In a petition for rehearing, the defendant, respondent here, asserts that in our former opinion we misconstrued the statute of 1872 (General Laws 1872, page 129) as amended by General Laws 1874, page 76, and further amended by General Laws 1876, page 69, in holding that the grant by the state of Oregon of the bed of navigable portions of Willamette river between high and low water marks to the owners of riparian lands along such parts of the Willamette river did not apply to the United States as owner of lands abutting that river.
The 1872 enactment referred only to the sale of tide lands belonging to the state, but since we are concerned with the subsequent amendments of that act and with the interpretation to be given the word "owners" *Page 351 as therein used, we shall now direct attention to the preamble of the 1872 act, reading as follows:
"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 inlets; and
"Whereas, such encroachments can be prevented only at great expense and by occupying and placing improvements upon the tide and overflowed lands belonging to the state; and
"Whereas, it is desirable that facilities and encouragement 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; . . ."
This is succeeded, after the enacting clause, by § 1, which was amended in 1874 so as to include the grant of lands between high and low water marks along the navigable portions of Willamette river. This section as amended in 1874 thus reads:
"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 of the same, and rivers and their bays, in which the tide ebbs and flows, within this state, shall have the right to purchase all the tide land belonging to this state in front of 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 marks, for a period of three years from the approval of 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 said Willamette river is *Page 352 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."
The language beginning with the words "provided further" is the new matter added by the 1874 amendment. There was also some change made in the first part of § 1, which is not here material. This section was further amended in 1876 to include with the Willamette these rivers: Coos, Coquille and Umpqua.
Section 5 of the 1872 act was also amended in 1874, and in both original and amended forms refers merely to the sale of tide lands. As amended it provides generally that if "any person or persons who, at the passage of the act of which this act is amendatory, were entitled to purchase any tide lands under the provisions of section 1 thereof," shall not have applied to purchase the same within three years after the passage of the original act, then "any other person who is a citizen and resident of the state of Oregon" may make application to purchase such tide lands. This section as amended in 1874 concludes as follows:
". . . Provided further, that if the United States has parted or shall part with its title to any lands of which, at the passage of the act of which this is amendatory, it was the owner, the grantee of such lands shall have three years after perfecting his title from the United States to apply for 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 three years, or having made such application shall fail to prosecute the same according to law, such tide land shall be open to purchase by any other person who is a citizen and resident of the state of Oregon." *Page 353
In construing the statutes involved herein we must ascertain, if possible, what was the intention of the legislature in enacting them: § 2-217, O.C.L.A. It is also proper to take into consideration the historical background of the legislation:Superior Oil Syndicate v. Handley, 99 Or. 146, 195 P. 159. With reference to the statutes hereinabove mentioned, this court, inBowlby v. Shively, 22 Or. 410, 416, 30 P. 154, said:
"These statutes are based on the idea that the state is the owner of the tide lands and has the right to dispose of them; that there are no rights of upland ownership to interfere with this power to dispose of them and convey private interests therein, except such as the state saw fit to give the adjacent owners, and to acknowledge in them and their grantees when they had dealt with such tide lands as private property, subject, of course, to the paramount right of navigation secured to the public."
Elsewhere in the same opinion the court also observed, "but, in consideration of the fact that prior to 1872, as it would seem, these lands had been dealt with as private property, and sometimes improved by expensive structures, the acts further provide in such cases, that where the bank owners had actually sold the tide lands, then the purchaser of the tide lands from the bank owner, or a previous bank owner, should have the right to purchase from the state." It was undoubtedly due to the fact that many riparian owners along the Willamette, Coos, Coquille and Umpqua rivers had treated the river beds between high and low water marks as private property and had sometimes improved such parts of the river beds by the erection of expensive structures, that the legislature amended the 1872 enactment so as to protect them and their investments by making a grant of the beds of *Page 354 those rivers above low water mark to the riparian owners: Lewisv. City of Portland, 25 Or. 133, 35 P. 256, 22 L.R.A. 736, 42 Am. St. Rep. 772.
The legislature was concerned with private ownership of property abutting upon tide lands and property adjacent to the beds of certain designated navigable rivers. It was not concerned with the United States as owner of any such lands. In that part of the enactments referring to the purchase of tide lands, it is obvious that the legislature did not use the word "owner" as including the United States, for in § 1 of the acts, original and amended, it granted to those who had made improvements upon tide lands before title to the shore land passed from the United States a definite period after the date of the enactment in which to make application for purchase of the tide lands; and in § 5 it provided that any grantee of the United States government should have a certain period "after perfecting his title from the United States" in which to apply to purchase the tide land in front of his property acquired from the federal government. It may be noted in this connection that the act did not grant to a settler the right to purchase the tide land until after he had received a patent from the federal government.
