By the Court,
Kelly, C. J.:
The respondent, who was the plaintiff in the court below, is the owner of a tract of land in Marion county, described in the complaint as lot No. 5 in section 27, and lots 2 and 4 in section 28 of township 7, south range 3 west of the Willamette meridian, the same being a portion of a larger tract of land originally granted by the United States to O. M. Pringle, under the act of congress known as the Oregon Donation Law, approved September 27, 1850. Since the land was granted to Pringle the Willamette river has changed the boundaries of the tract owned by respondent, so that they do not now conform to the descriptions in the original surveys and plats of the United States. The river has encroached upon and washed away some portions, while there have been gradual accretions to other parts of the land. These accretions are claimed by the respondent by virtue of his ownership of the adjacent land.
In his complaint the respondent alleges that he is the owner and in possession of this alluvion. He further alleges that the appellant, on or about the fifteenth day of March, 1872, filed in the office of the secretary of state for the state of Oregon an application to purchase these accretions to his lands from the state of Oregon as overflowed or tide lands, and that he claims the right under that application to [342]*342enter upon and use them. He avers that this claim of the appellant is a cloud upon his title, and asks that it may be removed by a decree declaring that the appellant has no interest whatever in these accretions to his land.
The answer of appellant denies the right of respondent to this alluvion, and among other denials and averments says, “That said land lies between high and low water of the Willamette river, and that the most of said land was so situated at the time of the survey of said island by the United States.”
To this portion of appellant’s answer there was a demurrer by respondent, which, was sustained by the court below. The plat of original surveys shows that when the meander line was run, a small portion of land was left between it and the water of the Willamette river, and it was to this land that the accretions, referred to in the pleadings, were added. And the question is whether the meander line as it was actually run, or the meandered stream, is to be considered the true boundary of the lots mentioned in the complaint. Whatever doubts may heretofore have been entertained upon this subject, they were removed by the decision of the supreme court of the United States in the case of the Railroad Company v. Schurmier, 7 Wall. 272.
In that decision the court says that: “Meander lines are run in surveying fractional portions of the public lands bordering upon navigable rivers, not as boundaries,of the tract but for the purpose of defining the sinuosities of the banks of the stream, and as the means of ascertaining the quantity of land in the fraction subject to sale, and which is to be paid for by the purchaser. In preparing the official plat from the field notes, the meander line is represented-as the border line of the stream, and shows to a demonstration that the water-course, and not the meander line, as actually run on the land, is the boundary.”
Adopting this construction in regard to grants of the public lands, we hold that the river, and not the meander line, was the boundary of the lots owned by the respondent.
The evidence shows that several acres have been gradually added to the lots since the original surveys were made, by [343]*343tbe accretion of gravel, sand and loam washed by the floods from the upper portion of the Pringle island and from the opposite shore of the river. This alluvion the respondent claims belongs to him as a riparian owner, and this court so decides.
It is a well established principle that formations by slow and gradual accretion belong to the owner of the land when made by a stream forming his boundary and opposite thereto. (11 Ohio, 314.) But it is insisted by the appellant that his application to purchase the accretions to respondent’s land, filed in the office of the secretary of state on the eighteenth day of March, 1872, does not cast a cloud on the respondent’s title such as requires the interposition of a court of equity to have removed, and that therefore these proceedings ought to be dismissed.
Section 500, on page 212 of the civil code, provides that “any person in possession, by himself or his tenant, of real property, may maintain a suit in equity against another who claims an estate or interest therein adverse to him, for the purpose of determining such claim, estate or interest.”
Courts of equity have long exercised the right to remove a cloud from the title of a person in possession of real property where there is an adverse right or claim which in conscience ought not to be asserted, and this section merely recognizes a well-settled principle of equity practice, which has always prevailed in those courts, of ordering illegal deeds and other written instruments delivered up and canceled. But where the illegality of the agreement, deed or other instrument appears upon the face of it, so that its nullity can admit of no doubt, the same reason for the interference of courts of equity to direct it to be delivered up or canceled would not seem to apply. (1 Story’s Eq., sec. 700 a.)
In Cox v. Clift, 2 Comstock, 122, the court of appeals lays down the rule thus: “Whatever opinions may have formerly obtained, it now seems to be established that, whenever it is apparent, from the writing or deed itself, that no danger to the title or interest of the complainant is to be apprehended, a court of equity will not entertain a bill for [344]*344the cancellation or delivery of the instrument. Nor is there any reason why a party should be allowed to resort to the expensive remedy of a suit in chancery to procure the relinquishment of a right which it is obvious the defendant never possessed, and against which, if asserted, the complainant had a perfect legal defense written down in the title deeds of his adversary.”
