Bowlby v. Shively

• Decision Date: 18 June 1892
• Citation: 30 P. 154,22 Or. 410
• Parties: BOWLBY et al. v. SHIVELY et al.
• Court: Oregon Supreme Court

30 P. 154

22 Or. 410

BOWLBY et al. v. SHIVELY et al.

Supreme Court of Oregon

June 18, 1892

Appeal from circuit court, Clatsop county; FRANK J. TAYLOR, Judge.

Suit to quiet title by John Q.A. Bowlby and another against Charles W. Shively and another. Plaintiffs had decree on demurrer to the answer, and defendants appeal. Affirmed.

The other facts fully appear in the following statement by LORD J.:

This is a suit to quiet title. The plaintiffs allege, in substance that they are the owners and in possession of all the tide lands 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, in the city of Astoria, as laid out by John M Shively, by virtue of deeds from the state of Oregon, more than 10 years prior to this suit; that the premises are within the corporate limits of the city of Astoria, and that all the wharfing privileges and appurtenances thereto are owned by the plaintiffs, and that they have erected and maintained a wharf in front of block 127, and that the same extends out into the Columbia river, and that the defendants husband and wife, pretending to act under the provisions of the "Astoria Sea Wall Charter Act," passed February, 1891, attempted, by a written instrument, filed and recorded by them, to dedicate to the public streets adjacent to the premises of the plaintiffs, except adjacent to blocks 126 and 127; that said instrument is void, and casts a cloud upon the title of plaintiffs, which they ask to have removed, and that the defendants be enjoined from setting up any title thereto. The defendant C.W. Shively answered, admitting plaintiffs' possession, but denying their title to the tide land on any of the blocks except as to the west half of block 146. The allegations in the counterclaim are, in substance, that John M. Shively and his wife, in 1854, were the owners in fee of a donation land claim embracing a large portion of the present city of Astoria, and that, by the patent issued to them in 1865, the said donation claim was bounded on the north by the Columbia river; that on the 20th day of May, 1854, the said Shively and wife laid out and caused to be recorded a plat of the original town of Astoria, and also an addition thereto, known as "Shively's Addition," in which was embraced all the property in controversy; that the land platted included not only the high land, but also the tide lands and a portion of the bed of the Columbia river, and that each of the blocks was bounded by a street 60 feet in width, with the exception of the north tier; that a portion of the said blocks in the north tier, including said block 127, were bounded by a way 30 feet in width, but that the remainder of the blocks in the north tier, including block 146, were bounded by a street 60 feet in width; that block 141 is partly above and partly below ordinary high tide, and that lying between block 141 and the main channel of the river are blocks 126 and 127; that north of block 127 is the 30-foot way already mentioned, and that between said way and the ship's channel of the Columbia river there is a distance of some 800 feet, upon which no lots or blocks were laid out upon the plat; that lying south of block 141 is block 9, which is alleged to be entirely upon the high land, and is separated from block 141 by a street; that block 4 is partly above and partly below ordinary high tide, and that north of and between it and the main channel is block 146, and that between block 146 and the main channel is a street 60 feet in width. It is further alleged that in February, 1860, John M. Shively and wife executed a deed to one James Welch for blocks 146, 126, and 127, as laid out and recorded on said plat, and that on the same day they conveyed to Nancy Welch block 9 by a similar description; and that by various conveyances the plaintiffs have succeeded to the said title of the said James and Nancy Welch to the said blocks, but that the plaintiffs have no other or further right or title to the property in controversy, other than such as they may have derived from the deeds of the board of school land commissioners; that on the 18th day of September, 1876, the state of Oregon conveyed to the plaintiffs by deed all the tide land in block 146, but that no deed has ever been executed to any one by the state for any tide land north of said block 146, and that on the same day the state conveyed by deed to plaintiffs, with the following description, "all the tide land lying between ordinary high tide and ordinary low tide, lying both on and in front of the east half of block 5, in the track known as 'Shively's Astoria,' and including the tide land on the east half of block 145, in said Shively's Astoria; also that parcel, being all the land lying between ordinary high tide and ordinary low tide, both on and in front of block 9, in said Shively's Astoria, including all the tide land in block 141, in said Shively's Astoria,--containing 4.63 acres, more or less." It is also alleged that John M. Shively, having acquired his wife's interest, and never having conveyed away the bank lots abutting and fronting on blocks 141 and 146, nor any rights north of blocks 127 and 146, except as inferable from the above-described conveyances, did, on December 15, 1890, convey to C.W. Shively all his rights in the property in controversy. The defendants ask that they may be decreed to be the owners of all the riparian and wharfage rights on block 141, and in front thereof, to the deep ship channel of the Columbia river, except so much thereof as is embraced in blocks 126 and 127, and that they may be decreed to be the owners of the riparian and wharfage rights north of and in front of block 4, in said town, to the said deep ship channel of the Columbia river, except in so far as those rights may be embraced in block 146. The plaintiffs demurred to the answer of the defendant C.W. Shively, setting up a counterclaim, which was sustained by the court below, etc.

