11 F. Supp. 675 | D. Or. | 1935
The suit is in equity, brought by the United States claiming ownership and exclusive possession of the premises lying in the Columbia river south and west of Sand Island and south and east of the main north ship-channel of the river and that the defendants be enjoined from using the same in carrying on fishing and seining operations.
The principal issue raised by the pleadings and presented by the evidence is whether the lands in dispute are accretions to Sand Island and located in the state of Oregon, and if so do they belong to the United States, and if not so located, are they a part of Peacock Spit situated in the state of Washington extending southeast from Cape Disappointment into the waters of the river and beyond the jurisdiction of this court and are held under a lease from the state of Washington by the defendants Baker’s Bay Fish Company and H. J. Barbey?
It first becomes necessary to locate the boundary line between the two states which was fixed by an Act of Congress on February 14, 1859, fixing the boundary of the state of Oregon, 11 Stat. c. 33, p. 383, and at the time the act was passed the north ship-channel was south and east of Cape Disappointment and west and north of Sand Island. It was definitely located by the Supreme Court in an action brought by the state of Washington against the state of Oregon. Washington v. Oregon, 211 U. S. 127, 29 S. Ct. 47, 53 L. Ed. 118, rehearing 214 U. S. 205, 29 S. Ct. 631, 53 L. Ed. 969. And it was there determined that Sand Island was within the state of Oregon and that the center of the north ship-channel referred to in the act admitting Oregon into the Union passed north of Sand Island and was changed only as may be from time to time through the process' of accretions. The physical conditions existing in the lower waters of the Columbia river at the time of the admission of the state of Oregon were discussed in the opinion of the court, and as a part of it a map or chart, the same now before us, appears showing the location of Sand Island, Cape Disappointment, Peacock Spit, Baker’s Bay, and the channel and shoals of the river in 1851 and the changes- in the contour and location of Sand Island at different times between 1851 and 1905. The northerly boundary line of the state of Oregon as fixed by the decision is' the southerly boundary line of the state of Washington.
When we come to locate the boundary line between the two states fixed by the Supreme Court as being the center of the north ship-channel which was south- and east of Cape Disappointment and west and north of Sand Island, our problem is in locating the channel south and east of Cape Disappointment and west of Sand Island as a solution of that issue of fact becomes necessary in determining the boundary line between the two states in
As to Sand Island, it has been in existence for a long time, and the sands abutting thereon have shifted some westerly and increased in area which was due to accretions. Adjoining it on the north are the waters of Baker’s Bay, and to the south is the main channel of the river. The island itself is admitted to be within the state of Oregon but not the disputed fishing sites which defendants contend are accretions of Peacock Spit and are therefore covered by and used by them under their lease from the state of Washington. This is the crucial issue of fact in this case, and calls for a conclusion as to whether the accretions, where the disputed fishing sites are located, have been from Sand Island or from Peacock Spit, for the increase in area gives to the owner of the land on which accretions abut all the accretions thereto, and the title to the accretions extends to the point where the two bodies of land may unite.
The defendants J. H. Barbey and the Columbia River Packers Association, on March 27, 1930, executed a lease with the Secretary of War for five years commencing May 1, 1930, which was subject to revocation at will by the secretary, of the lands on the south side of Sand Island in Oregon, described as “all of that certain premises of the south shore of Sand Island, together with rights, easements and
In the case of Columbia River Packers’ Association, Inc., et al. v. United States et al., supra, where the United States and its lessee brought suit against the State Land Board of the State of Oregon and its lessee, to establish the right and title of the United States to Sand Island, and to the tide and shore lands adjacent thereto, the Ninth Circuit Court of Appeals, after reviewing the history of the island, stated that the island was within the limits of the state of Oregon and that by the order of the President it was set apart for military purposes on April 21, 1863, and on October 24, 1864, the state of Oregon by an act granted to the United States “all the right and interest of the state of Oregon in and to the land in front of Fort Stevens and Point Adams, situate in this state, and subject to overflow between high and low tide; also to Sand Island, situate at the mouth of Columbia river in this state, the said Island being subject to overflow between high and low tide,” and that although the island was never used for military purposes yet Congress passed an Act on July 28, 1892 (27 Stat. 321, 40 US CA § 303), authorizing the Secretary of War to lease the premises for a period of five years, and that pursuant to such authority the secretary had leased the island and the adjacent tide and shore land for fishing purposes since 1903, and from such leasing there had been paid to the United States upwards of $400,000 as rentals. The court said: “After the lapse of nearly 70 years it would seem that a grant such as was made by the state of Oregon in this case should not he open to further controversy, especially in view of the fact that the grantee has asserted and exercised dominion over the granted premises for upwards of 25 years. Nevertheless, the state of Oregon now contends, first, that the grant was for military or naval purposes only; and, second, that the grant has never been accepted by Congress. But the grant itself is absolute in form, without limitation or condition, and it would violate every known rule of statutory construction to ingraft upon it now any such limitation or condition as that contended for by the appellees, especially in view of the construction the parties themselves have placed upon the grant for so long a period. * * * Furthermore, long acquiescence by the state in the assertion of title and the exercise of dominion over the property by the United States should he deemed conclusive at this kite day. Indiana v. Kentucky, 136 U. S. 479, 10 S. Ct. 1051, 34 L. Ed. 329.”
While the laws of Oregon provide that tide lands over which the tide ebbs and flows from the line of the high tide to the low tide belong to the state, section 60-301, Oregon Code 1930, yet we observe that the Court of Appeals interprets the grant from the state of Oregon to the United States as conveying all of the interest of the state in and to the lands between high and low tide, and that by virtue of the absolute grant from Oregon, which was without limitation or condition, the United States acquired title and right to the lands between high and low water mark of the river, and by reason of that decision holds the full riparian rights with respect to the southerly and westerly shores of the river.
Attention has been called by the defendants to the case of United States ex rel. Charley v. McGowan et al. (D. C.) 2 F. Supp. 426, 429, which was affirmed by the Circuit Court of Appeals, 62 F.(2d) 955, relating solely to Peacock Spit located in the state of Washington as it then existed in 1928, and succeeding years. The suit was brought by the United States as guardian of certain Indians, alleging that tlieir fishing rights under a treaty had been interfered with by the defendants, who claimed to have leased from the state of Washington, Peacock Spit, and which was at the time of leasing the sole and exclusive property of the state of Washington. Neither the opinion nor the evidence recited in it relate in any way, or affect, the area in which the fishing sites are involved in the present case, and therefore it does not determine the ownership or location of the disputed fishing sites we are now dealing with.
The further question of jurisdiction is urged by the defendants that as the states of Oregon and Washington claim an interest in the premises they are necessary parties to the present suit and, being so, that would divest the court o £ jurisdiction. On the eve o£ the trial these two states requested permission to intervene under Equity Rule 37 (28 USCA following section 723), which was denied. Piad the court permitted these states to intervene,
In view of the reasons thus expressed and the conclusion reached, the relief prayed for by the plaintiff is granted, and the defendants are perpetually enjoined from further occupying, or using for seining operations, the disputed fishing sites as described in the complaint, and with plaintiff’s costs. Findings and decree may be prepared in accordance with the conclusions reached.