State By and Through State Land Bd. v. Corvallis Sand & Gravel Co.

• Decision Date: 01 August 1978
• Docket Number: No. SC,SC
• Parties: , 8 Envtl. L. Rep. 20,841 STATE of Oregon, acting By and Through the STATE LAND BOARD, Appellant-Cross-Respondent, v. CORVALLIS SAND AND GRAVEL COMPANY, an Oregon Corporation, Respondent-Cross-Appellant. 1940. . Re
• Court: Oregon Supreme Court

Page 1352

582 P.2d 1352

283 Or. 147, 8 Envtl. L. Rep. 20,841

STATE of Oregon, acting By and Through the STATE LAND BOARD Appellant-Cross-Respondent, v. CORVALLIS SAND AND GRAVEL COMPANY, an Oregon Corporation Respondent-Cross-Appellant.

No. SC 1940.

Supreme Court of Oregon.

Reargued and Submitted Dec. 5, 1977.

Remanded Aug. 1, 1978.

Michael D. Reynolds, Asst. Atty. Gen., Salem, reargued the cause for appellant-cross-respondent. With him on the briefs were James A. Redden, Atty. Gen., W. Michael Gillette, Sol. Gen., and Peter S. Herman, Sr. Counsel, Salem.

Robert Mix, Corvallis, reargued the cause and filed briefs for respondent-cross-appellant.

Robert E. Stacey, Jr., Portland, filed an amicus curiae brief for 1000 Friends of Oregon.

Before DENECKE, C. J., and HOLMAN, HOWELL, BRYSON, LENT and LINDE, JJ.

HOWELL, Justice.

This action of ejectment is before us on remand from the United States Supreme Court. The issues involve the title to the bed of certain navigable portions of the Willamette River. Prior opinions of this and other courts contain the lengthy history of this litigation. ¹ By now many issues previously raised have been either finally determined or abandoned. We may, therefore, now disregard many of the factual details which were significant at earlier stages of these proceedings, and treat the questions of title with which we are presently concerned under two general headings: (1) title to those disputed portions of the bed which have been (or may be treated as though they have been) the bed of the main channel of the Willamette River since statehood; and (2) title to the bed of what has been referred to as "Fischer Cut" an area which has been part of the main channel of the river since 1909 but which, prior to that time, had been an overflow channel, submerged only at the intermediate and higher stages of the river.

The United States Supreme Court in this case overruled Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 94 S.Ct. 517, 38 L.Ed.2d 526 (1973) which had held that in a dispute between a state and a riparian owner who claimed under a federal patent, federal common law determined the effect on title of the withdrawal of a navigable river from a portion of its bed. In overruling Bonelli, the Supreme Court said:

"Bonelli's thesis that the equal-footing doctrine would require the effect of a movement of the river upon title to the riverbed to be resolved under federal common law was in error. Once the equal-footing doctrine had vested title to the riverbed in Arizona as of the time of its admission to the Union, the force of that doctrine was spent; it did not operate after that date to determine what effect on titles the movement of the river might have * * *.

" * * * Since the application of federal common law is required neither by the equal-footing doctrine nor by any other claim of federal right, we now believe that title to the Bonelli land should have been governed by Arizona law, and that the disputed ownership of the lands in the bed of the Willamette River in this case should be decided solely as a matter of Oregon law." 429 U.S. at 371-72, 97 S.Ct. at 587-88, 50 L.Ed.2d at 558-59.

In spite of this language in the Supreme Court's opinion, defendant Corvallis Sand and Gravel now argues that title to the portions of the riverbed, other than Fischer Cut, which are involved in this case did not pass to Oregon upon its admission to the Union under the equal-footing doctrine, but were thereafter conveyed to defendant's predecessors in title by United States patents conveying the adjoining upland. Although we doubt that the issue is properly before us, ² we have considered this argument and determined that it is not well taken.

