OREGON COAL & NAVIGATION CO. v. ANDERSON et al., 206 F. 404

MORROW, Circuit Judge (after stating the facts as above). [1] It is contended by the defendant that the plaintiffs have mistaken thoir remedy; that the controversy between the parties is as to the boundary line between their respective lots, and the conflicting littoral or riparian rights of the parties growing out of this alleged disputed boundary line; and that such a controversy should be determined by an action at law.

Neither the allegations of the complaint and answer, nor the maps introduced in evidence showing the relative locations of the lots owned by the plaintiffs and the tract of land owned by the defendant, show any conflicting boundary line at any point between the two tracts on the upland, or at any point above mean low tide.

It is true that the plaintiffs allege in their complaint that their lots “are bound - ed on the easterly and northerly side by low-water mark of Coos Bay,’’ and the defendant in its answer alleges that the northwesterly side line of its tract runs “due north to low-water mark of Coos Bay.” There is also in the record the testimony of two surveyors to the fact that the northwesterly side line of defendant’s tract of land, project* ed from the point of beginning, in the line of its direction, due north to extreme low tide in Coos Bay, would intersect the southeasterly side line of lot 17, owned by the plaintiff Herron, at extreme low tide.

One of these witnesses testified that at extreme low tide the defendant's northwesterly side line would cut into lot 17 five or six feet, but at ordinary low tide the lines would not touch. The other witness testified that at extreme low tide the defendant’s side line would probably touch the southwesterly side line of lot 17 three or four feet, but at ordinary low tide they would not touch.' Plaintiffs’ lots are each 25 feet wide and approximately 100 feet in length, if extended to the mean low-water line of Coos Bay.

The lots in their length are at right angles to the shore line, as are all the lots in block 65. The defendant’s tract of land is triangular in shape. The northwesterly side line running due north, from the point described in the answer as the point of beginning, has a measured length of 440.3 feet to mean low tide. The southerly side of the tract, running due east from the same point of beginning, is about 300 feet long, and the line along the shore is about 550 feet long.

These last two measurements are estimated from the maps and are only approximately correct, but they indicate the triangular shape of the defendant’s tract of land; that it has a shore line of approximately 550 feet; and that its northwesterly side line projected due north from the point of beginning would add to this shore line and at some point in the bay, below mean low tide, would pass in front of the lots in block 65 in which is located plaintiffs’ lots. But this line below mean low tide is not a “disputed boundary line/5' within the meaning of the law relating to upland boundaries.

These upland boundaries are not in dispute here,, and the projection-of defendant’s northwesterly side line from the shore, at an angle other than that of a right angle to the shore line or line of navigable water, as a boundary for defendant’s littoral or riparian right, would be manifestly unjust to other littoral or riparian owners, and is a claim that can find no support in defining the defendant’s littoral or riparian rights under any law known to the court. 'In Oregon the upland owner bordering upon a navigable stream or tidewater owns only to the high-water line. The shore belongs to the state.

Montgomery v. Shaver, 40 Or. 244, 247, 66 Pac. 923; State v. Portland General Electric Co., 52 Or. 502, 519, 95 Pac. 722, 98 Pac. 160; Switzler v. Earnheart, 59 Or. 344, 346, 117 Pac. 296; Shively v. Bowlby, 152 U. S. 1, 52, 14 Sup. Ct. 548, 38 L. Ed. 331. In Gould on Waters (3d Ed.) § 149, the littoral or riparian right is stated as follows: “A littoral proprietor, like a riparian proprietor, has a right to the water frontage belonging by nature to his land, although the only practical advantage of it may consist in the access thereby afforded him to the water, for the purpose of using the right of navigation.

This right of access is his only, and exists d>y virtue and in respect of his riparian property. It exists, in the case of tidewaters, even when the shore is the sovereign’s property, both when the tide is out and when it is in.

It is distinct from the public light of navigation, and an interruption of it is an encroachment upon a private right, whether caused by a public nuisance, or authorized by the Legislature.” The state of Oregon has provided by statute that the owner of any land in the state lying upon any navigable stream or other like water, and within the corporate limits of any corporate town, may construct a wharf or wharves upon the same, and extend such wharf or wharves into such stream or other like water beyond low-water mark as far as may be necessary and convenient for the use and accommodation of any ships or other boats or vessels that may or can navigate such stream or other water.

Section 5201, Eord’s Oregon Code. Whether Nasburg’s. addition to the town of Marshfield, in which defendant’s tract of land is located, is an incorporated town or not, does not appear from the record; nor is it material to this controversy. The littoral or riparian right would not be greater for land lying outside of an incorporated town than within it. It would not give the riparian owner the right of access or the right to wharf out into the stream except in front of his own upland. Montgomery v. Shaver, supra.

The defendant’s proposed structure in front of plaintiffs’ lots was therefore without any color of right, and if completed would have cut off the plaintiffs’ right of access to their lots ón the shore from the navigable waters of the bay. The plaintiffs by reason of owning the upland are entitled under the law of Oregon to access to the navigable part of the bay to and from the front of their lots. The defendant’s structure would have deprived the plaintiffs of this access, and their remedy is in equity to have the defendant enjoined from its construction. The decree was therefore correct, and must be affirmed.