Shively v. Bowlby

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, c. 76, (9 Stat. 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 300 feet square, and separated from each other by streets 30 or 60 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 800 feet of the ship channel.

Blocks 4 and 9 were above ordinary highwater 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 50 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 100 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 treasuer, acting as the board of school land commissioners, pursuant to the statute of Oregon of October 26, 1874, (Laws 1874, p. 76,) amending the statute of Oregon of October 28, 1872, (Laws 1872, p. 129,) the provisions of both of which statutes are set forth in the margin, (the words printed in brackets having been in the statute of 1872 only, and those printed in italics having been inserted in the statute of 1874,) executed to the plaintiffs a deed of all the lands lying between high-water mark and low-water mark in front of block 9, including all the tide land in block 141, and also a deed of all the tide lands in block 146, but never executed to any one a deed of any tide lands north of block 146.

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, pretending to act under the statute of Oregon of February 18, 1891, (Laws 1891, p. 594,) executed and recorded an instrument dedicating to the public their interest in some of the streets adjacent 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, asserted that, under the patent from the United States to John M. Shively, and his deed to Charles W. Shively, 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 rights in front thereof to the channel excepting 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 the 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 appealed 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 lands below high-water mark, as against the subsequent deeds from the state of Oregon. 22 Or. 410, 30 Pac. 154.

The said defendant thereupon sued out this writ of error, and assigned the following errors:

'First. The supreme court of Oregon decided that a grantee of the United States, under the act of congress of September 27, 1850, known as the 'Oregon Donation Land Law,' of land bounded by the tidal navigable waters of the Columbia river, obtained by virtue of said grant no exclusive access to the channel of said river, and no wharfage rights below ordinary high tide of said river in front of said high land.

'Second. The supreme court of Oregon decided that said state was the absolute owner of all rights in front of the high land granted by the United States to said grantee, with said Columbia river as a boundary, below the meander line, out to the channel of said Columbia river, to the exclusion of all rights of the grantee aforesaid of the United States, under the said act of congress of September 27, 1850.

'Third. The supreme court of Oregon decided that said state had the absolute power to dispose of the soil of said river and of all wharfage rights in front of the high land granted by the United States to said grantee, the predecessor of the plaintiff in error, with said Columbia river as a boundary, to a private person, for a private beneficial use, and had so disposed of the same to the defendants in error.'

A. H. Garland and Sidney Dell, for plaintiff in error.

J. W. Dolph, for defendants in error.

Mr. Justice GRAY, after stating the facts, delivered the opinion of the court.