MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.
The counter-claim, therefore, depended upon the effect of the grant from the United States to Shively of land bounded by the Columbia River, and of the conveyance from Shively to the defendant, as against the deeds from the State to the plaintiffs. The Supreme Court of Oregon, affirming the judgment of a lower court of the State, held the counter-claim to be invalid, and thereupon, in accordance with the state practice, gave leave to the plaintiffs to dismiss their complaint, without prejudice. Hill's Code of Oregon, §§ 246, 393.
The only matter adjudged was upon the counter-claim. The judgment against its validity proceeded upon the ground that the grant from the United States upon which it was founded passed no title or right, as against the subsequent deeds from the State, in lands below high water mark. This is a direct adjudication against the validity of a right or privilege claimed under a law of the United States, and presents a Federal question within the appellate jurisdiction of
It was argued for the defendants in error that the question presented was a mere question of construction of a grant bounded by tide water, and would have been the same as it is if the grantor had been a private person. But this is not so. The rule of construction in the case of such a grant from the sovereign is quite different from that which governs private grants. The familiar rule and its chief foundation were felicitously expressed by Sir William Scott: "All grants of the Crown are to be strictly construed against the grantee, contrary to the usual policy of the law in the consideration of grants; and upon this just ground, that the prerogatives and rights and emoluments of the Crown being conferred upon it for great purposes, and for the public use, it shall not be intended that such prerogatives, rights and emoluments are diminished by any grant, beyond what such grant by necessary and unavoidable construction shall take away." The Rebeckah, 1 C. Rob. 227, 230. Many judgments of this court are to the same effect. Charles River Bridge v. Warren Bridge, 11 Pet. 420, 544-548; Martin v. Waddell, 16 Pet. 367, 411; Central Transportation Co. v. Pullman's Car Co., 139 U.S. 24, 49.
In Yesler v. Washington Harbor Commissioners, at the last term, in which the writ of error was dismissed for want of jurisdiction, it did not appear that the plaintiff in error claimed under a grant from the United States. 146 U.S. 646, 653, 654.
The present case being clearly within our jurisdiction, we proceed to the consideration of its merits.
The briefs submitted to the court in the case at bar, as well as in Yesler v. Washington Harbor Commissioners, above cited, and in Prosser v. Northern Pacific Railroad, (which now stands for judgment,) have been so able and elaborate, and have disclosed such a diversity of view as to the scope
I. By the common law, both the title and the dominion of the sea, and of rivers and arms of the sea, where the tide ebbs and flows, and of all the lands below high water mark, within the jurisdiction of the Crown of England, are in the King. Such waters, and the lands which they cover, either at all times, or at least when the tide is in, are incapable of ordinary and private occupation, cultivation and improvement; and their natural and primary uses are public in their nature, for highways of navigation and commerce, domestic and foreign, and for the purpose of fishing by all the King's subjects. Therefore the title, jus privatum, in such lands, as of waste and unoccupied lands, belongs to the King as the sovereign; and the dominion thereof, jus publicum, is vested in him as the representative of the nation and for the public benefit.
The great authority in the law of England upon this subject is Lord Chief Justice Hale, whose authorship of the treatise De Jure Maris, sometimes questioned, has been put beyond doubt by recent researches. Moore on the Foreshore, (3d ed.) 318, 370, 413.
In that treatise, Lord Hale, speaking of "the King's right of propriety or ownership in the sea and soil thereof" within his jurisdiction, lays down the following propositions: "The right of fishing in this sea and the creeks and arms thereof is originally lodged in the Crown, as the right of depasturing is originally lodged in the owner of the waste whereof he is lord, or as the right of fishing belongs to him that is the owner of a private or inland river." "But though the King is the owner of this great waste, and as a consequent of his propriety hath the primary right of fishing in the sea and the creeks and arms thereof; yet the common people of England have regularly a liberty of fishing in the sea or creeks or arms thereof, as a public common of piscary, and may not without
So in the second part, De Portibus Maris, Lord Hale says that "when a port is fixed or settled by" "the license or charter of the King, or that which presumes and supplies it, viz. custom and prescription;" "though the soil and franchise or dominion thereof prima facie be in the King, or by derivation from him in a subject; yet that jus privatum is clothed and superinduced with a jus publicum, wherein both natives and foreigners in peace with this kingdom are interested, by reason of common commerce, trade and intercourse." "But the right that I am now speaking of is such a right that belongs to the King jure prerogativœ, and it is a distinct right from that of propriety; for, as before I have said, though the dominion either of franchise or propriety be lodged either by prescription or charter in a subject, yet it is charged or affected with that jus publicum that belongs to all men, and so it is charged or affected with that jus regium, or right of prerogative
In England, from the time of Lord Hale, it has been treated as settled that the title in the soil of the sea, or of arms of the sea, below ordinary high water mark, is in the King, except so far as an individual or a corporation has acquired rights in it by express grant, or by prescription or usage; Fitzwalter's Case, 3 Keb. 242; S.C. 1 Mod. 105; 3 Shep. Ab. 97; Com. Dig. Navigation, A, B; Bac. Ab. Prerogative, B; The King v. Smith, 2 Doug. 441; Attorney General v. Parmeter, 10 Price, 378, 400, 401, 411, 412, 464; Attorney General v. Chambers, 4 D.M. & G. 206, and 4 D. & J. 55; Malcomson v. O'Dea, 10 H.L. Cas. 591, 618, 623; Attorney General v. Emerson, (1891) App. Cas. 649; and that this title, jus privatum, whether in the King or in a subject, is held subject to the public right, jus publicum, of navigation and fishing. Attorney General v. Parmeter, above cited; Attorney General v. Johnson, 2 Wilson Ch. 87, 101-103; Gann v. Free Fishers of Whitstable, 11 H.L. Cas. 192. The same law has been declared by the House of Lords to prevail in Scotland. Smith v. Stair, 6 Bell App. Cas. 487; Lord Advocate v. Hamilton, 1 Macq. 46, 49.
It is equally well settled that a grant from the sovereign of land bounded by the sea, or by any navigable tide water, does not pass any title below high water mark, unless either the language of the grant, or long usage under it, clearly indicates that such was the intention. Lord Hale, in Hargrave's Law Tracts, 17, 18, 27; Somerset v. Fogwell, 5 B. & C. 875, 885; S.C. 8 D. & R. 747, 755; Smith v. Stair, 6 Bell App. Cas. 487; United States v. Pacheco, 2 Wall. 587.
