Elwert v. Knapp

159 P. 1027, 81 Or. 525, 1916 Ore. LEXIS 299

Opinion

Mr. Justice McBride

delivered the. opinion of the court.

The decision of this case depends upon the construction of certain conveyances and adjudications of the Circuit Court of Multnomah County and of this court, which when analyzed indicate to our minds that plaintiff has no standing here. As before stated, the original title to the land lying adjacent to the Willamette River on the east side thereof was in James B. Stephens. On December 28, 1861, Stephens filed a plat of the then City of East Portland, in which that part relating to the property in controversy is as follows:

The map did not indicate the subdivision into lots and blocks, but a legend and scale which is shown above on the accompanying diagram indicated that complete blocks were approximately 200 feet square, and that these were subdivided into lots 50 feet north and south by 100 feet east and west. If there existed land upon which the plat could take effect, there would be upon the southerly side of block 2 a complete lot 5 and a fractional lot 4; all depending upon where the line of ordinary high water was at the time the plat was filed. The contention as to whether the alleged lot 4 was below the line of ordinary high water, and therefore not included in the Stephens’ donation claim, was first litigated in the case of Johnson v. Knott, 13 Or. 308 (10 Pac. 418). It appeared in that case that Stephens had conveyed to Knott’s grantors lot 5 in block 2, and the respondents, who owned, and operated a ferry at the foot of L Street, now Bast Washington Street, which is immediately south of block 2, drove piling in front of the alleged lots 3 and 4, block 2, in order to sheer their ferryboat into the slip at L Street. Subsequent to his conveyance to Knott’s grantors, and in 1874, Stephens had conveyed the alleged lots 3 and 4, in block 2, with other realty, to A. H. Johnson, who brought an action against him to recover the possession of the alleged lots.. Under instruction of the court, which substantially submitted the question of the right of Stephens to include these lots in his plat, the jury returned a verdict for the defendant Knott, but there were other issues involved which would have justified the verdict even if the evidence had shown that the whole or part of lot 4 was not a part of the shores and waters of the Willamette Kiver. The judgment of the court was that the plaintiff, Johnson, was not entitled to the possession of the property, and, this judgment having been affirmed, we hear of no further contention of Johnson in regard to it; he seemingly having acquiesced in the theory that the property formed part of the banks and bed of the river, and that Stephens- had no title thereto. If this were actually the case, the act of 1874 granting overflowed lands upon the "Willamette River to the adjoining bank owner operated to vest the title to the alleged lot 4 in Knott, whose title to lot 5 was indisputable; but it is not clear that the jury found, or intended to find, or that there is necessarily included in their verdict a finding, that lot 4 did not exist, and the evidence here tends to show that a portion thereof was above ordinary high water, and in that event the act of 1874 inured to the benefit of Johnson. But whether it is the successors of Knott or the heirs of Johnson who succeeded to the title to lot 4 is immaterial here in view of subsequent conveyances and decrees, as we will presently show. On June 24, 1891, the heirs of Levi Knott mortgaged lot 5 and appurtenances to J. B. Elwert, the mother of plaintiff, and on foreclosure the property was sold to this plaintiff, who received a sheriff’s deed March 1, 1896. On October 21,1905, Carrie M. Elwert entered into a written agreement with H. P. Palmer, whereby she agreed to sell and convey to him lot 5, in block 2, together with all riparian rights thereto for $3,000. The agreement provided that Palmer might in the name of Carrie M. Elwert prosecute and control any necessary suits to quiet title to the premises, and that ‘ ‘ all lands, rights and privileges owned or claimed by said Carrie M. Elwert between Water Street and the Willamette River is also to be conveyed by Carrie M. Elwert to H. P. Palmer.” On the theory that the west line of the Stephens donation claim was east of lot 4 and upon lot 5, a conveyance of lot 5 and the appurtenances and riparian rights would include all of the alleged lot 4; but, evidently to make assurance doubly sure, the contract contained also a description which included all of lot 4, so that Palmer became by this contract the equitable owner of lot 5 and of whatever interest Carrie M. Elwert had in the property between that and the river. The contract was immediately assigned by Palmer to M. W. Parelius, who, in fact, was the real principal in the transaction. On the 26th of October, 1905, Carrie M. Elwert, pursuant to her contract with Palmer, commenced a suit to quiet title to lot 5 and the property included in lot 4, not describing it as a lot, but by metes and bounds; the defendants being P. H. Marley, H. E. Noble and J. Olson, who in their answer disclaimed any title to lot 5, but claimed title to the alleged lot 4 by virtue of a sale for delinquent street assessments and by a sheriff’s sale for delinquent taxes, describing said lot as such as well as by metes and bounds. After this disclaimer by Marley and others of title to lot 5, Carrie M. Elwert, in August, 1906, conveyed to Parelius lot 5, with the appurtenances. The suit continued as to the residue of the property. The plaintiff, Elwert, in her reply to the answer of Marley, and others, denied that any such lot as the alleged lot 4 existed, pleading the case of Johnson v. Knott, 13 Or. 308 (10 Pac. 418), to that effect, and alleged that defendants Marley and others, as successors to Johnson by certain tax deeds, were estopped to assert the existence of lot 4, in substance claiming the wharfage and riparian rights on the Willamette River west of lot 5 as appurtenant to that lot. On December 24, 1906, a decree was entered that Carrie M. Elwert is the owner in fee of the property described as commencing at the southeast corner of block 2, East Portland; thence west along the north line of East Washington Street to the Willamette River; thence north down said river 50 feet; thence east and parallel with said north line of East Washington Street to the east line of said block 2; tbence south to the place of beginning—together with the exclusive right of wharfage ■from said land out to the navigable waters of said river, and is the owner of said right of wharfage in, to and upon those premises lying below ordinary high-water mark of the Willamette River fronting and abutting upon said lot 5, block 2, East Portland, out to the established harbor line of said river, and is entitled to the undisturbed and immediate possession thereof; that the chief of police’s and sheriff’s deeds referred to in the answer are null and void; and that the defendants be enjoined from claiming or asserting any right, title or interest in or to said property. On May 19, 1909, a mandate from the Supreme Court was entered dismissing an appeal and affirming the foregoing decree. On October 23, 1906, H. P. Palmer and wife made a quitclaim deed to M. W. Parelius of the property described as commencing at the southeast corner of block 2 in East Portland, and running thence westerly along the north line of East Washington Street to the Willamette River; thence down said river 50 feet; thence east parallel with the north line of East Washington Street to the east line of said block 2; thence south along the east line of said block 2 to the place of beginning, being fractional lot 5 of said block 2 in East Portland—together with the exclusive right of wharfage from said land and out to the navigable waters of the Willamette River. On May 19,1909, M. W. Parelius and wife conveyed to William Reid all of lot 5, block 2, in East Portland, and all riparian rights and right of wharfage in and to that portion of the bank of the Willamette River fronting on said lot 5 described as beginning at a point in the north side of East Washington Street where the same is intersected by the high-water line of the Willamette River; thence west along the westerly prolongation of the north line of said East Washington Street to the harbor line established by the United States; thence northerly along said harbor line to a point west of a point 50 feet north of the place of beginning; thence east to the high-water mark of the Willamette River; thence along said high-water mark to the place of beginning. Under the terms of her contract with Palmer it was the duty of Carrie M. Elwert at once to convey the apparent title thus obtained by this decree to Parelins, his assignee, who by the terms of his contract and the payment of the purchase price was already the equitable owner of the property recovered; but, true to her character as a perennial litigant, which the records of this court abundantly establish, she sought to collect for herself the costs and disbursements of the suit and to appropriate them to her own use, and Parelins was compelled to again go into court and set up his contract and enjoin her from so doing. The court found with the plaintiff. Upon August 5, 1909, J. B. Elwert, plaintiff’s mother, began a suit against William Reid and M. W. Parelins to quiet title to the property obtained by the decree in Elwert v. Marley et al., alleging that Carrie M. Elwert held the property in trust for her, and had no right to convey it. This suit, being decided adversely to plaintiff, was appealed to this court. Mrs. J. B. Elwert having died pending the appeal, Carrie and her brother C. P. Elwert were substituted as plaintiffs; and we have Carrie M. Elwert as a substituted plaintiff prosecuting a suit to have Carrie M. Elwert, alleged trustee, declared guilty of a gross breach of trust, and demanding that the transaction involved therein be set aside. The result of this appeal to the Supreme Court was a decree for the defendants affirming the decree of the Circuit Court, which decree was as follows:

“This cause coming on to be heard upon the motion of the defendants for a decree in accordance with the findings of fact heretofore made and filed herein by the court, and it appearing that the court has heretofore made its findings of fact and conclusions of law in this suit, which are now on file herein, said motion is allowed. It is therefore ordered, adjudged and decreed that defendant "William Reid is the owner in fee simple of lot 5 in block 2 in Bast Portland, Multnomah County, according to the duly recorded map and plat thereof; that ordinary high-water mark in the Willamette River is entirely within the boundaries of said lot 5 for the whole width thereof; that the premises lying west of said lot 5 and between it and the harbor line in the Willamette River are appurtenant to the said lot 5, and that defendant William Reid is the owner of an exclusive right of wharfage and possession in and of the same; that plaintiff has no right, title or interest in or to any part of said real property or in or to any part of said right of wharfage and possession, and that her claims thereto are null, void and of no effect; and that she and all persons claiming or to claim by, through, or under her be and they hereby are perpetually and forever enjoined and restrained from claiming any right, title or interest in or to said premises or in or to said right of wharfage and possession and from interfering in any way with the possession and right of possession of defendant William Reid therein and thereto. It is further ordered and decreed that the plaintiff’s complaint be and the same hereby is dismissed, and that the defendants recover their costs and disbursements herein from-the plaintiff, taxed at $95.”

The decree settled all claims of Carrie M. Elwert to the property here in dispute, and, so far as she is concerned, whether suing as a claimant to the property or as a taxpayer, or in any other character, she is es-topped from asserting that William Reid, or his grantee, the City of Portland, has no title to the property.

It is evident that the title to the disputed premises was either in the Elwerts or in the heirs of Johnson, and it appears that the city has brought suit to quiet title against the heirs of Johnson, and that they have defaulted. It is evident that Reid’s claims upon the property were such that it would have been impolitic for the city to have purchased the other property without acquiring them; and we are satisfied that by acquiring them it extinguished the last vestige of adverse title, insomuch as it appears here that its title to any possible claim by the heirs of Johnson has been extinguished and quieted by the suit brought by it for that purpose against the heirs of Johnson.

The decree of the Circuit Court is therefore affirmed.

Affirmed. Rehearing Denied.

Mr. Chief Justice Moore, Mr. Justice Benson and Mr. Justice Bean concur.