1
THE OREGON SUNDAY . JOURNAL, . PORTLAND, . SUNDAY ..MORNING, - NOVEMBER 16, '
JT DRAFTED TO SECURE THE
. DEDICATION OF HARBOR RIGHTS TO PUBLIC
J, B, Zeigler Interests Senator Lane, in Measure Which pe-
f ; fines Publjc Highways and Provides for Their Con-- V
; " V trol oh Behalf of the People.' 1 -' .
113.
' . The dedication of harbor right to ths
people Is the fundamental purpose of an
. which j. b. ziegier would nave
Hen(or ! Lane " Introduce; In congress.
.Vhe, act declares that all navigable wat
ers FhatI be deemed public highway and
, subject to federal control, and " pra-
ocrlbea what shall be construed the
, ., boundaries of such navigable waters and
the rights of commerce and navigation
pertinent to "them. The text of the act
That all navliiihla wratara inA eaf.il
' arles thereof which are or may become
( -userui ror navigation 'and terminals
shall be deemed public highways and
fcubject to' the control of Congress aa
..... vested In the war department, and that
, the boundary of said waters snail be the
; ill Kb water markr including all the nut
'ural bed of the. stream (and exclusive of
overflows over the natural banks) for
, ,'ui poses oi commerce-ana .navigation.
Hlghts for commerce and f navigation
.. fliall Include all Improvement for Inter
locking water transportation lines with
land lines, such as wharves,, rail tracks
and transfer machinery,. -Any fills above
ordinary nigh water lines artificially
inade, or natural fills eaused by artifl-
vuiai nils or obstructions or structures,
or fills made bv avulsion of floods shall
.. not affect the boundaries - of public
waters woicn in port terminal ana as
such other as may be designated by con
, frees shall be defined by fixing mean-
ucr lines.
Senator Kane favorable to Aet.
In a letter to Mr. Ziegler from Wash'
ington. Senator Lane says:. v,
"The question of the harbor rights la
very Important. You need have no fear
but that I, will do all I can to restore
to. me people the property there (in
Portland) or any other property er
rights to which they are justly entitled.
I will take a cony of the bill to the en-
Si neer's office here and see what I can
do toward getting them to atand by 'me
after It Is Introduced.". , .
-In correspondence with the war de
partment, Mr. Zleglar has gone over the
history of Portland's harbor and sub
Joined la a letter from Secretary Garri
son to Mr. Ziegler snd the latter's reply
to the head of the war department.
Secretary Garrison's letter.
.ar Department, Washington. D. C,
Oc t. 81, 1918. The receipt la acknowl
edged of the following- communications
from you concerning the occupation of
the foreshore between the harbor lines
and ordinary high water line, relocation
of the harbor lines and related subjects
ma naruor or r-oruana. uregon:
Letter dated August 8, 1913, addressed
iu vrrmj-ni i,t'unnra rvoou.
. Telegram October 1913, addressed
i me secretary oi war.
Letter October 9, 1913, addresaed to
the Secretary Of War.
letter October 10. 1913, addressed to
of harbor fine at Pittsburg. Pa.. Involved
ip the case of The Philadelphia Co, Vs.
it mson. Secrets ry of War. is not en
"'wrwt T-lie harbo? jlne was not
hstw,-tt& L?.a,t f half .way
thi k.th '.. n its new position
eha5iri2Li',lnJ" VM ' "Pm distance
S2Sni!,wr? ot tho shore tine at a com.
Ef!Jlve.ljr low Bt " whirvea- nor
rUtrtoturT -"ad bn but out to
iT-awi orlginsvlly located, At Port"
lane tha nrlnrfnal nho.l..l .
W5tpway had been accomplished
The. law uiuiw m-KUt, t..v.. ...
S:U"'5h1 podlfisd reiuiei thit It
?lTv. V ln secretary of
.V thst proposed lines are essentia.! ta
Car DO P. A lfhAPsil 4narr.tiAlaHnn I.
n to tnl-reaulremetitv mrA thai ..1,
5SSS.W!9 .! developmerTt of
through Portland ia aWut 1 00 feefv' At
Its "narrowest point (the old ateel
urwgs,. in ns original -oondltlon, the
sww reev ana la now. out suv,
The natural Width haa hnn varv muo'i
Snoroaohed unon h h Aamtmntlnn nt
iwimrvwa una onages. 'f ,
By . way of apology for Interfering to
such alight extent with these encroach
ment,, the report goes on to state "that
jne son cnaracter of the rivers bottom
has permitted erosion until the- cross
section area at this point -Is actually
eresiar man it was oerore. ' xnis, jiow
ever, only nrovea that ,h ahnnnn&l mn.