By the law of England, also, every building or wharf erected, without license, below high water mark, where the soil is the King's, is a purpresture, and may, at the suit of the King, either be demolished, or be seized and rented for his benefit, if it is not a nuisance to navigation. Lord Hale, in Hargrave's Law Tracts, 85; Mitf. Pl. (4th ed.) 145; Blundell v. Catterall, 5 B. & Ald. 268, 298, 305; Attorney General v. Richards, 2 Anstr. 603, 616; Attorney General v. Parmeter, 10 Price, 378, 411, 464; Attorney General v. Terry, L.R. 9 Ch. 425, 429,
By recent judgments of the House of Lords, after conflicting decisions in the courts below, it has been established in England, that the owner of land fronting on a navigable river in which the tide ebbs and flows has a right of access from his land to the river; and may recover compensation for the cutting off of that access by the construction of public works authorized by an act of Parliament which provides for compensation for "injuries affecting lands," "including easements, interests, rights and privileges in, over or affecting lands." The right thus recognized, however, is not a title in the soil below high water mark, nor a right to build thereon, but a right of access only, analogous to that of an abutter upon a highway. Buccleuch v. Metropolitan Board of Works, L.R. 5 H.L. 418; Lyon v. Fishmongers Co., 1 App. Cas. 662. "That decision," said Lord Selborne, "must be applicable to every country in which the same general law of riparian rights prevails, unless excluded by some positive rule or binding authority of the lex loci." North Shore Railway v. Pion, 14 App. Cas. 612, 620, affirming 14 Canada Sup. Ct. 677.
II. The common law of England upon this subject, at the time of the emigration of our ancestors, is the law of this country, except so far as it has been modified by the charters, constitutions, statutes or usages of the several Colonies and States, or by the Constitution and laws of the United States.
The English possessions in America were claimed by right of discovery. Having been discovered by subjects of the King of England, and taken possession of in his name, by his authority or with his assent, they were held by the King as the representative of and in trust for the nation; and all vacant lands, and the exclusive power to grant them, were vested in him. The various charters granted by different monarchs of the Stuart dynasty for large tracts of territory on the Atlantic coast conveyed to the grantees both the territory described and the powers of government, including the property and the dominion of lands under tide waters. And upon the American
The leading case in this court, as to the title and dominion of tide waters and of the lands under them, is Martin v. Waddell, (1842,) 16 Pet. 367, which arose in New Jersey, and was as follows: The charters granted by Charles II. in 1664 and 1674 to his brother the Duke of York (afterwards James II.) included New York and New Jersey and the islands of Martha's Vineyard and Nantucket, and conveyed to the Duke the territories therein described, "together with all the lands, islands, soils, rivers, harbors, mines, minerals, quarries, woods, marshes, waters, lakes, fishings, hawkings, huntings and fowling, and all other royalties, profits, commodities and hereditaments," thereto belonging or appertaining, and all the "estate, right, title, interest, benefit, advantage, claim and demand" of the King, of, in or to the same; as well as full powers of government: provided, however, that all statutes, ordinances and proceedings should not be contrary to, but, as near as conveniently might be, agreeable to the laws, statutes and government of England. All these rights, both of property and of government, in a part of those territories, were granted by the Duke of York to the Proprietors of East Jersey; and they, in 1702, surrendered to Queen Anne all "the powers, authorities and privileges of and concerning the government of" the Province, retaining their rights of private property. Leaming and Spicer's New Jersey Grants, 4, 5, 42, 43, 148, 149, 614, 615. An action of ejectment was brought in the Circuit Court of the United States for the District of New Jersey, for land under tide waters in Raritan Bay and River, to which the plaintiff claimed title under specific conveyances of that land from the Proprietors of East Jersey, and of which the defendants were in possession, for the purpose of
This court, following, though not resting wholly upon, the decision of the Supreme Court of New Jersey in Arnold v. Mundy, 1 Halsted, (6 N.J. Law,) 1, gave judgment for the defendants, for reasons assigned in the opinion delivered by Chief Justice Taney, which cannot be better summed up than in his own words: "The country mentioned in the letters patent was held by the King in his public and regal character as the representative of the nation, and in trust for them." 16 Pet. 409. By those charters, in view of the principles stated by Lord Hale, in the passage above quoted concerning the right of fishing, "the dominion and propriety in the navigable waters, and in the soils under them, passed, as a part of the prerogative rights annexed to the political powers conferred on the Duke;" and "in his hands they were intended to be a trust for the common use of the new community about to be established" — "a public trust for the benefit of the whole community, to be freely used by all for navigation and fishery, as well for shell fish as floating fish" — and not as "private property, to be parcelled out and sold by the Duke for his own individual emolument." "And in the judgment of the court, the lands under the navigable waters passed to the grantee as one of the royalties incident to the powers of government; and were to be held by him in the same manner and for the same purposes that the navigable waters of England, and the soils under them, are held by the Crown." pp. 411-413. The surrender by the proprietors in 1702 restored to the Crown all "its ordinary and well known prerogatives," including "the great right of dominion and ownership in the rivers, bays and arms of the sea, and the soils under them," "in the same plight and condition in which they originally came to the hands of the Duke of York." p. 416. "When the Revolution took place, the people of each State became themselves sovereign; and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the Constitution to the general government." p. 410.
The full extent of that decision may be more clearly appreciated by referring to the dissenting opinion of Mr. Justice Thompson in that case, and to the unanimous judgment of the court in the subsequent case of Den v. Jersey Co., (1853,) 15 How. 426.
In Martin v. Waddell, Mr. Justice Thompson unavailingly contended that the title in the lands under the navigable tide water, the jus privatum, as distinguished from the jus publicum, passed as private property from the King to the Duke, and from him to the Proprietors of East Jersey, and was unaffected by their surrender to Queen Anne, and therefore passed from them to the plaintiff, subject indeed to the public rights of navigation, passing and repassing, and perhaps of fishery for floating fish, but not to the right of planting,
In Den v. Jersey Co., which was ejectment for land under tide water, that had been reclaimed and occupied as building lots by a corporation, pursuant to an act of the legislature of the State of New Jersey, the plaintiff, claiming under a conveyance from the Proprietors of East Jersey, contended that the fee of the soil under the navigable waters of that part of the State was conveyed to the Proprietors as private property, subject to the public use; that, the public use having ceased as to the land in question, they were entitled to the exclusive possession; and that nothing but the right of fishery was decided in Martin v. Waddell. But the court, again speaking by Chief Justice Taney, held that the decision in Martin v. Waddell, being in ejectment, necessarily determined the title to the soil, and governed this case; and therefore gave judgment for the grantee of the State, and against the claimant under the Proprietors. 15 How. 432, 433.
III. The governments of the several Colonies, with a view to induce persons to erect wharves for the benefit of navigation and commerce, early allowed to the owners of lands bounding on tide waters greater rights and privileges in the shore below high water mark, than they had in England. But the nature and degree of such rights and privileges differed in the different Colonies, and in some were created by statute, while in others they rested upon usage only.
