Pacific Elevator Co. v. Portland

Mr. Justice Bean

delivered the opinion of the court.

Thе claims of the respective parties may be summarized as follows: Plaintiff' claims:

(1) Title in fee by patent from the government and subsequent conveyances as to the westerly 100 feet, which plaintiff claims has always been above the ordinary high-water line, or is now above such line by reason of accretion.

(2) Title in fee from the State of Oregon granted by acts of the legislature of 1874 and 1876, known as the tide land acts, and subsequent conveyance to a strip about 100 feet wide east of and adjacent to the above, being between the ordinary high-water line and low-water line as claimed by plaintiff.

(3) Riparian or littoral rights and a wharf right to the portion between low water and the harbor line.

Defendants, in answer to the first claim, maintained that the locus in quo belongs to the State of Oregon because it is entirely below the ordinаry high-water line, which is westerly of North Front Street, although the apparent line is now near the easterly line of such street. Plaintiff’s second claim is based on the tide land act as amended in 1874 and 1876, whereby the state purports to grant to the adjacent upland owners “any tide or overflowed lands upon said Willamette River.” In answer to this claim defendants maintain: (1) That the locus in quo is river shore and not “tide or overflowed lands” within the meaning of this act, and (2) that, in any event, this portion of the act is void because not embraced in its title. In answer to plaintiff’s third claim defendants maintain: (1) That the state’s ownership of the bed and shores of a navigable river is absolute, admitting of no easement on the part of the adjacent upland owner; (2) that the wharf act creates only a permit or license to the upland owner to wharf out, but plaintiff, not having constructed a wharf, has acquired no vested right, and his license or permit has been revoked by the act of the city in selecting the locus in quo and proceeding to construct a public dock under legislative authority; and (3) that, in any event, littoral or wharf rights are subject to right of the state and its agencies to construct docks and other improvements in aid of navigation and commerce.

It is only fair to say that the learned counsel on both sides, as well as those appearing amici curiae in their several briefs, have shed much light upon the question involved and have stated their positions with clearness. As a basis for a proper understanding, it may be well to observe that, by the common law of England, the title and dominion of the sea and of rivers and arms of the sea where the tide ebbs and flows, and of all the lands below high-water mark, within the jurisdiсtion of the crown of England, are in the king. These waters and the land which they cover are not capable of ordinary occupation, cultivation, and improvement, and their primary uses are public in their nature, for highways of navigation and commerce, and for fishing purposes by all the king’s subjects. Therefore the title jus privatum in such lands, as of waste and unoccupied lands, belongs to the king as the sovereign; and the dominion jus publicum is vested in him as the representative of the nation and for the public good. The English possessions in America were held by the king, and the exclusive power to grant them was vested in him in like manner. The English monarchs granted, charters for large tracts of land on the Atlantic coast, giving the grantees both the territory described and the powers of government, including the property and dominion of lands under tide waters. With thе surrender of the British, all the rights of the crown and of parliament became vested in the several states, subject to the rights relinquished to the national government by the Constitution of the United States. In this manner the government of the colonies and the original states became vested with the title to lands under navigable waters. The states admitted to the Union since the adoption of the Constitution have the same rights as the original states had in the tide waters and lands below the high-water mark within their respective jurisdictions.

In this country the same principle applies to the Great Lakes, and in some states it has been extended to navigable rivers. In the early government of the colonies and later of the states, in order to induce persons to erect wharves for the benefit of navigation and commerce, the owners of land bounding on tide waters were allowed greater rights and privileges in the shore below high-water mark than in England. The nature and degree of the rights and privileges differed in the various states; in some they were regulated by statute and in others by , usage only. Each state, according to its own views of policy and justice, has dealt with the lands under the water as it has deemed best for the public interests, reserving its own control over such lands or granting within its limits rights therein to individuals or corporations, whether owners of the adjoining upland or not. Therefore the title and rights of riparian owners in the soil below high-water mark are governed by the local laws of the several states, subject to the rights granted by the federal Constitution to the United States for regulating and improving navigation. The holdings have not been uniform in regard to the right of a riparian owner to establish a wharf on his own land extending over the shore between high and low water marks and lands under the water for the purpose of reaching a navigable point. In some states it is held, sometimes because of long usage, sometimes by statute, and sometimes upon the interpretation of the common law adopted by the courts, that, for the purpose of making available the right of a riparian owner to access to navigable waters, he may make a landing, dock, wharf, or pier, for his own use or that of the public, for the purpose of reaching the ordinary point of navigation, subject to whatever rules the legislature may enact for the protection of the public, and also subject to the right of the United States to exercise its powers for regulating and improving navigation. The right of a riparian оwner to construct a wharf or landing is founded largely upon equitable considerations. Where a wharf has been constructed by a riparian owner, in opposition to no statute, and without the interference of the state and without detriment to superior public rights, and large and valuable interests have been created, the owner has generally been held to have been justified in constructing such wharf: 1 Dillon, Mun. Corp. (5 ed.), § 264

The paramount right of navigation which is vested in the state and also in the general government of the United States by virtue of the authority conferred upon it to regulate commerce between the states and with foreign nations is receiving constant elucidation by the courts, but no fixed rule can yet be laid down defining the extent to which the federal government or the state may interfere with the property of riparian and other owners without becoming liable for compensation: Dillon, Mun. Corp. (5 ed.), § 265.