Strict Ion only operated to raise a head
watK"iw"n nver aoove tnia point untu
a corapeHsa0ng area had been produced
by an a b not-mat increase In 'depth, due
to the wash. , append herewith a re
port I made on this condition and pub-
lished in The Oregon Journal April
19U. YouwtU' observe by the
table given therein that the "slope" of
ine river causea ny l)ie contraction at
this Point ran m tram I I rajiimt m t-l vm-
state of .tf.4 feet above mean low water
td I fftl It ill f. (1 M .At 171
fast, whilelat the highest flood 2 1 feet
no recoroe are available, a is Toot rise
Is called the flood stage. . Bo we have a
slope of S feet in. two nrtlts for less
ltml wy! bt. m view of tha
?ESPtJ?. the tw. bwird n 9t the die"
the Secretary of War.
It appears that the first United States
harbor lines at Portland were estab
lished In 1892, on the recommendation
of a board of engineer officers, after
thorough consideration of the whole
subject. Tou refer to the report of that
board, snd may know that special atten
tion was given to the question of widening-
at the narrow places, and the board
reached the conclusion that the removal
of structures to accomplish such widen
ing "does not now seem to be warranted
by the necessities of th cans." it
also stated with reference to the narrow
section at the steel bridge "by con-
irncimK ine wiatn or me river v
coui-lng has been induced, to such an ex
than a flood ataae.
This constitutes a serious Ininrv to
navigation also, so much so that, added
to that of. the draw bridges above the
point. It la used as an argument for
aoanaonment of the part of the harbor
Such action would operate to create a
differential In favor of tlie railroads
which have terminals in the heart of the
shipping district above this point,
amounting to the Cost of transferring
goods from water terminals in the 8 wan
island district down river, tover hat of
iransierring tnem rrem ineraiiroaa ter
mine) a In iha heart ot th city. ,
-.The slope of the river, as shown by
0hiiiSfi!?fLrrtgCI!djitT-ltbP.v''. 1 m that the ncle scodped out at the-con-
irivvsu poim, aaspno ine increase or
cross section area, furnished only par
tial relief. The report states that the
ffp 99 'v... . . ,,:t
ins . question anaes: whleh cross
section repreeents the moat useful har-
Dor measurements, so root widtn ny a
foot depth, or 100 foot width by (0 foot
ii n, w liw ioot wiatn Dy tv iooi
depth f
. conclusive proof exists that the har
bor area,, navigation, and flood capacity
have all been lnjored, as well as, the
puuuo centroi or etrategio puouo prop
erties by the policy of the federal gov
ernment permitting administrative off!.
cr, or me nxing oi an arniirary una,
Whteh does not exist In nhvalcaJ faet. ta
Shift Upon half-baked local authorities
a responsibility so essential to tna com.
nterce of the nation.
'Toil say that my statement of the esse
of ne rniia. uo. vs. ntimsnn is nor entirely-correct.
1 beg leave to quote from
ine u. u. supreme Court decision, vol.
221. nam S IK wrlttan h Jnatlr
Hushes: .
ing authority under paragraph 11 of the
c or ingress, jarcn a, ntl, against
the complainant's protest changed the
harbor Jlne. The report of the U. S. en
gineer at Pittsburg stated that the con
ditions of high and low water had not
changed since 1896. but as along a part
of the shore of the island the harbor
Una of 1I9C ran several hundred-feet
outside high water mark aa it then ex
isted, it seemed advisable to change it
so aa to coincide with the actual high
water mark. A copy of the report with
the order of the Secretary of War, dat
ed Februai-y 28, 1S7, wai annexed to
the . bill and. made a part of it. It-is
stated that the location of the proposed,
harbor line was within the bed of the
stream as it existed as a physical fact"
ii muia appear rrom ine aoove tnat
me location r the narbor Una at the
actual ordinary high water mark by the
secretary or -war wan ma ea.ua ar tim
suit. The court's decree upheld the Sec
retary of War. and 1 am unable to ac
count for your statement of the result-
,. V , viNiv uipor requires any
measures lookins- .toward ,Z
narrow sections. This la, moreover, a
separate matter from th i.'.,'
f"iu5ft,5 0? "t' to the fpresheree.
iwtcu wie naroor line and ordinary high
water,.-! eoneur Athe eplnlon that the
latter la a. mattar ta Ka riimnui iZ
iffiZirlt ! w the fle.
. Llkawiaa th hniul Ihiia- m a . . I
tufes Of locali funrla. la aihlnh
trJ,AMK!tn?r,!0?!i V b Ptters coming
under the Jurisdiction of the Wr De.
partment.
very respectruiiy.
LIlSOLEY M. GARRISON.
' w Secretary of War. "
SlegieVa Beply to aarrUen.
Si v ry f .Vt. Washington. D.. C.
Sir Your letter or (VtAh.. 4i tn
answering my request for a federal in
vestigation nf Ih. Hl.nIH.V Jri-i
f,"! utilisation of tne harbor areit
Portland for commarea mil n.iir7
duly reoelved. . ev.
