Parker v. West Coast Packing Co.
21 P. 822
Or.
1889
Check Treatment
Thayer, C. J.

It will be observed from the facts in this case that John M. Shiveley, the owner of a donation land claim in the town of Astoria, fronting northerly on the Columbia River, claimed all the land and water in front of him out to what is termed the ship’s channel; that he attempted to lay off such frontage into blocks, lots, and streets, recorded a plat thereof,.and executed deeds of conveyance of portions of it to divers parties, who claimed ownership thereof by virtue of such conveyances; that in the several deeds to the lots in the west half of said block 149, — consisting of lots 4, 5, 6, 7, 8, and 9,— he inserted a sort of stipulation reserving to himself all rights and franchises in front thereof to ship’s channel, which pretended rights and franchises he subsequently undertook to convey to the respondent in this case; and that, by virtue of such conveyance, the latter claims the *515title thereto which he is attempting to assert herein; that Shiveley, in order, I suppose, to strengthen his title to such frontage, rights, and franchises, obtained a deed from the state of Oregon to all or a large part of the tidelands in front of his donation claim.

The appellant, it seems, after procuring the deeds from Shiveley and his grantees to the several lots referred to, did not observe the stipulation of reservation contained therein, but extended out a wharf of some kind “to ship’s channel,” and assumes to occupy it in defiance of the claim of Shiveley’s grantees, who now attempt to eject him therefrom.

This condition of affairs presents two questions: 1. Whether an action to recover the possession of real property can be maintained in such case; and 2. Whether Shiveley had such a tangible property right in the said frontage as enabled him to sell it out in parcels, and the purchasers thereof to acquire distinct interests therein.

That an owner of land hounded by navigable waters possesses important riparian rights by virtue of such ownership is not open to question. (Yates v. Milwaukee, 10 Wall. 497.) He has the privilege of building a wharf out to such a depth of water as will enable ships or vessels to touch thereat and receive or discharge freight, and may apply such frontage to any use not inconsistent with the rights of the public. He may reserve the rights to himself when he conveys away the land above high-water mark to which they pertain, or he may grant them to others to enjoy, but in subordination to the public right of navigation. Such rights, however, are mere incorporeal hereditaments. The land below high-water mark upon a navigable river, and which constitutes a part of its bed, belongs to the state in its sovereign capacity, subject to the riparian rights of the owner of the land above and adjacent thereto. The state, however, cannot sell it, *516nor can the state control its use, except to increase the facilities for navigation and commerce. Nor can the riparian proprietor grant such land, or any right thereto, except such right as he himself is entitled to enjoy. He can only grant the franchise as before suggested. When, therefore, Shively and wife executed the deed to the appellant of October 30, 1879, conveying to appellant their right title and interest in said lots 4, 5, and 6, they merely granted to him a part of the riparian rights which attached to the donation land claim of John M. Shiveley. The deed, whatever its form or description of premises contained therein, only operated as a grant of a right to erect structures in the interest of navigation, and if it limited such right to an enjoyment of the portion of frontage described therein by force of said stipulation of reservation, yet Shiveley did not thereby acquire any more tangible interest in the land and water north thereof than he had before, which was not sufficient to enable him or his grantee to recover it in an action in the form of the one brought. An action in the nature of ejectment will not lie to recover possession of an incorporeal thing, as no possession can be given of such species of property.

If the respondent, therefore, has a right to erect wharves or other structures in the interest of navigation north of said lots 4, 5, and 6, and the appellant has infringed upon the right, he must seek some other mode of redress. Whether he has such right, however, it not necessary for us to decide in this case; but even if he has, he certainly cannot recover it in an action to recover the possession of real property, and that is decisive against his right of action, and no other question need be considered.

The judgment appealed from must be reversed, and the case remanded to the circuit court, with directions to dismiss the complaint.