1. Let us then consider what policy has been adopted by the State of Oregon and what has been done in confirmation thereof. In 1862 the legislative assembly, evidently deeming it for the best interests of the state to encourage private parties to construct docks, wharves, etc., for the convenience of and in aid of navigation, without the state, either directly or through its municipalities engaging in such enterprises, passed what is known as the wharf act (Sections 5201, 5202, L. O. L.). The first section provides that “the owner of any land in this state lying upon any navigable stream or other like water, and within the corporate limits of any incorporated town therein, is hereby authorized to construct a wharf or wharves upon the same, and еxtend snch wharf or wharves into such stream or other like water beyond low-water mark so far as may be necessary and convenient for the use and accommodation of any ships or other boats or vessels that may or can navigate such stream or other like water.” The other section confers upon the corporate authorities of the town wherein such wharf is proposed to be constructed the power to regulate the exercise of the privilege or franchise granted and to prescribe the mode and extent to which the same may be exercised beyond the line of low water, so that the same will not unnecessarily interfere with navigation. The premisés in controversy were included within the limits of the City of Portland in 1883. The grant of the privilege mentioned in Section 5201, L. O. L., is a continuing grant and speaks in the present tense as long-as the statute continues in force; therefore the act, if it has not been revoked, applies to the land in question.

When a statute is expressed in general terms and in words of the present tense, it will, as a general rule, be construed to apply not only to things and conditions existing at the time of its passage, but will also be given a prospective interpretation by which it will apply to such as come into existence thereafter: 36 Cyc. 1235.

2. In 1872 the legislature passed an act entitled “An act to provide for the sale of tide and overflowed lands on the sea shore and coast”: Laws 1872, p. 129. This act gave the owners of land fronting upon such tide land the preference right to purchase the tide land belonging to the state in front of the land so owned. By an act approvеd October 26, 1874 (Laws 1874, p. 76), the following amendment was incorporated into the tide land act, without changing the title, namely: “That the Willamette River shall not be deemed a river in which the tide ebbs and flows within the meaning of this act, or of the act to which this act is amendatory; and the title of this state to any tide or overflowed lands upon said Willamette River is hereby granted and confirmed to the owners of the adjacent lands, or when any such tide or overflowed lands ‍‌‌​‌‌​​‌​‌​‌​‌‌‌​​‌‌​​‌‌​‌​​​​‌​​​‌‌​‌​​‌‌‌​‌​​‌‍have been sold, then in that case, to the purchaser or purchasers of such tide or overflowed lands from such owner of such adjacent lands, or some previous owner thereof, as the case may be.” This act was further amended in 1876 (see Laws 1876, p. 69) so as to include in its provisions the Coquille, Coos and Umpqua Rivers.

The validity of the acts is attacked on the ground that the subject matter of a grant of land on the Willamette River is not included in the title of the act of 1872, of which the acts in question are amendments: Laws 1872, p. 129. Therefore the amendments are repugnant to the requirements of Article IY, Section 20, of the Constitution of Oregon, providing that “every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title.” It'is.contended on behalf of plaintiff that the title of this act is broad enough to embrace tide and overflowed lands along rivers emptying into the ocean, and that this is established by decisions defining the meaning of the terms used. That “the shore of the sea is that part of the land covered by water in its greatest ordinary flux, the ports, bays, roadsteads and gulfs, and the rivers, although they may not be navigable * * their beds, mouths, and the salt marshes ’ ’: United Land Assn. v. Knight, 85 Cal. 448, 482 (23 Pac. 267, 270). That the word “sеa” has been held to mean “not only high sea, but arms of the sea, waters flowing from it into ports and havens, and as high upon rivers as the tide ebbs and flows”: Waring v. Clarke, 5 How. (U. S.) 441, 462 (12 L. Ed. 226). That “tide waters” are waters, “whether salt or fresh, wherever the ebb and flow of the tide from the sea is felt”: Commonwealth v. Vincent, 108 Mass. 441, 447; Attorney General v. Woods, 108 Mass. 436, 439 (11 Am. Rep. 380). That the word “ ‘coast’ is defined to be the seaboard of a country”: Ravesies v. United States (D. C.), 35 Fed. 917, 919, That that portion of the country which drains into the Pacific Ocean is frequently spoken of as the “Pacific Coast.”