You quote from the report of the board
of -ngineera locating the original lid
eral harbor lines (so-called) In 1S92. the
concruslen that the removal of "true!
iYSl .?l!ei,Wjn' rrow places la . the
rtver -does) not now seem to be war
ranted by the necessities of the case "
By referring to this r.nnn i tmA
paragraph dealing with This feature to
oe as ioi lows:
wh3S'bordJ.whlle tlhg these lines,
which in, ita Judgment seem for the beat
interest of the commerce of Portland,
has kepi ; In mind the physical dharacter
istica ot the river and endeavored to
av?!d as much as possible any Interfea-S?J?-wl.tnv"tri?cture0,
at Prnt existing
f!Lf ink"- '"'P'otjable that dlf
ferent locations might have been select
ed for the lines In the narrower por-
KSIlL0 it riy,r',wfr6 u not that th
banks in these localltlaa nnn,ni.j ku
strueturea used for commercial purposes
and built at considerable expense to their
OCEAN BEACHES ARE PUBLIC PROPERTY IS : l ;
THE OPINION OF TRIBUNAL OF NEW YORK
Jydge Benedict's Decision in Coney' Island Case Is Highly
- important in Preventing Any Obstruction of the Peo--
add : low water mark consiltut.es a sort
of natural public highway, and al
though It may pot be subjeot to all tne
incidents of a regularly established
public highway, it Is subject to the
right of the public to travel over it by
all means used on the public highway
of the state. " : . v '.
"I also think that the Barnes cas:.
is authority for the proposition that the
People hold theTfee. title), o 'such tidal
landg In. their " sovereign csraflty - In
trust for tlin benefit of the public, or
In ot.ver worOo. tAat this right nf public
passage over tldnl lands la of the same
nature as the jus miblkutiv of the un
dent Kngllsh common law, a teiri
which lias. I admit,' been uuually applied ;
to the right of navigation upon navlga.
ble waters,: but which, under the Barnra
case, seems alsq, applicable to the right
of passage over tidal lagle.? '
T
-
IRIIC Thar fnH nitTlt WBtJii nrnna sjentlAH I
has actually been Increased 6000 square any immediate neceesfty for
feat Jlnrt the avaras-a Air lw AmntU I Vt.. .i tr " -"i.
increaaed 1T feet. . however, that, lrf the Jntere
Aiiuwer uouru or enirineera renorten
engineers rennrted
upon a revision of the harbor lines
throughout the harbor In 1900. having
made a careful examination of the mat
ter,. Including studies of the effect of
the narrow places upon navigation inter
ests. This board stated. "While the con
struction of some of the existing
wharves and bridges to their present ex
tent might have been prevented to ad.
vantage beforehand, yet it la the opinion
of the present board that but little, if
any, noticeable damage has been done,
owners, the removal of whleh at anyrU" locstion, unless it be that the War
be warranted by the neeeaaitiaa or k.
case. It la only where wharvea avtatui
into the stream abnormally beyond the
1 Ui uwi eeems to oe
material encroachment upon a limited
o oraro nas inougnt it
neceasarv to t un th hark. n... -1
i?.,,t.Jr5 Property. In these
tat there la
the removal
Is thought.
ata of the
generar commerce of the port, , they
ehould be aet back to the proposed 'lines
"mhi n ocCTimi necessary to repair or
renew them. It was found that wJtb
very few exceptions, the line could be
located well outside of existing wharves,
W.1 1iSi!,"t"bll,hd "y city ordinano .
The contractions resulting from build-
... Biruc.urcB'oui io mese lines, it is
believed, will be beneficial to the har.
You will observe that the language mfnt ha" no interest, I can hardly re-
bor.'
vni, n,,n(. a,u . ...
ndlhelr.onUnuad existence for so of thVrlv
many years has apparently develooed So :hn?J;:IU,,. JtlJsJ "ther
riSS I"?' ncroached upon poruoni
of any part of them at Ih a dav." The SSSB, 75"
changes recommended by the board in sary the whirl llnea VhouM rmSJJ'K
i8"..'"0" A"a c?"r SBform- tothe llnea. "then ' flxIdthS
ev.rsg.vu u BW1M 0IIIH1I HUVgellUtW UI inJ I DOItrO
nf uwou d orinir ttirni to the outerl if this h efl. Ai.t
e.fl -7e at 111 . VUiiuuiVH al
euu or tne vnarvftB which nd been con I complain of it th 1A mUmi hrM... XX;,iJi
Ksdrstd-gt 'ome wkSA
Tha rviari Mnm r.nnmm. k I i.5nx" . 95 rlYf! wharfowners, an-
-a -j-iVIS ,.rf "l"pr noara in iiuo
00 -relocated the line
SXiT! ,W .180. the ex- farther out la th .ir. VXliZZ
Iflcatlons have since been made.
lsung lines, except at two places below I the harbor to " the old nVimiYitT. wh..-i.
the narrowest section, where slight mod- insteKF thawUJSa-ViliVT
District Officer's Oplnioa Qaotad. I f if r.. i, i. ., .""' .
