12 Or. 353 | Or. | 1885
This appeal is from a decree rendered in a suit commenced by the respondents against the appellants, to declare a trust in favor of the former in certain tide lands formerly conveyed by the State of Oregon to James Welch, ancestor of the appellants. The respondents alleged in their complaint in the suit that said James Welch procured said deed from the board of commissioners for the sale of school lands, etc., on the 18th day of September, 1876; that in his application for the purchase thereof he fraudulently represented that he was the owner of block 11, in the town of Astoria, which abuts upon said tide land, when in truth said block did not belong to him; that he and one Shively had, by deed bearing date June 3,1846, ■conveyed it to John Wilson, ancestor of the respondents, and ■that the latter owned it at the time said application was made, •and that no notice of any kind was given to him, or to anyone, by said Welch or said board, nor by any person, of the application; that both James Welch and John Wilson had since died, and that the appellants and respondents are their respective representatives and successors in interest, the respondent Ann E. Wilson being widow of the said John Wilson, and the said Mary E. Wakeman, a daughter; that the former owns a dower right in said block 11, and the latter owns the remainder.
' The respondents further alleged that on August 29, 1877, they commenced an action against the appellants to recover the •possession of said block 11, and that on March 27, 1878, they recovered a judgment against them, whereby it was adjudged that said .John Wilson was the owner in fee of said block by ■virtue of said deed of June 3, 1846, until his death, and that they then became the owners thereof as mentioned, and entitled to the possession. They alleged, also, that they did not know the exact amount of purchase price paid by James Welch to the State of 'Oregon for said tide lands, but offered to pay the same when ascertained by the court. The appellants denied that said James Welch procured the deed from the State to the tide land by the representation alleged; denied that said block 11 abutted or fronted on the shore of the Columbia. Eiver; claimed that on said 30th day of June, 1846, it was above ordinary high-water
These facts were in the main denied by the respondents m their reply. The proofs in the case show that said Shively, some time prior to the year 1846, settled upon a tract of land including said block 11; that he conveyed an undivided half of it to said James Welch; that they surveyed and laid off a part of it into lots and blocks; that Welch gave to Shively a power of attorney; that said Shively executed the deed for himself and said Welch to the said John Wilson, of June 3, 1846, to said
It further appeared in proof that said James Welch did base his right to purchase said tide land, when he made said application to purchase, upon the ground that he was the owner of said block 11, upon which it abutted at that time; and it further appears that at said time, and for a long time prior thereto, he had claimed to be the owner thereof, and that the appellants
The land in controversy includes less than half an acre. It was purchased by said James W elch of said board of commissioners, under the provisions of the legislative assembly of the State to provide for the sale of tide and overflowed lands on the seashore and coast, approved October 28, 1872, as amended in 1874. That act provides that the owner of any land abutting, fronting, or bounded by the shore of any bay, harbor, or inlet on the sea coast, shall have the right to purchase from the State all the tide land belonging to the State in front of such owner or owners, subject to certain provisos which allow the owner of improvements upon such tide lands to purchase the lands so improved for a certain period, and also allow outside parties to become such purchasers in case the owner or owners of the high land fail to make application for the purchase of the same for three years; but in the latter case, the board of commissioners for the sale of such lands must give the owner or owners of the high land, having the preference in thé purchase thereof, notice of such application to purchase the same, who thereupon have sixty days after the notice is given in which to make application to purchase it. It was conceded in this case that the said board of commissioners gave no such notice to said John Wilson or the respondents.
