Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-10

which we are familiar.
Assuming zero as an arbitrary stan
dard fixed as nearly as possible al
low water mark opposite the point IN
controversy, the elevation OF the land
between the HolbroOk meander line
and Greenleaf line varies, commenc-
ing at Holbrook line extending south
erly across the widest part OF the
tract from 3.9 feet above zero to 9'S
feet as shown by the figures on map
In evidence. At this place the ex-
treme annual rise of the Columbia is
about twenty-five feet, and the bar is
covered with water from nine to fiji
teen feet every year. 1t is agreed that
the tide does not affect this portion
OF the river.
The evidence tends to show that this
tract, which is referred to in the tes-
timony as a bar, has, since 1882, been
nearly the same elevation, except for
slight rises and falls For years steam
boats have endeavored to avoid this
barrier. Along the Greenleaf line for
the greatest part Of the distance, there
is a bank clearly outlined ten or twelve
feet high with distinct water marks
on it. with vegetation above, and sand
and gravel below, except for small de-
posits caused by back water in few
places. This formation could not pos
sibly grow vegetation. The annual
recurring spring rises Of the Column
bia river come over the bar during the
months of March or April and remain
until the first or fifteenth of August.
There is practically no vegetation on
the same because of the nature of the
soil, and because vegetation could not
live under water The bar is changing
continually, and vegetation, if it could
be started, would either be covered
with fresh sand or washed away as
the current might affect it.
The various estimates of the time
the bar is covered with water are
from four weeks to six months, and
perhaps eight months of the year. Mr.
r. S. Greenleaf, who surveyed the
tract in 1907, indicates that along his
line of survey, the bank on one island
Is nearly vertical; on another oval
that of the large island gently slOp-
ing; being fifty or sixty feet horizon
tally the line running with the veg
citation at an elevation of about nine
feet The large island is at an eleva-
tion of twenty-five feet above zero
There is a fall of six feet from the
foot of the bank to the waters edge
! A rise of five feet of water would
cover the north half of the bar, and
four feet more would cover the bal.
ance. There is a movement of gravel
on the bar every year, and out beyond
the four foot line it is mostly quick
sand which is unstable like the water
, itself and changes with every flood.
Other witnesses state that the bal
is used for posture; that it has a will
low growth and is like the land VI
the river for three or four miles; thai
| there is more vegetation on the islant
t than on the bar; that it is not affected
by the waters Of the Sandy river, ant
estimates that other bottom land neal
is lower.
Mr.. Philo Holbrook, county sur
| veyor, states that his line is one foo
above water and in some plaGes
4 higher; that there are about seventy
| five acres of land not taken in by his
1 survey, which was made January Is
! 1907; that he estimates his line to bt
/ six or seven feet above zero.
/ The trial Judge visited the locus il
l quo, and made an investigation il
October 1903, before taking the testi
e mony, and again in May, 1909. Elabor
r ate maps showing the location anC
e elevation of the premises, and portions
: Of the Columbia and Sandy rivers wer,
] introduced in evidence.
e Counsel for plaintiff and defendan
d are in accord in their statements tha
= the ordinary high water mark on tn,
- Columbia river is the line of demarca
tion between the land which shoult
{ be measured, and the bed of the river
+ We need only to state the rules o
e law, as enunciated by this court an,
r others, as the controversy in this cas-
n Is largely as to the application o
= principles already adjudicated.
% Mr. Farnham, in his valuable worl
r on Waters and Water Rights, digest
r. the definitions of high water mari
- gwen IN several cases as follows
4 with reference to rivers which ar
e not affected by the tide, the meaning
n of the term is somewhat more dlfticul
y to determine but the definition whic
y best meets all requirements Of tn
T. case and which has in effect bee
h adopted by the weight of authority /
d that high-water mark is the point be
r, low which the presence and action q
+ the water are so common and usua
= and so long continued in ali ordlnar
S years as to mark upon she soil char
T. aeter distinct from that of the bank
with respect to vegetation as we'll q
S with respect to the soil itself Thi
e definition applies both to nayigabI
and a mo-,