Regarding your nroDOsltion iht thalment omn lh, nnliv tk.,.
harbor lines be now moved back to give I of giving preferenee to such erlvata
greater harbor area, the district officer properties over great public harbors
reported under date of October 6. 1911, However, a cursory examination of tha
... ""-', viiim ib noi now i iiii nuwiiiH me river cnoaM naif In
n55"r.Bry Jtl te protection and Prea- two. as set forth In the Hanbury report,
ervatlon of the harbor, and if the lines n the central part of the city by oft
Were modified so as to shift tham ahora. lvata encpnarhmenta ami ih. .V-l -
PI&E'S
ward, there lsa possibility that riUarian d"aln is put upon the public resources
riguts would be Infringed upon, and that Jo buy, back the area It Ja proposed to
the United BtateS would heeoma In. I thus aKaarian Ji..V.TT
USSPi i- "UitilOr ajnagea. The ouea-1 Pwfuneorjr. phrases ofbureaueratio
'r" - .1" wr-anure neiween c juaciry congress In flivestine
wharf line and ordinary high water line Itself 6f the responsibility imposed TupSn
Is one In which the federal government t In the federal constitution of prdtect-
lias no interest. It I; a local question, ing navigable waters to the publle for
to be determined by the state courts." commerce and navigation.
mur imuruwuun rcmniiniiiit cnnnti unaarsiana that the authority of
congress nas been invested In the War
Department for administration, and that
varioua acta hava hn n,, m v., 1
mm tci T uuuiia 1 1 I arRii. ann a rmm n r
engineers attaohed to. the War, -Depart
ment to aavisa ana Keep congress In
formed upon the subject A general let
ter of Instructions has bean sent out by
this board, in Obedlanca la tliaaa
the local engineer's officers at tha
Ports. But these gentlemen have
been atrangely apathetic The publlo In
tereat and laws nave, been subordinated
to the policy of alaaaa , f aTre'5 ai
"draw my aaXanr.'' 7
You state: At Portland the prlnajpal
Phyaleal contract one of the waUrway
had been Mcoropflshad bfere the flrat
United fltatea harhax Hum.-mm .... v.
Jlshed.-
.V ! tru tha. puoh, encroachment
Quickly
C ured
Instant Belief. Permanent " Cure:
Trial FMkage Mailed Free to
. All In Plain Wrapper. ' , ,
.. lis wsiiir avspv man ann w iinia n an s . a iciaa
fering from tha'excruclating torture" of ffif.- ffiWffihXto.1!?
pnea to just send their name and ad-lnel was defined by llnea established by
alafegfgi 4t lies O V44 era. tw e-ariiM e-n II a I HV 'AaitlnaMAaa M ai..i .J I . '
waawnw w wa et4u sa-w jm o-u'ii a i isava amiaJ ws uiuBiitieiBj. siiif l aiiH i. w ii n ge raw aw.
free trial package of the moat effective 1 "'Pt'01,8- i.hJs ," Isndward of the
, ana poaitive cure ever known for this r'?Wr.l I!!? iffiwl??
aisease, Pyramid Pile Remedy. aa then limited waa aiiatai Vh. i. i
, - ar-'w e g a aiv tt A UV l"HJ' IllfffH s TO HlgsVrKAa Oil til
remedy will do In your own case, la to I old mans "KxterUe Wkirf r iZ" . 3.
. . . . . I ,MMMlj-. A -T . 7 . ' 7 . TfV
just ui Dm iree coupon ana sena 0 1 7. .V . '.1 w t nneri urraersuinain
us and you will get, by return mall, a
free sample of Pyramid Pile Remedy,
v Then, after you have proven to your
self what it can do, you will go to tha
druggist and get a (0 cent box
:rA gsnerai unoersuinaihg
f havt time, the area between that and
ansa urningrv II 1 Br II mrm W a una easiei MaakWia
TI'T no nrarw nao so aqiuaieat
!dJLuT55 leirialature had in, lllf pasaed
wnarjL exianainv to tna rinm ,i.m
owner the
fWiti't lin.rA an nuntliai . I ietlOn. ' Of
w.. . v.'u-IMV .,. uuw.nVIU.I. 1 ,U01B I . - ' IT . ' " " V'TDW
tlona are rarely success and often A 7X31 kfa"
lead to terrible onaequences. Pyramid title up to ordinari "KlglTwalir flg. uni'
... ...,aM,,.,.i,u,i, va, in wnicn tne PUDIIC
prlv lege" under state regu
erecting wharves te dean
It, i "
lead to terrible conaecjuencea.
congestion, irritation,' itching, I itself, throuirh the dpch eommlasionT bo-
maKs
urvg ana uicers ...disappear and tho i". ,, J "5 ''V?f 'Lmot n PP'mnt
piles simply auit. ... IP''? u! roMlP'' that Is the reascm
cina'bo' a,t dUr 't0 aWauoTSSd1
entagbox..,,,.,,...,,.,,.,, h court, are W.
