DocketNumber: No. 11316
Citation Numbers: 77 Wash. 166, 1913 Wash. LEXIS 1912, 137 P. 494
Judges: Morris
Filed Date: 12/31/1913
Status: Precedential
Modified Date: 10/19/2024
This is an action to establish the boundary line between the lands of the parties hereto, located upon opposite shores of Cedar river, not far from Renton, the respondents’ lands being upon the north side and the appellant’s upon the south side of the river. The contention of respondents was that the center line or thread of Cedar river, as it existed January 1, 1908, should be held to be the true boundary line; while appellant contended that the true boundary line should be fixed as the thread of Cedar river as it ex
In addition to praying for the establishment of the boundary line, respondents alleged that appellant was engaged in the manufacture of brick and clay products, and that for some years past it had deposited large quantities of earth and stone in the river and along the south bank, until it had filled in the natural channel of the river opposite respondents’ lands to such an extent as to impede the natural flow of the river and deflect the force of the stream upon and against the lands of respondents upon the north bank; and, as a consequence thereof, during a period of high water in November, 1911, the waters of the river cut into and washed away the fertile surface soil of respondents’ lands to the extent of eleven acres, causing damage in the sum of $16,500. Issue was framed upon these contentions, and the case went to trial, resulting in a decree establishing the boundary line between the lands of appellant and respondents as the thread of Cedar river as found by a survey made in December, 1906; and as it was also found to exist for many years prior thereto. The decree also awarded respondents damages because of the acts of appellant in extending the south bank of the river, to the consequent injury of respondents’ lands, in the sum of $1,200. The decree fixed the course of the north and south banks of the river and the course of the thread of the stream; and further enj oined appellant from depositing earth, stone, or other material in the channel of the river, as defined by the courses fixed in the decree. From this decree, appeal has been taken.
There can be no dispute but that the thread of Cedar river was fixed as the true boundary line between the lands of appellant and respondents. The difficulty is in now determining where was Cedar river and where was the thread of the river at the time it was so fixed. In determining this ques
The meander lines shown in the survey of 1865 are from 180 to £50 feet apart. The normal flow of the river is shown as from forty to ninety feet in width, so that, if it be assumed that the river was wholly within these meander lines in 1865, we are still in the dark as to where within these lines the thread of the stream would be. Ordinarily, meander lines are not intended nor recognized as boundary lines, but only as lines intended to indicate the sinuosities of -the stream. It is, therefore, not unusual to find streams at places entirely without meander lines. As illustrating the difficulty of fixing the meander lines as bounding the stream, it is shown in. this record that, in places within these meander lines, trees are growing to which witnesses ascribe a growth of from ten to sixty years. Many witnesses gave their opinion as to the location of the river, in past years, but as these opinions were all based upon what each witness recalled as to the existence and location of certain land marks which are now obliterated, -due in some instances to floods and high water and in others to changes
We shall not attempt to answer all of appellant’s attacks
Upon the question of damages, appellant contends that, in actions of this character, it is not permissible to join a claim for damages. Appellant did not suggest this question until it made its argument to the court after the close of the evidence. It is clear that this is a suit in equity and, having obtained full jurisdiction, we think a court of equity can try out the whole controversy between the parties and afford such relief as it deems proper. The respondents stated their cause of action in their complaint and appellant answered thereto. The court was therefore authorized by both parties to try the issues thus made and to grant any relief embraced within these issues. We have frequently said that, in this state, the form of action is immaterial, and that in any action the court has power to try any question fairly within the issues submitted and to grant any relief warranted by the facts.
The judgment is affirmed.
Crow, C. J., Parker, Fullerton, and Mount, JJ., concur.