20 Or. 508 | Or. | 1891
— John M. Shively, being the owner of the donation land claim upon which the city of Astoria is now located, prior to 1881 laid the same out into lots, blocks and streets, and caused a plat thereof to be duly recorded. The plat of the town, as laid out by Shively, included not only Ills donation claim but the tide land on the Columbia river an front of the same. Upon this plat is block No. 4, containing twelve lots, numbered from one to twelve, respectively. Lot No. 2 of this block is situate and lying on the bank of the river, and extends below the line of ordinary high tide. Immediately in front of block No. 4 is a street named Hemlock street, and between this street and the channel of the river is block 146, which is on the tide land, and extends into the river below the line of ordinary low water. Prior to May 6,1881, Shively sold and conveyed the whole of block 146, and the purchasers have since acquired
From this statement it will be noticed that the property in controversy is not adjoining any land owned by either of the parties to this suit, or by their predecessors in interest. This is not the case of a shore owner claiming the right to erect wharves in front of his property, but is a controversy between plaintiff and defendant as to who shall construct a wharf in front of tide land purchased of the state and owned by strangers to this suit. The proposed wharf is to be constructed below the line of ordinary low tide and in front of block 146, which is held by persons who are not parties to this suit, and whose names nowhere appear in this record under deeds from the state as tide lands. A complete determination of this controversy requires the presence of the owners of this tide land. Their interests are so essential to the merits of the controversy, and may be so affected by the decree, that the court cannot proceed to a final decision of the cause until they are parties. The legitimate result of the contention of the parties to this suit is, that the owner of land on tidal waters has vested riparian rights, among which is the right to build a wharf, or use it for any purpose not inconsistent with the right of public navigation, and that he may sell and transfer the same, and that as a conse
Nor does it matter that the parties to this suit make no objection on account of a want of parties. Where that fact appears, the court will, on its own motion, refuse to proceed further in the case. A decision of the case now before us
The judgment of the court below is reversed and plaintiff's complaint dismissed.