3. It is well settled that every presumption will be indulged in to hold a statute valid, and it is only where an act is purely repugnant to the Constitution that the courts will hold it void. This is especially true where the act in question has been enacted for many years and acted upon by the officers of the state and by the people as valid so that it has become a rule of property. Millions of dollars have bеen invested upon the strength of the validity of these laws, and the value of lands have been thereby enhanced; therefore the acts should not be overturned unless it is necessary to do so in order to avoid- doing violence to the Constitution. Stability of land titles is an object of moment and worth to the people of the State of Oregon.

4. The subject matter of the act of 1872, and the amendments of 1874 and 1876, is the disposal-of the state’s land on the seashore and coast, and any matter germane to or connected with that subject may be embodied in the act. The title does not use the word “disposal” but uses the word “sale.” In discussing the question of title to a legislative act, Mr. Justice Bean, in State v. Shaw, 22 Or. 287, at page 289 (29 Pac. 1028, at page 1029), said:

“ * * The departure (from the title) must he plain and manifest, and all doubts will he resolved in favor of the law. * * If all the provisions of the law relаte directly or indirectly to the same subject, are naturally connected, and are not foreign to the subject expressed in the title, they will not he held unconstitutional. * * ”

5. The word “sale” used in the act of 1872 does not definitely refer to the matter of granting or confirming title to tide and overflowed lands upon the Willamette and other rivers and disposing of the same without a money consideration: See 7 Words and Phrases, p. 6291.

6. We cannot say, however, that the matter is foreign to the subject expressed in the title.

7. Be that as it may, and passing to the amendatory act of 1876, the title of this act was the whole of the act of 1874, including the amendments granting and confirming tide and overflowed lands on the Willamette and other rivers, which was referred to in the title of the act of 1876. There could certainly be no mistake in regard to this act. Many authorities support the rule that the title of an amendatory act is sufficient and will uphold any legislation that would, have been permissible under the original title, when the law amended or enacted after the amendatory act refers by chapter or by section to the act amended, giving its title. This practice, however, has been criticised:. Fort Street Union Depot Co. v. Commissioner of Railroads, 118 Mich. 340 (76 N. W. 631). After the enactment of the amendment of 1874, had there been a “joker” in the act, the members of the legislature and the people of the state would have had two years in which to consider the saíne and retrace their steps in 1876. Instead of so doing, the lawmakers re-enacted the measure. From this, in connection with the fact that the courts and people in general have sanctioned the grant as expressed by the legislature for more than 25 years, and have acted thereon, and that the state, county, and city have treated the land as plaintiff’s or its grantors, we conclude that the statute is a valid one, and that the grant and confirmation are complete.

In Lewis v. City of Portland, 25 Or. 133 (35 Pac. 256, 22 L. R. A. 736, 42 Am. St. Rep. 772), this court practically settled the question as to the statutes applying to lands between' high and low water marks on the Willamette River. At page 162 of 25 Or. (page 262 of 85 Pac., 22 L. R. A. 736, 42 Am. St. Rep. 772), of the opinion Justice Lord said:

“This grant conveyed the title to all such lands along these rivers, whether tide or overflowed, to the riparian owners, subject to the public trust. As the Willamette is a fresh-water river and only slightly affected by the tides a short distance from its mouth, there is no tide land at Portland, as held in Andrus v. Knott, 12 Or. 501 (8 Pac. 763), and therefore it results that if the submerged or overflowed lands described in the act include such as are not affected by the tides, and lie between the upland and navigable wаter, they belong to such owners, subject to the paramount right of navigation and commerce” : See Coquille M. & M. Co. v. Johnson, 52 Or. 547 (98 Pac. 132, 132 Am. St. Rep. 716).

The Charter of the City of Portland, Section 216, provides that all the wharves, waterfront, and harbor within the City of Portland shall be under the management and control of the executive board, subject to ordinance. And Subdivision 78 of Section 73 provides that the council shall have power and authority to provide for the construction and maintenance of wharves, docks, and levees and all such other work as may he required for the accommodation of commerce. The people of Portland, by the popular vote in 1910, adopted an amendment to Section 118 of the charter whereby the Department of Public Docks was created with authority inter alia to exercise the powers above grantеd to the executive board and council. On August 29, 1912, this commission made a selection of a site for a public dock embracing the locus in quo, and it is contended on behalf of the city that the authorization of the municipality to construct public docks necessarily authorized it to use such portion of the state’s property as might be reasonably necessary therefor. To this contention we are unwilling to accede. It is not contended that the charter of 1903 in terms repealed the wharf act of 1862.

8. The rule that repeals by implication are not favored and will not be held to exist if there is any other reasonable construction is well settled. To repeal a statute by implication ‍‌‌​‌‌​​‌​‌​‌​‌‌‌​​‌‌​​‌‌​‌​​​​‌​​​‌‌​‌​​‌‌‌​‌​​‌‍there must be such a positive repugnancy between the provisions of the new and the old that they cannot stand together or be harmonized: Sutherland, Const. (2 ed.), 267; Palmer v. State, 2 Or. 66; State v. Benjamin, 2 Or. 125; Booth’s Will, 40 Or. 154, 156 (61 Pac. 1135, 66 Pac. 710); United States v. Greathouse, 166 U. S. 601, 605 (41 L. Ed. 1130, 17 Sup. Ct. Rep. 701).

