Rehearing denied November 8, 1908.
On Petition for Rehearing.
Mr. Justice Eakindelivered the opinion of the court.
30.It is suggested, by the petition for rehearing, that the court is not justified in holding that Act 1870 (Laws 1870, p. 14) authorized the construction of the locks, and gave authority to operate them and collect tolls thereon, and that the first company did not have these powers and rights by virtue of its articles of incorporation. • The Willamette River is a public navigable stream, a public highway, the title to the bed and banks of which *531is in the State, for the benefit of the public: Johnson v. Knott, 13 Or. 308 (10 Pac. 418) ; Pollard’s Lessee v. Hagan, 3 How. 212, 219 (11 L. Ed. 565) ; Railroad Co. v. Schurmeir, 7 Wall. 272 (19 L. Ed. 74).
31. The State has the right to improve this highway for the purpose of navigation. It may do this itself, or it may delegate to another the authority to do so.
32. But without this delegated authority from the State, no company can acquire the right, by filing articles of incorporation, either to improve it or to collect tolls for the use of such improvements, even when such a purpose is specified in those articles: 21 Am. & Eng. Enc. Law (2 ed.), 434b, and authorities cited; 29 Cyc. 298, 304. In Boykin v. Shaffer, 13 La. Ann. 128, 131, in discussing the right to collect tolls upon a navigable stream, the court say: “It must be considered that the defendant could not without authority, charge toll for the use of a lock which he had erected.- Such a right would be a franchise which the sovereign alone could confer.” See, also, Monongahela Nav. Co. v. United States, 148 U. S. 312, 329 (13 Sup. Ct. 622: 37 L. Ed. 463); Sands v. Manistee R. Imp. Co. 123 U. S. 288 (8 Sup. Ct. 113: 31 L. Ed. 149).
33. The right to improve such a highway is a franchise that, unless authorized by the general statutes under which the corporation is organized, is not acquired by the act of incorporation. There must be authority from the State.
34. This answers the objection also, that the act of 1870 is an amendment to the articles of incorporation of the first company. It is a special grant of a franchise, one which could not be acquired by the specification thereof in the articles, and is not the creation of a corporation by a special law, which is forbidden by the constitution.
35. Section 2 of the act of 1870 provides that “in order to entitle the said corporation to receive the sum of *532money hereby agreed to be paid, it shall be the duty of said corporation to construct a canal and locks. * * And after the completion of the same, the said corporation shall pass without delay * * all steamboats,” etc. The term “duty to construct” is more comprehensive than a grant of authority, and includes it; and to say that the company “shall not charge a greater rate of toll than 50 cents per ton” is equivalent to saying that it may charge that much. A court probably would not hesitate so to construe it against the State, if it were denying that the' company had such authority. The railroad cases cited by the counsel for defendant, to the effect that a charter to construct and operate the railroad carries with it the right to charge fares and freights, are hardly in point. The railroad company is the exclusive owner of the transportation line. It is a private road, the operation of which is for the purpose of rendering public service; but, to use an illustration suggested by the judge, in Boykin v. Shaffer, 13 La. Ann. 129, 131, if a company filed articles of incorporation for the purpose of building a bridge on a public highway where one may be needed, it could hardly be urged that it could control the bridge or collect tolls thereon without some authority from the county.
36. Counsel refer to the ferry franchise in the case of Multnomah County v. Knott, 6 Or. 279; but no corporation, by virtue of its articles of. incorporation, could acquire a ferry franchise. It must be acquired by special grant, unless there is a general statute covering such a case.
37. And these provisons of the act of 1870 are not in violation of Constitution, Article XI, Section 2. To use counsel’s own words, at page 29 of the petition: “There is no prohibition in the Oregon constitution against granting a franchise to operate a ferry or a canal or locks, and to collect tolls.” Counsel say that by the answer it is alleged that the defendant is the owner in *533fee of the canal and locks, and that for the purposes of the demurrer this must be taken as true; but the court will take judicial knowledge of the fact that the defendant could acquire the fee to the property only by a legislative grant. It could not be acquired in any other way; and therefore the allegation cannot.be taken as true.
38. Counsel also insists that, by reason of the defendant being the owner of the upland, he owns to the middle of the stream, citing Weiss v. Oregon Iron & Steel Co. 13 Or. 496 (11 Pac. 255). In that case the only holding is that Weiss was a riparian owner; not that he owned the bed of the stream. That case is cited to this effect by Mr. Chief Justice Bean in Johnson v. Tomlinson, 41 Or. 198, 200 (68 Pac. 406), where he says: “Under the law as settled in this State, where a stream is intended to be meandered by public surveys, the stream, and not the actual meander line as run on the ground, is the true boundary of the riparian owner: Minto v. Delaney, 7 1 Or. 337; Weiss v. Oregon I. & S. Co. 13 Or. 496 (11 Pac. 255) ; French Glenn L. S. Co. v. Springer, 35 Or. 312 (58 Pac. 102). It is stipulated and agreed that plaintiff is the owner of a certain described portion of lot 10, and as a consequence it necessarily follows from the rule stated that his title is not confined to the meander line, but extends to the stream, and includes all of the upland, if any, between the meander line and the line of ordinary high water.” It is held in Johnson v. Knott, 13 Or. 308 (10 Pac. 418), citing Railroad Co. v. Schurmeir, 7 Wall. 272 (19 L. Ed. 74), that the point to which the water usually rises, in an ordinary season of high water, is the meander line, and that this line forms the boundary of the title of the United States.
39. This question is settled in Montgomery v. Shaver, 40 Or. 244, 247 (66 Pac. 923, 924), as follows: “It is suggested that the shore owner of uplands takes to low-water instead of ordinary high-water mark, but the rule to the contrary has been so firmly established in this *534jurisdiction, that it is unnecessary to treat the question further than to cite the cases in which it was involved: Parker v. Taylor, 7 Or. 435; Wilson v. Welch, 12 Or. 353 (7 Pac. 341) ; Johnson v. Knott, 13 Or. 308 (10 Pac. 418) ; Bowlby v. Shively, 22 Or. 410 (30 Pac. 154) ; Astoria Exchange Co. v. Shively, 27 Or. 104 (39 Pac. 398: 40 Pac. 92) ; Shively v. Bowlby, 152 U. S. 1 (14 Sup. Ct. 548: 38 L. Ed. 331)."
40. The articles of incorporation of the defendant created in it no new or independent franchise on the river. They only put the defendant in a position to succeed to the franchises of the second company; and, when it took over those franchises, it took them with just such Durdens as were upon them in the hands of the first and second companies. Its articles of incorporation gave it no new or additional rights, nor in any manner enlarged the franchises.
41. The validity of this act of 1870 does not depend upon the legislative authority to appropriate to the school fund the 10 per cent of the net profits. If the legislature had no such power, that does not detract from its authority to exact a share of the profits of the canal and locks as a burden upon the franchises. Section 5 of the act provides that the company shall pay to the State this 10 per cent; and the questions here involved have nothing to do with the State’s disposition of the money when paid. These questions, as well as others mentioned in the petition, we deem fully answered by the opinion, to which we adhere.
The petition is denied.
Reversed : Rehearing Denied.