Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-10
OREGON SUPREME
COURT DECISIONS
sun Dial Ranch '. May Land Co.
MuItnOmah County

Hon. Earl C. BrOnaugh' Judge Aisu'u
and submitted Dec. 6, 1911. Alexander
Bernstein, Otto ]. Kraemer, VIII H.
King bernstein & Cohen on brieD ior
apnellant E. E. Coovert CCooyert
stapleton on brief for respondent
Bean, ]. Affirmed
This is an action upon contract
THE cause was tried by the court with
ont the Intervention Of a jury. From
Judgment in favor Of plaintiit lot
ss671 90 defendant appeals
On Feb. 7, 1907, negotiations were
pending between plaintiff and defen-
dant for the purchase OF a certain
tract of land owned by the latter IN
Multnomah county, Oregon, at the con
npence of the Sandy and Columbia
rivers, and fronting on the Columbia
river which is navigable at that point
Owing to the topography OF the lana
and the imposslbiity OF determining
the number of acres owned by defen-
dant. without survey plaintiff and
defendant entered into an agreement
in writing, the substance OF which Is
as follows:
whereas, the May Land company
has agreed to sell, and the Sun Dial
ranch has agreed to uprchase certain
lands in Multnomah county, Oregon,
at $500 per acre, the acreage to be
determined by survey; and
"Whereas, the May Land company
in pursuance of its agreement to sell
has furnished the Sun Dial ranch with
a survey Of said land, made by Philo
Holbrook, Jr., surveyor which SAID
survey shows ownership in the May
Land company of 1SO9O5 acres of
land; and
'rWhereas, the purchasers raise a
question as to the ownership in the
May Land company Of said number
of acres,
"Now, therefore, in order to expe-
dite the consummation of the contem-
plated transaction, that being the con-
sideratlon moving from each party
hereto to the other the parties hereto
agree that based upon the amount
due under said survey at $1,000 per
acre, the deed to said 1SO9O5 acres
shall be executed by the May Land
company; the cash payment agreed
upon be made by the Sun Dial ranch
and the notes and mortgages for un-
paid balance In accordance with the
agreement executed, with the under
standing that II 1t shall be hereafter
determined as surveyed, said company
will refund to the Sun Dial ranch al
the rate of $500 per acre for eacf
acre less than 1S09.O5 to which 1t has
not title; and II II shall be determined
hereafter that said May Land com
pany is actually the owner Of more
than said 1S09O5 acres, the Sun Dia
ranch will pay and agree to pay fol
any excess additionally at the rate o
$500 per acre. The determination
above referred to, to be made within
reasonable time as per agreemen
hereto attached.
"(Slgned) May Land company, b!
H. May, president; Sun Dial ranch
by II. c. Campbell, president"
Thereafter, the parties being unabl'
to agree In regard to the number o
acres or the line upon the north o
the land to which the survey shoult
be made, plaintiff proceeded to fix an'
establish the line of ordinary higl
water of the Columbia river as |
claimed the same existed at the tim
of the conveyance. The survey wa
made by Mr. II. S. Greenleaf a civi
engineer, and the line established b.
him. as described in the record b.
metes and bounds and shown on tn
maps In evidence, is called the Green
leaf line According to his measure
ments the tract contained 1850
acres and according to the line upo
the north of said land as surveyed b
MIR Philo HolbrOok, county suveyo
of Multnomah county, which is ais
described In the record and shown O
the maps In evidence, the tract con
tanned lS05.O5 acres, making differ
ence of 1867 acres, which latte
amount plaintiff alleges to lie betwee
the lines OF ordinary high water an
ordinary low water on the Columbi
river and belongs TO the state OF Or
egon, Therefore the only issue upo
the trial was as to the location OF m
ordinary high water mark on the CO
lnmbia river,
Upon the main issue the findings G
the trial court were as follows:
IhNt the north boundary line 4
said tract owned by defendant at tn
time Of said conveyance and intende,
TO be purchased by the plaintiff, an,
conveyed by defendant, was and is tn
line OF ordinary high water OF n
Columbia river. and that in pursuane
OF said agreement so entered into a
the time of said conveyance, plaintiff
by Its surveyor, Il, s. Greenleaf, pro
eeeded to run, fix and establish sal,
north boundary line Of said tract o
land and said line as so fixed by tn,
said Greenleaf is described as follows
to wit (Here follows the description
OF the Greenleaf line and survey
That said line so fixed hy sal,