In the ease of Nickerson v. Loud, 115 Mass. 97, Gray, C. J., delivering the opinion, says: “In order to induce a court of chancery to order a writing to be canceled or surrendered, as constituting a cloud upon title, it must at least be an instrument which upon its face is, or with the air of extrinsic facts may be, some evidence of a right adverse to the plaintiffs.” So, also, in the state of Missouri, the supreme court declares that “to constitute a cloud upon the title to lands, some color of title must be shown in the defendant.” (Dunklin County v. Clark, 51 Mo. 60.)
The supreme court of California, construing a statute quite similar to our own, says the true test is: “Would the owner of the property, in an action of ejectment brought by the adverse party, founded upon the deed, be required to offer evidence to defeat a recovery? If such proof would be necessary the cloud would exist; if the proof would be unnecessary, no shade would be cast by the presence of the deed.” (Pixley v. Huggins, 15 Cal. 133.)
Applying the test laid down by the courts in these several states .to the case under consideration, we are at a loss to see how in any way the claim of appellant can be a cloud upon the title of respondent.
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By the Court,
Kelly, C. J.:
The respondent, who was the plaintiff in the court below, is the owner of a tract of land in Marion county, described in the complaint as lot No. 5 in section 27, and lots 2 and 4 in section 28 of township 7, south range 3 west of the Willamette meridian, the same being a portion of a larger tract of land originally granted by the United States to O. M. Pringle, under the act of congress known as the Oregon Donation Law, approved September 27, 1850. Since the land was granted to Pringle the Willamette river has changed the boundaries of the tract owned by respondent, so that they do not now conform to the descriptions in the original surveys and plats of the United States. The river has encroached upon and washed away some portions, while there have been gradual accretions to other parts of the land. These accretions are claimed by the respondent by virtue of his ownership of the adjacent land.
In his complaint the respondent alleges that he is the owner and in possession of this alluvion. He further alleges that the appellant, on or about the fifteenth day of March, 1872, filed in the office of the secretary of state for the state of Oregon an application to purchase these accretions to his lands from the state of Oregon as overflowed or tide lands, and that he claims the right under that application to [342]*342enter upon and use them. He avers that this claim of the appellant is a cloud upon his title, and asks that it may be removed by a decree declaring that the appellant has no interest whatever in these accretions to his land.
The answer of appellant denies the right of respondent to this alluvion, and among other denials and averments says, “That said land lies between high and low water of the Willamette river, and that the most of said land was so situated at the time of the survey of said island by the United States.”
To this portion of appellant’s answer there was a demurrer by respondent, which, was sustained by the court below. The plat of original surveys shows that when the meander line was run, a small portion of land was left between it and the water of the Willamette river, and it was to this land that the accretions, referred to in the pleadings, were added. And the question is whether the meander line as it was actually run, or the meandered stream, is to be considered the true boundary of the lots mentioned in the complaint. Whatever doubts may heretofore have been entertained upon this subject, they were removed by the decision of the supreme court of the United States in the case of the Railroad Company v. Schurmier, 7 Wall. 272.
In that decision the court says that: “Meander lines are run in surveying fractional portions of the public lands bordering upon navigable rivers, not as boundaries,of the tract but for the purpose of defining the sinuosities of the banks of the stream, and as the means of ascertaining the quantity of land in the fraction subject to sale, and which is to be paid for by the purchaser. In preparing the official plat from the field notes, the meander line is represented-as the border line of the stream, and shows to a demonstration that the water-course, and not the meander line, as actually run on the land, is the boundary.”
Adopting this construction in regard to grants of the public lands, we hold that the river, and not the meander line, was the boundary of the lots owned by the respondent.
The evidence shows that several acres have been gradually added to the lots since the original surveys were made, by [343]*343tbe accretion of gravel, sand and loam washed by the floods from the upper portion of the Pringle island and from the opposite shore of the river. This alluvion the respondent claims belongs to him as a riparian owner, and this court so decides.
It is a well established principle that formations by slow and gradual accretion belong to the owner of the land when made by a stream forming his boundary and opposite thereto. (11 Ohio, 314.) But it is insisted by the appellant that his application to purchase the accretions to respondent’s land, filed in the office of the secretary of state on the eighteenth day of March, 1872, does not cast a cloud on the respondent’s title such as requires the interposition of a court of equity to have removed, and that therefore these proceedings ought to be dismissed.
Section 500, on page 212 of the civil code, provides that “any person in possession, by himself or his tenant, of real property, may maintain a suit in equity against another who claims an estate or interest therein adverse to him, for the purpose of determining such claim, estate or interest.”
Courts of equity have long exercised the right to remove a cloud from the title of a person in possession of real property where there is an adverse right or claim which in conscience ought not to be asserted, and this section merely recognizes a well-settled principle of equity practice, which has always prevailed in those courts, of ordering illegal deeds and other written instruments delivered up and canceled. But where the illegality of the agreement, deed or other instrument appears upon the face of it, so that its nullity can admit of no doubt, the same reason for the interference of courts of equity to direct it to be delivered up or canceled would not seem to apply. (1 Story’s Eq., sec. 700 a.)
