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


line marking said line OF ordinary
high water and the line fronting on
the Columbia river, as surveyed and
claimed by the defendant at the date
y, said copveyances above mentioned,
amounts to 138.47 acres, all Of which
now lies. and at the date of said con-
yeyance lay, between the lines OF or
dipary high water and ordinary low
water on the Columbia river.
"That this court, at the request OF
the parties herein, and pending the
hearing herein, in company with
counsel for said respective parties
personally visited said premises on
or about the - day of October 1908,
At time Of ordinary low water in
the Columbia river and again about
the - day of May, 1909, at the season
of the spring freshets in the Columbia
river, and from the testimony herein,
aided by said examination and inspec-
ton, the court finds that said line SO
surveyed by said Greenleaf, and as de-
scrlbed in finding No A. marks the
line of ordinary high water mark, and
the north boundary line of said tract
as owned by said defendant at the
time of said conveyance, excepting as
to the two small parcels containing
in the aggregate 81 acres, as here
inabove found, and that said l3S.41
acres lying north of said line are COW
cred by the waters of the Columbia
river from two to four months of each
recurring year and during the grow
ing season of vegetation, and same Is
barren sand and gravel by reason
thereof and wholly wrested from veg
citation.
"That said sand bar, consisting of
13S.47 acres, lies at an altitude vary
ing from two to nine feet above the
low water mark of the Columbia river
fronting thereon. That said sand bar
is a permanent bar consisting, for the
most part, of hard, firm sand and
gravel varying but slightly from year
to year in its general outline for
many years past, but that the surface
thereof changes with the recurring
periods OF overflow by the erosion OF
the surface and the depositing OF sand
and gravel thereon by the action OF
the floods and currents of the Coum-
bla river during the spring and sum
mer rises of said stream.
"That during the period OF ordinary
low water said sand bar extends con
siderably further north of the said
Holbrook line before reaching the line
of ordinary low water and from q
point about where the said HolbrooR
line runs, out to the ordinary low
water line, there is a marked differ
ence between the character of sale
bar and the character Of that par
south OF the Holbrook line, said outer
portion of said bar being very soft
partaking OF the nature of QuicksanC
and mire.
"That Immediately south Of sale
Greenleaf line marking said line o
ordinary high water the land rises il
most places abruptly, forming banC
above which vegetation grows, ant
the dividing line between said lant
and sand bar is practically identica
, with the said Greenleaf line described
in fndlgn No 4, and is apparent ant
discernible."
Bean, j. AT the conclusion of plain
tiif's testimony defendant moved 70
nonsuit, aSd assigns as error tn,
judgment of the court In overrulinl
the same, contending upon this appea
% That the findings of facts mad
by the trial court were not supported
by any evidence; (2) That the find
ings of facts do not support the de
: cree,
The Sandy river branches a shor
distance above its mouth, the west
b ern fork thereof forming the Llttl
q Sandy river These, with the Colum
bia into which they flow, embrace al
island of about four hundred and for
ty-seven acres, and several small isl
ands south of the Greenleaf line. Fo
D several years there has been bar
q opposite the large island in the Co
d lumbia, the area and elevation O
e which has been increased to a larg
T extent by the alluvion brought dow
D by the Sandy river and augmented b
! that washed by the waters OF the ca
Iumbia, This bar is about one thou
sand feet across from north to sout
at the widest part tapering towar
e the mouth Of the Little Sandy rive,
r and being narrower and Of very irreg
ular shape at the outlet OF the Sand,
I This bar, with some other small strip
constitute the basis of the contro
( versy in this case.
High water, which at times cover
the bar and many low lands in tn
vicinity is chiefly caused by the ris
, of the Columbia river which is som
twelve hundred to fourteen hundre
miles In length. The large waite
sheds OF this river and its tributsrle
account for the rise Of the water n
= different seasons Of the year In M
regions drained by the Snake rive,
which Is some eleven hundred mile
L