Shively v. Bowlby
On and before May 20, 1854, John M. Shively and wife were the owners of a donation land claim, as laid out and recorded by him under the act of congress of September 27, 1850, c. 76, (9 Stat. 496,) commonly known as the 'Oregon Donation Act,' embracing the then town and much of the present city of Astoria, and bounded on the north by the Columbia river.
On May 20, 1854, John M. Shively laid out and caused to be recorded a plat of that claim, not only of the land above high-water mark, but also of adjacent tide lands and a portion of the bed of the Columbia river, including the lands in controversy, and divided into blocks 300 feet square, and separated from each other by streets 30 or 60 feet wide, some running at right angles to, and the others nearly parallel with, high-water mark, the outermost of which streets were not within 800 feet of the ship channel.
Blocks 4 and 9 were above ordinary highwater mark. Block 146 was in front of block 4, and between high and low water mark. In front of block 9 came blocks 141, 126, and 127, successively. A strip about 50 feet wide, being the southern part of block 141, was above high-water mark, and the whole of the rest of that block was below high-water mark and above low-water mark. The line of ordinary low tide was on September 18, 1876, at the north line of that block; but on December 15, 1890, and for some time before this date, was 100 feet north of the north line of block 127.
On February 18, 1860, John M. Shively and wife conveyed blocks 9, 126, 127, and 146, 'in the town plat of Astoria, as laid out and recorded by John M. Shively,' to James Welch and Nancy Welch, whose title was afterwards conveyed to the plaintiffs.
On June 2, 1864, John M. Shively laid out and caused to be recorded an additional plat, covering all the space between blocks 127 and 146 and the channel.
In 1865 the United States issued a patent to John M. Shively and wife for the donation land claim, bounded by the Columbia river.
On September 18, 1876, the state of Oregon, by its governor, secretary, and treasuer, acting as the board of school land commissioners, pursuant to the statute of Oregon of October 26, 1874, (Laws 1874, p. 76,) amending the statute of Oregon of October 28, 1872, (Laws 1872, p. 129,) the provisions of both of which statutes are set forth in the margin,  (the words printed in brackets having been in the statute of 1872 only, and those printed in italics having been inserted in the statute of 1874,) executed to the plaintiffs a deed of all the lands lying between high-water mark and low-water mark in front of block 9, including all the tide land in block 141, and also a deed of all the tide lands in block 146, but never executed to any one a deed of any tide lands north of block 146.
The plaintiffs afterwards held possession of the lands so conveyed to them, and maintained a wharf in front of block 127, which extended several hundred feet into the Columbia river, and at which ocean and river craft were wont to receive and discharge freight.
On December 15, 1890, John M. Shively, having acquired whatever title his wife still had in the lands in controversy, conveyed all his right, title, and interest therein to the defendant Charles W. Shively.
On April 7, 1891, the defendants, pretending to act under the statute of Oregon of February 18, 1891, (Laws 1891, p. 594,) executed and recorded an instrument dedicating to the public their interest in some of the streets adjacent to these lands.
The plaintiffs claimed, under the deeds from the state of Oregon, the title in all the tide lands on the west half of block 141, on all of blocks 126 and 127 and north thereof, and on the west half of block 146 and north thereof, between the lines of low and ordinary high tide of the Columbia river; and also claimed all the wharfing rights and privileges in front thereof to the ship channel; and prayed that the cloud created by the defendants' instrument of dedication might be removed, and the defendants be adjudged to have no title or right in the premises, and for further relief.
The defendants denied any title or right in the plaintiffs, except in the west half of block 146; and, by counterclaim, in the nature of a cross bill, stating the facts above set forth, asserted that, under the patent from the United States to John M. Shively, and his deed to Charles W. Shively, the latter was the owner in fee simple of so much of the east half of block 141 as was above high-water mark, and of all the tide lands and riparian and wharfing rights in front thereof to the channel excepting blocks 126 and 127, and was also the owner of all the riparian and wharfing rights in front of block 4 to the channel, excepting block 146; and contended that the second deed from the state of Oregon to the plaintiffs conveyed no title in the part of block 141 above high-water mark, or in any tide lands, and that Shively's conveyance of specific blocks by reference to his plat passed no wharfing rights in front thereof; and prayed that he might have possession of said premises, and damages against the plaintiffs for withholding the same, and further relief.
