THE DECISIONS OF THE Supreme Court of the United States, AT OCTOBER TERM, 1893. [Authenticated copy of opinion record strictly followed, except as to such reference words and figures as are inclosed in brackets.] (See S. C. Reporter's ed. 1-58.) Federal question-lands under tide waters— vested in the original states-lands in territory -rights of states in tide waters and lands under them-land grant by Congress—conveys no right to lands under tide waters. 1. A state judgment that the grant from the United States passed no title or right, as against the subsequent deeds from the state, in lands below high water mark, is a direct adjudication against the validity of a right or privilege claimed under a law of the United States, and presents a Federal question within the appellate jurisdiction of this court. 2. Lands under tide waters are vested in the sovereign for the benefit of the whole people. rights as the original states in the tide waters, and in the lands under them, within their respective jurisdictions. 6. The United States, while they hold the country as a territory, having all the powers both of national and of municipal government, may grant, for appropriate purposes, titles or rights in the soil below high water mark of tide waters; but they have never done so by general laws. 7. 8. Grants by Congress of portions of the public lands within a territory to settlers thereon, though bordering on or bounded by navigable waters, convey, of their own force, no title or right below high water mark, and do not impair the title and dominion of the future state when created. A donation land claim, bounded by the Columbia river, and laid out and recorded under an Act of Congress, includes no title or right in the land below high water mark; and the statutes of Oregon, providing for the sale of title lands, etc., are a constitutional and legal exercise by the state of Oregon of its dominion over the lands under navigable waters. [No. 787.] 8. Upon the American Revolution lands under 4. Upon the acquisition of a territory by the United States the title and dominion of lands under tide waters passed to the United States, for the benefit of the whole people, and in trust for the several states to be ultimately created out of the territory. 5. The new states admitted into the Union since the adoption of the Constitution have the same NOTE.-A8 to jurisdiction in the United States Supreme Court, where Federal question arises, or where are drawn in question statutes, treaty, or Constitution, see notes to Martin v. Hunter, 4: 97, Matthews v. Zane, 2: 654, and Williams v. Norris, 6: 571. 1894. ERROR to the Supreme Court of the State court, affirming the judgment of the Circuit Court for the County of Clatsop and State of Oregon, in a suit in equity, brought by John Q. A. Bowlby et al., plaintiffs, against Charles W. Shively et al., to quiet the title to lands below Kennedy v. Hunt, 12:829, and to St. Clair County v. Lovingston, 23: 59. As to right of the United States and the states to shore lands and accretions against piers, see note to Hallett v. Beebe, 14: 35. As to jurisdiction of United States Supreme Court As to what is seashore; how far lands bounded on, As to alluvion or accretion and reliction; right to, and ownership of; by what law title to is determined; rule of division among riparian owners, see note to As to navigable waters; what are, in United States; streams and inland waters as highways, see note to United States v. The Montello, 22: 391. 831 ་་ high water mark in the city of Astoria; the | statutes are set forth in the margin* (the words judgment dismissed the claim of defendants, printed in brackets having been in the statute under a patent from the United States to the of 1872 only, and those printed in italics having title to the lands, and then of motion of plain- been inserted in the statute of 1874) executed tiffs dismissed their suit without prejudice to to the plaintiffs a deed of all the lands lying betheir interest in the subject thereof. Affirmed. tween high water mark and low water mark in See same case below, 22 Or. 410. front of block 9, including all the tide land in block 141; and also a *deed of all the tide [6 lands in block 146; but never executed to any one a deed of any tide lands north of block 146. Statement by Mr. Justice Gray: The original suit was in the nature of a bill in equity, brought June 8, 1891, by John Q. A. Bowlby and W. W. Parker against Charles W. Shively and wife, in the circuit court for the county of Clatsop and state of Oregon, to quiet the title to lands below high water mark in the city of Astoria. The case, as appearing by the record, was as follows: On and before May 20, 1854, John M. Shively and wife were the owners of a donation land claim, as laid out and recorded by him under the Act of Congress of September 27, 1850, chap. 76 (9 Stat. at L. 496) commonly known as the Oregon Donation Act, embracing the then town and much of the present city of Astoria, and bounded on the north by the Columbia river. On May 20, 1854, John M. Shively laid out and caused to be recorded a plat of that claim, not only of the land above high water mark, but also of adjacent tide lands and a portion of the bed of the Columbia river, including the lands in controversy, and divided into blocks three 3] hundred feet square, and separated from each other by streets thirty or sixty feet wide, some running at right angles to, and the others nearly parallel with, high water mark, the outermost of which streets were not within eight hundred feet of the ship channel. Blocks 4 and 9 were above ordinary high water mark. Block 146 was in front of block 4, and between high and low water mark. In front of block 9 came blocks 141, 126 and 127 successively. A strip about fifty feet wide, being the southern part of block 141 was above high water mark, and the whole of the rest of that block was below high water mark and above low water mark. The line of ordinary low tide was on September 18, 1876, at the