I ,r a . II
Free Packare Pnnnnn
- Fill out tne blank llnea below with
your name and address, cut out
coupon and mall to ,th PYRAMID
DRUa CO., 40 Pyramid Bldg., Mar
shall, Mich. A trial package of tha
great Pyramid Pile Remedy will then
be aent yon at onca by mall, 'FREE?, in
plain .wrapper.' -.'A :,::,:: .. .,,.-
Name
i'';ii HVvi fl p
ra.-.iC7nf.;
City ... i, , sute . . .... ,ui . . .
atlona and other strong, private inter
ests, as against the donation iJn t.il
and and bis assigns, but are net willing
tne public . i ... .... ,
to ao fsvor
I prepared a man auDirlmniin tl.'.
present harbor linea upon the Oldllnes
existing prior te 1192. and aUwIng the
loss of harbor area by abandoning the
natural linea, and published . u ,'ln" xhl
Oregon Ually Journal, but t is not avail-
auie now, win una ivio you later.- '
'1,.x. flood Sanger
There la another powerful reason whv
the, natural . capacltjt of the atreain
Should be Protected. and that la tha
gers so graphically illustrated by , the
rmria ana umo riOOOS. The
Hnnbury reoort states thu ih w.i
width of the- river where it f low-
Department -refused to profit by the de
uiaion. aa in mi iaptianif au ar Knrt,
land vs. Montgomery, wherein this W
waivea in rignt to locate a wnerrne
landward from the federal line after it
had. won It In the courta.
-Regarding the opinion of the district
officer, with which you coneur, "that a
cnau
eery
and might Involve the United States in
litigation -with riparian owners." it
would . appear from the result of the
Pittsburg case that there la nothing to
iwr irom mat quarter, ana mat tne le
gal obligations of the government to the
people to protect the publio righto of
commerce ana navigation era or at leAat
M muoh force as the riparian claims of
upland owners. .
.That it la now proposed to replace
me urea conaiaarad lost nv tna nun-naaa
vi r, wan isiana ana tne areaging it out
at the cost of many millions, yon say is
something in which the federal govern
alias that, since the publlo properties
anti lunus invoiveo are ior puouo com
merce. The federal and local Juris
diction and expenditures, are con
current and the tremendous losses
to. both come out oT the people for
wnura inn irun ia anuoiM unon nntn.
Especially does th federal trust be
come Important when the local manage.
ment beoemea criminal In Its character
anu ine local courts refuse relief.. That
aiicn is tne case, that it has become a
criminal oonsniracv to convert li.Ano.Aoe
worth of public property into private
uvaauinira ana rorce toe pudiio is ouy
It back -again before the port can de
velop there Is little doubt This con
splrecy Involves officials exercising the
bUDuc imi in tnesa properties snd otn
era that have been, nncml In. u, haM a
criminal record. But this I will make
me supjecvor a ruturs communication.
i inina tne matter or surrteient im
Portanes to merit an'Mhauatlva invaatt
(ration. The report made to you so far
was. I take It. ma A bv n isf Hum T hav-
cnargea witn being partly responsible
for the conditions complained of. No
one lnterestefln cervecUng these abuses
neen. caiiea jipon, mia oock com
mission waa not called upon for a re
port, tier for Information. Neither were
mt city autnontiea, aa far as I am
awn re. . ,. .
The greater part of the foreshore' in
Portland harborUncludimg the sites for
which the dock commission sued, are as
yet entirely unimproved, lust aa was the
nreperty involved in tne r'lttaourg case.
Very little of it Is adequately nor toler-
wiir improvea.
Very respectfully your obedient serv
ant, - J. a. ZlfcULJCK.
JUDGE HARRIS DENIES
PETITION OF THE "WETSW
Eugene, Of., Nov. 15. Judge U T.
Harris of olrotnt court tnia morning de
nied temporary Inlunotlon In the case of
T. C lAtckay va.. County Conunlsalonera
aecklng to enjoin defendants from -de
daring, that prohibition exists ht
Springfield after January 1, and th
oommlsloners duly made order. Judge
Harris In giving decision said he waa
not expressing any; opinion as to tho
merits or tha case. which will be trial
out at final hearing, date of which is
not get, in reference to the injunction,
One Cause of Bad .
A CoiripIeoir--the' Cure
iil' Crom; Family physician.)
