39 P. 398 | Or. | 1895
Rehearing
On Rehearing.
[40 Pac. 92.]
Opinion by
By appellant’s motion for rehearing we are asked to
1. It is apparent from the law itself that the legislature did not intend it to operate as a grant. It is found in an act entitled “An act to provide a Code of Civil Procedure,” and comes under the title of “Evidence in particular cases,” and purports to lay down rules “for construing the descriptive part of a conveyance of real property, when the construction is doubtful, and there are no other sufficient circumstances to determine it.” No words of grant are used or employed, and nothing appears upon the face of the statute to signify such an intent by the legislature. The object was, as the statute indicates, to provide rules for construing the descriptive part of conveyances. When tide water is made the boundary the statute provides that ‘ ‘ the rights of the grantor to low-water mark are included in the conveyance. ” If a grantor,
2. The legislature has treated all tide lands as belonging to the state, and subject to its disposition and control, but in subordination to the rights of navigation and commerce. On October seventeenth, eighteen hundred and sixty-two, at the same session of the legislature at which the act to provide a Code of Civil Procedure was passed, another act was passed authorizing “the owners of land lying upon a navigable stream or other like water to build wharves into such stream or other water beyond the line of low-water mark,” which is alluded to by counsel; but this act seems to have no particular bearing upon the question at issue. But by the act of eighteen hundred and seventy-two, (Laws, 1872, page 129,) and subsequent acts amendatory thereof, the legislature has by direct enactment provided for the sale and disposal by the state of all tide lands within her boundary, thereby assuming and exercising proprietary control over them. Since that time
3. The courts of the state have treated the several acts of the legislature concerning tide lands as compatible with the state’s ownership thereof, and have repeatedly upheld, sustained, and confirmed the grants and deeds of the state to such lands, until now it has become settled law that the state was primarily the owner of these lands, and had good right to convey and dispose of them. See Hinman v. Warren, 6 Or. 411; Parker v. Taylor, 7 Or. 446; Parker v. Rogers, 8 Or. 183, and Bowlby v. Shively, 22 Or. 410 (30 Pac. 154, 14 Sup. Ct. 548). True, in all the reported cases no reference is made to section 855 of the Code of Civil Procedure, and no attempt has ever been made to construe it. This fact in itself is a strong argument that no one ever considered said subdivision 5 as constituting a grant, when, if so considered, it was of such vital and vast importance to'tide land occupants. It has now come to this, that the several acts of the legislature referred to, the legislative construction placed upon them com
Lead Opinion
The facts of this case are similar in all their controlling features to the case of Bowlby v. Shively, decided by this court June eighteenth, eighteen hundred and ninety-two, 22 Or. 410, (30 Pac. 354,) and affirmed on writ of error by the Supreme Court of the United States: Shively v. Bowlby, 152 U. S. 1 (14 Sup. Ct. 548). After a most careful consideration of the case at bar, we are satisfied that all the points and principles of law arising therein were involved and ably and exhaustively considered in the case of Bowlby v. Shively, 22 Or. 410, (30 Pac. 154,) and fully and comprehensively settled. We must, therefore, regard the decision of the latter case as decisive of this. The complaint herein was filed upon the same date as that in Bowlby v. Shively, and the issues, so far as they were concluded, were formulated about the same time. The Bowlby case was first brought on for hearing as a test case, upon the assumption that the same conclusion must necessarily be reached in both cases, but now it is claimed that this case contains other points for our consideration not passed upon in that. With this contention we are unable to concur. It could accomplish no good purpose for us at this time to reconsider the doctrine of that case, as the reasoning and conclusions reached are in full accord with the present views of the court. Hence the judgment of the court below is affirmed. Affirmed.
Decided April 29, 1895.