This is an original suit brought by the United States against the state of Oregon to quiet title to 81,786 acres of unsurveyed lands in Harney county, Or. The lands lie within a meander line 105.36 miles in length. The line was surveyed principally by John H. Neal in 1895-1896, and approved by the Commissioner of the Land Office in 1897; the remainder has since been surveyed, and has been approved by the Commissioner. The meander line purports to mark the boundaries of lands underlying five bodies of water at the ordinary or mean high-water mark. They are Lake Malheur (47,670 acres), Mud Lake (1,466 acres), Harney Lake (29,562 acres), the Narrows (296 acres, connecting Lake Malheur with Mud Lake), and the Sand Reef (2,792 acres, connecting Mud Lake with Harney Lake). The five bodies of water extend from the extreme end of Lake Malheur on the east to the westerly side of Harney Lake, a distance of approximately thirty miles. Lake Malheur is shown by maps in evidence to be 16.66 miles in length and more than 6 miles in width. Mud Lake is a small body of water, a little over a mile in diameter. Harney Lake is similarly shown to be 8.57 miles long and approximately 5 miles wide.
The principal source of inflow to Lake Malheur, at all the times material to the present controversy, has been from the Silvies river on the north and the Donner und Blitzen river on the south. The source of inflow to Harney Lake is from Lake Malheur through the Narrows, thence through Mud Lake and the Sand Reef. Some water also flows into Harney Lake on the north from Silver Creek, a mountain stream, which is dry for part of the year. Harney Lake has no outlet.
By Executive Order of August 18, 1908, all of the land claimed by the United States in this suit was set apart as a bird reserve, known as the Lake Malheur Reservation, and has since been administered as such by the United States Bureau of Biological Survey, under the direction of the Department of Agriculture.
The state of Oregon was admitted to the Union on February 14, 1859 (11 Stat. 383). At that date the area within the meander line was a part of the public domain of the United States. No part of it has ever been disposed of, in terms, by any grant of the United States. Decision of the principal issues raised by the pleadings and proof turns on the question whether the area involved underlay navigable waters at the time of the admission of Oregon to statehood. If the waters were navigable in fact, title passed to the state upon her admission to the Union. Shively v. Bowlby, 152 U.S. 1, 26-31, 14 S.Ct. 548, 38 L.Ed. 331; Scott v. Lattig, 227 U.S. 229, 242, 243, 33 S.Ct. 242, 57 L.Ed. 490, 44 L.R.A.(N.S.) 107; State of Oklahoma v. Texas, 258 U.S. 574, 583, 591, 42 S.Ct. 406, 66 L.Ed. 771. United States v. State of Utah, 283 U.S. 64, 75, 51 S.Ct. 438, 75 L.Ed. 844. If the waters were nonnavigable, our decision must then turn on the question whether the title of the United States to the lands in question, or part of them, has passed to the state. This is asserted to be a consequence of the United States having parted with title to the uplands bordering on the meander line, by patents to private grantees, and by statutory grant to the state of school and indemnity lands in the act admitting Oregon to statehood. See United States v. Morrison, 240 U.S. 192, 36 S.Ct. 326, 60 L.Ed. 599. The state contends that the common-law rule, applied by this Court in Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 35 L.Ed. 428, that a conveyance of land bounded upon the waters of a nonnavigable lake carries by implications to the center of the lake, does not obtain in Oregon, especially in the case of lakes of the size of Malheur and Harney. It insists that grants by the United States of lands within the state, like those of a private individual, are to be construed in accordance with state law, and that by the common and statute law of Oregon a conveyance of the uplands bordering on a nonnavigable lake, by the owner of the lake bed to any grantee, vests title to the bed in the state. Other questions of minor importance will be considered as it is found necessary to deal with them in the course of the opinion.