Smith Tug & Barge Co. v. Columbia-Pacific Towing Corp.
| Decision Date | 14 June 1968 |
| Docket Number | COLUMBIA-PACIFIC |
| Citation | 443 P.2d 205,250 Or. 612 |
| Parties | SMITH TUG & BARGE CO., a corporation; Shepard Towing Co., a corporation; and Shaver Transportation Co., a corporation, Respondents, v.TOWING CORPORATION, a corporation, Appellant, Mark O. Hatfield, Thomas L. McCall and Robert W. Straub, as members of the State Land Board of the State of Oregon, Defendants. |
| Court | Oregon Supreme Court |
Fredric R. Merrill and Dennis J. Lindsay, Portland, argued the cause for appellant. With them on the briefs were Krause, Lindsay & Nahstoll, Portland.
Paul J. Jolma, Clatskanie, and John F. McCarthy, Longview, Wash., argued the cause and filed a brief for respondents.
Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, DENECKE, HOLMAN and LUSK, JJ.
The perplexing issue in this case is who has the right to moor logs and build facilities therefor in the Columbia River below the low-water mark.
The defendant, Columbia-Pacific Towing Corporation, purchased what is known as Sharkey or Sandy Island, which lies in the Columbia off Goble, on the Oregon side of the river. Its title goes to the island's high-water mark. The water around the island is a desirable log storage area.
The State of Oregon owns the area between the high- and low-water marks of the island. The State also has title to the bed of the river below the low-water mark.
The State advertised for bids for the lease of the land surrounding the island and lying between the low- and high-water marks. The defendant submitted the minimum bid and the plaintiffs submitted the bid of $15,000 per year. Pursuant to ORS 274.040, the defendant was given the opportunity to meet this highest bid of $15,000 and exercise its preference. It declined and the State leased such land to plaintiffs.
Plaintiffs brought this declaratory judgment proceeding and asked the trial court to declare that plaintiffs had the exclusive right to the use of all the land abutting upon or adjacent to the island below the low-water mark as well as land below the high-water mark. The State was named as a party but took no active part in the proceeding and is not a party to this appeal.
The trial court found in favor of plaintiffs, and the defendant appeals.
The river at this point is subject to the ocean tides. The logs would be moored below the low-water mark and the pilings and dolphins that must be driven into the land under water would be in the same area, with a few, perhaps, between the high- and low-water marks.
The land lying above the high-water mark is customarily called the upland. The land lying between the high-water mark and the low-water mark in tidal waters is described as tidelands. The Oregon statute, to describe the land between the high-water mark and the low-water mark in both tidal and nontidal waters, uses the phrase 'submersible lands,' and we shall likewise use such phrase to describe such lands. ORS 274.005(4). Oregon statutes use the phrase 'submerged lands' to describe the land lying below the low-water mark whether in tidal or nontidal waters. ORS 274.705(8) and 274.005(5).
The parties claims are unique in property law in that they are both claiming the right to use the water below the low-water mark and the submerged land beneath this water, to which they claim no title or easement by grant. Their claim is grounded solely upon the proposition that their lease of the tidelands,--in the case of the plaintiffs,--and its ownership of the upland,--in the case of the defendant Columbia-Pacific Towing Corporation--carries with it the right to use the water and the submerged land below the water which is adjacent to the island.
This contention, although it is peculiar to rights in waters, is well accepted. The problem in this case is to determine what are the rights in the adjacent waters and submerged lands below concomitant to ownership of the upland and the tideland and, in the event of a conflict, which rights are paramount.
A classic statement was made by Lord Selborne in Lyon v. Fishmongers' Company, 1 L.R.App.Cas. 662, 682 (1876):
'* * * But the rights of a riparian proprietor, so far as they relate to any natural stream, exist Jure naturae, because his land has, by nature, the advantage of being washed by the stream; * * *
'With respect to the ownership of the bed of the river, this cannot be the natural foundation of riparian rights properly so called, because the word 'riparian' is relative to the bank, and not the bed, of the stream; and the connection, when it exists, of property on the bank with property in the bed of the stream depends, not upon nature, but on grant or presumption of law * * *.'
