From Lane: WILLIAM GALLOWAY, Judge.

Department 1. Statement by MR. JUSTICE Burnett.

The plaintiffs, Joseph Fellman and Jesse J. Nicolle, complaining of the Tidewater Mill Company, the defendant corporation, allege that they are the owners of all tide-lands fronting and abutting upon lots 3 and 4 in section 26, and lot 7 in section 35, of township 18 south, range 12 west of Willamette Meridian, in Lane County, Oregon, except a tract of tide-land containing 15 acres, which exception is particularly described by metes and bounds. These tide-lands border on the Siuslaw River, a navigable stream used for the purpose of commerce and navigation. In effect the complaint charges that the defendant is constructing a log boom by driving piles at short intervals, commencing near its sawmill and following the harbor line at a depth of about 10 feet upstream and directly in front of the tide-lands of plaintiffs, and thence across the lands themselves, completely isolating them from the navigable channel, and preventing ingress to and egress from their other property, to their irreparable injury, and that the defendant threatens to continue the boom and to fill it with sawlogs.

The defendant denies everything in the complaint, except the allegation of its corporate existence. Answering affirmatively, it states in substance that it is operating a sawmill on Siuslaw Bay, and that it is necessary to maintain a boom in the river and bay to hold logs with which the mill is supplied. This allegation then follows:

"That the log boom belonging to defendant, and referred to in said complaint, is situate upon the lands of defendant and upon the waters of said Siuslaw

River and Bay, and where the same is situate upon the said Siuslaw River and Bay, the same is so maintained under license from the United States of America, duly made and issued by the said United States of America through its Department of War, to which is delegated the regulation of navigation upon the said waters, and that the said boom is so situate, so as not to interfere with or impede navigation upon said Siuslaw River and Bay, and does not in fact interfere with the navigation of said waters, and that plaintiffs do not own, occupy, or use the lands upon which said log boom is situated and maintained, and that plaintiffs are not engaged in navigation upon the said waters, and have no property which is used or is available for the purpose of navigation or commerce upon or adjacent to the said waters, and that the said log boom is lawfully used and maintained by said defendant, and is not an obstruction to commerce or navigation, and is so maintained, used, and operated in its said business lawfully."

The reply admits the navigability of the river, but traverses the other allegations of the answer. We deem it unnecessary to consider some new matter which appears in the last pleading. The Circuit Court heard the testimony on the issues raised, and determined substantially that, because there was drawn in question. the title of real property, of which the defendant was in actual possession, the legal remedy of ejectment was adequate, that therefore the court was without jurisdiction to try the case on the equity side, and so dismissed the suit. From this decree the plaintiffs appealed. REVERSED.

For appellant there was a brief over the name of Messrs. Williams & Bean, with an oral argument by Mr. John M. Williams.

For respondent there was a brief over the names of Messrs. Thompson & Hardy and Mr. Hollis S. Wilson, with an oral argument by Mr. Charles A. Hardy.

MR. JUSTICE BURNETT delivered the opinion of the

court.

1. The ownership of the tide-lands mentioned in the complaint is not the only question involved. The issues affect also the right of access to the navigable stream. In Coquille Mill & Mercantile Co. v. Johnson, 52 Or. 547 (98 Pac. 132, 132 Am. St. Rep. 716), it was held that the right to operate a boom in a navigable stream adjacent to real property as a thing distinguished from appropriation and occupation of the soil under the water is an incorporeal hereditament, for the possession of which an action of ejectment will not lie -citing 15 Cyc. 16; Parker v. West Coast Packing Co., 17 Or. 510 (21 Pac. 822, 5 L. R. A. 61). This feature of the case is peculiarly cognizable in equity, and serves as a leaven to leaven the whole lump of litigation, giving the chancery side of the court jurisdiction to hear and determine the entire controversy, although some features of it might be worked out at law. In a sense the title to the land is ancillary to the other question involved, when viewed from the standpoint of equity. As stated in South Portland Land Co. v. Munger, 36 Or. 457 (60 Pac. 5):

"The remedy at law to which the statute alludes must be plain, adequate, and complete, or, in other words, as practical and efficient to the ends of justice. and its prompt administration as the remedy in equity. It is not enough that there is a remedy at law. "The remedy at law which defeats a suit in equity must be full, adequate, and complete. Anything less than

this will not be sufficient to deprive equity of jurisdiction.'''

In support of this principle giving authority to courts in equity, although in some aspects of the litigation there might be some remedy at law, this precedent is quoted approvingly by this court in the following cases: Sellwood v. Henneman, 36 Or. 575 (60 Pac. 12); Benson v. Keller, 37 Or. 120 (60 Pac. 918); Wollenberg v. Rose, 41 Or. 314 (68 Pac. 804); McMahan v. Whelan, 44 Or. 402 (75 Pac. 715); Livesley v. Johnston, 45 Or. 30 (76 Pac. 946, 106 Am. St. Rep. 647, 65 L. R. A. 783); Fire Assn. v. Allesina, 45 Or. 154 (77 Pac. 123); Wood v. Fisk, 45 Or. 276 (77 Pac. 128, 738); Clark v. Hindman, 46 Or. 67 (79 Pac. 56); Zeuske v. Zeuske, 55 Or. 65 (103 Pac. 648, 105 Pac. 249, Ann. Cas. 1912A, 557). In Hill v. Cooper, 6 Or. 181, it was held that even by defending an action at law unsuccessfully the losing party was not deprived of his right to subsequently begin his suit in equity to maintain his rights which might be otherwise concluded by the judgment at law. If, therefore, as in that case, a defendant defeated in the law action may yet prosecute his suit in equity notwithstanding the law judgment, much more may he commence in equity in the first instance to wage his contention, when it involves relief which only chancery will award. It would be of little profit to the plaintiffs to bring ejectment for the tide-lands which they claim, and yet be cut off from access to navigable water by the boom of the defendant planted in front of them. We conclude that the issues involved in the pleadings are properly cognizable in equity.

2. The defendant does not affirmatively plead title in itself to the locus in quo described in the complaint. The plaintiffs point out that the boom is extended, not

only in the river in front of their premises, but also across their lands to the 15-acre tract, forming the exception in the description already mentioned. Referring to the excerpt from the answer quoted above, we find the defendant stating that the boom is situated upon its own land, and upon the waters of the river and bay, and where it is situated upon those waters it is maintained under license from the United States. The terms of the permit are not set out, and it is but a conclusion of law to say that the boom is maintained under that authority. We cannot presume that it empowered the defendant to prevent the shore owner from access to the navigable waters in front of his holdings.

Without pleading title in itself, the defendant essayed to prove that it was the owner of what is known as "Tide Island," above the premises described by the plaintiffs, and that this island by gradual accretion had been extended downstream and in front of the lands claimed by the plaintiffs. The muniments of title introduced by them without objection on the part of defendant show that by deeds of date August 26, 1887, and March 8, 1889, the State of Oregon, by what is now known as the state land board, conveyed to the plaintiffs' predecessor in interest all the tide-lands fronting or abutting upon lot 7 in section 35, and lots 3 and 4 in section 26, township 18 south, range 12 west of the Willamette Meridian. It is true that those conveyances state that the tide-land as it then existed contained a certain number of acres. The position taken by the defendant here is that the predecessor in interest of the plaintiffs took only to the precise metes and bounds described in the survey of the tide-lands as they then were, and that those limits were fixed and immovable, so that other tide-lands might afterward