Sidney Dell, for appellant.

J.Q.A. Bowlby, in pro. per.

LORD J., (after stating the facts.)

The facts as stated above, for the purposes of the case, may be thus summarized: That John M. Shively, who was the owner of certain property on the Columbia river, platted and laid it out in blocks and lots, some of which extended below the line of ordinary high tide, and some below the line of low tide and that he sold to James Welch the blocks already described, lying below the ordinary high tide, with reference to such plat, and that the plaintiffs have succeeded to Welch's title to the same, and that since then the plaintiffs have acquired, by deed from the state of Oregon, all the tide lands on and in front of said blocks. Under the title and rights thus acquired by purchase from the grantees of John M. Shively and from the state, the plaintiffs have built and extended a wharf into the Columbia river, which the defendants claim is an invasion of their property rights. This claim is based on the assumption that an upland proprietor of land adjacent to tidal waters has certain rights in such waters, and the tide lands covered by them, peculiar to that situation, which are not enjoyed in common with the people at large; and that among them is the right of access to the navigable water by means of wharves over such tide lands, usually called a right of "wharfage," which may be made the subject of sale and reservation by such upland owner. Hence it is argued that when John M. Shively sold and conveyed the blocks in question, with their appurtenances, with reference to the plat made by him, no mention having been made of such wharfage rights, he did not part with them by force of such conveyances, but that they were impliedly reserved, and as a consequence that the wharf of the plaintiffs is an encroachment on his property rights. This assumption necessarily excludes the idea that the state may sell and convey its tide lands to a person, not holding under the upland proprietor, so as to deprive such upland owner of his right of access to the navigable water by means of wharves and piers. On the other hand, the plaintiffs contend that the state may sell and convey its tide lands, and that its grantees take them free from any right therein of the upland owner, and subject only to the paramount right of navigation inherent in the public. This proceeds upon the theory that the state is vested with the jus privatum and the jus publicum, supposed to have been vested in the crown and parliament, in the navigable waters and the soil under them. The distinction between such rights has been thus stated by EARL, J.: "From the earliest times in England, the law has vested the title to and the control over the navigable waters therein in the crown and parliament. A distinction was taken between the mere ownership of the soil under water, and the control over it for public purposes. The ownership of the soil, analogous to the ownership of dry land, was regarded as jus privatum, and was vested in the crown. But the right to use and control both the land and water was deemed a jus publicum, and was vested in parliament. The crown could convey the soil under water so as to give private rights therein, but the dominion and control over the waters, in the interests of commerce and navigation, for the benefit of all the subjects of the kingdom, could be exercised only by parliament. In this country, the state has succeeded to all the rights of both crown and parliament in the navigable waters, and the soil under them, and here the jus privatum and the jus publicum are both vested in the state." Langdon v. Mayor, 93 N.Y. 155. Hence it is argued for the plaintiffs that a patent of the United States to a grant of land bounded by tide water limits the...