In Massachusetts, by virtue of an ancient colonial enactment, commonly called the Ordinance of 1641, but really passed in 1647, and remaining in force to this day, the title of the owner of land bounded by tide water extends from high water mark over the shore or flats to low water mark, if not beyond one hundred rods. The private right thus created in the flats is not a mere easement, but a title in fee,
The rule or principle of the Massachusetts ordinance has been adopted and practised on in Plymouth, Maine, Nantucket and Martha's Vineyard, since their union with the Massachusetts Colony under the Massachusetts Province Charter of 1692. Commonwealth v. Alger, 7 Cush. 53, 76, and other authorities collected in 9 Gray, 523.
In Rhode Island, the owners of land on tide water have no title below high water mark; but by long usage, apparently sanctioned by a colonial statute of 1707, they have been accorded the right to build wharves or other structures upon the flats in front of their lands, provided they do not impede navigation, and have not been prohibited by the legislature; and they may recover damages against one who, without authority from the legislature, fills up such flats so as to impair that right. Angell on Tide Waters, (2d ed.) 236, 237; Folsom v. Freeborn, 13 R.I. 200, 204, 210. It would seem, however, that the owner of the upland has no right of action against any one filling up the flats by authority of the State for any public purpose. Gerhard v. Seekonk Commissioners, 15 R.I. 334; Clark v. Providence, 16 R.I. 337.
In Connecticut, also, the title in the land below high water mark is in the State. But by ancient usage, without any early legislation, the proprietor of the upland has the sole right, in the nature of a franchise, to wharf out and occupy the flats, even below low water mark, provided he does not interfere with navigation; and this right may be conveyed separately from the upland; and the fee in flats so reclaimed vests in him. Ladies' Seamen's Friend Society v. Halstead, 58 Conn. 144, 150-152; Prior v. Swartz, 62 Conn. 132, 136-138. The exercise of this right is subject to all regulations the State may see fit to impose, by authorizing commissioners to establish harbor lines, or otherwise. State v. Sargent, 45 Conn. 358. But it has been intimated that it cannot be appropriated by the State to a different public use, without compensation. Farist Co. v. Bridgeport, 60 Conn. 278.
In New York, it was long considered as settled law that the State succeeded to all the rights of the Crown and Parliament
The law of New Jersey upon this subject was recognized and clearly stated in a recent judgment of this court, in which a grant by commissioners under a statute of the State to a railroad corporation, of a tract of land below high water mark, was held to preclude a city from continuing over the flats a highway dedicated to the public by the owner of the upland. "In the examination of the effect to be given to
In Pennsylvania, likewise, upon the Revolution, the State succeeded to the rights, both of the Crown and of the Proprietors, in the navigable waters and the soil under them. Rundle v. Delaware & Raritan Canal, 14 How. 80, 90; Gilman v. Philadelphia, 3 Wall. 713, 726. But by the established law of the State, the owner of lands bounded by navigable water has the title in the soil between high and low water mark, subject to the public right of navigation, and to the authority of the legislature to make public improvements upon it, and to regulate his use of it. Tinicum Co. v. Carter, 61 Penn. St. 21, 30, 31; Wainwright v. McCullough, 63 Penn. St. 66, 74; Zug v. Commonwealth, 70 Penn. St. 138; Philadelphia v. Scott, 81 Penn. St. 80, 86; Wall v. Pittsburgh Harbor Co., 152 Penn. St. 427.
In Delaware, as has been declared by its Supreme Court, "all navigable rivers within the State belong to the State, not merely in right of eminent domain, but in actual propriety." Bailey v. Philadelphia, Wilmington & Baltimore Railroad, 4 Harrington, (Del.) 389, 395. And see Willson v. Blackbird Creek Co., 2 Pet. 245, 251.
In Maryland, the owner of land bounded by tide water is authorized, according to various statutes beginning in 1745, to
The State of Virginia was held by this court, upon like grounds, to have the right to prohibit persons not citizens of the State from planting oysters in the soil covered by tide waters within the State, Chief Justice Waite saying: "The principle has long been settled in this court, that each State owns the beds of all tide waters within its jurisdiction, unless they have been granted away. In like manner, the States own the tide waters themselves, and the fish in them, so far as they are capable of ownership while running. For this purpose the State represents its people, and the ownership is that of the people in their united sovereignty. The title thus held is subject to the paramount right of navigation, the regulation of which, in respect to foreign and interstate commerce, has been granted to the United States." McCready v. Virginia, 94 U.S. 391, 394. In Virginia, by virtue of statutes
In North Carolina, when not otherwise provided by statute, the private ownership of land bounded by navigable waters stops at high water mark, and the land between high and low water mark belongs to the State and may be granted by it. Hatfield v. Grimstead, 7 Iredell, 139; Lewis v. Keeling, 1 Jones, (No. Car.) 299, 306. The statutes of that State, at different periods, have either limited grants of land, bounded on navigable waters, to high water mark; or have permitted owners of the shore to make entries of the land in front, as far as deep water, for the purpose of a wharf; and any owner of the shore appears to have the right to wharf out, subject to such regulations as the legislature may prescribe for the protection of the public rights of navigation and fishery. Wilson v. Forbes, 2 Dev. 30; Collins v. Benbury, 3 Iredell, 277, and 5 Iredell, 118; Gregory v. Forbes, 96 No. Car. 77; State v. Narrows Island Club, 100 No. Car. 477; Bond v. Wool, 107 No. Car. 139.
In South Carolina, the rules of the common law, by which the title in the land under tide waters is in the State, and a grant of land bounded by such waters passes no title below high water mark, appear to be still in force. State v. Pacific Guano Co., 22 So. Car. 50; State v. Pinckney, 22 So. Car. 484.
In Georgia, also, the rules of the common law would seem to be in force as to tide waters, except as affected by statutes of the State providing that "the right of the owner of lands adjacent to navigable streams extends to low water mark in the bed of the stream." Georgia Code of 1882, §§ 962, 2229, 2230; Howard v. Ingersoll, 13 How. 381, 411, 421; Alabama v. Georgia, 23 How. 505; Savannah v. State, 4 Georgia, 26, 39; Young v. Harrison, 6 Georgia, 130, 141.
IV. The new States admitted into the Union since the adoption of the Constitution have the same rights as the original States in the tide waters, and in the lands below the high water mark, within their respective jurisdictions.
The act of 1783 and the deed of 1784, by which the State of Virginia, before the adoption of the Constitution, ceded "unto the United States in Congress assembled, for the benefit of the said States, all right, title and claim, as well of soil as jurisdiction," to the Northwest Territory, and the similar cession by the State of Georgia to the United States in 1802 of territory including great part of Alabama and of Mississippi, each provided that the territory so ceded should be formed into States, to be admitted, on attaining a certain population, into the Union, (in the words of the Virginia cession) "having the same rights of sovereignty, freedom and independence as the other States," or (in the words of the Ordinance of Congress of July 13, 1787, for the government of the Northwest Territory, adopted in the Georgia cession) "on an equal footing with the original States in all respects whatever;" and that "all the lands within" the territory so ceded to the United States, and not reserved or appropriated for other purposes, should be considered as a common fund for the use and benefit of the United States. Charters and Constitutions, 427, 428, 432, 433; Clayton's Laws of Georgia, pp. 48-51; Acts of Congress of April 7, 1798, c. 28; 1 Stat. 549; May 10, 1800, c. 50, and March 3, 1803, c. 27; 2 Stat. 69, 229; Pollard v. Hagan, 3 How. 212, 221, 222.
