U.S. Supreme Court
Shively v. Bowlby, 152 U.S. 1 (1894)
Shively v. Bowlby
Submitted December 2, 1892
Decided March 5, 1894
152 U.S. 1
This court has jurisdiction to review by writ of error a judgment of the highest court of the State of Oregon deciding that a donation land claim under the act of Congress of September 27, 1850, c. 76, of land bounded by tidewater, passed no title or right below high water mark, as against a subsequent grant from the state.
By the common law, the title in the soil of the sea, or of arms of the sea, below high water mark, except so far as private rights in it have been acquired by express grant, or by prescription or usage, is in the King, subject to the public rights of navigation and fishing, and no one can erect a building or wharf upon it, without license.
Upon the American Revolution, the title and the dominion of the tidewaters and of the lands under them vested in the several States of the union within their respective borders, subject to the rights surrendered by the Constitution to the United States.
In the original states, by various laws and usages, the owners of lands bordering on tidewaters were allowed greater rights and privileges in the shore below high water mark than they had in England.
The new states admitted into the union since the adoption of the Constitution have the same rights as the original states in the tidewaters and in the lands under them within their respective jurisdictions.
The United States, upon acquiring a territory, whether by cession from one of the States or by treaty with a foreign country or by discovery chanroblesvirtualawlibrary
and settlement, take the title and the dominion of lands below high water mark of tidewaters for the benefit of the whole people, and in trust for the future States to be created out of the territory.
Upon the question how far the title extends of the owner of land bounding on a river actually navigable, but above the ebb and flow of the tide, there is a diversity in the laws of the different States, but the prevailing doctrine now is that he does not, as in England, own to the thread of the stream.
The title and rights of riparian or littoral proprietors in the soil below high water mark are governed by the laws of the several states, subject to the rights granted to the United States by the Constitution.
The United States, while they hold country as a territory, have all the powers both of national and of municipal government, and may grant, for appropriate purposes, titles or rights in the soil below high water mark of tidewaters.
Congress has not undertaken by general laws to dispose of lands below high water mark of tidewaters in a territory but, unless in case of some international duty or public exigency, has left the administration and disposition of the sovereign rights in such waters and lauds to the control of the states, respectively, when admitted into the union.
A donation land claim, bounded by the Columbia River, acquired under the Act of Congress of September 27, 1850, c. 76, while Oregon was a territory, passes no title or right in lands below high water mark as against a subsequent grant from the State of Oregon pursuant to its statutes.
The original suit was in the nature of a bill in equity, brought June 8, 1891, by John Q. A. Bowlby and W. W. Parker against Charles W. Shively and wife, in the Circuit Court for the County of Clatsop and State of Oregon, to quiet the title to lands below high water mark in the City of Astoria. The case, as appearing by the record, was as follows:
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 tidelands and a portion of the bed of the Columbia River, including the lands in controversy, and divided into blocks three hundred feet square, chanroblesvirtualawlibrary
and separated from each other by streets thirty or sixty 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 eight hundred feet of the ship channel.
Blocks 4 and 9 were above ordinary high water 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 fifty 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 one hundred 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 treasurer, 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 [Footnote 1] (the words printed in brackets having been in the statute of 1872 only, chanroblesvirtualawlibrary
and those printed in italics having been inserted in the statute of 1874), executed to the plaintiffs a deed of all the lands lying chanroblesvirtualawlibrary
between high water mark and low water mark in front of block 9, including all the tideland in block 141, and also a chanroblesvirtualawlibrary
deed of all the tidelands in block 146, but never executed to any one a deed of any tidelands 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. chanroblesvirtualawlibrary
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 tidelands 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 tidelands 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 tidelands, 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. chanroblesvirtualawlibrary
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.
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."