The court sustained a demurrer of the plaintiffs to the counterclaim, (except as to that part of block 141 above high-water mark,) and dismissed that claim; and then, on motion of the plaintiffs, dismissed their suit, without prejudice to their interest in the subject thereof.
The defendant Charles W. Shively appealed to the supreme court of the state, which affirmed the judgment, upon the ground that the grant from the United States, bounded by the Columbia river, passed no title or right in lands below high-water mark, as against the subsequent deeds from the state of Oregon. 22 Or. 410, 30 Pac. 154.
The said defendant thereupon sued out this writ of error, and assigned the following errors:
'First. The supreme court of Oregon decided that a grantee of the United States, under the act of congress of September 27, 1850, known as the 'Oregon Donation Land Law,' of land bounded by the tidal navigable waters of the Columbia river, obtained by virtue of said grant no exclusive access to the channel of said river, and no wharfage rights below ordinary high tide of said river in front of said high land.
'Second. The supreme court of Oregon decided that said state was the absolute owner of all rights in front of the high land granted by the United States to said grantee, with said Columbia river as a boundary, below the meander line, out to the channel of said Columbia river, to the exclusion of all rights of the grantee aforesaid of the United States, under the said act of congress of September 27, 1850.
'Third. The supreme court of Oregon decided that said state had the absolute power to dispose of the soil of said river and of all wharfage rights in front of the high land granted by the United States to said grantee, the predecessor of the plaintiff in error, with said Columbia river as a boundary, to a private person, for a private beneficial use, and had so disposed of the same to the defendants in error.'
A. H. Garland and Sidney Dell, for plaintiff in error.
J. W. Dolph, for defendants in error.
Mr. Justice GRAY, after stating the facts, delivered the opinion of the court.
^1 'An act to provide for the sale of tide and overflowed lands on the sea shore and coast.
'Whereas, in many of the bays, harbors and inlets on the sea coast of this state, the sea is annually encroaching upon the land, washing away the shores and shoaling such bays, harbors and inlets; and
'Whereas such encroachments can be prevented only at great expense, and by occupying and placing improvements upon the tide and overflowed lands belonging to the state; and
'Whereas it is desirable that facilities and encouragement should be offered to the owners of the soil abutting upon the coast in such bays, harbors and inlets to make improvements and expenditures that will stay such encroachments;
'Therefore, be it enacted by the legislative assembly of the state of Oregon:
'Section 1. That the owner or owners of any land abutting or fronting upon or bounded by the shore of the Pacific Ocean, or of any bay, harbor or inlet [on the sea coast of this state] of the same, and rivers and their bays, in which the tide ebbs and flows, within this state, shall have the right to purchase [from the state] all the tide land belonging to [the] this state in front of [such owner or owners] the lands so owned: Provided, that if valuable improvements have been made upon any of the tide lands of this state before the title to the land on the shore shall have passed from the United States, the owner of such improvements shall have the exclusive right to purchase the lands so improved, extending to low water mark, for a period of [one year] three years from the approval of [this act] the act to which this is amendatory: Provided, further, that the Willamette river shall not be deemed a river in which the tide ebbs and flows, within the meaning of this act, or of the act to which this act is amendatory; and the title of this state to any tide or overflowed lands upon said Willamette river is hereby granted and confirmed to the owners of the adjacent lands, or, when any such tide or overflowed lands have been sold, then in that case to the purchaser or purchasers of such tide or overflowed lands from such owner of such adjacent lands, or some previous owner thereof, as the case may be.
'Sec. 2. The officers of this state, who now are or who may hereafter be authorized to dispose of the school lands belonging to this state, are authorized, empowered and directed to sell such tide lands, upon proper application to purchase by parties hereby authorized to purchase; and all such tide lands shall be sold, and the money resulting from such sale shall be distributed, in accordance with the laws of this state, which now are or may hereafter be in force respecting the sale of the school lands of this state: Provided, that in the certificates of sale and patents for such lands the same shall be described as _____ acres of tide land, or land under water belonging to this state, in front of the following described premises. (Here describe by legal subdivisions the lands in front of which said tide lands are located.)
