8 Or. 183 | Or. | 1879
By the Court,
From the admitted facts, Eogers, before he received the deed from Olney, was the owner in equity of lot 6 in block 8 in the city of Astoria under the bond executed by McClure to Keene, for it has been uniformly held that a contract for the sale of a donation claim by one in possession under the provisional government of Oregon made prior to September 27, 1850, the date of the donation law, so called, can be inferred against the obligee, who afterwards obtains a patent under such act, or his assignees, who buy with notice. (Lamb v. Davenport, 1 Sawyer, 609.) The words in said bond, “with a full reservation of all and every privilege around said lot, ” were undoubtedly intended to operate as a reservation of the right to build a wharf. The language being general and reserving, all privileges would include everything appurtenant to said lot, and is more comprehensive than the reservation in the deed by Olney to Rogers, when wharfing privileges alone are reserved to the grantor; so that the deed from Olney to Eogers granted to him all the interest in the lots which he was equitably entitled to under the bond from McClure to Keene. Such being the situation of the parties, Olney and Eogers, in reference to the title to lot 6, we will now consider what rights were con
At the time this law was enacted, Astoria was an incorporated town, and as the evidence shows, had been laid out into blocks and lots, and some of these lots were situated entirely below high-water mark; such lots as were below high-water and above low-water were the property of the state, and no law had then been enacted providing for the sale of tide lands. When, therefore, a franchise was granted to the owner of any land lying on tide water to construct a wharf on his said land and extend it beyond the line of low water, such franchise necessarily included the right to build the wharf over the land between high and low water. Why the statute makes no mention of the tide lands over which the wharf must necessarily be extended is not now apparent, and it may be that it was then thought that these lands were private property and the subject of sale, as they were then claimed as such property, being sold like the lands above high water. The legislature seems to have assumed that these tide lands were the subjects of sale by the owner of the adjacent land above high water in the act of 1874, where it is provided that the purchaser of any tide land from the owner of the land adjacent to such tide land shall have the fight to purchase the same from the state. By this act the legislature recognizes the rights of purchasers from adjacent owners. It is a clear rule that any franchise which is the subject of sale may also be the subject of reservation.
We are aware that it is a general rule that what is appur
There is no other construction that will harmonize these statutes and carry out the evident intention of the legislature to secure these lands to those who have purchased them from the owners of the adjacent lands and made improvements on them. It seems to have been the uniform purpose of the legislature to protect those who had purchased these lands from riparian proprietors or who in good faith had made valuable improvements on them. For the act of 1872 (General Laws, 611) provides for the protection of those who had made such improvement on the tide lands prior to the issuance of a patent to the adjacent lands. This act being deemed insufficient, the act of 1871 was passed, which has extended the provisions of the act of 1872, and provides for protection of those who have purchased tide lands from the proprietor of the adjacent land. Though the state was under no legal obligation to recognize the rights of either the riparian owner or those who had occupied these tide lands, still the legislature, considering the fact that these lands had been dealt with as private property and improved sometimes by the erection of expensive structures which were a great advantage to commerce, made what we think wise and just provisions for the protection of those who had spent their money in purchasing and improving these lands, which improvements were in many cases absolutely necessary as aids to commerce.
We think the admitted facts in this ease show that Parker was a purchaser of the former adjacent proprietor, who had reserved the right of wharfing, and that that right, under the laws of the state, did not belong to Rogers. At the time the application for purchase of the land in controversy was
The decree of the circuit court will be affirmed.