The Supreme Court voted 6 to 3 yesterday to reverse a 7-to-1 decision that was not yet 37 months old.
The Dec. 17, 1973, decision was "wrong." Justice William H. Rehnouist said in an opinion for the court. He had not participated in the case.
The first decision held that federal common law rather than state statutes governed ownership of Arizona land that had been under the Colorado River.
Justice Thurgood Marshall wrote the opinion. Three of the six colleagues who joined him reversed themselves yesterday: Chief Justice Warren E. Berger and Justices Harry A. Blackmun and Lewis F. Fowell Jr.
Bound by the 1973 decision, the Oregon Supreme Court applied federal common law to a dispute between the state of Oregon and a company that had been digging gravel out of land that is now - but didn't used to be - part of the bed of the Williamette River.
The Oregon court declared the firm, Corvallis Sand & Gravel Co., the winner. The state - backed by numerous other states that have hundreds of millions of dollars at stake - asked the high court to review the decision. Now the state is the winner, because yesterday's ruling is that the dispute "should be decided solely as a matter of Oregon law . . . "
The reversal "is surprising, to say the least," Marshall said in a dissent endorsed by Justice Byron R. White. Justice William J. Brennan Jr. also dissented separately. White and Brennan had sided with Marshall, as did then Justice William O. Douglas.
The majority neither contends that circumstances have changed since 1973 nor tries "to explain why a result it finds so clearly commanded by our earlier cases was almost unanimously rejected by this court twice in the last decade. We are left, then, with a mystery," Marshall said.
But he suggested an explanation: the majority yesterday decided "a question the parties did not present, brief or argue," and consequently lacked the adversary clash that sharpens the presentation of issues. The court got the views of the states, which participated as friends of the court, but not, Marshall stressed, those of the United States, to which - in this matter - the states are "hostile."
From its organization in 1790 through 1974, the court admittedly reversed itself 119 times and scholars say, 30 additional times. In 1944, Justice Owen J. Roberts protested that a reversal of a nine-year-old decision "tends to bring adjudications into the same class as a restricted railroad ticket, good for this day and train only."