Fellman v. Tidewater Mill Co.

Me. Justice Burnett delivered the opinion of the court. 1. The ownership of the tide-lands mentioned in the complaint is not the only question involved. The issues affect also the right of access to the navigable stream. In Go guille Mill & Mercantile Co. v. Johnson, 52 Or. 547 (98 Pac. 132, 132 Am. St. Bep. 716), it was held that the right to operate a boom in a navigable stream adjacent to real property as a thing distinguished from appropriation and occupation of the soil under the water is an incorporeal hereditament, for the possession of which an action of ejectment will riot lie —citing 15 Cyc. 16; Parker v. West Coast Packing Co., 17 Or. 510 (21 Pac. 822, 5 L. R. A. 61). This feature of the case is peculiarly cognizable in equity, and serves as a leaven to leaven the whole lump of litigation, giving the chancery side of the court jurisdiction to hear and determine the entire controversy, although some features of it might be worked out at law. In a sense the title to the land is ancillary to the other question involved, when viewed from the standpoint of equity. As stated in South Portland Land Co. v. Hunger, 36 Or. 457 (60 Pac. 5): “The remedy at law to which the statute alludes must be plain, adequate, and complete, or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity. It is not enough that there is a remedy at law. * * £ The remedy at law which defeats a suit in equity must be full, adequate, and complete. Anything less than — 5 — this will not he sufficient to deprive equity of jurisdiction.’ ” In support of this principle giving authority to courts in equity, although in some aspects of the litigation there might be some remedy at law, this precedent is quoted approvingly by this court in the following cases: Sellwood v. Henneman, 36 Or. 575 (60 Pac. 12); Benson v. Keller, 37 Or. 120 (60 Pac. 918); Wollenberg v. Rose, 41 Or. 314 (68 Pac. 804); McMahan v. Whelan, 44 Or. 402 (75 Pac. 715); Livesley v. Johnston, 45 Or. 30 (76 Pac. 946, 106 Am. St. Rep. 647, 65 L. R. A. 783); Fire Assn. v. Allesina, 45 Or. 154 (77 Pac. 123); Wood v. Fisk, 45 Or. 276 (77 Pac. 128, 738); Clark v. Hindman, 46 Or. 67 (79 Pac. 56); Zeuske v. Zeuske, 55 Or. 65 (103 Pac. 648, 105 Pac. 249, Ann. Cas. 1912A, 557). In Hill v. Cooper, 6 Or. 181, it was held that even by defending an action at law unsuccessfully the losing party was not deprived of his right to subsequently begin his suit in equity to maintain his rights which might be otherwise concluded by the judgment at law. If, therefore, as in that case, a defendant defeated in the law action may yet prosecute his suit in equity notwithstanding the law judgment, much more may he commence in equity in the first instance to wage his contention, when it involves relief which only chancery will award. It would be of little profit to the plaintiffs to bring ejectment for the tide-lands which they claim, and yet be cut off from access to navigable water by the boom of the defendant planted in front of them. "We conclude that the issues involved in the pleadings are properly cognizable in equity. — 6 — only in the.river in front of their premises, but also across their lands to the 15-acre tract, forming the exception in the description already mentioned. Referring to the excerpt from the answer quoted above, we find the defendant stating that the boom is situated upon its own land, and upon the waters of the river and bay, and where it is situated upon those waters it is maintained under-license from the United States. The terms of the permit are not set out, and it is but a conclusion of law to say that the boom is maintained under that authority. We cannot presume that it empowered the defendant to prevent the shore owner from access to the navigable waters in front of his holdings. Without pleading title in itself, the defendant essayed to prove that it was the owner of what is known as “Tide Island,” above the premises described by the plaintiffs, and that this island by gradual accretion had been extended downstream and in front of the lands claimed by the plaintiffs. The muniments of title introduced by them without objection on the part of defendant show that by deeds of date August 26, 1887, and March 8, 1889, the State of Oregon, by what is now known as the state land board, conveyed to the plaintiffs’ predecessor in interest all the tide-lands fronting or abutting upon lot 7 in section 35, and lots 3 and 4 in section 26, township 18 south, range 12 west of the Willamette Meridian. It is true that those conveyances state that the tide-land as it then existed contained a certain number of acres. The position taken by the defendant here is that the predecessor in interest of the plaintiffs took only to the precise metes and bounds described in the survey of the tide-lands as they then were, and that those limits were fixed and immovable, so that other tide-lands might afterward — 7 — come into existence between the lands then called tidelands and the river. A further contention on the evidence is that by gradual accretion Tide Island was extended downstream in front of the lands originally conveyed by the state, as noted above, and hence cut off plaintiffs’ holdings from access to the river. 3. In the first place, as regards the tide-lands, the deeds conveyed to the grantor of plaintiffs all the tideland in front of the lots mentioned. This extended the holdings under those deeds to low-water mark, wherever the same might be then or afterward. Applying this principle, Mr. Justice Eaiiin, in Grant v. Oregon Navigation Co., 49 Or. 324 (90 Pac. 179, 1099), as quoted by Mr. Justice Bean in Pacific Elevator Co. v. Portland, 65 Or. 349, 399 (133 Pac. 72, 82, 46 L. R. A. (N. S.) 363), said: “By the legislative acts of 1872 * * and 1874 * * the upland owner was given the preference right to purchase the tide-land, and upon such purchase, if not already vested in another under Section 4042, B. & C. Comp., he thereby acquired also the exclusive wharf-age right to deep water, and also all accretions to his tide-land and the right to fill up the shallows or flats, so long as he does not impede navigation or interfere with commerce over the same. ’ ’ 4. The rule is that the purchaser of tide-land takes to the low-water mark, that afterward he is entitled to follow that line to the utmost of its recession, and that he acquires title to the accretions which gradually form upon his original grant: Cawlfield v. Smyth, 69 Or. 41 (138 Pac. 227). The plaintiffs are therefore entitled to the accretions joining their land in front thereof to the present low-water line on the Siuslaw River, when considered as a pure addition by imperceptible degrees to that holding. — 8 — A careful reading of the testimony impresses us with the belief that the contention of the defendant that the accretion is part of Tide Island is not well founded. The evidence goes no further than to show that in former times there was a channel between Tide Island and the tide-lands included in the conveyances from the state, through which passage rowboats could be taken in any stage of water, but that now at low water all the lands in that vicinity are uncovered, including the bed of the channel. It is practically without dispute, however, that substantially along the east line of the premises claimed by the plaintiffs a depression exists, which some witnesses say contains water at all stages, and which those most favorable to the defendant admit has water in it at quarter tide. It seems clear to us that that depression is the small remainder of the farmer channel between the original tide-lands and Tide Island, showing that the accretions which extend from plaintiffs’ grant to the present low-water mark are not part of Tide Island, but natural additions by imperceptible degrees to their holdings. We conclude that as the suit involves the right of access to the. navigable water, for which ejectment will not lie-, a court of equity has jurisdiction, because the action of ejectment would not afford complete relief for the grievances of which the plaintiffs complain, although incidentally the title to the tide-lands is involved. We think, also, upon the merits of the case, the testimony shows that the accretions in front of and annexed to the lands of the plaintiffs cannot be attributed to an extension of Tide Island, but belong essentially to the original grant from the state to the predecessor of plaintiffs. — 9 — The decree of the Circuit Court is reversed and one here entered according to the prayer of the complaint. Reversed. Decree Rendered. Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Benson concur.