The original states, by virtue of their sovereignty, succeeded to title held by the English crown to the beds of the navigable waters within their boundaries. ³ When additional states were admitted to the union, they were admitted on an equal footing with the original states and, therefore, they also acquired title to the beds of their navigable waters except any portions which had passed into private ownership prior to statehood. ⁴ While the land out of which the new states were formed was held by the federal government, that government had the power to alienate the title to the beds of navigable waters, but it was never the general policy of the federal government to do so as part of its disposition of the public lands. Therefore, a pre-statehood federal patent which describes the land conveyed as running to or bounded by a navigable body of water will be construed as conveying title only as far as the high water mark. The land below high water mark, except such portions as may have been conveyed by a properly authorized grant clearly expressing that intention, was retained by the federal government in trust for the future states and passed to them upon admission to statehood. The federal government, therefore, had no power to convey it by a post-statehood patent. ⁵

The waters to which these general rules apply are those which, at the time of admission to statehood, were navigable in fact according to the federal test of navigability. ^{6 6} For some time it was assumed by many American courts that navigability for title purposes was to be tested according to the rule which was thought to apply in England: that navigable waters were limited to those in which the tide ebbed and flowed. ⁷ However, the United States Supreme Court held in Barney v. Keokuk, 94 U.S. (4 Otto) 324, 24 L.Ed. 224 (1877), that the states' title included the beds of all waters which, upon admission to the union, were actually navigable, whether or not they were affected by the tide. Subsequent decisions of the Supreme Court have treated Barney as a correct and authoritative statement of the rule. ⁸

Under that rule, Oregon, when it was admitted to the union in 1859, acquired title to the bed of the navigable portions of the Willamette River. Thus, the holding in Barney would appear to dispose of this case except for the question of title to Fischer Cut.

Defendant contends, however, that the holding of that case cannot be applied here. It argues that Barney v. Keokuk was a change in the law, ⁹ and that its holding cannot be applied in such a way as to affect previously vested rights. Defendant traces its title to federal conveyances prior to 1877, when that case was decided, and argues that those conveyances, under the rule prevailing at the time, conveyed title to the riverbed as well as to the adjoining upland. ¹⁰

In support of its argument that when its predecessors acquired title, the prevailing law was that title to nontidal riverbeds passed into private ownership along with the adjoining upland, defendant cites Jones v. Soulard, 65 U.S. (24 How.) 41, 65, 16 L.Ed. 604 (1860) in which the Court said:

"Many authorities resting on adjudged cases have been adduced to us in the printed argument presented by the counsel of the defendant in error, to show that from the days of Sir Matthew Hale to the present time all grants of land bounded by fresh water rivers, where the expressions designating the water line are general, confer the proprietorship on the grantee to the middle thread of the stream, and entitle him to the accretions.

"We think this, as a general rule, too well settled, as part of the American and English law of real property, to be open to discussion; and the inquiry here is, whether the rule applies to so great and public a water-course as the Mississippi is, at the City of St. Louis?"

The court held that the "well-settled" rule did apply to that river. It is difficult to ascertain, however, just what rule the court held applicable. The land in dispute in that case was not the riverbed itself, but land which had, after the state entered the union, formed by accretion and eventually connected the shore with a pre-existing gravel bar.

The "rule" stated in the above quotation is really two rules. The first is that a grant of riparian land bounded by a fresh-water river will be construed as extending to the middle of the stream. The second is that a riparian owner is entitled to accretions which become a part of, and enlarge, his land. The well-recognized right to accretions is a riparian right which is not dependent upon ownership of the adjacent bed. ¹¹

It is possible that the second rule alone was enough to dispose of the case; the statement of facts does not disclose whether the accreted land in dispute attached itself originally to the shore, or whether it constituted an enlargement of the sand bar (which was part of the bed of the river) or both. The opinion of the court appears to rely both upon the riparian right to accretions and on the riparian owner's title to the bed itself.

In Barney v. Keokuk, supra, in which the court held that the states, upon admission to the union, had acquired title to the beds of all navigable waters within their boundaries, the opinion notes that the states had been free to decide for themselves whether to retain or dispose of that title. "If they (the states) choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections." 94 U.S. (4 Otto) at 338. It appeared to the court that Iowa, the state in which that case arose, had not chosen to do so but had adopted the rule that riparian proprietorship along the Mississippi River was bounded by the high water mark and that the state owned the bed of the river below that line. In that opinion the court did not attempt to canvass its earlier cases, saying only:

" * * * The cases in which this court has seemed to hold a contrary view depended, as most cases must depend, on the local laws of the States in which the lands were situated." Id.

Some years later, however, in Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1893), the Supreme Court undertook an exhaustive review of the...