133 P. 72 | Or. | 1913
delivered the opinion of the court.
The 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
(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 ordinary 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wharf out, but plaintiff, not having constructed a wharf, has acquired no vested right, and his license or permit has been revoked by the act of the city in selecting the locus in quo and proceeding to construct a public dock under legislative authority; and (3) that, in any event,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
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.
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.
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 “sea” 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
*385 “ * * 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 relate 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. * * ”
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 water, 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
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.
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 public 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;
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.
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 edge 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 fol*393 lowing 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
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,*395 subject only to those restrictions which have been imposed by the constitution of the state and 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 chain 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 inter
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
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 should 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
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 construct, 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
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 a 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.
These considerations lead to an affirmance of the decree of the lower court, and the decree is therefore affirmed. Affirmed.