State Land Bd. v. Heuker

• Citation: 25 Or.App. 137,548 P.2d 1323
• Parties: State of Oregon, by and through the STATE LAND BOARD and the Division of State Lands, Respondent, v. Bernard HEUKER and Sandra Heuker, husband and wife, Appellants.
• Decision Date: 19 April 1976
• Court: Oregon Court of Appeals

Page 1323

548 P.2d 1323

25 Or.App. 137

State of Oregon, by and through the STATE LAND BOARD and the Division of State Lands, Respondent, v. Bernard HEUKER and Sandra Heuker, husband and wife, Appellants.

Court of Appeals of Oregon.

Argued and Submitted Jan. 23, 1976.

Decided April 19, 1976.

Douglas B. Gordon, Portland, argued the cause for appellants. With him on the briefs were Davies, Briggs, Strayer, Stoel & Boley, Portland.

W. Michael Gillette, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Atty. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and FORT, JJ.

FORT, Judge.

Defendants own property along the Columbia River in Multnomah County. The state brought suit to enjoin them from obstructing public access to the strip of land which lies between the high and low water levels of the Columbia River adjacent to their upland property. The original issue was whether the public had rights of access to this strip of submersible land. At trial, however, the parties agreed that the public had such access rights but continued to litigate the question whether a permanent injunction should be issued ensuring that the access remained open. The parties also raised and litigated the question as to which of them owned the submersible strip adjacent to defendants' upland property. The trial court held that the state owned the submersible strip and issued the requested injunction.

In its decision the trial court assumed that the submersible strip was tideland as defendants maintained. Since the state did not challenge this assumption and produced no evidence to the contrary, we perforce accept this as true.

The state acquired ownership of tidelands and of submersible lands along navigable rivers at the time it became a state. Bowlby v. Shively, 22 Or. 410, 415, 30 P. 154 (1892), Aff'd 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894). This ownership consisted of two elements: a private property interest, the Jus privatum, which the state could convey to private citizens; and the Jus publicum, the right of the public to use tidelands and navigable waters for commerce and navigation, which the state holds as sovereign in trust for the people and which it cannot grant away. State ex rel. Thornton v. Hay, 254 Or. 584, 601--602, 462 P.2d 671 (1969) (specially concurring opinion); Corvallis & Eastern R. Co. v. Benson, 61 Or. 359, 369--70, 121 P. 418 (1912). Cf., Land Bd. v. Corvallis Sand & Gravel, 18 Or.App. 524, 536--37, 540--41, 526 P.2d 469 (1974), Aff'd as modified, 75 Or.Adv.Sh. 2068, 75 Or.Adv.Sh. 2562, 536 P.2d 517, 538 P.2d 70 (1975). The issues in this case are which party owns the private title to the tideland strip and whether a permanent injunction should issue to protect the public's right of access to the strip.

Both parties agree that the state has never explicitly conveyed out its title to the tideland. Ownership of the tideland depends on the possible application of rules of construction to the deed in which the state explicitly conveyed the adjacent upland to a private owner. In 1875 the state conveyed lots 1 and 2 of a specified township to one Ira Dodson. The deed described the property as 66.78 acres of school land, but did not mention the Columbia River or the tideland. No plat showing the location of lots 1 and 2 was in evidence at the trial, ¹ but the parties agree that the lots were adjacent to the Columbia River and that the defendants' land is a portion of this original grant.

Defendants rely on ORS 93.310(5) to establish their title:

'The following are the rules for construing the descriptive part of a conveyance of real property, when the construction is doubtful, and there are no other sufficient circumstances to determine it:

'* * *

'(5) When the tidewater is the boundary, the rights of the grantor to low watermark are included in the conveyance, and also the right of this state between high and low watermark.'

This statute was passed in 1862. Oregon Code of Civil Procedure, § 845 (1862). In McAdam v. Smith, 221 Or. 48, 350 P.2d 689 (1960), the Supreme Court held that this rule of construction applies when tidewater is the boundary of property, whether or not it is mentioned explicitly in the deed. 221 Or. at 59--60, 350 P.2d 689.

The trial court in this case held that ORS 93.310(5) does not apply to construction of a deed in which the state is the grantor. We find nothing in ORS 93.310 to prevent its application to the state. We disagree, however, with defendants' assertion that the last phrase, 'and also the right of this state between high and low watermark' refers to the granting of the private rights held by the state since such a grant is included in the earlier portion of subsection (5). We conclude that the last phrase refers to the rights that the state holds for the public and means that in any conveyance of tidelands, the grantee takes subject to the Jus publicum.