9. The authority of the city to provide for public landing places and to construct docks and wharves only authorizes such action where the rights of others will not be interfered with thereby. The existence of such rights in private individuals is recognized by the statutory authorization to acquire them by condemnation or otherwise. Prom the whole tenor of the different statutes it does not appear that the later act was intended to revoke the provisions of the old acts of 1862, 1874 and 1876. A charter of the city which authorized it to lay out, open and improve streets would not be held to authorize the city to open such street through a block the title to which was vested in the State of Oregon. The city can construct docks and wharves on any property which it has previously acquired; therefore the provisions of the charter can be given effect without interfering with the rights conferred by the act granting and confirming title in the tide and overflowed lands to the riparian owners on the banks of the Willamette.

10. One statute is not repugnant to another unless they relate to the same subject and are enacted for the same purpose. When there is a difference in the whole purview of two statutes apparently relating to the same subject, the former is not repealed by the latter. Undoubtedly the two statutes under consideration relate to different subjects: See United States v. Claflin, 97 U. S. 546, 552 (24 L. Ed. 1082); United States v. Gillis, 95 U. S. 407, 416 (24 L. Ed. 503). The case of City of San Pedro v. Southern Pac. R. Co., 101 Cal. 133 (35 Pac. 993), is a case in point. The State of California had granted the city the right to construct and maintain wharves, piers, etc., on any land bordering on any navigable bay within the corporate limits. The city claimed, as the defendants do in the casе at bar, that the state had granted to it the right to construct and maintain wharves. It was held that the power and authority conferred did not convey to the city the state’s land or clothe the city with the absolute right to construct a wharf at any point on its waterfront which it might select, irrespective of the rights of others, but granted the city the power to erect docks the same as a natural person.

11. In regard to the high-water mark the Circuit Court found as follows: “That the line of ordinary high water in the left bank of the Willamette River at the present time and at the time of the commencement of this suit was and is located over and across the said river block in Watson’s Addition and the said river block No. 2 in Doscher’s Addition and easterly of the easterly line of said Front Street, which said Front Street was continued on its course through said Doscher’s Additiоn at the time of the platting thereof.”

The line of ordinary high water is the line to which the water rises in the seasons of ordinary high water or the line at which the presence of water is continued for such length of time as to,mark upon the soil and vegetation a distinct character: Johnson v. Knott, 13 Or. 308 (10 Pac. 418); Sun Dial Ranch v. May Land Co., 61 Or. 205 (119 Pac. 758). This line should be ascertained by an examination of the bed and banks of the river, and by taking into consideration all the circumstances and all the natural objects connected therewith, and by ascertaining where the presence and action of water are so common and usual and so long continued in all ordinary years as to mark upon the soil of the bed a character distinct from that of the banks.

12. The learned judge who tried the case appears to have been acquainted with the locus in quo to a certain extent and, as we understand, examined the same. This would lend great weight to the findings. While we do not deem the question vitally material, from an examination of the evidence upon this point, we think that this finding was correct and manifestly should not be disturbed.

13. It is claimed by defendants that, even if plaintiff were considered as having a vested riparian right or wharf right, such right is subject to the implied reservation on the part of the state and its agencies to use the locus in quo for the purpose of constructing public docks, wharves, and other improvements in aid of navigation and commerce.

To further notice the trend of the decisions in different states we note the following in the case of State ex rel. v. Gerbing, 56 Fla. 603 (47 South. 353, 22 L. R. A. (N. S.) 337, at page 343): “The rights of the people of the state in the navigable waters and the lands thereunder, including the shores or space between ordinary high and low water marks in the state, are designed for the publiс welfare, and the state may regulate such rights and the uses of the waters and the lands thereunder for the benefit of the whole people of the state as circumstances may demand, subject to the right of navigation, the control of which was surrendered to the federal government by the Constitution. The shores of a navigable river are the spaces between high and low water marks, and the bed of a river includes the shores. Tide land is that daily covered and uncovered by water by the ordinary flux and reflux of normal tides ’ ’: Citing 1 Farnham, Waters, 227; Baer v. Moran Bros. Co., 153 U. S. 287 (38 L. Ed. 718, 14 Sup. Ct. Rep. 823); Baird v. Campbell, 67 App. Div. 104 (73 N. Y. Supp. 617). In the above case it was also held that for the purpose of aiding navigation or commerce, or of encouraging new industries and the development of natural or artificial resources, the state may grant reasonable and limited rights and privileges to individuals to erect docks, wharves and slips over shallow waters to reach navigable portions thereof, or to fill in shallow waters adjacent to navigable waters and erect structures thereon, for the purposes of commerce incidental to navigation on the waters; or the state may grant reasonable and limited privileges for planting and propagating oysters or shellfish on land covered by waters of navigable streams; but such privileges should uot unreasonably impair the rights of the whole people of the state in the use of the waters or the lands thereunder for the purposes implied by law; citing State v. Black River Phosphate Co., 32 Fla. 82 (13 South. 640, 21 L. R. A. 189). It was further held in the case of State ex rel. v. Gerbing, 56 Fla. 603 (47 South. 353, 22 L. R. A. (N. S.) 337, 343), which is cited and relied on by the state in the case at bar, that the title to lands under navigable waters, including the shores or space between ordinary high and low water marks, is held by the state, by virtue of its sovereignty, in trust for the people of the state for navigation and other useful purposes afforded by the waters over such lands, and the trustees of the internal improvement fund of the state are not authorized to convey the title to the lands of this character.