In Pollard v. Hagan, (1844,) this court, upon full consideration,
So much of the reasoning of the learned justice, as implied that the title in the land below high water mark could not have been granted away by the United States after the deed of cession of the territory and before the admission of the State into the Union, was not necessary to the decision, which involved only a grant made by Congress after the admission of Alabama, and which was followed in two similar cases in which Congress, after the admission of the State, had undertaken to confirm Spanish grants, made after the Treaty of San Ildefonso of 1800, and therefore passing no title whatever. Goodtitle v. Kibbe, (1850,) 9 How. 471; Hallett v. Beebe, (1851,) 13 How. 25. In the first of these cases, Chief Justice Taney, speaking for the whole court, of which Mr. Justice McKinley was still a member, said: "Undoubtedly Congress might have granted this land to the patentee, or confirmed his Spanish grant, before Alabama became a State. But this was not done. And the existence of this imperfect and inoperative Spanish grant could not enlarge the power of the United States over the place in question after Alabama became a State, nor authorize the general government to grant or confirm a title to land when the sovereignty and dominion over it had become vested in the State." 9 How. 478.
V. That these decisions do not, as contended by the learned counsel for the plaintiff in error, rest solely upon the terms of the deed of cession from the State of Georgia to the United States, clearly appears from the constant recognition of the same doctrine as applicable to California, which was acquired from Mexico by the Treaty of Guadalupe Hidalgo of 1848. 9 Stat. 926; United States v. Pacheco, (1864,) 2 Wall. 587; Mumford v. Wardwell, (1867,) 6 Wall. 423; Weber v. Harbor Commissioners, (1874,) 18 Wall. 57; Packer v. Bird, (1891,) 137 U.S. 661, 666; San Francisco v. Le Roy, (1891,) 138 U.S. 656, 671; Knight v. United States Land Association, (1891,) 142 U.S. 161.
The State of California was admitted into the Union in 1850, and within a year afterwards passed statutes, declaring that a certain line designated upon a recorded plan should "be and remain a permanent water front" of the city of San Francisco; reserving to the State "its right to regulate the construction of wharves or other improvements, so that they shall not interfere with the shipping and commercial interests of the bay and harbor;" and providing that the city might construct wharves at the end of all the streets commencing with the bay, not exceeding two hundred yards beyond that line, and that the spaces beyond, between the wharves, should remain free from obstructions and be used as public slips. In Weber v. Harbor Commissioners, it was held that a person afterwards acquiring the title of the city in a lot and wharf below high water mark had no right to complain of works constructed by commissioners of the State, under authority of the legislature, for the protection of the harbor and the convenience of shipping, in front of his wharf, and preventing the approach of vessels to it; and Mr. Justice Field, in delivering judgment, said: "Although the title to the soil under the tide waters of the bay was acquired by the
In the very recent case of Knight v. United States Land Association, Mr. Justice Lamar, in delivering judgment, said: "It is the settled rule of law in this court that absolute property in, and dominion and sovereignty over, the soils under the tide waters in the original States were reserved to the several States; and that the new States since admitted have the same rights, sovereignty and jurisdiction in that behalf, as the original States possess within their respective borders. Upon the acquisition of the territory from Mexico, the United States acquired the title to tide lands, equally with the title to upland; but with respect to the former they held it only in trust for the future States that might be erected out of such territory." 142 U.S. 183. In support of these propositions he referred to Martin v. Waddell, Pollard v. Hagan, Mumford v. Wardwell, and Weber v. Harbor Commissioners, above cited.
In that case, it was further held, as it had previously been declared in San Francisco v. Le Roy, above cited, that "this doctrine does not apply to lands that had been previously granted to other parties by the former government, or subjected to trusts which would require their disposition in some other way;" and that when the United States acquired California from Mexico by the treaty, they were bound by its stipulations, and by the principles of international law, to protect all rights of property acquired under previous lawful grants from the Mexican government. 142 U.S. 183, 184.
VI. The decisions of this court, referred to at the bar, regarding the shores of waters where the ebb and flow of the tide from the sea is not felt, but which are really navigable, should be considered with reference to the facts upon which they were made, and keeping in mind the local laws of the different States, as well as the provisions of the acts of Congress relating to such waters.
By the law of England, Scotland and Ireland, the owners of the banks prima facie own the beds of all fresh water rivers above the ebb and flow of the tide, even if actually navigable, to the thread of the stream, usque ad filum aquœ. Lord Hale, in Hargrave's Law Tracts, 5; Bickett v. Morris, L.R. 1 H.L. Sc. 47; Murphy v. Ryan, Ir. R. 2 C.L. 143; Orr Ewing v. Colquhoun, 2 App. Cas. 839.
The rule of the common law on this point appears to have been followed in all the original States — except in Pennsylvania, Virginia and North Carolina, and except as to great rivers such as the Hudson, the Mohawk and the St. Lawrence in New York — as well as in Ohio, Illinois, Michigan and Wisconsin. But it has been wholly rejected, as to rivers navigable in fact, in Pennsylvania, Virginia and North Carolina, and in most of the new States. For a full collection and careful analysis of the cases, see Gould on Waters, (2d ed.) §§ 56-78.
The earliest judicial statement of the now prevailing doctrine in this country as to the title in the soil of rivers really navigable, although above the ebb and flow of the tide, is to be found in a case involving the claim of a riparian proprietor to an exclusive fishery in the Susquehanna River, in which
It was because of this difference in the law of Pennsylvania from that of England and of most of the older States, and because the decisions of the Supreme Court of Pennsylvania upon the subject were deemed binding precedents, that this court, speaking by Mr. Justice Grier, held that riparian owners, erecting dams on navigable rivers in Pennsylvania, did so only by license from the State, revocable at its pleasure, and could therefore claim no compensation for injuries caused to such dams by subsequent improvements under authority of the State for the convenience of navigation; and also that by the law of Pennsylvania preëmption rights to islands in such rivers could not be obtained by settlement. Rundle v. Delaware & Raritan Canal, (1852,) 14 How. 80, 91, 93, 94; Fisher v. Haldeman, (1857,) 20 How. 186, 194.
