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Oregon's submerged and submersible lands ; a study of ownership history, conflicting claims of title [and] legislative recommendations

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https://ir.library.oregonstate.edu/concern/defaults/3t945w88m

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  • While the public trust doctrine at common law placed effective limitations on the Crown, these limitations have been somewhat obscured by state court decisions in the United States. Though some courts have suggested that the public trust places limitations or the power of the legislature to convey lands beneath navigable waters, this view conflicts with the basic theory of state government that recognizes plenary power in the state legislature to the extent that it is not constitutionally limited. The trust theory does, however, place definite restrictions on the state agency authorized to sell and maintain submerged and submersible lands. These restrictions arise from the basic presumption that the legislature will not intend a conveyance of lands in derogation of traditional public rights in the use and enjoyment of the waters, a presumption which stems from the inherent importance of the free navigability of the waters. Any land conveyed by the state, therefore, is and has been subject to the public right of navigation. However, though the grantee of the state takes subject to the public right of navigation, not every interference with that right will be enjoinable, since the test is one of public nuisance that involves a balancing of the conflicting interests. In conclusion, it would seem that the public trust doctrine still retains, vitality and continues to protect traditional rights in navigable waters.
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