OAG 62-80.

• Case Date: June 20, 1962
• Court: Oregon

Oregon Attorney General Opinions 1962. OAG 62-80. 452OPINION NO. 62-80[30 Or. Op. Atty. Gen. 452]Oregon acquired title to the beds of all navigable waters within its borders upon admission into the Union. The state has power to sell or lease tidelands in its proprietary capacity but holds the submerged lands in its sovereign capacity in trust for the public. A riparian owner has a right incident to the land to wharf out to navigable water subject however to control and regulation by the state. Waters including wharves within port districts are subject to control and regulation by the port with the same power and authority as lies in the State of Oregon. A wharf has been defined to include a bank or earth fill.No. 5452June 20, 1962Mr. T. G. Barnard, ClerkState Land Board You have requested an opinion involving several questions pertaining to the land and waters of Yaquina Bay within the Port District of Newport. You have stated that during the period between 1947-1949 the Yaquina453 Bay Dock & Dredge Company sank some concrete ships in the waters of Yaquina Bay below mean low tide and filled in approximately six acres of the bed between the ships and mean low tide. You also state that the ownership of the tidelands abutting the subject fill is in the dredging company and that the fill was made with the approval of the United States Corps of Engineers and the Port of Newport. One of the first questions to be answered is in whom does the ownership of the bed of the bay lie upon which the fill was made? We must assume that the bed of Yaquina Bay is covered by navigable waters within the state's borders on the "headland to headland" principle rather than ocean waters. See Ocean Industries, Inc. v. Superior Court of Calif., (1927) 200 Cal. 235, 252 P. 722. We are not concerned here with the sales or leases affecting the right to take gravel, minerals, oil, gas or other similar products from the beds of navigable waters, such as provided in ORS 274.710 which are in effect profits apprendre, but rather with those conveyances which pass title or interest in the land. It is well established that upon the admission of this state into the Union Oregon acquired title to the beds of all navigable waters. See § 2, Oregon Admission Act. As stated in Winston Bros. v. State Tax Commission, (1957) 156 Or. 505, at pp. 510-511, 62 P. (2d) 7: "It is well settled that, upon admission of this state into the Union, the state acquired title in its proprietary capacity to all lands within its borders which are covered and uncovered by the tide, and also to all lands lying under the navigable waters of the state. As to those lands lying between the high and low water mark, commonly referred to as tidelands, the state became the absolute owner of them, subject only to the paramount right of navigation inherent in the public, and the lands became subject to its jurisdiction and disposal. Until disposed of by the state, the state held the title to these lands in its proprietary capacity and, after they had been disposed of by the state, their grantees took them free from any right therein of the upland owner and subject only to the paramount right of navigation: Bowlby v. Shively, 22 Or. 410 (30 P. 154), affirmed in Shively v. Bowlby, 152 U.S. 1 (38 L. Ed. 331, 14 S. Ct. 548); Astoria Exchange Company v. Shively, 27 Or. 104 (39 P. 398, 40 P. 92); Corvallis & E. R. Co. v. Benson, 61 Or. 359 (121 P. 418). See also Hinman v. Warren, 6 Or. 408, Parker v. Taylor, 7 Or. 435, and Parker v. Rogers, 8 Or. 183." The facts indicate that in 1874 the state legislature conveyed, along with other lands, the tidelands to the Willamette Valley Coast Railroad Company and that eventually the tidelands abutting the land in question became the property of the Port of Newport which subsequently conveyed the land to the present owner. Even though the state disposed of the tidelands, they are still subject to the rights of navigation and fishery. As stated in Hinman v. Warren, (1877) 6 Or. 408, 411-412: "As the state became owner of the tide lands, it had the power, under the provisions of the act providing for the sale of such lands, Mis. Laws, p. 644, to sell the same. It has, however, no authority to dispose of its tide lands in such a manner as may interfere with the free and untrammeled navigation of its rivers, bays, inlets and the like. The grantees of the state took the land subject to every easement growing out of the right of navigation inherent in the public." This matter was clearly spelled out in the case of Bowlby v. Shively, (1892) 22 Or. 410, 427, 30 P. 154: "* * * it appears that when the state of Oregon was admitted into the union, the tide lands became its property and subject to its jurisdiction and disposal; that in the absence of legislation or usage, the common law rule would govern the rights of the upland proprietor, and by that law the title to them is in the state; that the state has the right to dispose of them in such manner as she might deem proper, as is frequently done in various ways, and whereby sometimes large areas are reclaimed and occupied by cities, and are put to public and private uses, state control and ownership therein being supreme, subject only to the paramount right of navigation and commerce. The whole question is for the state to determine for itself; it can say to what extent it will preserve its rights of ownership in them, or confer them on others. * * *" Of course, the first question to be answered is whether or not the State of Oregon can dispose of any of the land lying under navigable waters, title to which was obtained upon admission of the state into the Union. Rights in lands owned by the state in its proprietary capacity are called "jus privatum." As stated in Opinions of the Attorney General, 1950-1952, p. 274: "The initial problem to be met concerns the authority of the state of Oregon to dispose of a portion of the bed of a navigable stream under any conditions. The Oregon supreme court has many times pointed out that the state became imbued with two rights with respect to navigable waters. The first is designated as the jus privatum, which is a property right and can be sold subject to the paramount rights of navigation. * * *"The right of "jus privatum" is the interest in the beds of navigable waters held by the state in its proprietary ca454pacity as distinguished from the state's right or interest in the control and use of navigable waters on behalf of the people in its sovereign capacity, which rights are known as "jus publicum." The distinction between the two rights arises from the common law. As explained in Gould on Waters, 3d ed., § 17, pp. 35-36:"* * * the Crown's interest in navigable waters is of a two-fold nature: first, the jus publicum, a right of jurisdiction and control for the benefit of its subjects, which is similar to the jurisdiction over public highways by land, though the right of soil may be in the owners of the adjoining estates, and for the protection of which the king, as the head of the realm, may interpose when the rights of the public are impaired; second, the jus privatum, or right of private property, which is subject to the jus publicum, and...