north line of that block; but on December 15, 1890, and for some time before this date, was one hundred feet north of the north line of block 127. On February 18, 1860, John M. Shively and wife conveyed blocks 9, 126, 127 and 146, in the town plat of Astoria, as laid out and recorded by John M. Shively," to James Welch and Nancy Welch, whose title was afterwards conveyed to the plaintiffs. On June 2, 1864, John M. Shively laid out and caused to be recorded an additional plat, covering all the space between blocks 127 and 146 and the channel. In 1865, the United States issued a patent to John M. Shively and wife for the donation land claim, bounded by the Columbia river. On September 18, 1876, the state of Oregon, by its governor, secretary and treasurer, acting as the board of school land commissioners, pursuant to the statute of Oregon of Octobe 26, 1874 (Laws of 1874, p. 76) amending the statute of Oregon of October 28, 1872 (Laws of 1872, p. 129) the provisions of both of which The plaintiffs afterwards held possession of the lands so conveyed to them, and maintained a wharf in front of block 127, which extended several hundred feet into the Columbia river. and at which ocean and river craft were wont to receive and discharge freight. On December 15, 1890, John M. Shively, having acquired whatever title his wife still had in the lands in controversy, conveyed all his right, title and interest therein to the defendant Charles W. Shively. *On April 7, 1891, the defendants, pre- [7 tending to act under the statute of Oregon of February 18, 1891 (Laws of 1891, p. 594) exccuted and recorded an instrument dedicating to *An Act to Provide for the Sale of Tide aud Overflowed Lands on the Sea Shore and Coast. Whereas, in many of the bays, harbors and inlets on the sea coast of this state. the sea is annually encroaching upon the land, washing away the shores and shoaling such bays, harbors and julets; and only at great expense, and by occupying and placing improvements upon the tide and overflowed lands belonging to the state; and Whereas such encroachments can be prevented Whereas it is desirable that facilities and encour agement should be offered to the owners of the soil abutting upon the coast in such bays, harbors and inlets to make improvements and expenditures that will stay such encroachments; sembly of the State of Oregon: Therefore, Be it enacted by the Legislative As SEC. 1. That the owner or owners of any land abutting or fronting upon or bounded by the shore of the Pacific Ocean, or of any bay, harbor or inlet [on the sea coast of this state] of the same, and riv ers and their bays, in which the tide ebbs and flows, within this state, shall have the right to purchase [from the statel all the tide land belonging to [the] This state in front of [such owner or owners] the lands so owned: Provided, that if valuable improvements have been made upon any of the tide lands of this state before the title to the land on the shore shall have passed from the United States, the owner of such improvements shall have the exclusive right to purchase the lands so improved, extending to low water mark, for a period of [one year] three years from the approval of [this act] the act to which this is amendatory: Provided, further, that the Willamette river shall not be deemed a river in which the tide ebbs and flows, within the meaning of this act, or of the act to which this act is amendatory: and the title of this state to any tide or overflowed lands upon saul Willamette river is hereby granted and confirmed to the owners of the adjacent lands, or, when any such tide or overflowed lands have been sold, then in that case to the purchaser or purchasers of such tide or overflowed lands from such owner of such adjacent lands, or some previous owner thereof, as the case may be. SEC. 2. The officers of this state, who now are or who may bereafter be authorized to dispose of the school lands belonging to this state, are authorized, empowered and directed to sell such tide lands, upon proper application to purchase by parties hereby authorized to purchase; and all such tide lands shall be sold, and the money resulting from such sale shall be distributed, in accordance with the laws of this state, which now are or may hereafter be in force respecting the sale of the school lands of this state; Provided, that in the certificates of sale and patents for such lands the same shall be described as acres of tide land, or land under water belonging to this state, in front of the following described premises. (Here describe by le the public their interest in some of the streets | rights in front thereof to the channel, exceptadjacent to these lands. The plaintiffs claimed, under the deeds from the state of Oregon, the title in all the tide lands on the west half of block 141, on all of blocks 126 and 127 and north thereof, and on the west half of block 146 and north thereof, between the lines of low and ordinary high tide of the Columbia river; and also claimed all the wharfing rights and privileges in front thereof to the ship channel; and prayed that the cloud created by the defendants' instrument of dedication might be removed, and the defendants be adjudged to have no title or right in the premises, and for further relief. The defendants denied any title or right in the plaintiffs, except in the west half of block 146; and, by counterclaim, in the nature of a cross bill, stating the facts above set forth, as serted that, under the patent from the United States to John M. Shively, and his deed to Charles W. Shiveley the latter was the owner in fee simple of so much of the east half of block 141 as was above high water mark, and of all the tide lands and riparian and wharfing gal subdivisions the lands in front of which said SEC. 4. The value of such tide lands shall be appraised at a certain sum per acre of the same, and such appraisal shall not value such lands at less than $1.25 for each acre of such land: Provided, the board having in charge the