Grant v. Oregon Navigation Co.

90 P. 178, 49 Or. 324, 1907 Ore. LEXIS 123

• Court: Oregon Supreme Court
• Decided: May 21, 1907
• Status: Published

Opinions

Opinion by

Mr. Justice Eaicin.

1. The defendant, Oregon Railroad & Navigation Co., claims title to the wharfage rights in front of plaintiff’s property by virtue of the conveyance thereof from Taylor to its grantor, the Oregon Steam Navigation Co., in 1875, and prior to the sale of the tide, land by the state. By the legislative act of 1864 (Section 4042, B. & C. Comp.), it is provided that the owner of any land lying upon navigable water within the corporate limits of a city is authorized to construct a wharf upon the same and extend .it below low water. Thus, the upland owner was given the preference right or license to oecupjr the same for wharfage purposes, and, if such license was exercised by himself or his grantee, it became a vested right: Parker v. Taylor, 7 Or. 435. Taylor, by his ownership of lot 5, block 135, and the conveyance to him by Shivel_y, claimed the wharfage rights 'in front of said blocks 134 and 135 in 1875, under and by virtue of said Section 4042, B. & (1 Comp. By Section 4043, B. & C. Comp., cities are authorized to regulate the exercise of a wharfage right by ordinance upon the application of the owner of such right, and on the petition of Taylor in October, 1875, the City of Astoria did pass an ordinance for that purpose, and by his deed to the Oregon Steam Navigation Co. in November, 1875, Taylor conveyed to it his -wharfage rights, which included the north 50 feet of said lot 5, block 8. The Oregon Steam Navigation Co. commenced the erection of its wharf and warehouse at deep water and the erection of the roadway at the south line of the property conveyed to it by Taylor in the year 1875. It does not appear definitely when such construction was commenced or finished, but evidently the roadway had been constructed in July, 1876. However, whether it was constructed, or, if so, whether it was a sufficient compliance with Section 4042, B. & C. Comp., to vest title, is not necessary now to determine.

2. Plaintiffs claim that hy virtue of their ownership of part of lot 5, block 8, lying below low water, they are thereby owners to. the center of the stream and of the wharfage rights to deep water, as incident thereto, and by this suit seek to quiet their title to the same, as against defendants. Their right to such relief depends largely upon the effect of the deed, from Taylor to Bridget Grant. If, by that deed, the low-water line were the boundary, with no reservation of the riparian right, it would pass as an incident thereto; but it is within the power of the riparian owner to separate the riparian rights from the ownership of the shore, and this is largely a question of the intention of the grantor. Originally the state was the absolute owner of the tide lands on the Columbia River and the rights incident thereto below the meander line out to deep water: Bowlby v. Shively, 22 Or. 410 (30 Pac. 154); Shively v. Bowlby, 152 U. S. 1 (14 Sup. Ct. 548: 38 L. Ed. 331). By the legislative acts of 1872 (Laws 1872, pp. 129, 130) and 1874 (Laws 1874, pp. 76, 77), the upland owner was given the preference right to purchase the tide land, and upon such purchase, if not already vested in another under Section 4042, B. & C. Comp., he thereby acquired also the exclusive wharfage right to deep water, and also all accretions to his tide land and the right to fill up the shallows or flats, so long as he does not impede navigation or interfere with commerce over the same: Miller v. Mendenhall, 43 Minn. 95 (44 N. W. 1141: 8 L. R. A. 89: 19 Am. St. Rep. 219, 231). In Parker v. Taylor, 7 Or. 435, Judge Boise says: “Land situated as this is, covered with shoal water, may, under proper regulations by the state and municipal authorities, be reclaimed from the sea by filling in or by driving piles and building on them, and becomes private property and the subject of sale the same as any other property. And as this state has given such mud flats to the riparian owner as a franchise, he alone may reclaim the same, under such regulations as the state has or shall prescribe”: Bowlby v. Shively, 22 Or. 410 (30 Pac. 154).

3. On August 3, 1876, Rogers purchased from the state the tide land in front of lots 5 and 6, block 118, claiming that such lots extended to the meander line of the river, and received a deed therefor. Defendants question the validity of Rogers’ title to this tide land, for the reason that the high-tide line was upon the next block north, viz., 135; but, if so, the deed is not thereby void, but only voidable, and his title cannot be questioned collaterally.

4. When Taylor acquired the tide land in front of lot 5, block 135, by his deed from Rogers, in November, 1881, he thereby acquired all rights incident thereto in front of the high land below the meander line out to the channel of the river, if not already owned by the Oregon Steam Navigation Co. This ground had all been platted into lots, blocks and streets, as Shively’s Second Addition to Astoria, which plat was recognized by both Taylor and the plaintiff at the time of Taylor’s conveyance to her. Ordinarily a conveyance of land abutting upon the shore carries with it to the grantee therein all rights incident to the shore line; but, where land extending under the water is conveyed by metes and bounds, or the conveyance shows in any manner the intention of the grantor to reserve the riparian rights, the same will not pass to the grantee. It is within •the power of the riparian owner to separate the riparian rights from the upland, and in every case it would be a question of the intention of the parties whether it has been so separated. Farnham, in Waters & Water Rights, § 724, in discussing the separation of riparian rights from the upland, says: “The separation may also be effected by a conveyance by metes and bounds which gives the line along the shore a definite location and indicates an intention that the title to the land under the water shall not pass. The same result will be obtained by platting of land under the water so that the land on the hank is not riparian in the strict sense of the word. Nor are any of the inside lots which are platted under the water riparian. The question whether, by platting in a particular manner or by a grant, the owner of the shore of navigable waters dissociates the rights incident to ownership of the shore from that ownership, is wholly one of his intention.”

