OAG 71-69.

• Case Date: September 17, 1971
• Court: Oregon

Oregon Attorney General Opinions 1971. OAG 71-69. 844OPINION NO. 71-69[35 Or. Op. Atty. Gen. 844]September 17, 1971No. 6861This opinion is in response to questions presented by Cecil Edwards, Executive Secretary of the Advisory Committee to the State Land Board.QUESTIONS PRESENTED1. Do private owners of tidelands have the right to fill the tidelands where the fill would unreasonably interfere with public rights in or uses of navigable waters?ANSWER GIVENNo. The paramount policy of the State as expressed in Chapter 754 [1971] Or. Laws 2103 is to protect and conserve the State's water resources for various public uses such as navigation, fishing and public recreation. Tide-lands cannot be filled where the fill would unreasonably interfere with public rights in or uses of navigable waters.2. Does the filled lands law in ORS 274.905 to 274.940 authorize the Divison of State Lands to permit the filling of tidelands where such filling would unreasonably interfere with existing public rights in or uses of navigable waters?ANSWER GIVENNo. ORS 274.920 of the filled lands law prohibits the filling of submerged or submersible lands without the owner's approval. If the owner's approval of the fill isobtained under ORS 274.920 the fill still cannot be undertaken until a permit is obtained pursuant to Chapter 754 [1971] Or. Laws. In the situation presented Chapter 754 would not authorize the issuance of a permit since there would be an unreasonable interference with public rights.3. If the Director of the Division of State Lands denies the application of a private riparian owner to purchase and fill adjacent tidelands owned by the State because of injury to public rights in navigable waters, can a port district, after acquiring title to the riparian owner's land, fill the adjacent tidelands under the filled lands law and then sell the riparian land and the adjacent filled tidelands back to the riparian owner?ANSWER GIVENNo. A port district which is not promoting navigation and commerce on navigable waters may not make fills of tidelands unless the consent of the state is obtained under ORS 274.920 and a permit is obtained in accordance with the standards prescribed by Chapter 754 [1971] Or. Laws. DISCUSSION The Advisory Committee to the State Land Board is broadly concerned with public rights in tidelands and the effect on these rights of the so-called "filled lands law" in ORS 274.905 to 274.940 and ch. 754 [1971] Or. Laws 2103. The purpose of this inquiry is to determine what restrictions there are on the filling of tidelands by private owners and port districts.(fn1) The first question raises the issue of whether an owner846 of tidelands may fill the tidelands if such filling would unreasonably interfere with public rights in or uses of navigable waters. Before discussing the legislature's disposition of this question in ch. 754 [1971] Or. Laws, we will comment on some of the cases and statutes that provide some of the background for this new statute. First, it is appropriate to define tidelands and to distinguish them from submerged lands. "Tidelands" refers to those lands which are covered and uncovered daily by the ebb and flow of the sea. Hinman v. Warren, 6 Or. 409, 411 (1877). Such lands lie between high water mark and low water mark. Andrus v. Knott,847 12 Or. 501, 503 (1885). "Submerged lands" refer to those lands underlying the navigable waters of the state that are not covered and uncovered by the tides.(fn2) Winston Bros. Co. v. State Tax Comm., 156 Or. 505, 510-511, 62 P.2d 7, cert, denied 301 U.S. 689 (1937). At common law, in England, title to the shore of the sea and to the arms of the sea and the soil under tide water was vested in the king. The king had a proprietary interest in the tidelands which he could grant or dispose of subject to the public use for navigation and commerce. This proprietary interest in tidelands which could be acquired by the king's subjects by patent or prescription was known as the jus privatum. The right of the public to use the public rivers and arms of the sea for navigation and commerce was known as the jus publicum. The acquisition of the jus privatum by a subject could not interfere with the jus publicum. Lewis v. City of Portland, 25 Or. 133, at 158-159, 35 P. 256 (1893). When the State of Oregon was admitted into the Union the tidelands became its property and subject to its jurisdiction and disposal, the state's title being subject to the paramount public right of navigation and commerce. Bowlby v. Shively, 22 Or. 410, 427 (1892), affm'd 152 U.S. 1. Upon achieving state-848hood, the power to define the relative interests of the public and private persons in its tidelands devolved upon the state. Bowlby v. Shively, supra, 22 Or. at 427, 152 U.S. at 26, 40, 57-58. As to the right of the state to dispose of its tidelands the court in Lewis v. City of Portland, supra, 25 Or. at 159, 35 P. 256 commented:

". . . In this country the state has succeeded to the ownership and sovereignty over such lands [tidelands], charged with a like public trust; and the law is now regarded as settled that the state, by virtue of its sovereignty, is regarded as the owner of lands covered by tide water, and, as an incident of such ownership, has the right to use or dispose of them in such way as will not impair or prejudice the public interests or privileges, such as fishing, navigation, and commerce . . ." (emphasis supplied)

Pursuant to the power to dispose of the jus privatum in its tidelands the state provided for the sale and disposal of its tidelands by the Act of 1872, Laws 1872, 129 and amendments thereto, Laws 1874, 77, Laws 1876, 70.(fn3)850Section 6 of that Act provided as follows:

"Nothing in this act provided shall prevent the legislature of this state or the corporate authorities of any city or town thereof, from regulating the building of wharves or other improvements in any bay, harbor or inlet

849of this state; and nothing in this act provided shall be construed as a grant of an exclusive right to any person or persons to use the natural oyster-beds of this state, but the grantee of any land in this state under this act, shall hold same subject to the easement of the public as provided by the existing laws of this state to enter thereupon and remove, under the provisions and restrictions of the laws of this state oysters and other shell-fish therefrom." (Deady and Lane, General Laws of Oregon, 1843 - 1872; Misc. Laws, c. 29, title 6, § 74, 645-646). (emphasis supplied) Thus in the very first Tidelands Sale Act the legislature explicitly(fn4) recognized the overriding importance of the jus publicum by declaring that grants of tidelands under the Act (1) would not prevent the legislature or municipal authorities from exercising such dominion over the tidelands that had been disposed of by the state as was necessary to regulate the building of wharves or other aids to navigation in any bay, harbor or inlet of this state and (2) did not abrogate the public's right to enter upon the tidelands and remove therefrom oysters and other shellfish under such regulations as had then been provided.(fn5) This provision has been succeeded by ORS 274.060 which provides:

"(1) Nothing in ORS 274.040 prevents the Legislative Assembly from providing for regulation of the

850building of wharves or other improvements in any bay, harbor or inlet in this state, subject to ORS 780.060, or grants the exclusive right to any person to use the natural oyster beds of this state.

"(2) The grantee of any submersible lands under ORS 274.040 shall hold the same subject to the easement of the public, under the provisions and restrictions of law, to enter thereon and remove oysters and other shell fish therefrom." (emphasis supplied)(fn6)

851In our opinion ORS 274.060 and its forerunner in the tidelands sale act merely state a portion of the fundamental common law principle that whatever rights a private party may acquire in tidelands are subject to the jus publicum or public right of use which is retained by the state and which includes among other public rights(fn7) the public rights of navigation, commerce and fishery.(fn8) Johnson v. Jeldness, 85 Or. 657, 659, 660-661, 167 P. 798 (1917); Corvallis & Eastern R. Co. v. Benson, 61 Or. 359, 369, 370, 121 P. 418 (1912), Harrison v. Pacific Ry. & Nav. Co., 72 Or. 553, 558, 144 P. 91 (1914); Anderson v. Columbia Contract Co., 94 Or. 171, 182, 184 P. 240 (1919). This common law public right of use of navigable waters, 852the jus publicum, has been legislatively recognized in Section 2, of the Oregon Admission Acts, 11 Stat. 383 (1859) which provides:

"That the said State of Oregon shall have concurrent jurisdiction on the Columbia and all other rivers and waters bordering on the said State of Oregon, so far as the same shall form a common boundary to said State, and any other State or States now or hereafter to be formed or bounded by the same; and said rivers and waters, and all the navigable waters of said State, shall be common highways and forever free, as well as to the inhabitants of said State as to all other citizens of the United States, without any tax, duty, impost or toll therefor." (emphasis supplied)

Of this provision the court declared in Johnson v. Jeldness, supra, 85 Or. at 661, 167 P. 798:

"This section is declarative and preservative of the jus publicum including the public right of navigation and fishery. .

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