Miller v. Lewiston-Clarkston Canning Co.

RICE, C. J. This is an action in ejectment, originally brought by appellants Edna Pearcy Miller and Frank Miller, her husband, against the Lewiston-Clarkston Canning Co., Ltd., and J. Alexander Co., Ltd., domestic corporations, to recover possession of certain land. occupied by respondents situated on the Snake River waterfront. The mayor of the city of Lewiston was permitted to intervene a.s trustee for the city and the inhabitants thereof. The appellant Edna Pearcy Miller claims title to the land by inheritance from her father, Edmund Pearcy, now deceased, to whom two deeds were executed by the mayor-trustee of the city of Lewiston, one in the year 1872 and the other in the year 1882, which purported to convey title to the land in controversy. Respondents Lewiston-Clarkston Canning Co., Ltd., and J. Alexander Co., Ltd., claim the right to possession by virtue of certain leases executed by the mayor-trustee of the city of Lewiston, which at the time of the commencement of the action were still in force. In his complaint in intervention the mayor-trustee alleged that in 1875 the United States issued patent under the act of March 2, 1867, and amendments thereto, to Henry W. Stainton, mayor-trustee of the city of Lewiston, for certain lands constituting the town site of Lewiston, which included the land along the Snake River opposite the land in question. He also sets out certain acts of the legislature of Idaho territory and the state of Idaho, giving him, as he claims, the right of possession and control of the lands in controversy. Snake River is a navigable stream. The court found, on the testimony of certain witnesses, naming them, that all of the land in controversy was below the ordinary high-water [673] mark of the Snake River. Although the court enumerates the witnesses relied upon, it will not be presumed that it did not take into consideration all of the evidence presented in determining the fact, and the evidence as a whole is amply sufficient to sustain the finding. In view of the conclusion we have reached, it is unnecessary, and perhaps would be confusing, to detail additional facts found by the court. The court decreed that appellants had no right, title or interest of any kind or nature whatsoever in or to the lands or premises or any part thereof described in the complaint, and that the deeds executed to Edmund Pearcy in 1879 and 1882 were and are wholly void. It was also decreed that the fee title to such lands and premises is in the state of Idaho, and that the intervenor and his successors in office are entitled to possession and control of all of said lands and premises and to all riparian rights incident thereto or connected therewith, subject to the paramount fee title of the state of Idaho and to the rights of navigation in accordance with the constitution and laws of the United States. The appeal is from the decree so entered. In an ejectment action the plaintiff must recover upon the strength of his own title, and not upon the weakness of that of his adversary. (9 R. C. L. 838.) When land bordering upon navigable water is granted by a patent of the United States government, the adjacent land under the navigable water does not pass by virtue of the patent alone. Whether the owner of the shore along navigable water owns the lands lying thereunder depends upon the law of the jurisdiction in which the same is situated. (Scott v. Lattig, 227 U. S. 229, 33 Sup. Ct. 242, 57 L. ed. 490, 44 L. R. A., N. S., 107; Hardin v. Shedd, 190 U. S. 508, 23 Sup. Ct. 685, 47 L. ed. 1156; United States v. Chandler-Dunbar Water Power Co., 209 U. S. 447, 28 Sup. Ct. 579, 52 L. ed. 881; St. Paul & P. R. Co. v. Schurmeier, 7 Wall. (U. S.) 272, 19 L. ed. 74.) It is now the settled law of this state that the owner of the shore along navigable water owns only to the ordinary [674] high-water mark. The state holds title to the beds of navigable streams below the average high-water mark for the nse and benefit of the whole people. (Callahan v. Price, 26 Ida. 745, 146 Pac. 732; Northern Pac. R. Co. v. Hirzel, 29 Ida. 438, 161 Pac. 854; Burrus v. Edward Rutledge Timber Co., 34 Ida. 606, 202 Pac. 1067; Raide v. Dollar, 34 Ida. 682, 203 Pac. 469.) The deeds of 1879 and 1882, therefore, purporting to convey title to a portion of the bed of the river are void because the grantor had no title to convey. It appears that in 1881 the legislature of the territory of Idaho passed an act empowering the city of Lewiston “to lease the waterfront to any person, steamboat or railway company' for the purpose of erecting warehouses, wharfs, wharf-boats, or for any other purpose which they may deem proper; provided, the said city council shall, in any such lease, or leases, reserve the right to fix the rate of toll or wharfage.” No law of the territory or state of Idaho has been called to our attention, and we do not know of any, authorizing the city of Lewiston, or the mayor-trustee thereof, to convey title to any portion of the bed of Snake River. Appellants do not claim under any lease executed in accordance with the above-mentioned statute. They, therefore, have failed to show right to possession to the lands in controversy and cannot recover in this action. It is contended by appellants that the complaint in intervention constitutes a collateral attack upon the action of former mayors of the city of Lewiston in executing the deeds of 1879 and 1882 to Edmund Pearcy, and that such action is not subject' to collateral impeachment. If it be true that this is a collateral attack, it is nevertheless permissible. Void acts of public officials are not immune from collateral attack. Appellants also contend that the complaint in intervention is insufficient in that it contained no offer to place appellants in statu quo; that it appears that Mr. Pearcy paid the mayor-trustee $71 consideration for the deeds executed [675] to him; ’that this amount was never returned, and there is no offer to return it. The complaint in intervention was not defective in this respect. This is not an action to rescind or avoid a voidable contract. The contract was void, and the $71 was paid without consideration. (September 2, 1922.) It is to be noted that the state is not a party to this action, and that the extent to which the mayor-trustee of the city of Lewiston may control the waterfront of the Snake River adjacent to the town site is not in question. The judgment is affirmed, with costs to respondents. Budge, McCarthy, Dunn and Lee, JJ., concur.