Andrus v. Knot

• Citation: 8 P. 763,12 Or. 501
• Parties: ANDRUS v. KNOT and another. [1]
• Decision Date: 17 November 1885
• Court: Supreme Court of Oregon

8 P. 763

12 Or. 501

ANDRUS v. KNOT and another. ^[1]

Supreme Court of Oregon

November 17, 1885

E.B. Watson and S.W. Condon, for appellant, W.H. Andrus.

H.F Bingham and Benton Killin, for respondents, Levi Knot and another.

LORD J.

The action was in ejectment. It was brought to recover certain lands claimed to be tide-lands. The court below held that the land in controversy was not such land. It is clear unless the land in dispute is tide-land, or comes within the description of such lands, it is necessary to consider the other legal propositions which counsel have discussed as applied to such lands. What is meant by the phrase "tide-lands?" In Rondell v. Fay, 32 Cal. 354 it was held that the descriptive phrase "tide-lands," in the legislation of that state applies to land covered and uncovered by the ordinary tides, which the state owns by virtue of its sovereignty. People v. Davidson, 30 Cal. 380; Walker v. Marks, 2 Sawy. 152. It would seem to correspond to or be synonymous with "shore" or "tract," and this, at common law, is that land which lies between ordinary high-water mark and low-water mark. Hale, De Jur. 12; Hall, Sea; Blundell v. Catterall, 5 Barn. & Ald. 292. It must, then, be such land as is affected by the tide, that lies between ordinary high-water mark and low-water mark, and which is alternately covered and left dry by the ordinary flux and reflux of the tides. Lands adjacent to navigable waters, where the tide flows and reflows, which at high tides are submerged and at low tides are bare, come within such description. Bell v. Gough, 23 N.J.Law, 683. It can hardly be considered as including any ground that does not come within the provision of this description.

It is needless to say that lands covered with water three-fourths of the year cannot be considered as such.

The judgment must be affirmed.

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Notes:

^[1] Title to "Tide-Water Land."

Proprietors bordering on navigable streams, under title from the United States, hold only to the stream. Railroad Co. v. Schurmeir, 7 Wall. 272. In all cases the proprietors of land bounded on a navigable river own the soil to high-water mark, and no further. Ex parte Jennings, 6 Cow 518; Chapman v. Kimball, 9 Conn. 38; Sir Henry Constable's Case, 5 Rep. 107; Ball v. Herbert, 3 Term R 253; King v. Smith, 2 Doug. 441; Harg.Law Tracts, 12, 13, 17 32; Com.Dig. tit. "Navigation," A, B. It is said by some of the cases that the land lying between high and low water on public navigable rivers belongs to the state, City of Hoboken v. Pennsylvania R. Co., 16 F. 816, McManus v. Carmichael, 3 Iowa, 1; Haight v. City of Keokuk, 4 Iowa, 199; Barney v. Keokuk, 94 U.S. 324; Mayor of Mobile v. Eslava, 9 Port. (Ala.) 578; S.C. 16 Pet. 234; Pollard v. Hagan, 3 How. 212; while in others it is held that the riparian owner also owns the flats to low-water mark, if not more than 100 rods from high-water mark. Storer v. Freeman, 6 Mass. 435. The prevailing doctrine seems to be that a riparian owner on a navigable stream takes absolutely to high-water mark, with a qualified interest to low-water mark; that is, a right which is limited only by the public right of navigation over it, and of improving the stream as a highway. Ball v. Slack, 2 Whart. 508; Wainwright v. McCullough, 63 Pa.St. 74; Wood v. Appal, Id. 221; Tinicum F. Co. v. Carter, 61 Pa.St. 30; Stover v. Jack, 60 Pa.St. 343. And, as between the owner of adjacent fast land and an intruder, the right to land between high and low water mark is in the former. See Ball v. Slack, 2 Whart. 508, following Blundell v. Catterall, 5 Barn. ...