Case v. Toftus

• Decision Date: 26 August 1889
• Citation: 39 F. 730
• Parties: CASE v. TOFTUS.
• Court: U.S. District Court — District of Oregon

39 F. 730

CASE v. TOFTUS.

United States Circuit Court, D. Oregon.

August 26, 1889

Syllabus by the Court

On the admission of a new state into the Union, the 'shore' or tide lands therein, not disposed of by the United States prior thereto, become the property of the state.

The owner of land abutting on the 'shore' or tide lands in this state, and not disposed of by the United States or the state, has a right of access from his land to the water and may erect and maintain a private wharf there for his own convenience, so long as he does not materially interfere with the rights of the general public, and subject to the power of the legislature to regulate such use.

James F. Watson, for plaintiff.

Lewis L. McArthur, for defendant.

DEADY J.

This suit is brought to have the defendant enjoined from constructing a tramway along the northern shore of Yaquina bay, near its mouth, in front of certain property belonging to the plaintiff, whereby access to the bay from said property is hindered and prevented.

It is alleged in the bill that the plaintiff is the owner of a tract of land in Benton county, Or., known as the 'Ocean House Property,' and worth $15,000, with a tavern on it which cost $6,000; that said property abuts on the northern shore of said bay, into which the plaintiff has constructed a private wharf, to and from which goods and passengers are transported across said shore, between said bay and tavern that Yaquina bay is navigable for all ordinary vessels, and is within the ebb and flow of the ordinary tides of the Pacific ocean, whereby said shore is daily covered and uncovered for an average distance of 100 feet; that the defendant is wrongfully and unlawfully engaged in constructing a wooden tramway over and along said shore in front of said property, with intent to maintain the same there for at least three years, which will completely cut off and prevent access from said bay or wharf to said tavern, and vice versa, to the great damage of the plaintiff.

The suit was brought in the circuit court of the state for the county of Benton, and removed here on the ground that the defense to the same arises under the laws of the United States.

Here a general demurrer was filed to the bill. On the argument, the following points were made in support of the demurrer:

(1) The 'shore' in question is tide-land, and therefore presumably belongs to the state of Oregon.

(2) The statutes of the state (Comp. 1887, Sec. 3599 et seq.) provide for the acquisition of tide-lands by the owner of the abutting tract, but the plaintiff does not show any right thereunder.

(3) The right to build or maintain the wharf by the plaintiff depends on the statute of the state, the common law, or common usage; and neither the statute nor the common law confers any such right.

(4) There is no usage in Oregon by which the plaintiff can construct or maintain this wharf.

(5) A comparison of the maps in the surveyor general's office will show that the tide-land in question is within the corporate limits of the town of Newport, as defined by the act of February 21, 1887, which gives the town the exclusive power to regulate the erection of private wharves thereon; which power is also given to the town by virtue of sections 4227, 4228, of the Compilation of 1887.

By the statute of the state (Comp. 1887, Sec. 3599) the commissioners for the sale of school lands are 'authorized and required to sell * * * tide and overflowed lands on the sea-coast, owned by the state,' as therein provided. This statute was passed on October 18, 1878. It gave the owner of land 'abutting or fronting' on 'the shore' of the Pacific ocean, or of any bay, the preference as a purchaser of such shore or tide land for one year from the passage of the act.

This act was passed on the assumption that upon the admission of the state into the Union-- February 14, 1859-- the title to the lands covered by the tide, then undisposed of by the United States, passed by operation of law to the state. How or why this is so, except to bolster up some fanciful notion of state sovereignty, I never could perceive. But on the authority of Pollard v. Hagan, 3 How. 212, and Weber v. Commissioners, 18 Wall. 57, this court must recognize it as the law of the land.

In his dissenting opinion in Pollard v. Hagan, supra, 231, Mr. Justice CATRON says a doctrine has lately sprung up in the courts of Alabama (tempus, 1844) 'which assumes that all lands temporarily flowed with tide-water were part of the eminent domain, and a sovereign right in the old states; and that the new ones, when admitted into the Union, coming in with equal sovereign rights, took the lands thus flowed by implication as an incident of state sovereignty, and thereby defeated the title of the United States. * * * Although the assumption was new in the courts, it was not entirely so in the political discussions of the country. There it had been asserted that the new states coming in, with equal rights appertaining to the old ones, took the high-lands as well as the low, by the same implication now successfully asserted here, in regard to the low-lands; and, indeed, it is difficult to see where the distinction lies. That the United States acquired, in a corporate capacity, the right of soil under water, as well as of the high-lands, by the treaty with France, cannot be doubted; nor that the right of soil was retained, and subject to grant up to the time Alabama was admitted as a state.'

In Hinman v. Warren, 6 Or. 408, the court went further, and held that the United States cannot dispose of the tide-lands, even in a territory. This decision is also based on the dogma of state sovereignty,-- that is, the sovereignty of a state in futuro, which is yet, so to speak, in utero, or the womb of time, and may never be born.

The proposition is supported by the assertion 'that the United States government has no constitutional or statutory authority to so act towards a territory, or so dispose of the lands within a territory, as to make it impossible to admit such territory upon an equal footing with the other states of the Union.'

In Gould on Waters (section 40) it is said this is the only adjudication on the subject of the power of the national government, 'while holding the title to the soil of the tide-waters,' to make a valid conveyance of the same.

The author adds: 'The decisions of the supreme court of the United States have been thought to lead to the conclusion reached in Hinman v. Warren, but it would seem that there is no very direct expression of such a view in the opinions of that court.'

The doctrine that new states must be admitted into the Union on an 'equal footing' with the old ones does not rest on any express provision of the constitution, which simply declares (article 4, Sec. 3) 'new states may be admitted by congress into this Union,' but on what is considered and has been held by the supreme court to be the general character and purpose of the union of the states, as established by the constitution,-- a union of political equals. Pollard v. Hagan, 3 How. 233; Permoli v. New Orleans, Id. 609; Strader v. Graham, 10 How. 92.

But certainly this equality does not require that the new state shall be admitted to any right in the soil thereof considered as property. The ante-Revolution states acquired no...