In the case of Illinois Cent. R. Co. v. Illinois, 146 U. S. 387 (36 L. Ed. 1018, 13 Sup. Ct. Rep. 110), it was held that the trust with which these lands are held by the state is governmental and cannot be wholly alienated. For the purpose of enhancing and improving the rights and interests of the whole people, the state may, by appropriate means, grant to individuals the title to limited portions of the lands or give individuals limited privileges therein, but not so as to divert them from their proper uses or so ás to relieve the state of the control and regulation of the uses afforded by the land and water. In that case the State of Illinois had granted to the railroad company right of way 200 feet wide from Cairo to Chicago over the lands and waters of the state, and by consent of the city the right of way was located along the margin of Lake Michigan and an embankment raised and so protected from the violence of storms on the lake as to make the way safe as a roadbed. From waterfront lots owned by it adjacent to this levee, the company bnilt docks, extending out to deep water of the lake. Afterward the legislature of that state passed a law granting to the company the bed of the lake along a mile and a half of the city waterfront and extending a mile out into and including most of the outer harbor. This law was repealed by a subsequent legislature. The Supreme Court of the United States held that the repeal was a valid exercise of legislative power for the reason that the law repealed undertook to invest the railroad company with rights inimical to navigation and commerce and assumed to grant lands subjacent to the navigable waters of the lake. The use and enjoyment of its embankment, which occupied part of the original margin of the lake and the water thereof and the maintenance of its docks by the company, were protected in that case, subject to the condition that they should not extend into the lake beyond the point of practical navigability.

By an act of the legislature the State of Florida, in aid of commerce, vests in the United States or citizens thereof, owning lands actually bounded by and extending to the low-water mark on navigable streams, bays, and harbors, title to the submerged lands in front of the abutting lands as far as to the edgе of the channel for the purpose of filling up from the shore, bank or beach and of erecting structures thereon in aid of commerce, not obstructing the channel, but leaving the full space for the requirements of commerce: Fla. Gen. Stats. 1906, §§ 643, 644. In a note to State ex rel. v. Getting, 22 L. R. A. (N. S.) 337, it is said:

“There seems little doubt of the correctness of the general proposition that the title to tide lands is in ‍‌‌​‌‌​​‌​‌​‌​‌‌‌​​‌‌​​‌‌​‌​​​​‌​​​‌‌​‌​​‌‌‌​‌​​‌‍the state and may pass therefrom by grant. Such, indeed, was the specific conclusion reached in the following cases: Pollard v. Hagan, 3 How. (U. S.) 212 (11 L. Ed. 565); Mumford v. Wardwell, 6 Wall. (U. S.) 423 (18 L. Ed. 756); Hoboken v. Pennsylvania R. Co., 124 U. S. 656 (31 L. Ed. 543, 8 Snp. Ct. Rep. 643) * *” — and a long list of other cases.

In Jones v. Oemler, 110 Ga. 202 (35 S. E. 375), it was said that there could be no question but that the state owned the beds of all rivers within its jurisdiction, and that it had an absolute control over such lands as it had over any other property it might own, with the same power to grant, sell, or lease it, or any portion thereof, to any of its citizens upon terms or conditions which its legislature might prescribe, to the same extent that it would have the right to dispose of its wild or other lands. This proposition, sometimes laid down in broad and unrestricted terms, must be understood with the qualifications that the right of a state to grant tide lands is subject to those provisions of the national Constitution giving Congress control of the waters upon which foreign and interstate navigation is conducted: Martin v. Waddell, 16 Pet. 367 (10 L. Ed. 997); United States v. Mission Rock Co., 189 U. S. 391 (23 L. Ed. 606, 47 L. Ed. 865); Richardson v. United States (C. C.), 100 Fed. 714; Mobile Transp. Co. v. Mobile, 128 Ala. 335 (30 South. 645, 64 L. R. A. 333, 86 Am. St. Rep. 143); affirmed in 187 U. S. 479 (47 L. Ed. 266, 23 Sup. Ct. Rep. 170).