The appellants’ counsel claims that if a strip of high land did exist north of block 11 on June 3, 1846, so that the wharf privileges remained in Shively and Welch after the execution and delivery of the deed of that date, such right and, as he claims, the consequent right to purchase the tide lands in front of that strip, would not be divested out of Welch and vested in Wilson by the act of the washing away of such strip of land before the passage of the said act. He also claims that the effect of the
The embarrassing feature of this subject has arisen out of a misunderstanding of the nature of the State’s ownership of land between high and low water upon navigable streams. It has been spoken of as an-ownership in fee, and an erroneous impression has been conveyed. The State does own the channel of the navigable rivers within its boundaries, and the shore of its bays, harbors, and inlets between high and low water, but its ownership is a trust for the public. It has no such proprietorship in them as it has in its property and public buildings. It cannot sell them so as to deprive the public of their enjoyment (Providence Steam Engine Co. v. Providence & S. Steamship Co. 12 R. I. 348); nor can it take away riparian rights, except for public use, and by giving just compensation. (Gould Waters, § 150.) The New York courts have taken a different view, and which has been followed by an Iowa decision (Tomlin v. Dubuque etc. R. Co. 32 Iowa, 106); but it is repudiated by the federal and most of the State tribunals. If, then, the riparian rights referred to, such as wharfage privileges, are property, they may be sold, or reserved to the owner of high land upon which the tide land abuts. There is no reservation in terms in the deed of June 3,1846; but if the
Too much importance, I apprehend, has been attached to the tide-land act before referred to. I seriously doubt whether that act confers any new right upon the shore-owner in such cases, although he has purchased the land in front of him in accordance with its terms. The title he obtains is subordinate to the public right of passage and navigation, and he had the same wharfage privileges before as afterwards, and the right to protect his uplands from the encroachments of the sea. According to Hale there are three sorts of rights in ports and shores: First, the jus privatum, or right of property or franchise; second, the jus publiovm, or public right of passage and navigation; and third, the jus regium, or governmental right. The State could not, by any sale of the shore of a body of water below high tide, deprive itself of the latter right; nor, as before suggested, could it thereby deprive the public of the right of passage or navigation. What, then, can such a sale of that character of tide land amount to? I doubt very much whether a sale in such a case could be made to an outside party that would deprive the riparian owner of any right to the enjoyment of the land.
It was held in the case of People v. Cowell, 60 Cal. 400, that lands within the flow of ordinary tides, the cost of reclaiming which would greatly exceed their valué when reclaimed for any agricultural purpose, were not acquirable under a statute authorizing a sale of reclaimable lands. The State might authorize a sale, doubtless, of tide flats, and the purchaser have the right to reclaim them and devote them to private use, where no right of public passage or navigation is infringed; but to attempt to sell a part of the channel of a navigable stream below any ordinary stage of high water, occasioned either by tides or freshets,
The act did not contemplate thát the applicant should get the land for less than its true value in any case, and the legal privilege in favor of the shore-owner was merely to buy the land for what it was actually worth. In such cases many shore-owners might not be inclined to attempt to make such purchase. Whether the respondents would have been so disposed is left entirely to conjecture; and yet they now claim that Welch’s title should inure to their benefit. I can readily understand that where one has the equitable title to real property, the legal title to which is outstanding, and another person wrongfully buys in
But as before suggested, I do not think the sale affected the rights of the owners of the land upon which the tide land abutted. The main question in the case, as I regard it, is as to whom these rights belonged. If, by the terms of the deed of June 3, 1846, from Shively and Welch to John Wilson, they were reserved to the former, then they are rightfully in the appellants; but if no such reservation was made in that instrument, then the respondents succeeded to them whenever they became shore-owners. The rights which attached to the narrow strip, which counsel for the appellants claims was not conveyed by the deed, and which existed as a mere incident of that parcel of land, were lost when it was washed away. The courts have usually held, where the question has arisen, that where a lot or block is bounded in a deed by a street, the deed operates to convey the land to the center of the street. Under such a construction it is quite evident that the deed of June 3, 1846, conveyed the high land adjacent to and on the north side of said block 11. I am informed that this court has so ruled, and I must consider that ruling as decisive of the question. But if the deed referred to showed an evident intent to reserve the said riparian rights to the grantors, they and their successors should be adjudged the owners thereof. In Codman v. Winslow, 10 Mass.