1 ' "lWilr at a. all. . .. . -1. .
htJZZ -.v-.w.fir anna-uiiur Ttnw
u icrmcqvi ana jou win, readily under-
.iaui .n uuaiiiBucs generally injure
Mackenale. "The . akinr. smooth as It
"viZa?"'" V eye, unaer the g's
exhlbita a laceorfc . of . tiny bores.
moutns or myriads of little glands. To
tarag a iifj inn nn env vngtaiai tiviatai rMaa
,be .unobstructed, ithat. the perspiration
and - natural oil ' can - iave free outlet.
puvuiq .in gianua oe Diocxea un with
Irritating rrRtv narticlea. a rtomtnf.il ala
suit of uelhg powders and ecreams, Na
ture .retaliates - by T causing Sallowhesg.
FvumniiT.,., .hi (.uiiTTa pr .pimples.
"Am S'SUbstltuta.for all nr.am.Mpa t
recommend ordinary mercoltsed wax. It
nui onir aoea wnat tne yarloug race
preparations (are supposed to accom
plish, but Its peculiar absorbanjt action
frees the pores from tha defliy accum
ulation of Impurities, glso absorbing the
'devitalised particles of . surface, skin.
This produces a natural healthy, youth
ful complexion. One ounce of this wax.
to be , had at any drug store, inually
suffices to rejuvenat tie poorest com
pletlon. . It Is nut on nightly like cold
crearnand waafied of,f morning," Adv.i
The beaches belong to the public.
The people hold the fee title to tidal
lands. , . j- , " T .
The foreahore'is to be considered for
practical purposes as a publio high
way.
This is the essence of the highly Im
portant opinion handed down recently
by Supreme Court Justice Benedict, of
New York, and It is of especial interest
In Oregon at this time because of tho
fact that the same views of the subject
is held by the officials of this state
lth reference to the foreshore from
the mouth of the Columbia to t'M Call
fornla line. . , .'-,
-The decision of Mr. Justice Benedlot,
recently rendered In the . case of .the
People of , the State of New n York
against Steeplechase Park Company,
tiuoer, ana others, directing the rc
moval of certain permanent etructurea
on the beach or foreahore of their
premises situate on , Surf avenue "and
IheNetlanttc ocean at Coney Island, says
a 'writer In tha New York Times, estab
lishes a principle for which the attorney
general's department has been contend
ing for two years, namely: that grants
of land under navigable waters by ths
state of New York through the land
board, either for commercial purposes
or for beneficial enjoyment must be
taken under the implied . reservation to
the people of the state of the reasons
ble use, for traveling, bathing, and rec
reation of the land between high and
tow water marx-
Tha principle Is old and fundamental.
The public has the right to use the
navigable waters of the state. This
includes all land up to high water
mark. This Is a sovereign right vested
in the people, and can not be allaaated
either by the legislature or any atate
autnonty except to. the intereat of
navigation or for the public good.
Greats Appear Absoluts.
Many of the grants of land under
water around New York made during
the past by the land board are appar
ently absolute, and in terms do not
contain this reservation. This was so
of one of the grants Involved in the
steeplechase caae.
The attorney general's department
contends that his reservation is im
plied, and commenced an action for the
purpose of vindicating thia principle,
wnicrr reaulted in Justice Benedicts i
decision. This decision holds:
There are no restriction tinon th.
grant, but. on the other hand, thara
no words to Indicate any intention to
surrender or extinguish the- publio
right of passage. Hence, I conciuJe
that her grant does not onarara to ttu.
prive the public of such right I do
not noia tnat the grant Is void but
merely that it is to be construed as
subject to the public right aforesaid.
The judgment of the court in the
Steeplechase case directs that the fol
lowing structures on the property in
i vol red be removed: the fences and bar
jriers on either side of Steeplechase
.'Psrk, owned or used by the defendants;
Tfoe luncheon pavilion on the Huber
property and the platform connecting
the same with the pier; the roller
coaster and the machine horse railway,
In ao far as these structures or any of
tham project beyond the mean high
water line, it provides that the pier,
may. rcmalrL Provide -nat suitable
means of Tree, passage, tinder or around
them, be maintained, .Xn,.otW words.
wie ucuuon, loat , aif obstructions
must be removed that .prevent free en-
Joyment of the public .right to use the
oeacn, and that ail. structures must be
erectea in sucn a way a not to ob
struct this right '
It la the intention of the attorney
general'a department to bring action
for the purpose of removing such ob
stmetlons wherever theyexiat on the.
shores of navigable waters. A com.
plaint now exists in respect to certain
strueturea on Manhattan beach, and an
action haa recently been brought by the
attorney general against the Delaware
ft Hudson company to compel the re
moval of obstructions on the beach at
Lake George.