In Goodsell v. Lawson, 42 Md. 348, 366, a town was platted partly on the water. A lot upon the water was conveyed to Godman, which it was claimed entitled her to riparian rights. It is said: “It cannot be supposed for a moment that the owners of the projected town intended to confer on the purchasers of lots to be created from the water riparian rights such as we have been considering. * * This lot is partly on the land and partly in the water, and is located with reference tó the town plat. It must therefore be construed with reference to that plat and the designs therein manifested. It will be seen, also, by an examination of the deed, that it does not call for a water line. The description is by courses and distances, and these must circumscribe the title of the purchaser.” At page 373, it is said: “That deed conveyed by metes and bounds 'a lot of ground in the Town of Crisfield, being part of block No. 19 on the plat of said town,’ and must be construed with reference to said town plat.” In Eldridge v. Cowell, 4 Cal. 87, in the plan of San Francisco, the survey into lots and blocks extended into the tide water in front of the city. Plaintiff obtained his lot with knowledge of the plan of the city. It is held that it is not material to inquire as to the first authority for the plan of the city. The state’s title vested in the lot owners, and plaintiff took without any riparian rights. In Kenyon v. Knipe, 2 Wash. 394, 397 (27 Pac. 227, 228: 13 L. R. A. 142), it is said: “A deed conveying property by reference to a plat or map thereof adopts such plat or map as a part of such deed, and one purchasing thereunder becomes bound by the boundaries of the lot purchased as they appear on said plat or map. Applying this rule to the case at bar, it will be seen that the plaintiff herein did not purchase lots bounded by tide water, but those bounded by a definite and defined line, * * and he is estopped by such fact from claiming any rights beyond such boundaries.” To the same effect is State ex rel. v. Forrest, 12 Wash. 486 (41 Pac. 194). In Gilbert v. Emerson, 60 Minn. 62 (61 N. W. 820), it is held that the plaintiff, having purchased a block of submerged land, is deemed to have purchased with reference to the plat showing the blocks and alleys: “It is not a case, therefore, where the outermost alley line is coterminous with the boundary line of the owner of the premises platted. * * Nor is this a case where this outermost alley line is the water-line boundary, and where, in such a case, it might be held that riparian rights would exist in behalf of a person who held the title to such line. * * This map, with reference to this alley line, must be construed so as to give effect to the intention of the maker thereof." In Northern Pac. R. Co. v. S. & H. L. Co. 73 Minn. 25 (75 N. W. 737), it is held that a platting of submerged land severed the riparian rights from the shore banks and attached them to the outermost tract. To the same effect is Gilbert v. Emerson, 55 Minn. 254 (5G N. W. 818: 43 Am. St. Rep. 502). This is also the effect of Parker v. Taylor, 7 Or. 435.

Taylor, by his deed to Mrs. Grant conveyed to her the south 75 feet only of said lot 5, block 8, being the portion of said lot lying south of the south line of the tract conveyed by him to the Oregon Steam Navigation Co.; there still remaining to himself or his grantee the north 50 feet thereof. And where, by reason of his tide-land ownership, he conveyed to plaintiffs by metes and bounds a portion of a lot below low tide, being part of the town plat containing other blocks between that and deep water, the intention of the grantor that no riparian rights shall pass clearly appears, and plaintiffs’ rights are circumscribed by the description in the deed, and are not riparian; and therefore they are not entitled to deep-water frontage.

5. Plaintiffs also claim title by adverse possession to the property in dispute. They have shown no color of title to any of it, and therefore such claim can only apply .to so much of the property as has been in their open, notorious, continuous and exclusive occupation under claim of right for the period of 10 years. Plaintiffs have been in such possession of the portion thereof covered by the old platform adjoining their. building extending north 13 feet, 5 inches, and the full width of the lot, viz., 50 feet; and it also appears that the building extends 1 foot 1 inch north of the north line of the property described in plaintiffs’ deed. Therefore the decree of the lower court is reversed, and a decree will be entered here quieting plaintiffs’ title to that lot or parcel of ground bounded as follows: Commencing at the northwest corner of the property conveyed by James Taylor to Bridget Grant by deed of date, November 15, 1886; thence north 14 feet 6 inches; thence east 50 feet; thence south 14 feet 6 inches; thence west 50 feet, to place of beginning— and that plaintiffs have no interest in the other portions of the property in dispute; defendant to recover its costs and disbursements in this court, and neither party to recover costs in the lower court. Modified.