In Weber v. Harbor Commrs., 18 Wall. (U. S.) 57, 65, (21 L. Ed. 798), it was held that, upon the admission of a state into the Union upon equal footing with original states, absolute property in and dominion and sovereignty over all soil under the tide waters within her limits passed to the state with the consequent right to dispose of the title to any part of the soil in such manner as she might deem proper, subject only to the paramount right of navigation of the waters so far as such navigation might be required by the necessities of commerce with foreign nations or among the several states, the regulation of which was vested in the general government. In Eisenbach v. Hatfield, 2 Wash. 236, 244, (26 Pac. 539, 12 L. R. A. 632), it was said that there was no doubt whatever but that tide lands belonged to the state in actual propriety, and that the state had full power to dispose of the same, subject to no restrictions save those imposed upon the legislature by the Constitution of the state and by the Constitution of the United States. In a few earlier cases the courts attempted to impose a trust in favor of the public upon the state’s title to tide lands, thereby, to some extent at least, restricting the right of the state to grant the same. Thus in Ward v. Mulford, 32 Cal. 365, it was held that, while tide lands belong to the state by virtue of her sovereignty, yet the state held the same for the benefit of the people, and theoretically, at least, could make no disposal of such lands prejudicial to the rights of the public to use them for the purposes of navigation and fishery. This conclusion was quoted with approval in People v. Kerber, 152 Cal. 731 (93 Pac. 878, 125 Am. St. Rep. 93).

It has been said that the true limit of this trust doctrine has been best set forth in the New York decisions. In People v. New York & S. I. Ferry Co., 68 N. Y. 71, the court said:

“The title to lands under tide waters in this country, which before the Eevolution was vested in the king, became, upon the separation of the colonies, vested in the states within which they were situated. The people of the state in their right of sovereignty succeeded to the royal title and through the legislature ‘may exercise the same powers, which, previous to the Eevolution, could have been exercised by the king alone, or by him in conjunction with parliament, subject only to those restrictions which have been imposed by the constitution of the state аnd of the United States”: Chancellor in Lansing v. Smith, 4 Wend. 9 (21 Am. Dec. 89). The public right in navigable waters was in no way affected or impaired by the change of title. The state, in place of the crown, holds the title as trustee of a public trust, but the legislature may, as the representative of the people, grant'the soil, or confer an exclusive privilege in tide waters, or authorize a use inconsistent with the public right, subject to the paramount control of Congress. * * ”

Coming back to our own state, in Hume v. Rogue River P. Co., 51 Or. 237 (83 Pac. 391, 92 Pac. 1065, 96 Pac. 865, 31 L. R. A. (N. S.) 396, 131 Am. St. Rep. 732), it was held that the state, by its admission into the Union by virtue of its sovereignty, became vested with the title to all tide lands, subject, however, to the public right of navigation and the common rights of the citizens of the state to fish therein. In the early case of Hinman v. Warren, 6 Or. 408, 411, tide land on. the Columbia River was involved and was described in a patent from the United States to John McClure and wife. The plaintiff claimed title to it by a сhain of conveyances from the McClures, and the defendant by deed from the state. Mr. Justice McArthur said, in substance, that the tide lands which are covered and uncovered by the ebb and flow of the sea belong to the State of Oregon by virtue of its sovereignty, and, adopting the principle common in cases from Pollard’s Lessee v. Hagan, 3 How. 212 (11 L. Ed. 565), Barney v. Keokuk, 94 U. S. 324 (24 L. Ed. 224), said: “As the state became the owner of the tide lands, it had the power, under the provisions of the act providing for the sale of such lands, * * 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. ’ ’ This was quoted and approved in the leading case of Bowlby v. Shively, 22 Or. 410 (30 Pac. 154); Shively v. Bowlby, 152 U. S. 1, 54 (38 L. Ed. 331, 14 Sup. Ct. Rep. 548). Mr. Justice Lord, at page 417 of 22 Or., at page 156 of 30 Pac., of the opinion said: “Some contention is made that the phrase which describes the ownership of the state as being ‘by virtue of its sovereignty’ indicates that the title held by the State to such lands is as trustee for the public, and not as absolute owner, capable of conveying private rights therein, subject only to the paramount right of navigation ; but the use of this phrase in that case was not designed to convey that meaning, when considered with reference to the whole decision. The contention was that the title of the tide lands, before the admission of the state into the Union, was in the United States and subject to its disposal; and, as it had granted away by its patent the tide lands in question before the state was admitted, no rights of the state ever attached to them. The court refused to accede to this view, but adopting the rеasoning of Pollard’s Lessee v. Hagan, supra, held that the state, upon its admission into the Union, became the owner of the tide lands, not as a grantee of the United States, but by virtue of its sovereignty; that the state had the right to dispose of such tide lands, under the provisions of the statute referred to providing for their sale; and that its grantees took them subject only to the paramount right of navigation existing in favor of the public.” In the same case it is declared that the prior adjudged cases in this state regarding the nature of the state’s title to lands between high and low water marks are the foundation of the doctrine that the state may sell and convey its tide lands, and that its grantees take them free from any right therein from the upland owner, and subject only to the paramount right of navigation inherent in the public.

