Cook v. Dabney

139 P. 721, 70 Or. 529

• Court: Oregon Supreme Court
• Decided: March 17, 1914
• Status: Published

Opinion

Mr. Justice Burnett

delivered the opinion of the court.

The testimony shows that the premises described in the deeds under which the defendants claim are for the greater part within the harbor lines established by the general government for purposes of navigation. It is also true, as a matter of fact, by the undoubted weight of the testimony that during most of the year the disputed tract is wholly submerged, and that water craft navigating the channel in the towage of logs and lumber, and for other purposes, daily pass over the place in question. It appears likewise that the form of this so-called island is continually changing by the action of the water, especially since a large section of the dike already mentioned has been removed. When not actually submerged, the tract, even at its highest point, is a great deal of the time barely awash.

1. For the reason that the place is not alternately covered and exposed every 24 hours by the action of the tide, it is manifestly not tide land; but this is not necessarily decisive of the question. If, in fact, the state had the right to sell the property so as to place it entirely in private ownership, it matters not to the plaintiffs under what name it was alienated if they themselves had no interest or estate in the demised premises. If the plaintiffs had no right there they would have no standing to question the authority of the state, if such power existed, to sell the property. If, however, the state had no right to place the land in private ownership, and the exclusive exercise of such ownership would prejudice the rights of the plaintiffs growing out of their holdings on the. river bank, equity in good reason would relieve them from this infringement of their property rights. It is true that upon the admission of the state into the Union it was vested with the title to the lands under navigable waters, subject, however, at all times to the rights of navigation and fishery. To all intents and purposes the title of the state was burdened with a trust, so to speak, in favor of those two occupations. It would have no right or authority so to dispose of the subjacent lands in a manner calculated to prejudice or impede the exercise of those rights. It was never intended by any of the legislation concerning the alienation of state lands, that the state should sell the beds of the navigable streams in a way to interfere with their navigability.

2. The testimony clearly demonstrates that in real truth the land in dispute is nothing more than an inequality in the bed of the river, and that for the most part it is directly in the official route of navigation as established by the general government. The officers of the state composing the state land board were imposed upon by the representation that it constituted tide land, and were led into the error of conveying property in a manner and for a purpose which would act as a direct and permanent impediment to navigation. This the state could not do without violating the trust under which it holds the title to such property, and its grantees would take nothing by such a deed.

The right of access to navigable water abutting upon riparian lands is a valuable appurtenance to such lands, and equity will in good reason give relief against an instrument designed to prejudice the enjoyment of such appurtenance. Such is the doctrine laid down in Sengstacken v. McCormac, 46 Or. 171 (79 Pac. 412). The action of the state land board in conveying the property was analogous to that condemned by the Supreme Court of the United States in the Illinois Central Railroad Co. v. Illinois, 146 U. S. 387 (36 L. Ed. 1018, 13 Sup. Ct. Rep. 110). The legislature of the state of Illinois had passed a law granting to the railroad company the bed of Lake Michigan along a mile and a half of the city water front in Chicago, and extending with that width a mile out into and including the most of the outer harbor. This law was afterward repealed. The railroad company contended that it had a vested right by the former act of which it could not be divested by subsequent legislation; but the Supreme Court of the United States held that the repeal was a valid exercise of legislative power, on the ground that the abrogated law undertook to invest the company with rights manifestly inimical to navigation and commerce, in that it assumed to grant away lands subjacent to the navigable waters of the lake. In commenting on this case in Lewis v. Portland, 25 Or. 133 (35 Pac. 256, 42 Am. St. Rep. 772, 22 L. R. A. 736), Mr. Chief Justice Lord said:

“There the grant of the submerged soil of the lake was in such quantity as, in the opinion of the court, impaired the public interest in its waters, and operated, if irrepealable, as an abdication by the state of its trust over the property.”

It would seriously unsettle property rights of riparian owners and work great harm to navigation if it were permitted that the moment low water should disclose a sand bar that is liable to be scoured out by the next flood, one might apply to the state and get a deed in fee simple for such a place, and be authorized to use it as a basis for exactions against the upland owner.

3. For the reason that what was attempted to be conveyed is in the general course .of navigation at’ that point and mainly within the harbor lines as established by the general government, and that the state had no right to convey the property and so abdicate its trust designed to protect navigation, the decision of the Circuit Court is affirmed, but with the modification that no costs or disbursements will be taxed for or against the defendants Dabney, they having disclaimed in their answer any interest or estate in the tract, although they were the original grantees of the state.

Affirmed and Modified.