Hinman v. Warren, 6 Or. 408

Hinman v. Warren

6 Or. 408 | Or. | 1877

By the Court, McArthur, J.:

This is an action of ejectment. The land in dispute is tide land on the Columbia river. It is embraced within the description of land patented to John McClure and wife by the United States, March 27, 1866. The McClures received *411the patent by virtue of compliance with the provisions of the donation land act. Their residence thereon and cultivation thereof began before the passage of said act, which took place September 27, 1850. The appellant claims by a chain of conveyances from the McClures. The respondents claim to have derived title from the state of Oregon by deed from the state authorities of date -, 1875. The north line of the McClure donation claim runs north sixty-eight degrees east, and is some distance beyond the line of the ordinary high tide of the Columbia river. The land in controversy is a small cuniform tract near the north-west corner of the McClure claim, lying wholly within the limits described by the lines marking the ebb and flow of the tide.

Upon these facts two questions arise: 1. Do the tide lands belong to' the state ? 2. Did the patent of the United States invest in the McClures any estate in the land lying between the north line of their claim, as described in the patent, and the line which marks the ordinary high tide ?

In answer to the first question our response is that the tide lands — those that are uncovered and covered by the ebb and flow of the sea — belong to the state of Oregon by virtue of its sovereignly. This doctrine is the clear result of the principle announced in all the cases from Pollard's Lessees v. Hagan, 3 How. 230, to Barney v. Keokuk, 4 Otto, 324.

But it is contended that this sovereignty did not attach until the state was admitted into the Union. This is true, but it is also equally true that the United States government has no constitutional or statutory authority to so act towards a territory, or so dispose of the lands within a territory, as to make it impossible to admit such territory upon an equal footing with the other states of the Union. In all masters which touch the sovereignty, the general government is, in the very nature of our system, simply a protector thereof until the territory assumes the ampler powers of a state, and becomes thereby enabled to assert and protect its own sovereignty. (Pollards Lessees v. Hagan, supra.)

As the state became owner of the tide lands, it had the power, under the provisions of the act providing for the *412sale of such lands, Mis. Laws, p. 644, to sell the same. It has, however, no authority to dispose of its tide lands in such a manner as may interfere with the free and untrammeled navigation of its rivers, bays, inlets and the like. The grantees of the state took the land subject to every easement' growing out of the right of navigation inherent in the public.

The second question finds its solution in the application of the familiar principle that “ a grant of land adjacent to a navigable river, below the farthest point inland to which the neap tide flows, extends only to the meander lines of high tide.” This is the rule laid down by the general government to guide its surveyors. It is of no consequence that the calls of the McClure patent place the north line between high and low watermark. In thus describing the land, the officers of the United States government acted without the authority of law, and it is well settled that an unauthorized act binds no one. (Barney v. Keokuk, supra; McManus v. Carmichael, 3 Iowa, 1; Haight v. Keokuk, 4 Id. 199; Harbor Co. v. Munroe, Walker Ch. R., Mich. 155.)

Judgment affirmed.