sale of said lands shall have power to set aside any appraisement on evidence taken of the true value of the same, and shall make another and true appraisement based on such evidence. | ing blocks 126 and 127; and was also the owner of all the riparian and wharfing rights in front of block 4 to the channel, excepting block 146; and contended that the second deed from the state of Oregon to the plaintiffs conveyed no title in that part of block 141 above high water mark, or in any tide lands, and that Shively's conveyance of specific blocks by reference to his plat passed no wharfing rights in front thereof; and prayed that he might have possession of said premises, and damages against the plaintiffs for withholding the same, and further relief. The court sustained a demurrer of the plaintiffs to the counterclaim (except as to that part of block 141 above high water mark) and dismissed that claim; and then, on motion of the plaintiffs, dismissed their suit without prejudice to their interest in the subject thereof. *The defendant, Charles W. Shively ap- [8 pealed to the supreme court of the state, which affirmed the judgment, upon the ground that the grant from the United States, bounded by the Columbia river, passed no title or right in abutting upm [or 'fronting on or bounded by the sea shore, which are] lands owned by the United States: [And] provided further, that if the United States has parted or shall [hereafter] part with its title to any lands of which, at the passage of [this act] the act of which this is amendatory it [is] was the owner, [fronting or abutting upon or bounded by the sea shore] the grantee of such lands shall have [twelve months] three years after perfecting his title from the United States to apply for [the] all tide lands in front thereof which may be owned by the state, and, in case of his failure to make such application within said period of [twelve mouths] three years, or, having made such application [in case of his failure] shall fail to prosecute the same [as provided by] according to law, such tide [lands] land shall be open to purchase by any other person who is a citizen and resident of the state of Oregon. SEC. 7. All applicants to purchase lands under the provisions of this act shall, at their own expense, cause the same to be surveyed by the county surveyor of the county in which such lands are situated, such survey to conform to and connect with the surveys of the United States adjoining, as far as may be practicable; and the certificate of the county surveyor, describing the lands applied for by metes and bounds and designating the quantity thereof, shall be forwarded under the certificate of appraisement to the officers of the state who are authorized to sell the same. SEC. 6. Nothing in this act provided shall prevent the Legislature of this state, or the corporate auSEC. 5. If any person or persons who, at the pas- thorities of any city or town thereof, from reguBage of [this act] the act of which this is amendatory lating the building of wharves or other improve[shall be] were entitled [under section 1 thereof] to ments in any bay, harbor or inlet of this state; and purchase any tide lands under the provisions of sec- nothing in this act provided shall be construed as tion 1 thereof shall not [within twelve months from a grant of an exclusive right to any person or perthe passage of this act,make application to purchase sons to use the natural oyster beds of this state; but such tide lands] have applied for the same within the grantee of any land in this state, under this act, three years from the passage of said act, or, having shall hold the same subject to the easement of the made such application,shall have failed to prosecute public, as provided by the existing laws of this the same, as provided by law, then such [lands] land state, to enter thereupon and remove, under the shall be open to purchase by any other person who is provisions and restrictions of the laws of this state, a citizen and resident of the state of Oregon: Pro- oysters and other shell fish therefrom. vided, that when any application shall be made for the purchase of any such tide land by any person or persons other than the owner or owners of the land adjacent to such tide lands, or the purchaser or purchasers of such tide lands from such owner of adjacent lands, or some previous owner thereof,notice shall be given by Baid board to the owner or owners of such adjacent lands, and to any parties who are in possession of, or who shall have improved such tide lands in any manner, and such owner or owners of such adjacent lands, or the person in possession of such tide lands by purchase from such owner of such adjacent lands, or any previous owner thereof, or who shall have improved the same, shall have sirty days after service of such notice to make application for the purchase of such tide lands, and such application shall have preference over all others, and in case any person to whom notice is hereby required to be given cannot, after due diligence, be found, notice may be giren at the cost of the applicant by mublication in the state paper for four successive veeks; and all applications to purchase tide lands by the owner of adjacent lands shall be accompanied by the affidavit of the applicant, setting forth the fact that such land is not held by any other person under a deed from said applicant, or any person under whom he holds; but this [section] provision shall not apply to [any] the tide lands SEC. 8. Inasmuch as there is no law upon this subject at the present time, this act shall take effect from and after its passage. The act of 1874 contains two additional sections, the one providing that the title to all tide lands heretofore sold, and for which conveyances have already been executed, under the provisions of the act to which this is amendatory, be and the same is hereby confirmed unto the purchasers thereof; and the other providing that, 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. |