Determining that the rule of construction in ORS 93.310(5) does apply to the state acting in its Jus privatum capacity is only the first step in determining whether it applied to the 1875 deed so as to effect a transfer of the tidelands in question from the state to Ira Dodson. By its terms, ORS 93.310 operates only when the construction of a deed description is doubtful and when there are insufficient other circumstances from which to determine the construction. In addition, ORS 93.310(5) is not in itself a grant of tidelands from the state. Astoria Exchange Co. v. Shively, 27 Or. 104, 107, 39 P. 398 (1895). Additional legislative authorization is required before the executive branch may convey state-owned tidelands. Corvallis & Eastern R. Co. v. Benson, supra; 5A Thompson, Real Property 1124, 1126, § 2720 (1957). See Land Bd. v. Corvallis Sand & Gravel, supra, 18 Or.App. at 562, 526 P.2d 469. For the rule of construction to effect a conveyance of these tidelands in 1875 there must have been independent legislative authorization for the transfer.

At the time of the 1875 conveyance the legislature had authorized the state to sell its tidelands. An Act of 1872 providing for the sale of tidelands on bays and harbors was amended in 1874 to include tidelands along rivers. Oregon General Laws 1872, pp. 129--33; Oregon General Laws 1874, pp. 76--79. The statute as amended ² provided specific requirements for the conveyance: owners of uplands could apply to purchase adjacent tidelands within three years of the Act, after which others could apply; sale was to be made by those who sold school lands; the upland applicant must prove his title to the uplands; an appraisal was required and a minimum price set; all applicants must have then paid for a survey by the county surveyor. There is no indication in the record that Ira Dodson or his successors took any steps to purchase the adjacent tidelands under these statutes.

This legislation providing for the sale of tidelands is detailed and complete. It authorized conveyance of the tidelands only according to the procedure specified and not in any other way. A conveyance by the state is only valid if it is done with the proper authority. 6 Thompson, Real Property 315, § 2987 (1962). We hold that the Acts of 1872 and 1874 were insufficient to authorize conveyance of state-owned tidelands except by the procedures they described. They are not a general authorization which allows ORS 93.310(5) to effect a transfer.

There is a second basis for our holding that ORS 93.310(5) did not effect a conveyance in this case. The rules of construction of ORS 93.310 by its terms do not apply unless 'the construction is doubtful, and there are no other sufficient circumstances to determine it.' One such circumstance is the intent of the legislature stated in Section 4 of the 1874 Act:

'Inasmuch as the existing law does not authorize the sale of tide lands lying on the ocean beach and the rivers and bays thereof, this Act shall take effect and be in force from and after its approval by the Governor.' Oregon General Laws 1874, at 79.

This expressed understanding of the legislature that the Act of 1874 is the only authorization for conveyance of state-owned tidelands along rivers is of material aid in construing the state's deed to Ira Dodson. Unless he or his successors purchased the tidelands in accordance with that Act, title to the tidelands did not pass to him from the state. Since the terms of that Act are sufficient to construe the deed to Ira Dodson, the rule of construction in ORS 93.310(5) is not applied.

Defendants also cite McAdam v. Smith, supra, as establishing a common law rule of construction that a deed which conveys property to the tideland conveys to the low watermark. In reaching its conclusion the Supreme Court relied on rules concerning deeds to property adjacent to a street or to a nonnavigable stream. The facts in McAdam involved a private grantor, as did the common law rule it followed which applied to property adjacent to streams. We decline here to extend the rule of McAdam to cases in which the state is grantor.

Defendants also assert as error the trial court's decree enjoining defendants from obstructing fishermen or others of the public from using the submersible strip along the Columbia River. The issuance of an injunction lies within the sound discretion of the court. Wilson v. Parent, 228 Or. 354, 369, 365 P.2d 72 (1961); State ex rel. Johnson v. Int'l Harv., 25 Or.App. ---, 548 P.2d 176 (Decided April 5, 1976). We will not disturb the trial court's ruling here.

Affirmed.

SCHWAB, Chief Judge (dissenting).

A deed dated April 8, 1875, executed by the State of Oregon in favor of Ira Dodson, defendants' predecessor in interest, conveyed title to two lots. The question in this case is whether this deed also conveyed title to tideland that all parties agree adjoins those two lots.

The opinion of the trial court and the majority opinion in this court both state or imply that: (1) had the 1875 conveyance to Dodson...