By the acts of Congress for the sale of the public lands, those lands are to be divided into townships, six miles square, unless the line of an Indian reservation, or of land previously surveyed and patented, or "the course of navigable rivers, may render it impracticable," and into sections and quarter sections, bounded by north and south and east and west lines, running to the corners, or, when the corners cannot be fixed, then, "to the watercourse," "or other external boundary;" and it is provided "that all navigable rivers within the territory to be disposed of by virtue of this act shall be deemed to
Those acts also provide that when, in the opinion of the President, "a departure from the ordinary method of surveying land on any river, lake, bayou or watercourse, would promote the public interest," the land may be surveyed and sold in tracts of two acres in width, fronting on any such water, and running back the depth of forty acres. Act of May 24, 1844, c. 141; 4 Stat. 34; Rev. Stat. § 2407.
By the Ordinance of 1787 for the government of the Northwest Territory, "the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said Territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy." Charters and Constitutions, 432; Act of August 7, 1789, c. 8; 1 Stat. 50. And the acts relating to the Territories of Louisiana and Missouri contained similar provisions. Acts of March 3, 1811, c. 46, § 12; June 4, 1812, c. 95, § 15; 2 Stat. 666, 747.
In the acts for the admission of the States of Louisiana and Mississippi into the Union, it was likewise declared that "the river Mississippi, and the navigable rivers and waters leading into the same, or into the Gulf of Mexico, shall be common highways, and forever free, as well to the inhabitants of the said State, as to other citizens of the United States." Acts of February 20, 1811, c. 21, § 3; April 8, 1812, c. 50, § 1; 2 Stat. 642, 703; March 1, 1817, c. 23, § 4; 3 Stat. 349.
In Withers v. Buckley, (1857,) 20 How. 84, this court, affirming the judgment of the highest court of Mississippi in 29 Mississippi, 21, held that this did not prevent the legislature of the State from improving by a canal the navigation of one of those navigable rivers, and thereby diverting without
In The Genesee Chief, (1851,) 12 How. 443, in which this court, overruling its earlier decisions, held that the admiralty and maritime jurisdiction of the courts of the United States extended to all public navigable waters, although above the flow of the tide from the sea, Chief Justice Taney, taking the same line of argument as Chief Justice Tilghman in Carson v. Blazer, above cited, said that in England, where there were no navigable streams beyond the ebb and flow of the tide, the description of the admiralty jurisdiction as confined to tide waters was a reasonable and convenient one, and was equivalent to saying that it was confined to public navigable waters; but that, when the same description was used in this country, "the description of a public navigable river was substituted in the place of the thing intended to be described; and, under the natural influence of precedents and established forms, a definition originally correct was adhered to and acted on, after it had ceased, from a change in circumstances,
In Jones v. Soulard, (1860,) 24 How. 41, the decision was that a title acquired under the act of June 13, 1812, c. 99, (2 Stat. 748,) to land in St. Louis, bounded by the Mississippi River, included an island west of the middle of the river, then only a sand bar, covered at ordinary high water and surrounded on all sides by navigable water, but which, after the admission of Missouri into the Union as a State, became, by the gradual filling up of the island and the intervening channel, connected with the shore as fast land. Mr. Justice Catron, indeed, in delivering the opinion, spoke of the rule of the common law, that "all grants of land bounded by fresh water rivers, where the expressions designating the water line are general, confer the proprietorship on the grantee to the middle thread of the stream and entitle him to the accretions," as a general and well settled rule, and applicable to the Mississippi River. 24 How. 65. But, as stated in that opinion, the charter of the city of St. Louis extended to the eastern boundary of the State of Missouri in the middle of the Mississippi River. By the law of Missouri, as theretofore declared by its Supreme Court, the title of lands bounded by the Mississippi River extended to low water mark and included accretions. O'Fallon v. Price, 4 Missouri, 343; Shelton v. Maupin, 16 Missouri, 124; Smith v. St. Louis Schools, 30 Missouri, 290. And the only question in Jones v. Soulard was of the title, not in the bed or shore of the river, but only in accretions which had become part of the fast land.
The rule, everywhere admitted, that where the land encroaches upon the water by gradual and imperceptible degrees, the accretion or alluvion belongs to the owner of the land, is equally applicable to lands bounding on tide waters or on fresh waters, and to the King or the State as to private persons; and is independent of the law governing the title in the soil covered by the water. Lord Hale, in Hargrave's Law Tracts, 5, 14, 28; Rex v. Yarborough, in the King's Bench, 3 B. & C. 91, and 4 D. & R. 790, and in the
Again, in St. Clair v. Lovingston, (1874,) 23 Wall. 46, the right of a riparian proprietor in St. Louis, which was upheld by this court, affirming the judgment of the Supreme Court of Illinois in 64 Illinois, 56, and which Mr. Justice Swayne, in delivering the opinion, spoke of as resting in the law of nature, was the right to alluvion or increase of the upland by gradual and imperceptible degrees. And, as if to prevent any possible inference that the decision might affect the title in the soil under the water, the learned justice, after quoting the opinion in Jones v. Soulard, above cited, expressly reserved the expression of any opinion upon the question whether the limit of the land was low water or the middle thread of the river; and repeated the propositions established by the earlier decisions of this court, already referred to: "By the American Revolution, the people of each State, in their sovereign character, acquired the absolute right to all their navigable waters and the soil under them. The shores of navigable waters and the soil under them were not granted by the Constitution to the United States, but were reserved to the States respectively. And new States have the same rights of sovereignty and jurisdiction over this subject as the original ones." 23 Wall. 64, 68.
Some passages in the opinions in Dutton v. Strong, (1861,) 1 Black, 23; Railroad Co. v. Schurmeir, (1868,) 7 Wall. 272; and Yates v. Milwaukee, (1870,) 10 Wall. 497, were relied on by the learned counsel for the plaintiff in error, as showing that the owner of land adjoining any navigable water, whether within or above the ebb and flow of the tide, has, independently of local law, a right of property in the soil below high water mark, and the right to build out wharves so far, at least, as to reach water really navigable.