We must assume, with nothing to the contrary shown, that the legislature in granting and confirming to riparian owners title to parts of the beds of navigable rivers used the words "owner" and "owners" in the same sense that they were employed in the same act with reference to the purchase of tide lands. The wording of the preamble to the original act, and of the act and its amendments, clearly indicates that the legislature did not have in mind the United States as a purchaser of tide lands. Furthermore, in the provision *Page 355 relating to owners of property adjacent to the beds of certain rivers the amended act provides that the title of the state "is hereby granted and confirmed to the owners of adjacent lands", and such owners must accordingly be understood to be those asserting claims to parts of the river beds. The United States government was not, at the time of the passage of these acts, claiming any title to the beds of the navigable streams herein mentioned.
The state of Oregon upon its admission to the Union became the owner of the tide lands and beds of navigable waters within its boundaries, not as grantee of the United States but by virtue of its own sovereignty. The tide lands and the soil beneath navigable waters were not "granted by the Constitution to the United States, but reserved to the states respectively":Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212, 229,11 L. Ed. 565; Bowlby v. Shively, supra.
In Pollard's Lessee v. Hagan, supra, it was contended that by reason of declarations contained in the compact entered into between the United States and the state of Alabama when the latter was admitted into the Union, Alabama had transferred or relinquished to the federal government all rights to the beds of navigable waters within that state. The court denied that the compact had any such effect, stating:
". . . In the case of Martin and others v. Waddell, 16 Pet., 410, the present chief justice, in delivering the opinion of the court, said: `When the Revolution took place, the people of each state became themselves sovereign; and in that character hold the absolute right to all their navigable waters, and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution.' Then to Alabama belong the navigable waters, and soils under them, in controversy in this case, subject *Page 356 to the rights surrendered by the Constitution to the United States; and no compact that might be made between her and the United States could diminish or enlarge these rights.
* * * * * ". . . To give to the United States the right to transfer to a citizen the title to the shores and the soils under the navigable waters, would be placing in their hands a weapon which might be wielded greatly to the injury of state sovereignty, and deprive the states of the power to exercise a numerous and important class of police powers. But in the hands of the states this power can never be used so as to affect the exercise of any national right of eminent domain or jurisdiction with which the United States have been invested by the Constitution."
The grant of the bed of the river between high and low water marks to owners of adjacent property applies not only to the Willamette river but to three other navigable rivers in Oregon. To construe the statutes of 1872, 1874, and 1876 as including the United States among such owners, as contended for by the defendant, would be contrary to the intention of the legislature and might entail the possible consequences noted in the excerpt last above quoted. We adhere to our former opinion that the statutes here involved did not grant or confirm title in the United States government to any parts of the beds of navigable waters in this state. The word "owners" as used in the statutes referred to the grantees of the United States government and their successors in interest.
In our former opinion we refused to consider the question of laches, as not timely presented. The respondent urges in his petition for rehearing that we give this matter further attention. Aside from the question of whether the defense of laches is available *Page 357 against the state in a case of this nature, upon which we express no opinion, our view is that there is nothing in the record that would estop the plaintiff from maintaining this suit.
The defendant began operations in the autumn of 1926. The original complaint was filed May 5, 1938, and the second amended complaint was filed on August 19 of the same year. The clerk of the state land board had made an effort to obtain an audit of the defendant's books, which the defendant would not permit. It is not shown that the plaintiff in any way led the defendant to believe that it acquiesced in his operations, nor does it appear that the defendant made any improvements or expenditures in reliance upon the failure of the plaintiff sooner to institute this suit. The plaintiff would not be barred by the statute of limitations, § 1-211, O.C.L.A., from maintaining an action at law to collect the reasonable value of sand and gravel removed by the defendant. In view of the facts in the case, we believe that the defendant has not in any way been prejudiced by the plaintiff's delay in litigating its claim.
Further, we find no merit in the defendant's assertion that the conduct of plaintiff's counsel in the circuit court prevented the defendant from introducing evidence as to the time when title to Ash island passed from the United States into private ownership.
The petition for rehearing is denied.
RAND, J., dissents. *Page 358