'Sec. 3. Every applicant for the purchase of tide land, under section 1 of this act, shall, with his application, present to the officer or officers who are or shall be authorized to sell such lands, the evidences of his title to land which abuts or fronts upon or is bounded by such tide lands; and
before making such sale such officer or officers shall be satisfied that such applicant is the owner of such lands so fronting, abutting or bounded as aforesaid.
'Sec. 4. The value of such tide lands shall be appraised at a certain sum per acre of the same, and such appraisal shall not value such lands at less than $1.25 for each acre of such land: Provided, the board having in charge the sale of said lands shall have power to set aside any appraisement on evidence taken of the true value of the same, and shall make another and true appraisement based on such evidence.
'Sec. 5. If any person of persons who, at the passage of [this act] the act of which this is amendatory [shall be] were entitled [under section 1 thereof] to purchase any tide lands under the provisions of section 1 thereof shall not, [within twelve months from the passage of this act, make application to purchase such tide lands,] have applied for the same within three years from the passage of said act, or, having made such application, shall have failed to prosecute the same, as provided by law, then such [lands] land shall be open to purchase by any other person who is a citizen and resident of the state of Oregon: Provided, that when any application shall be made for the purchase of any such tide land by any person or persons other than the owner or owners of the land adjacent to such tide lands, or the purchaser or purchasers of such tide lands from such owner of adjacent lands, or some previous owner thereof, notice shall be given by said board to the owner or owners of such adjacent lands, and to any parties who are in possession of, or who shall have improved such tide lands in any manner, and such owner or owners of such adjacent lands, or the person in possession of such tide lands by purchase from such owner of such adjacent lands, or any previous owner thereof, or who shall have improved the same, shall have sixty days after service of such notice to make application for the purchase of such tide lands, and such application shall have preference over all others, and in case any person to whom notice is hereby required to be given cannot, after due diligence, be found, notice may be given at the cost of the applicant by publication in the state paper for four successive weeks; and all applications to purchase tide lands by the owner of adjacent lands shall be accompanied by the affidavit of the applicant, setting forth the fact that such land is not held by any other person under a deed from said applicant, or any person under whom he holds; but this [section] provision shall not apply to [any] the tide lands abutting upon [or fronting on or bounded by the sea shore, which are] lands owned by the United States. [And] provided further, that if the United States has parted or shall [hereafter] part with its title to any lands of which, at the passage of [this act] the act of which this is amendatory it [is] was the owner, [fronting or abutting upon or bounded by the sea shore,] the grantee of such lands shall have [twelve months] three years after perfecting his title from the United States to apply for [the] all tide lands in front thereof which may be owned by the state,
and, in case of his failure to make such application within said period of [twelve months] three years, or, having made such application, [in case of his failure] shall fail to prosecute the same [as provided by] according to law, such tide [lands] land shall be open to purchase by any other person who is a citizen and resident of the state of Oregon.
'Sec. 6. Nothing in this act provided shall prevent the legislature of this state, or the corporate authorities of any city or town thereof, from regulating the building of wharves or other improvements in any bay, harbor or inlet of this state; and nothing in this act provided shall be construed as a grant of an exclusive right to any person or persons to use the natural oyster beds of this state; but the grantee of any land in this state, under this act, shall hold the same subject to the easement of the public, as provided by the existing laws of this state, to enter thereupon and remove, under the provisions and restrictions of the laws of this state, oysters and other shell fish therefrom.
'Sec. 7. All applicants to purchase lands under the provisions of this act shall, at their own expense, cause the same to be surveyed by the county surveyor of the county in which such lands are situated, such survey to conform to and connect with the surveys of the United States adjoining, as far as may be practicable; and the certificate of the county surveyor, describing the lands applied for by metes and bounds and designating the quantity thereof, shall be forwarded under the certificate of appraisement to the officers of the state who are authorized to sell the same.
'Sec. 8. Inasmuch as there is no law upon the subject at the present time, this act shall take effect from and after its passage.'
The act of 1874 contains two additional sections, the one providing that the title to all tide lands heretofore sold, and for which conveyances have already been executed, under the provisions of the act to which this is amendatory, be and the same is hereby confirmed unto the purchasers thereof; and the other providing that, inasmuch as the existing law does not authorize the sale of tide lands lying on the ocean beach and the rivers and bays thereof, this act shall take effect and be in force from and after its approval by the governor.