pointing at the map, and pointing means nothing to one who is not present; but Mr. Seabrook’s objection to Polley’s map, states that there is a difference of 79 links (52.14 feet) between his point of location of that angle and that of Whereat, which would make a corresponding difference in the location of the northwest corner of the Webster tract, as there does not seem to be any other discrepancy between their surveys on that line. And taking this difference, as the result of Polley’s survey, namely, placing the tie angle .79 chains northerly from Whereat’s location of it, approximates very closely the point that appeared on the former trial as an angle in the government meander line, as ascertained by Whereat, which was shown both by his testimony and his map. It is stated in the former opinion ( 49 Or. 243 [ 89 Pac. 418 ]) : “Whereat’s survey or tracing is erroneous in adopting as a tie corner the point 63.9 feet southward on the meander line from the angle mentioned.

There is another view that convinces us that Whereat’s starting point may be erroneous. By his map he locates the northwest corner of the Webster tract north 41 degrees W. on the government meander line' 261.36 feet (3.96 chains) from the second angle of the government *179 meander line southeast from the north corner of the section, and this is correct according to the deed. The distance from that point on the government meander line to the north corner of the section, according to field notes, is 33.34 chains. The west line of the Fox tract is 34.04 chains, being 70 links (46.2 feet) overlap.

We have made these figurse from the map and data found in the record, but they cannot control as against an actual survey on the ground. They are the data from which the survey must be made. To establish that there is. any vacant land between the Webster and Fox tracts, it must be demonstrated that the actual measurement of the government meander line is more than 80.80 chains. This element has not been taken into account by Whereat, at least he has not given us the facts in relation thereto. Plaintiff is not entitled to recover until he has established his title, and the evidence does not justify a verdict in his favor for the whole property sued for.

Judgment will be reversed and the cause remanded.

Reversed.