OontentfOBg ta be Xeae. v
All that will be contended for by
tne attorney general Is that the piers,
bulkheads, docks and other strueturea
which patentees have erected under pat
ents rrom tne state must be so erect
ed as not to obstruct the enjoyment by
the public or the reasonable uae of the
beach. These patents, many of them,
have been granted for nominal consid
erations, and it could never have been
contended that they were to convey title
in derogation or the sovereign right
or the people even though the power
to. convey were unquestioned."
Broadly, and not without humor,
Justice Benedict came to this conclu.
sion:
"The structures which encroach upon
the beach in front of tha defendant'
upland other than the Pier and nrocer
approacnes tnereto, ana possibly tnx
jeuy, are puouo nuisances and should
be abated as such. Tbsy are purpree
turea, a term defined by Littleton as
a clandestine encroaohtnent for annro-
priatlon upon lands or water that
should be common as publio,' because
they encroach upon what ao far aa tha
right of passage Is concerned, la to be
ponaiaerea ror practical Burnosea aa a
vuuua jugnway. - -
"The publio has the right to naas
over tne loraanore. Between mean hlab
water marg ana Btean low water mark,
at any point ana at all times of tho day
and night on foot or in vehicles, and
to do so on dry ground, except when tha
state of the tide mikes that Impossible,
subject only to the rishr of tha ewnar
of the upland to maintain a plv or
dock or suitable approaches.
Probably U WOUld always ba nnaal.
, A . . .a. r"
Die rer persons in Darning suits to nua
over. the breach, outside of the obstruc
tions, as In Indicated in some of tha
photographs, but. the defendants are
not entitled to require tho - publlo to
exercise its rights In this costume. R.,
it might also be possible to drive about
me-spues usee in support of the .la.
fendanta structures with st dump cartr
rat .use puouo -is not limited to- that
means of vehicular; traffic or agency
i veer..-. ... . . : j u
that right Is subordinate to the riper,.
Ian owner's right Of acoeas to the water.
I feel sure that the law would, bi
against any riparian owner whose pier
Interfered with navigation, but not so
aura that even an obstructive pier, If
necessary to the riparian owner s pur
poses of. access, could be regarded as
an Interference with the public right to
paaa along the foreshore,
'"Were the riparian owner's rights in
the foreshore so exclusive as to permit
his erecting a barrier which prevented
the publio walking on the beach? That
was the question in the Barnes case,
and the court of appeals, while holding,
aa In the Brookbaven case, that tbe
owner had a right to erect a pier which
might Incidentally be an obstruction to
pedestrlana on the foreshore, took the
view that this right waa limited to the
e"ffttie Of Lthe eUuaUoiV!. j ,
Question of Xontf Standing.
Ths long succession of legal battles
foughToh the foreshore "both in , this
country and In England have been In
no small degree fomented by the pres
ence In our law of the doctrine of jus
privatum, a worriaome Inheritance from
the days of the Stuart kings, a relic of
unscrupulous Stuart greed bequeathed
for the dlstraetloq of the courts. Or so
Mr. Coudert has pictured It -in a saner
In his new book "Certainty and Jus
tice.'' . .
Briefly the Jua privatum' waa that
upon which tha crown based its claim
to the private ownerahlp of -the fore-
ahore.
"The study of the hlsterv of leaal
institutions has been said to tend to
make one a legal skeptic." writes Mr.
Coudert The history of the English
law ta admirably Illustrative of the
development of legal theories and their
erection Into principles or rules which
come to be clothed with an almost
sacred character, yet whoso origin upon
examination la aometimes found to be
based upon a misconception of a his
toric situation.
The theory of a kingly owneranln
of the foreclosure was invented by an
ingenious crown . lawyer, one Thomas
Digges, in the reign of Elisabeth. H;m
claim was that the foreshore belonged
to the crown, not as other royal prop-
erty, but aa part of the royal preroga
tlve. and be supported It in a learned
thesis on the subject bssed upon ar.
assumption of a state of facts of which
there la no proof and the reverse ..f
which almost certainly existed. It ap
pears that during the reign of Eliza
beth and of Jamea I . In a. irnmlur ..e
..ic mvwii v i a i iii iu igresnvra.
ownerahlp waa made by astute lawyers,
filled with seal to enlarge the royal
Jurisdiction; but all these cases seem
to have been unsuccessful until the
famous case of Attorney General V.
Phllpot in 162S, which, we may say in
passing, la mentioned In the -dissenting
opinion in the Brookhaven case as the
leading English case establishing that
doctrine.
