Taylor Sands Fishing Co. v. Benson

• Decision Date: 12 April 1910
• Citation: Taylor Sands Fishing Co. v. Benson, 108 P. 126, 56 Or. 157 (Or. 1910)
• Parties: TAYLOR SANDS FISHING CO. v. BENSON et al., State Land Board.
• Court: Oregon Supreme Court

108 P. 126

56 Or. 157

TAYLOR SANDS FISHING CO. v. BENSON et al., State Land Board.

Supreme Court of Oregon

April 12, 1910

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Suit by the Taylor Sands Fishing Company against F.W. Benson and another, constituting the Oregon State Land Board. From a decree of dismissal, plaintiff appeals. Reversed and remanded.

This is a suit to enjoin the leasing of real property. The material averments of the complaint are to the effect that the plaintiff, the Taylor Sands Fishing Company, is a corporation, and the defendants, F.W. Benson and George A Steel, the former being Governor and Secretary of State and the latter the State Treasurer of Oregon, constitute, by virtue of their respective offices, the State Land Board that plaintiff is engaged in fishing for salmon in the Columbia river with seines, which are hauled to the shore of certain tide lands in Clatsop county, particularly describing the premises; that plaintiff is the owner, by mesne conveyances from the state of Oregon, of these lands and also of the accretions thereto; that M. Troyer caused a survey to be made of such imperceptible accumulation of land by natural causes, and thereupon applied to the State Land Board for a lease thereof; that the defendants, unless restrained, will demise the same to him and his associates, who will operate seines thereon and prevent plaintiff from pursuing its business; that the lease will cast a cloud on its title, and cause a multiplicity of suits; and that it has no plain speedy, or adequate remedy at law for the redress of its grievances. A demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of suit, was sustained, a temporary restraining order which had been granted set aside, and the suit dismissed, from which decree the plaintiff appeals.

E.E. Coovert and C.A. Bell, for appellant.

A.M Crawford and George G. Bingham, for respondents.

MOORE C.J. (after stating the facts as above).

The adequacy of the complaint being the question to be considered, its averments will be examined. It is alleged that on April 26, 1902, plaintiff's grantor purchased from the state of Oregon the tide lands described. The statute then in force contained a clause as follows: "The State Land Board is hereby authorized to sell tide lands, tide flats not connected with the shore, and all lands held by the state by virtue of her sovereignty." B. & C. Comp. § 3301. This section was enacted in 1899, probably in consequence of the decision in Elliott v. Stewart, 15 Or. 259, 14 P. 416, in which case it was held that under the prior law, providing for the disposal of state lands, no authority had

been conferred to convey the title to sand bars in the Columbia river not connected with the shore. Oregon, on its admission to the Union, February 14, 1859, became the owner of all that part of the Columbia river, a navigable stream, lying south of the north boundary of the state. Act Feb. 14, 1859, c. 33, 11 Stat. 383. Subject to the paramount right of navigation, Oregon when it was thereafter empowered by enactment could, by its constituted agents, convey any of the islands in that river or any land forming a part of its bed. Bolsa Land Co. v. Burdick, 151 Cal. 254, 90 P. 532, 12 L.R.A. (N.S.) 275; Illinois C.R.R. Co. v. Illinois, 146 U.S. 387, 435, 13 Sup.Ct. 110, 36 L.Ed. 1018. By the clause of the statute hereinbefore set forth, the plaintiff, as the grantee of the state by mesne conveyances, became possessed of an estate in fee simple in the tide lands described in the complaint, if the averments of that pleading are true as confessed by the demurrer. State v. Portland Gen. Elec. Co., 52 Or. 502, 95 P. 722, 98 P. 160.

The title being thus vested, the remaining questions to be considered are whether or not the area of the premises can be augmented by accretions, and, if so, can the defendants, who are officers of the state, be enjoined from leasing such gradual accumulations of the soil. Chapters 2 and 3, tit. 32 (B. & C. Comp.), which included section 3301, supra, were repealed, and another act adopted in lieu thereof. Laws Or.1907, c. 117. The substituted enactment authorizes the sale or leasing of tide and overflowed lands, and contains a clause as follows: "And it is further provided, no accretions to islands heretofore sold by the state shall be leased and that no tide or overflowed lands, excepting those connected with the shore, shall be sold until ten years after the approval of this act." Section 19. The defendants' counsel, invoking an allegation of the complaint that the tide lands...