Farnham, in his work on Waters and Water Rights, states:
'In all states where the common law has not been changed, the owners of land abutting on bodies of water are accorded certain rights by reason of their adjacency which are different from those belonging to the public generally, and are comprehended within the general term 'riparian rights.' * * *' 1 Farnham, Waters and Water Rights, 278 (1904).
What these riparian rights are is not a subject of agreement among all jurisdictions. In Yates v. Milwaukee, 77 U.S. 497, 504, 10 Wall. 497, 19 L.Ed. 984 (1871), the statement is made:
'* * * (A)nd among those rights are access to the navigable part of the river from the front of his lot, the right to make a landing, wharf or pier for his own use or for the use of the public * * *.'
The general right of access and to wharf out includes the right to wharf out 'to the navigable part of the river in front of his property and the right to make a landing, dock or pier upon his harbor line * * *.' United States v. River Rouge Co., 269 U.S. 411, 417, 46 S.Ct. 144, 146, 70 L.Ed. 339 (1926).
The right to wharf out has been held to include the right to build and maintain log booms out in the river in front of the boom operator's upland property.
Farnham, supra, at 334, n. 9 states: 'He (the owner of the riparian rights) may maintain booms along the bank to facilitate the handling of logs.'
In Coquille Mill & Mercantile Co. v. Johnson, 52 Or. 547, 551, 98 P. 132, 132 Am.St.Rep. 716 (1908), the court phrased the question: 'What right, if any, has a riparian owner to construct in navigable water adjacent to his property, a boom to store logs, and is such right assignable?' The court held he did have such right and it was assignable; however, the party had both the upland and the tideland and the court emphasized this riparian right was inherent in the tideland, not the upland.
However, the court specifically held:
* * *' (Emphasis added.) 52 Or. at 551, 98 P. at 134.
In the Coquille case the operation was exactly as contemplated in the present case. The owner of the bank leased the booming rights. The lease granted "the right and privilege of putting in and maintaining a boom for holding logs and timber along the line of the premises of the said Gilman." 52 Or. at 550, 98 P. at 133. The lessees drove piling into the river bed 120 to 130 feet from the bank. Logs were brought in by water, stored and later taken out by water.
Wisconsin has clearly and consistently held the right to construct a log boom is a riparian right. In Stevens Point Boom Co. v. Reilly, 44 Wis. 295, 304--305 (1878), the court stated:
"Distinguished from appropriation and occupation of the soil under the water, a riparian owner upon navigable water, whether or not he owns the soil Usque ad medium filum aquae, and unless prohibited by local law, has a right to construct, in shoal water, in front of his land, proper wharves or piers in aid of navigation, and, at his peril of obstructing navigation, through the water far enough to reach actually navigable water; this being held to further the public use of the water to which the public title under the water is subordinate; and therefore to be, in the absence of prohibition, passively licensed by the public, and not a pourpresture.' Diedrich v. (Northwestern Union) Railway Co., 42 Wis. 248.
'This was said of waters generally navigable by all methods. This court has, however, uniformly held streams of sufficient capacity to float logs to market to be so far navigable. Whisler v. Wilkinson, 22 Wis. 572; Sellers v. Lumbering Co., 39 (Wis.) 525; Olson v. Merrill, 42 (Wis.) 203. In such streams, proper booms and like works to aid in floating logs to market serve the like purpose, and stand for and in the same right, and subject to like limitations, as the piers and wharves on waters generally navigable, spoken of in Diedrich v. Railway Co.
'Such being the riparian right of the appellants, they may lawfully, until prohibited by statute, construct, in front of their land, proper booms to aid in floating logs, so as not to violate any public law or obstruct the navigation of the river by any method in which it may be used, or infringe upon the rights of other riparian owners. * * *'
In Williamsburg Boom Co. v. Smith, 84 Ky. 372, 1 S.W. 765 (1886), the defendant was a boom company which maintained movable booms to store logs to be later rafted to a nearby mill. The boom company claimed the right to boom by an arrangement with the upland owner, who also operated the mill. The court held the boom company had a riparian right to boom logs in the river.
There are a myriad of Oregon decisions in this area, as well as some legislation. The Oregon decisions, however, are not completely clear and for that reason we have first set forth the general state of the law outside this jurisdiction.
The increasing problems concerning our rivers and ocean and their banks deserve a...
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