But the remarks of Mr. Justice Clifford in the first of those
In Dutton v. Strong, the defendants, being the owners and occupants of a pier extending into Lake Michigan at Racine in the State of Wisconsin, were sued for cutting the hawser by which the plaintiffs had fastened their vessel to the pier during a storm, in consequence of which she was driven, by the force of the wind and waves, against another pier, and injured. And, as stated in the opinion, the pier appeared to be the private property of the defendants, constructed for their own use; there was no evidence that it constituted any obstruction whatever to the public right of navigation; the plaintiffs' vessel was made fast to it by her master without any authority from the defendants, either express or implied; and, under the increasing strain of the hawser by the storm, the piles of the pier began to give way before the hawser was cut. The only point adjudged was that, the plaintiffs' vessel having been wrongfully attached to the pier, the defendants, after she had been requested and had refused to leave, had
In Railroad Co. v. Schurmeir, the plaintiff claimed title to lots in a block in the city of St. Paul and State of Minnesota under a patent from the United States of a fractional section, bounded on one side by the Mississippi River. At the place in question there was a small island, lying along the shore of the river, about four feet lower than the mainland, and separated from it by a channel or slough twenty-eight feet wide, in which at very low water there was no current, and very little water, and that standing in pools; at a medium stage of the water the island was not covered, and there was a current or flow through the channel or slough; and at very high water the island was submerged. In the original government survey, the meander lines were run along the mainland of the shore, the quantity of land was estimated accordingly, and the island and intervening space were not shown or mentioned. That island and space were afterwards filled up by the city as a landing place, and were claimed by the railroad company under a subsequent survey and grant from the United States. The island, therefore, was connected with the mainland by a space substantially uncovered at low water; and the improvements complained of did not extend beyond high water mark of the island. The question in controversy was whether the plaintiff's patent was limited by the main shore, or extended to the outside of the island. The Supreme Court of Minnesota held that, by the law of Minnesota, land bounded by a navigable river extended to low water mark, at least, if not to the thread of the river; and that the plaintiff's title therefore extended to the water's edge at low
In Yates v. Milwaukee, the material facts appear by the report to have been as follows: The owner of a lot fronting on a river in the city of Milwaukee and State of Wisconsin had built, upon land covered by water of no use for the purpose of navigation, a wharf extending to the navigable channel of the river. There was no evidence that the wharf was an obstruction to navigation, or was in any sense a nuisance. The city council afterwards, under a statute of the State, enacted before the wharf was built, authorizing the city council to establish dock and wharf lines upon the banks of the
VII. The later judgments of this court clearly establish that the title and rights of riparian or littoral proprietors in the soil below high water mark of navigable waters are governed by the local laws of the several States, subject, of course, to the rights granted to the United States by the Constitution.
In Weber v. Harbor Commissioners, above cited, Mr. Justice Field, in delivering judgment, while recognizing the correctness of the doctrine "that a riparian proprietor, whose land is bounded by a navigable stream, has the right of access to the navigable part of the stream in front of his land, and to construct a wharf or pier projecting into the stream, for his own use, or the use of others, subject to such general rules and regulations as the legislature may prescribe for the protection of the public," and admitting that in several of the States, by general legislation or immemorial usage, the proprietor of land bounded by the shore of the sea, or of an arm of the sea, has a right to wharf out to the point where the waters are
In Atlee v. Packet Co., (1874,) 21 Wall. 389, which arose in Iowa in 1871, Mr. Justice Miller, in delivering judgment, after referring to Dutton v. Strong, Railroad Co. v. Schurmeir, and Yates v. Milwaukee, above cited, disclaimed laying down any invariable rule as to the extent to which wharves and landing places might be built out into navigable waters by private individuals or municipal corporations; and recognized that a State might, by its legislation, or by authority expressly or impliedly delegated to municipal governments, control the construction, erection and use of such wharves or landings, so as to secure their safety and usefulness, and to prevent their being obstructions to navigation. 21 Wall. 392, 393. And it was adjudged, following in this respect the opinion of the Circuit Court in 2 Dillon, 479, that a riparian proprietor had no right, without statutory authority, to build out piers into the Mississippi River as necessary parts of a boom to receive and retain logs until needed for sawing at his mill by the water side.
In Railway Co. v. Renwick, (1880,) 102 U.S. 180, affirming the judgment of the Supreme Court of Iowa in 49 Iowa, 664, it was by virtue of an express statute passed by the legislature of Iowa in 1874, that the owner of a similar pier and boom recovered compensation for the obstruction of access to it from the river by the construction of a railroad in front of it.
In Barney v. Keokuk, (1876,) 94 U.S. 324, the owner, under a grant from the United States, of two lots of land in
In St. Louis v. Myers, (1885,) 113 U.S. 566, the court, speaking by Chief Justice Waite, held that the act of Congress for the admission into the Union of the State of Missouri, bounded by the Mississippi River, which declared that the river should be "a common highway and forever free," left the rights of riparian owners to be settled according to the principles of state law; and that no Federal question was involved in a judgment of the Supreme Court of the State of Missouri as to the right of a riparian proprietor in the city of St. Louis to maintain an action against the city for extending one of its streets into the river so as to divert the natural course of the water and thereby to injure his property.
In Packer v. Bird, (1891,) 137 U.S. 661, the general rules governing this class of cases were clearly and succinctly laid down by the court, speaking by Mr. Justice Field, as follows: "The courts of the United States will construe the grants of the general government without reference to the rules of construction adopted by the States for their grants; but whatever incidents or rights attach to the ownership of property conveyed by the government will be determined by the States, subject to the condition that their rules do not impair the efficacy of the grants, or the use and enjoyment of the property by the grantee. As an incident of such ownership, the right of the riparian owner, where the waters are above the influence of the tide, will be limited according to the law of the State, either to low or high water mark, or will extend to the middle of the stream." 137 U.S. 669, 670. And it was accordingly held, affirming the judgment of the Supreme Court of California in 71 California, 134, and referring to the opinion in Barney v. Keokuk, above cited, as specially applicable to the case, that a person holding land under a patent from the United States, confirming a Mexican grant bounded by the
In St. Louis v. Rutz, (1891,) 138 U.S. 226, the court, speaking by Mr. Justice Blatchford, and referring to Barney v. Keokuk, St. Louis v. Myers and Packer v. Bird, above cited, said: "The question as to whether the fee of the plaintiff, as a riparian proprietor on the Mississippi River, extends to the middle thread of the stream, or only to the water's edge, is a question in regard to a rule of property, which is governed by the local law of Illinois." And it was because "the Supreme Court of Illinois has established and steadily maintained, as a rule of property, that the fee of the riparian owner of lands in Illinois bordering on the Mississippi River extends to the middle line of the main channel of that river," that it was decided that a deed of land in Illinois, bounded by the Mississippi River, passed the title in fee in the bed of the river to the middle line of the main channel, and to all islands found in the bed of the river east of the middle of that channel; and, "that being so, it is impossible for the owner of an island which is situated on the west side of the middle of the river, and in the State of Missouri, to extend his ownership, by mere accretion, to land situated in the State of Illinois, the title in fee to which is vested by the law of Illinois in the riparian owner of the land in that State." 138 U.S. 242, 250.
In the recent case of Hardin v. Jordan, (1891,) 140 U.S. 371, in which there was a difference of opinion upon the question whether a survey and patent of the United States, bounded by a lake which was not navigable, in the State of Illinois, was limited by the margin, or extended to the centre of the lake, all the justices agreed that the question must be determined by the law of Illinois. Mr. Justice Bradley, speaking for the majority of the court, and referring to many cases already cited above, said: "With regard to grants of the government for lands bordering on tide water, it has been distinctly settled that they only extend to high water mark, and that the title to the shore and lands under water in front of lands so granted enures to the State within which they are
In the yet more recent case of Illinois Central Railroad v.