Mr. Justice Boise, in Parker v. Taylor, 7 Or. 435, at page 446, said: “As has been before stated, the patent from the United States conferred on the patentee no right to the tide lands lying between high and low water. These were the property of the state and absolutely at its disposal. Its deed gives to them the same fee-simple title as the patent from the United States gave to the land above high tide. * * Land situated as this is, covered with shoal water, may, under proper regulations by the state and municipal authorities, he reclaimed from the sea by filling in or by driving piles and building on them and becomes private property and the subject of sale the same as any other property.” The view that the state is the absolute owner of the tide lands, subject only to the paramount right of navigation, is further illustrated in the case of Parker v. Rogers, 8 Or. 183. At page 189 of 8 Or. of the opinion Mr. Justice Boise, speaking for the court, said: “We are aware that it is a general rule that what is appurtenant to land passes with it, being an incorporeal hereditament, but the right to build a wharf on the land of the state below high water is a franchise which attaches to the tide land, and it is appurtenant to it rather than to the adjacent land, for it can be severed from the adjacent land and enjoyed without it.” In Corvallis & Eastern R. Co. v. Benson, 61 Or. 359 (121 Pac. 418), Mr. Justice Burnett, speaking for the court, after an examination of many áuthorities, held that the title ‍‌‌​‌‌​​‌​‌​‌​‌‌‌​​‌‌​​‌‌​‌​​​​‌​​​‌‌​‌​​‌‌‌​‌​​‌‍to the tide lands between high and low water marks acquired by the state consisted of two elements: Jus privatum, or private right, and the jus publicum, or public right — the jus privatum being a species of private property which the state held the same as a private owner and might grant to anyone, in any manner, or for any purpose not forbidden by the Constitution, the grantee thereby taking the title as absolutely as under a private conveyance; but thе jus publicum, being the dominion of sovereignty in the state, by which it prevents any use' of lands bordering on navigable waters which would materially interfere with navigation and commerce thereon, cannot be abdicated or granted.

Much reliance is placed by the defendants in the opinion in the case of Sage v. Mayor, 154 N. Y. 61 (47 N. E. 1096, 38 L. R. A. 606, 61 Am. St. Rep. 592), wherein it was held that the absolute power to improve a waterfront for the benefit of navigation exists in the state or in its municipal grantee as a trustee for the public, free from any interference by riparian owner whose sole right as against such authority was the statutory right of pre-emption in case of a sale, the riparian owner never having exercised such right of pre-emption, and having no title or interest in the land under water in front of his premises. In Lewis v. City of Portland, 25 Or. 133, 167 (35 Pac. 256, 263, 22 L. R. A. 736, 42 Am. St. Rep. 772), in discussing the wharfage act, it was said: “It is doubtless true that, if the statute shоuld be repealed or the adjacent tide lands disposed of, the privilege given the upland owner to build a wharf across the tide lands to deep water, unless acted upon or availed of would be revoked.” In the case at bar the adjacent overflowed land has been conveyed by the state to the upland owner. However, an upland owner of land bordering on a navigable stream owns only to the high-water line and the stream and the river and its banks and bed belong to the state: State v. Portland Gen. Elec. Co., 52 Or. 502 (95 Pac. 722, 98 Pac. 160).

In Coquille M. & M. Co. v. Johnson, 52 Or. 547, 549 (98 Pac. 132, 132 Am. St. Rep. 716), it is held that as the land abutted upon the Coquille River, which is navigable at the point in question, by virtue of the act of October 21, 1876, of the legislative assembly of this state (Sess. Laws 1876, p. 69), Oilman’s title was extended to low-water mark. At page 551 of 52 Or. (page 134 of 98 Pac., 132 Am. St. Rep. 716), the following is quoted with approval: “Riparian owners upon navigable fresh rivers and lakes may cоnstruct, in the shoal water in front of their land, wharves, piers, landings, and booms, in aid of and not obstructing navigation” — citing 2 Gould, Waters (2 ed.), §179; Montgomery v. Shaver, 40 Or. 244 (66 Pac. 923); Stevens Point Boom Co. v. Reilly et al., 44 Wis. 295; Boom Co. v. Patterson, 98 U. S. 403 (25 L. Ed. 206). In regard to tide land, in Grant v. Oregon Nav. Co., 49 Or. 324, at page 328 (90 Pac. 179), Mr. Justice Eakin said: “By the legislative acts of 1872 (Laws 1872, pp. 129, 130) and 1874 (Laws 1874, pp. 76, 77) the upland owner was given the preference right to purchase the tide land, and upon such purchase, if not already vested in another under Section 4042, B. & C. Comp., he thereby acquired also the exclusive wharf-age right to deep water, and also all accretions to his tide land and the right to fill up the shallows or flats, so long as he does not impede navigation or interfere with commerce over the same” — citing Miller v. Mendenhall, 43 Minn. 95 (44 N. W. 1141, 8 L. R. A. 89, 19 Am. St. Rep. 219). In Montgomery v. Shaver, 40 Or. 244, 248 (66 Pac. 923, 924), Mr. Justice Wolverton, referring to the wharf act, said: ‘ ‘ The statute is, however, declarative of the right or privilege which existed at common law, the exercise of which might be regulated by statute; but so long as it was not prohibited it existed as a private right derived from the passive or implied license by the public: Gould, Waters, § 176. So that the enactment of Section 4227 [B. & C. Comp.] gave positive authority where it previously existed passively and by implication.