In Cox v. Clift, 2 Comstock, 122, the court of appeals lays down the rule thus: “Whatever opinions may have formerly obtained, it now seems to be established that, whenever it is apparent, from the writing or deed itself, that no danger to the title or interest of the complainant is to be apprehended, a court of equity will not entertain a bill for [344]*344the cancellation or delivery of the instrument. Nor is there any reason why a party should be allowed to resort to the expensive remedy of a suit in chancery to procure the relinquishment of a right which it is obvious the defendant never possessed, and against which, if asserted, the complainant had a perfect legal defense written down in the title deeds of his adversary.”
In the ease of Nickerson v. Loud, 115 Mass. 97, Gray, C. J., delivering the opinion, says: “In order to induce a court of chancery to order a writing to be canceled or surrendered, as constituting a cloud upon title, it must at least be an instrument which upon its face is, or with the air of extrinsic facts may be, some evidence of a right adverse to the plaintiffs.” So, also, in the state of Missouri, the supreme court declares that “to constitute a cloud upon the title to lands, some color of title must be shown in the defendant.” (Dunklin County v. Clark, 51 Mo. 60.)
The supreme court of California, construing a statute quite similar to our own, says the true test is: “Would the owner of the property, in an action of ejectment brought by the adverse party, founded upon the deed, be required to offer evidence to defeat a recovery? If such proof would be necessary the cloud would exist; if the proof would be unnecessary, no shade would be cast by the presence of the deed.” (Pixley v. Huggins, 15 Cal. 133.)
Applying the test laid down by the courts in these several states .to the case under consideration, we are at a loss to see how in any way the claim of appellant can be a cloud upon the title of respondent. All there is of it is an application filed by the appellant in the office of the secretary of state to purchase as swamp and overflowed lands certain lands, mostly alluvion, which lie between the river and the meander line of the lots in the Pringle donation claim, now owned by the respondent. We have already stated that the river and not the meander line is the boundary of these lots, and as a necessary consequence there is no land to which the appellants’ application can attach. Where a river is designated in a patent as the boundary of a tract, the legal deduction is that no land was left between the tract and the [345]*345river which could lawfully be granted to another. And it being legally impossible for the state to select as swamp and overflowed land that which is specified in the application, it follows as a matter of course that the application itself amounts to nothing, and must be treated as a nullity. The case of Taylor v. Underhill, 40 Cal. 471, is in many respects similar to this one. Taylor surveyed and claimed as swamp and overflowed land the sloping bank and lands covered by high tide of the Sacramento river, and obtained a certificate of purchase from the state. Underhill, the riparian owner, brought an action to restrain him from obtaining a patent for the strip of land in front of his (Under-hill’s) land, and to remove the cloud upon it. After hearing the case, the court below dismissed the plaintiff’s bill, and this judgment was affirmed by the supreme court. Temple, J., delivering the opinion of the court, says: “It (the court below) found that the land in controversy is below high-water mark, and that the tide ebbs and flows over it; and as a conclusion of law, that neither party could purchase the land as swamp and overflowed land. The certificate of purchase was therefore void, and his patent, if he obtained one, would also be void, and no injury could result to plaintiff from defendant’s claim.
“Upon the facts found in this case there can be no doubt but that the certificate of purchase was improperly issued to the defendant, and if those findings are true, it is somewhat surprising that he has been able to proceed so far with his application as to obtain his certificate. It could not have been intended in authorizing the sale of swamp and overflowed land to enable persons to obtain titles to lands under the navigable waters which are incapable of being reclaimed for agricultural purposes, and which could not be utilized without materially interfering with navigation. While, however, the attorney for plaintiff admits that the patent which the defendant may obtain would be invalid when these facts should be made to appear, he claims that it would not be void upon its face, but it would require evidence dehors the patent to show its nullity, and therefore its possession would be injurious to the plaintiff.
Mr. Justice Boise having tried this case in the court below, did not sit in the hearing on appeal. — [Reporter.]
“We think the plaintiff is correct as to the effect of the patent, but. we do not see upon what principle the court will give him relief. The claim of the defendant is not a cloud upon his title. There is no claim to any portion of his land.”
The court affirmed the judgment and dismissed the bill, and yet in asking the interposition of a court of equity to remove a cloud from plaintiff’s title, that case was a far stronger one than this. There a certificate of purchase was issued. Here there was none and never can be.
The respondent has a perfect title to the land in controversy, and is in possession of it; and there is no way by which his adversary can obtain a standing in court to disturb that possession or assail the title. It follows as a necessary consequence that this suit ought not to have been brought to remove a cloud from a title where none existed.
The decree is reversed and the complaint dismissed.