U.S. Supreme Court U.S. v. STATE OF OREGON, 295 U.S. 1 (1935)

[Page 295 U.S. 1, 17]

between three and four feet in depth. [Footnote 2] The areas which would be covered by water of depth sufficient to float boats are shown not to be continuous enough to afford channels or waterways capable of use in navigation. At a surface elevation of 4,093 feet the water is so shallow for long distances from the meander line as to preclude passage over it by boats and with the water reduced to lower levels by seasonal evaporation the same area becomes mud or dry land. With a reduction of only one foot in water surface elevation, approximately 11,716 acres, otherwise covered by water, becomes mud or dry land, and other marked changes in the distribution of depths are produced. With the reduction in water surface attending the usual dry season of the summer, much of the area is made up of small lakes or ponds, separated by mud or dry land.

[Page 295 U.S. 1, 28]

any limitation or restriction on that control. Wilcox v. Jackson, 13 Pet. 498, 516, 517; Gibson v. Chouteau, 13 Wall. 92, 99; see Brewer-Elliott Oil & Gas Co. v. United States, supra, 260 U.S. 77, 88, 43 S.Ct. 60; United States v. State of Utah, supra, 283 U.S. 64, 75, 51 S.Ct. 438. The construction of grants by the United States is a federal not a state question, Packer v. Bird, 137 U.S. 661, 669, 670 S., 11 S.Ct. 210; French-Glenn Live Stock Co. v. Springer, 185 U.S. 47, 54, 22 S.Ct. 563; Chapman & Dewey Lumber Co. v. St. Francis Levee District, 232 U.S. 186, 196, 34 S.Ct. 297, and involves the consideration of state questions only in so far as it may be determined as a matter of federal law that the United States has impliedly adopted and assented to a state rule of construction as applicable to its conveyances. See State of Oklahoma v. Texas, supra, 258 U.S. 574, 594, 595 S., 42 S.Ct. 406; Utah Power & Light Co. v. United States, 243 U.S. 389, 404, 37 S.Ct. 387. In construing a conveyance by the United States of land within a state, the settled and reasonable rule of construction of the state affords an obvious guide in determining what impliedly passes to the grantee as an incident to land expressly granted. But no such question is presented here, for there is no basis for implying any intention to convey title to the state.

The state, in making its present contention, does not claim as a grantee designated or named in any grant of the United States. It points to no rule ever recognized or declared by the courts of the state that a grant to individual upland proprietors impliedly grants to the state the adjacent land under water. [Footnote 3] The only support for its claim is the statute of 1921, adopted subsequent to

[Page 295 U.S. 1, 29]

every grant of the United States involved in the present case. The case is not one of the reasonable construction of grants of the United States, but the attempted forfeiture to the state by legislative fiat of lands which, so far as they have not passed to the individual upland proprietors, remain the property of the United States. Such action by the state can no more affect the title of the United States than can the similar legislative pronouncements that streams within a state are navigable which this court has found to be nonnavigable. See State of Oklahoma v. Texas, supra; United States v. State of Utah, supra, 283 U.S. 64, 75, 51 S.Ct. 438; United States v. Holt State Bank, supra, 270 U.S. 49, 55, 56 S., 46 S.Ct. 197.

The master correctly found that there were no facts or circumstances to establish, as matter of fact, any intent on the part of the United States to abandon or surrender its claim to any part of the area within the meander line.

We accordingly accept the findings and determination of the special master, to which the government does not except, as to the title and interest of the state of Oregon in Mud Lake and in Division B of the Narrows, and conclude that the state has no right, title, or interest in any part of the remainder of the area, which is superior to that of the United States. The United States is entitled to a decree in conformity with this opinion, and also with the decree recommended by the special master so far as it is not inconsistent with this opinion, quieting its title and possession, as against the state of Oregon, to such remaining area within the meander line boundary of the five divisions.

The parties, or either of them, if so advised, may, within thirty days, submit the form of decree to carry this opinion into effect, failing which the court will prepare and enter the decree.

It is so ordered. Footnotes

Footnote 1

Malheur Lake Acres (a) Pelican Island 840.0 (b) Cole Island 350.0 (c) All other Islands 4,921.6 (d) Promontories 1,880.0 ___ Total 7,991.6 The Narrows Islands 21.2 Mud Lake Islands 88.0 Sand Reef Islands 1,227.0 ___ 9,327.8

Footnote 2 The evidence establishes the following data with respect to Lake Malheur with water surface at an elevation of 4,093 feet:

Acres Lands under water of 1 foot, or less 11,715.8 Lands under between 1 and 2 feet 10,126.6 Lands under between 2 and 3 feet 6,988.4 Lands under between 3 and 4 feet 10,821.2 Lands under between 4 and 5 feet 26.8 ___ Lands under water 39,678.8 Lands above water surface 7,991.6 Total 47,670.4

Footnote 3 By section 63-102, Oregon Code Annotated, 1930, enacted in 1862, and by judicial decision, Micelli v. Andrus, 61 Or. 78, 85, 120 P. 737, conveyances of upland bounded upon nonnavigable streams carry to the middle or thread of the stream. of fact, any intent on the part of the United