Legal Definitions - Shively presumption

The Shively presumption is a legal principle that helps determine ownership of certain lands granted by the federal government before a territory officially became a state. Specifically, this presumption holds that any grant of public land made by the federal government to a private party or entity *before* the territory achieved statehood generally *does not* include "tidelands."

Tidelands are areas of land that are submerged by tidal waters, typically along coastlines, bays, or navigable rivers, and are generally considered public property. For tidelands to be included in such a pre-statehood grant, the grant document must explicitly and clearly state that they are part of the property being conveyed. Otherwise, the ownership of these tidelands is presumed to remain with the public, eventually passing to the new state upon its admission to the Union.

• Example 1: A Ranch Grant in a Developing Territory

  Imagine that in the mid-1800s, before California officially became a state, the U.S. government granted a large tract of land to a rancher for agricultural purposes. This land happened to border a bay with significant tidal flats and submerged areas.

  Under the Shively presumption, even though the rancher's property extended to the water's edge, the grant would *not* automatically include the tidelands (the tidal flats and submerged land beneath the bay). Unless the original grant document specifically mentioned and conveyed these tidelands, they would be presumed to remain public property. When California later achieved statehood, ownership of these tidelands would then transfer to the State of California, not the rancher.

• Example 2: A Pre-Statehood Railroad Right-of-Way

  Consider a situation before Washington became a state, where the federal government granted a railroad company a right-of-way to build tracks along a coastal route. Part of this route ran directly adjacent to a navigable estuary, requiring some construction over water.

  The Shively presumption dictates that this grant for the railroad right-of-way would *not* include the tidelands of the estuary. Even if the railroad needed to build piers or other structures extending into the water, the grant itself would not convey ownership of the submerged lands. To gain ownership or specific rights over those tidelands, the grant would have needed to explicitly state such an intention. Without that explicit language, the tidelands would be considered public property, eventually belonging to the State of Washington upon its admission to the Union.

• Example 3: A Specific Port Development Grant

  Let's say that in a territory that would later become Oregon, the federal government issued a special legislative grant to a private company to develop a deep-water port. This grant *expressly stated* that it included "all submerged lands and tidelands necessary for the construction and operation of docks, wharves, and navigation channels within the designated port area."

  This scenario demonstrates the exception to the Shively presumption. Because the pre-statehood grant *explicitly and clearly* included the tidelands for a specific purpose, the presumption that they are *not* included is overcome. In this particular case, the private company would indeed gain ownership or specific rights to those tidelands as outlined in the grant, rather than them automatically transferring to the State of Oregon upon statehood.