In many states lands totally or partially submerged are made the subject of grant by the sovereign in order that they may be reclaimed for useful purposes: Taylor Sands F. Co. v. State Land Board, 56 Or. 157, 161 (108 Pac. 126); Fowler v. Wood, 73 Kan. 511, 549 (85 Pac. 763, 6 L. R. A. (N. S.) 162, 117 Am. St. Rep. 534). A grant by the sovereign of-land bounded by a navigable river limits the land conveyed to high-water mark and gives the grantee no private or exclusive right below that. In such case the grant is exclusively a grant of dry land, and is to be construed without reference to the water just as if it were bounded on all sides by dry land. But when the sovereign state grants land under water, which cannot, in its natural state, be subjected to any of the uses to which dry land may be devoted, then а different rule of construction must be applied to the grant so as to make it effectual for some purpose. Such a grant may be made to enable the grantee to fill up the land for wharves, docks, or other buildings. If the purpose be not plainly expressed in the grant, then the intent of the parties must be ascertained from the nature and situation of the land granted and all the circumstances surrounding the grant which may properly be considered for the purpose of ascertaining such intent: Langdon v. Mayor etc. of New York, 93 N. Y. 129, 144.

14. In the light of the authorities, and upon principle, we conclude that the State of Oregon, upon its admission into the Union, became the owner of the bed and banks of the Willamette River up to the line of ordinary high water, subject only to the paramount right of navigation and the right of Congress to regulate commerce between the state.

15. By the platting and dedication of "Watson’s and Doscher’s Additions by the former owners, thereby laying out the property in blocks and lots constituting definite metes and bounds as shown on the ihaps, and by the conveyances of lots with reference to the maps, the wharf rights were severed and disassociated from all the inside lots and attached to the outermost ones: Grant v. Oregon Nav. Co., 49 Or. 324, 330 (90 Pac. 178, 1099).

16. The act of 1862 (Section 5201, L. O. L.) grants the right of wharfage across the state’s land out to the harbor line fixed by state authority to the riparian owner. This license has never been revoked by the state but has been reaffirmed by the lawmakers and upheld by the courts. The contemplated use of the land is not inimical to navigation. On the other hand, it is plain to anyone that the industries of commerce and manufacture with which the shore of the Willamette in our metropolis teems, and the storing of the articles and products, as well as the construction of docks and wharves, are an acceleration to navigation. The legislature, considering that the lands adjacent to the Willamette, Coquille, Coos and Umpqua Rivers were subject to erosion and inundation, deemed it wise and just to recognize rights in the riparian owners on such streams and grant and confirm to them all the title of the state to any tide and overflowed lands upon said rivers. This, no doubt, among other reasons, in order that the owners of land adjacent to such rivers might be encouraged and protected in building structures thereon and riprapping and conserving the banks of the rivers for the purpose of saving their lands from loss or destruction.

17. The acts of 1874 and 1876 were a valid exercise of the legislative will and grаnted and confirmed the title of the state to the tide and overflowed land upon said rivers to the upland owners. Plaintiff has succeeded to the title which the state formerly had in the lots described. Its title is subject to the paramount right of navigation existing in the public and subject to such reasonable regulation as the state through its municipality may prescribe.

18. To allow this property to he taken for public use without just compensation would work a great injustice and do violence to the Constitution of Oregon.

19. The restrictions upon the state conveying land subjacent to the waters of navigable rivers should, we think, generally speaking, apply to lands under navigable ‍‌‌​‌‌​​‌​‌​‌​‌‌‌​​‌‌​​‌‌​‌​​​​‌​​​‌‌​‌​​‌‌‌​‌​​‌‍waters, or below ordinary low-water mark, or the bed proper of a river as distinguished from its hank or shore as in the Chicago Waterfront case.

These considerations lead to an affirmance of the decree of the lower court, and the decree is therefore affirmed. Affirmed.

Case Details

Case Name: Pacific Elevator Co. v. Portland

Court Name: Oregon Supreme Court

Date Published: Jun 24, 1913

Citation: 133 P. 72

Court Abbreviation: Or.