VIII. Notwithstanding the dicta contained in some of the opinions of this court, already quoted, to the effect that Congress has no power to grant any land below high water mark of navigable waters in a Territory of the United States, it is evident that this is not strictly true.
Chief Justice Taney, in delivering an opinion already cited, after the subject had been much considered in the cases from Alabama, said: "Undoubtedly Congress might have granted this land to the patentee, or confirmed his Spanish grant, before Alabama became a State." Goodtitle v. Kibbe, 9 How. 471, 478. In the cases from California, already referred to, the question whether a Mexican grant, confirmed by the United States, did or did not include any lands below high water mark, was treated as depending on the terms of the decree of confirmation by a court of the United States under authority of Congress. By the application of that test, no such lands were held to be included in United States v. Pacheco, 2 Wall. 587, and some such lands were held to be included in Knight v. United States Land Association, 142 U.S. 161. And in Packer v. Bird, 137 U.S. 661, 672, Mr. Justice Field, speaking for the court, after referring to the rule, as stated in Railroad Co. v. Schurmeir, 7 Wall. 272, 288, above quoted, that Congress, by the provisions of the land laws, intended that the title to lands bordering on navigable streams should stop at the stream, said: "The same rule applies when the survey is made and the patent is issued upon a confirmation of a previously existing right or equity of the
By the Constitution, as is now well settled, the United States, having rightfully acquired the Territories, and being the only government which can impose laws upon them, have the entire dominion and sovereignty, national and municipal, Federal and state, over all the Territories, so long as they remain in a territorial condition. American Ins. Co. v. Canter, 1 Pet. 511, 542; Benner v. Porter, 9 How. 235, 242; Cross v. Harrison, 16 How. 164, 193; National Bank v. Yankton County, 101 U.S. 129, 133; Murphy v. Ramsey, 114 U.S. 15, 44; Mormon Church v. United States, 136 U.S. 1, 42, 43; McAllister v. United States, 141 U.S. 174, 181.
We cannot doubt, therefore, that Congress has the power to make grants of lands below high water mark of navigable waters in any Territory of the United States, whenever it becomes necessary to do so in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several States, or to carry out other public purposes appropriate to the objects for which the United States hold the Territory.
IX. But Congress has never undertaken by general laws to dispose of such lands. And the reasons are not far to seek.
As has been seen, by the law of England, the title in fee, or jus privatum, of the King or his grantee was, in the phrase of Lord Hale, "charged with and subject to that jus publicum which belongs to the King's subjects," or, as he elsewhere puts it, "is clothed and superinduced with a jus publicum, wherein both natives and foreigners in peace with this kingdom are interested by reason of common commerce, trade and intercourse." Hargrave's Law Tracts, 36, 84. In the words of Chief Justice Taney, "the country" discovered and settled by Englishmen "was held by the King in his public and regal character as the representative of the nation, and in trust for
The Congress of the United States, in disposing of the public lands, has constantly acted upon the theory that those lands, whether in the interior, or on the coast, above high water mark, may be taken up by actual occupants, in order to encourage the settlement of the country; but that the navigable waters and the soils under them, whether within or above the ebb and flow of the tide, shall be and remain public highways; and, being chiefly valuable for the public purposes of commerce, navigation and fishery, and for the improvements necessary to secure and promote those purposes,
X. The title of the United States to Oregon was founded upon original discovery and actual settlement by citizens of the United States, authorized or approved by the government of the United States; as well as upon the cession of the Louisiana Territory by France in the treaty of 1803, and the renunciation of the claims of Spain in the treaty of 1819. American State Papers, 6 Foreign Relations, 666; Barrow's History of Oregon, c. 22; 8 Stat. 202, 256. While the right to Oregon was in contest between the United States and Great Britain, the citizens of the one and the subjects of the other were permitted to occupy it under the Conventions of 1818 and 1827. 8 Stat. 249, 360. Its boundary on the north was defined by the treaty with Great Britain of June 15, 1846. 9 Stat. 869. So far as the title of the United States was derived from France or Spain, it stood as in other territories acquired by treaty. The independent title based on discovery and settlement was equally absolute. Johnson v. McIntosh, 8 Wheat. 543, 595; Martin v. Waddell, 16 Pet. 367, 409; Jones v. United States, 137 U.S. 202, 212.
By the act of 1848, establishing the territorial government of Oregon, "all laws heretofore passed in said Territory, making grants of land, or otherwise affecting or incumbering the title to lands," were declared to be void; and the laws of the United States were "extended over and declared to be in force in said Territory, so far as the same, or any provision thereof, may be applicable." Act of August 14, 1848, c. 177,
The first act of Congress which granted to settlers titles in such lands was the Oregon Donation Act of September 27, 1850, c. 76. That act required the lands in Oregon to be surveyed as in the Northwest Territory; and it made grants or donations of land, measured by sections, half sections and quarter sections, to actual settlers and occupants. It contains nothing indicating any intention on the part of Congress to depart from its settled policy of not granting to individuals lands under tide waters or navigable rivers. 9 Stat. 496; Rev. Stat. §§ 2395, 2396, 2409.
It is evident, therefore, that a donation claim under this act, bounded by the Columbia River, where the tide ebbs and flows, did not, of its own force, have the effect of passing any title in lands below high water mark. Nor is any such effect attributed to it by the law of the State of Oregon.
The southern part of the Territory of Oregon was admitted into the Union as the State of Oregon, "on an equal footing with the other States in all respects whatever," by the act of February 14, 1859, c. 33; and the act of admission provided that "the said State of Oregon shall have concurrent jurisdiction on the Columbia and all other rivers and waters bordering
The settlers of Oregon, like the colonists of the Atlantic States, coming from a country in which the common law prevailed to one that had no organized government, took with them, as their birthright, the principles of the common law, so far as suited to their condition in their new home. The jurisprudence of Oregon, therefore, is based on the common law. Van Ness v. Pacard, 2 Pet. 137, 144; Norris v. Harris, 15 California, 226, 252; Cressey v. Tatom, 9 Oregon, 541; Lamb v. Starr, Deady, 350, 358.
By the law of the State of Oregon, as declared and established by the decisions of its Supreme Court, the owner of upland bounding on navigable water has no title in the adjoining lands below high water mark, and no right to build wharves thereon, except as expressly permitted by statutes of the State; but the State has the title in those lands, and, unless they have been so built upon with its permission, the right to sell and convey them to any one, free of any right in the proprietor of the upland, and subject only to the paramount right of navigation inherent in the public. Hinman v. Warren, 6 Oregon, 408; Parker v. Taylor, 7 Oregon, 435; Parker v. Rogers, 8 Oregon, 183; Shively v. Parker, 9 Oregon, 500; McCann v. Oregon Railway, 13 Oregon, 455; Bowlby v. Shively, 22 Oregon, 410. See also Shively v. Welch, 10 Sawyer, 136, 140, 141.
