dissenting.
A deed dated April 8, 1875, executed by the State of Oregon in favor of Ira Dodson, defendants’ predecessor *146in interest, conveyed title to two lots. The question in this case is whether this deed also conveyed title to tideland that all parties agree adjoins those two lots.
The opinion of the trial court and the majority opinion in this court both state or imply that: (1) had the 1875 conveyance to Dodson been from a private grantor, defendants would now have title to the adjoining tideland under the rules stated in McAdam et ux v. Smith et al, 221 Or 48, 350 P2d 689 (1960), Fossi v. Myers, 271 Or 611, 533 P2d 337 (1975), and ORS 93.310(5); but (2) the fact that the 1875 conveyance was from the state changes the result. I am unable to perceive any persuasive basis for this distinction producing a different result.
Oregon General Laws 1872, pp 129-33, is not relevant because it only applied to tideland at "the shore of any bay, harbor or inlet, on the sea coast of this State.” Oregon General Laws 1874, pp 76-79, for the first time authorized sale of tidelands on "rivers * * * in which the tide ebbs and flows.” Contrary to the majority’s reasoning, it seems to me that this helps rather than hurts the defendants’ claim to title.
Aside from the authorization to sell, the principal thrust of the 1872 and 1874 statutes was to give private owners of upland a right of first refusal regarding purchasing adjoining tideland. But until the 1875 conveyance to Dodson, the state, not a private party, was the owner of the upland adjoining the tideland, title to which is here disputed. For this additional reason, these statutes seem irrelevant to me.
Alternatively, if the 1872 and 1874 statutes are of any relevance, I have two further disagreements with the majority. First, the majority seems to hold that when there is noncompliance with statutes governing procedures for sale of state land, a good-faith purchaser does not acquire title. The majority cites no authority for such a harsh rule — and in the absence of controlling authority, I would reject such a rule on *147the ground that it is grossly unfair. Second, assuming the validity of the majority’s rule on procedural noncompliance, the question arises as to where the burden of proof lies. The majority seems to hold that it behooves the defendants to prove that the state as grantor and their predecessor in interest as grantee, in a more than 100-year-old transaction, complied with applicable statutory procedures. If such is the rule, every citizen whose chain of title includes a conveyance from the state, by deed valid on its face, can have his title defeated by being unable to produce evidence about the procedures followed at the time of the (possibly ancient) grant from the state.1
There are several policy issues lurking in this case. One is this: The greater the difference between the rules governing property transactions involving private parties and transactions involving the state, the more uncertainty is introduced into property transactions involving the state, which will ultimately manifest itself in the form of reduced marketability of state-owned property. All judges that have considered this case seem to agree that Dodson’s 1875 deed would be construed differently if it were from a private grantor. McAdam et ux v. Smith et al, supra. I would apply the same rule to the state as grantor.
I respectfully dissent.
Perhaps this is the evil ORS 273.900 was intended to eliminate:
"The titles to all tide lands within this state * * * which have been heretofore sold to purchasers by the State of Oregon * * * are hereby confirmed * *
Cf., Van Dusen Inv. Co. v. Western Fishing Co., 63 Or 7, 124 P 677, 126 P 604 (1912).