"It la extraordinary that it ahould bo
tbe foundation of a rule of property
law, which, until 107, waa the Jaw in
the atate of New York, when we reflect
that the -caae waa; decided by Judges,
some ot whom sat In the famous Ship
Money case and upon whom history hat.
piacea a neary loaa or obloquy. ' The
decision was apparently procured, as
the Ship Money Judgment had been by
the personal pleasure of Charles I, for
the purpose of obtaining for the crown '
properties and revenues , to which it
had no Just title The claim, aays Mr. j
Moore, was founded in untruth and In- i
justice, and the too great insistence
upon it by Charles I, unquestionably!
was one of the causes of the great '
revolution. .. :
Sir Thomas Townsend. writlnar to
a friend as to the Phllpot cose, ihti-
mates that it will bo properly disposed '
of "when some of the barons have ro
celved directions from the king.' The
caae itself seems to have been a moot i
faaa iAnal.ul Ku I. . 13 . . . I
- v.. i..,tu m mo oiunri osonarcii
for the purpose of obtaining a decision
which might bring him needed revenue
The crown lawyers raised tho question
by making a lease of a piece of fore
shore to one Cornelius Vanderbilt with
a view to establishing legal title by an
action. It appears an odd coincidence
that tha court of appeals, two centuries
later In the case of another Vanderbilt.
should have declared aa New York law
the proposition advanced by an earlier
Vanderbilt on behalf of Charles I in the
Phllpot case.
"That a decision rendered under such
circumstances should have stood In law
in the United States for more than a'
century la a trong.comrnentary.upon
II i"r 1 1 1 ff "l"""!"1-!' l"ei j
STTsafca
You
just
can't
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It goes great ,.
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TOWUE'S
ir--
- 4l Views of AuUoHtiaa. - ,
"If "you can lawfully get-to tha sea.
snore i apprehend you can' bathe there,'
observed an English Judge nearly j
hundred years ago. 'and Judas Warner
in tho Barnes case,' spoke of the right
or passage as a necessary incident' to
tha right of publlo to use the tide -washed
foreshore for fishing, bathina
ana posting. . :; i. ,v-.W ,
lA' member of tlie New York bar; who
has taken a. special Interest l -.;vtUo
history of .riparian rights ."peculiar
nania, neuner 'wnony .terrestrial i not
entirely aequactio, which might almost
ba i denominated, amnhlbious" la .!.
eric R, Coudert ;' :- .. - .?
I can . recall offhand." lie aald tha
other day, "no case in which the court
ot appeals nas oeoiaea squarely on th -rlght
of tha pedestrian on tha baann
on the right Of the bather, Jf you will.
The publlo right to tha beach has bean
recogniiea, out aa the law .has stood
the conservatism of our iuda-ea amt n-.
haps. Incidentally, upon their lack of
knowledge of or Indifference to history,
at least as found outside of tho reports
of tha law courts. i
'The 'Grand Remonstrance' of 164 1
la almost as noteworthy a landmark In
the history of English liberty and con
stitutional law aa the great rh.rt.r
Itself, yet how many Judges who have
earneaiy considered these questions
have had In mind the 2th article of
that memorable document, riiarain- tv. .
king with taking away of men's rights
under color of the klna'a tttia ta
between high and low water markr " I
imgUsh raw XhtappUoable. 1
Tbo jus privatum of the crown, by
which tbe English king was deemed to
own the aoll of the , sea and of naviga
ble rivers in his own right, rather than "
as a sovereign holding It in trust for
his people, however applicable to tho
conditions in Orest Britain were totally
Inapplicable to the situations of the
folonleta of this country, ., . Thero
is in my opinion the strongest evidence
that this right has been abandoned -to
the proprietors of the land from the
flrat Battlement of the provlnco and
exercised by them to the present day
so as to have become a common right
and thus tho common law.",
; , "Hare,? says Mr. Coudert. "at )aat
ing coupe, as eTace nas been -given tr
the old doctrine The. elaborate struc
ture, , invented by the keen but time
serving Digss. adonted bv tSa ....,
kings, sanctioned by subservient ,wio..v
f.na' WUr hPOUh the ipvincjbje Eng.
, wt oi preceaeni become . part of
the common law. has at lene-th dia in
tne year 107 aa the rssult of a law.,
suit over, a little dock on a ia i..
Jand shore. The doctrine of the Broos
isven 'case 'has been reaffirmed and dis
ttbgnlshed In the caae of Barnes V
Midland Railroad Terminal
decided November 10, 1108." r'Ji i ' '
IH 'la to these two cases as decided'
by the court of appeals of thla at
and to their corollaries that Justice
Benedict turned for. his rule. " In h;
deeiston, ha says: , .
"The Barnes case recognised a publio
right of ' passage ever- all lanaia ...
which the "tide abbs and flows. ' A
publlo right ' of Passage innluaie ...
only, the right to pass on loot, but also
where it is possible, with vehicles, in
uwiiig yb mcies arawn or propelled bv
Jorsa or ether motive power.- In other
Log Cabin Syrup is a
delicious treat seTVed v
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Order a can from your
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words, aa (--interpret the. Barnes case, j
It recognises that a beach between high
Towle
Products
Dept.
St. Paul,
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Co. F t - , "El
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