In the case at bar, the lands in controversy are below high water mark of the Columbia River where the tide ebbs and flows; and the plaintiff in error claims them by a deed from John M. Shively, who, while Oregon was a Territory, obtained from the United States a donation claim, bounded by the Columbia River, at the place in question.
The defendants in error claim title to the lands in controversy by deeds executed in behalf of the State of Oregon, by
Neither the plaintiff in error nor his grantor appears to have ever built a wharf or made any other improvement upon the lands in controversy, or to have applied to the State to purchase them. But the defendants in error, after their purchase from the State, built and maintained a wharf upon the part of these lands nearest the channel, which extended several hundred feet into the Columbia River, and at which ocean and river craft were wont to receive and discharge freight.
The theory and effect of these statutes were stated by the Supreme Court of the State, in this case, as follows: "Upon the admission of the State into the Union, the tide lands became the property of the State, and subject to its jurisdiction and disposal. In pursuance of this power, the State provided for the sale and disposal of its tide lands by the act of 1872 and the amendments of 1874 and 1876. Laws 1872, p. 129; Laws 1874, p. 77; Laws 1876, p. 70. By virtue of these acts, 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 of the same, and rivers and their bays in which the tide ebbs
The substance and scope of the earlier statute of Oregon of October 14, 1862, (General Laws of 1862, p. 96; Hill's Code of Oregon, §§ 4227, 4228;) which is copied in the margin,
Upon a review of its prior decisions, the court was of opinion that by the law of Oregon, in accordance with the law as formerly held in New York in Gould v. Hudson River Railroad, 6 N.Y. 522; with the law of New Jersey, as declared in Stevens v. Paterson & Newark Railroad, 5 Vroom, (34 N.J. Law,) 532, and recognized in Hoboken v. Pennsylvania Railroad, 124 U.S. 656; and with the law of the State of
The court thus stated its final conclusion: "From all this it appears that when the State of Oregon was admitted into the Union, the tide lands became its property and subject to its jurisdiction and disposal; that in the absence of legislation or usage, the common-law rule would govern the rights of the upland proprietor, and by that law the title to them is in the State; that the State has the right to dispose of them in such manner as she might deem proper, as is frequently done in various ways, and whereby sometimes large areas are reclaimed and occupied by cities, and are put to public and private uses, state control and ownership therein being supreme, subject only to the paramount right of navigation and commerce. The whole question is for the State to determine for itself; it can say to what extent it will preserve its rights of ownership in them, or confer them on others. Our State has done that by the legislation already referred to; and our courts have declared its absolute property in and dominion over the tide lands, and its right to dispose of its title in such manner as it might deem best, unaffected by any `legal obligation to recognize the rights of either the riparian owners, or those who had occupied such tide lands,' other than it chose to resign to them, subject only to the paramount right of navigation and the uses of commerce. From these considerations it results, if we are to be bound by the previous adjudications of this court, which have become a rule of property, and upon the faith of which important rights and titles have become vested, and large expenditures have been made and incurred, that the defendants have no rights or interests in the lands in question.
By the law of the State of Oregon, therefore, as enacted by its legislature and declared by its highest court, the title in the lands in controversy is in the defendants in error; and, upon the principles recognized and affirmed by a uniform series of recent decisions of this court, above referred to, the law of Oregon governs the case.
The conclusions from the considerations and authorities above stated may be summed up as follows:
Lands under tide waters are incapable of cultivation or improvement in the manner of lands above high water mark. They are of great value to the public for the purposes of commerce, navigation and fishery. Their improvement by individuals, when permitted, is incidental or subordinate to the public use and right. Therefore the title and the control of them are vested in the sovereign for the benefit of the whole people.
At common law, the title and the dominion in lands flowed by the tide were in the King for the benefit of the nation. Upon the settlement of the Colonies, like rights passed to the grantees in the royal charters, in trust for the communities to be established. Upon the American Revolution, these rights, charged with a like trust, were vested in the original States within their respective borders, subject to the rights surrendered by the Constitution to the United States.
Upon the acquisition of a Territory by the United States, whether by cession from one of the States, or by treaty with a foreign country, or by discovery and settlement, the same title and dominion passed to the United States, for the benefit of the whole people, and in trust for the several States to be ultimately created out of the Territory.
The new States admitted into the Union since the adoption of the Constitution have the same rights as the original States in the tide waters, and in the lands under them, within their respective jurisdictions. The title and rights of riparian or
The United States, while they hold the country as a Territory, having all the powers both of national and of municipal government, may grant, for appropriate purposes, titles or rights in the soil below high water mark of tide waters. But they have never done so by general laws; and, unless in some case of international duty or public exigency, have acted upon the policy, as most in accordance with the interest of the people and with the object for which the Territories were acquired, of leaving the administration and disposition of the sovereign rights in navigable waters, and in the soil under them, to the control of the States, respectively, when organized and admitted into the Union.
Grants by Congress of portions of the public lands within a Territory to settlers thereon, though bordering on or bounded by navigable waters, convey, of their own force, no title or right below high water mark, and do not impair the title and dominion of the future State when created; but leave the question of the use of the shores by the owners of uplands to the sovereign control of each State, subject only to the rights vested by the Constitution in the United States.
The donation land claim, bounded by the Columbia River, upon which the plaintiff in error relies, includes no title or right in the land below high water mark; and the statutes of Oregon, under which the defendants in error hold, are a constitutional and legal exercise by the State of Oregon of its dominion over the lands under navigable waters.
An Act to authorize the owners of land lying upon a navigable stream or other like water to build wharves into such stream or other water, beyond the line of low water mark.
Be it enacted by the Legislative Assembly of the State of Oregon, as follows:
SEC. 1. The owner of any land in this State, lying upon any navigable stream or other like water, and within the corporate limits of any incorporated town therein, is hereby authorized to construct a wharf or wharves upon the same, and extend such wharf or wharves into such stream or other like water, beyond low water mark, so far as may be necessary and convenient for the use and accommodation of any ships or other boats or vessels that may or can navigate such stream or other like water.
SEC. 2. The corporate authorities of the town, wherein such wharf or wharves is proposed to be constructed, shall have power to regulate the exercise of the privilege or franchise herein granted; and, upon the application of the person entitled to and desiring to construct such wharf or wharves, such corporate authorities shall by ordinance, or other like mode, prescribe the mode and extent to which the same may be exercised beyond the line of low water mark, so that such wharf or wharves shall not be constructed any farther into such stream or other water beyond such low water line than may be necessary and convenient for the purpose expressed in the first section of this act, and so that the same will not unnecessarily interfere with the navigation of such stream or other like water.