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erential right conferred by statute upon the that upland, tideland, or shore land, in its owner of the upland to purchase the shore natural condition, is without appurtenant land if the state concludes to sell the same. rights of any sort beyond the boundaries (For other cases, see Waters, 1. d, 2, a, in of the property, applies as well when the Digest Sup. Ct. 1908.)

lands are filled tidelands abutting on Waters relative rights of public and

natural water way deepened and confined. individual riparian rights.

(For other cases, sep Waters, I. d, 2, a, in 5. So complete is the absence of Digest Sup. Ct. 1908.) riparian or littoral rights in the owner of Waters relative rights of public and lands bordering on navigable waters in the individual tidelands wharfing state of Washington that the state may,

out. subject to the superior rights of the United

8. The clearly defined policy of the States, wholly divert a navigable stream state of Washington not to grant riparian and sell the river bed, and yet have im rights in navigable waters prevents the paired in so doing no right of the upland Federal courts, in the absence of a decision owners, whose land is thereby separated of the highest state court to the contrary, from all contact with the water. (For other cases, ses Waters, I. d, 2, a, in grantees of filled tidelands of a right of

from inferring an implied grant to the Digest Sup. Ct. 1908.) Waters – relative rights of public and

over intervening property to the individual tidelands riparian

navigable channel, even conceding the truth riglits.

of the assumption that such grants were 6. A conveyance of tidelands from the made conformably to a development project, state of Washington gives the grantee no

which was an artificial creation; that land rights of any sort beyond the boundaries of

was artificially made up to a bulkhead; the grant. A right of

to the

that, at some distance beyond, a navigable navigable channel over intervening land channel was artificially created out of an above or below low water must arise from

unnavigable stream; that between the bulk. a grant by the owner of the intervening vent full use of waterside lots in connection

head and the channel are sloals which preproperty. (For other cases, see Waters, 1. d, 2, à,

with navigation unless wharves are erected; Digest Sup. Ct. 1908.)

that when the original grant was made no Waters relative rights of public and provision in the law authorized leasing those

individual tidelands riparian shoals for docking purposes, but, on the con. rights.

trary, the whole waterway was reserved by 7. The rule of the Washington law / statute forever from sale or lease; and that Note.-On state and Federal owner- On public right of access to watership of waters—see note to Smith v. see note to Slater v. Gunn, 41 L.R.A. Deniff, 50 L.R.A. 737.

268. As to riparian rights on navigable On right of state to grant tideland waters-see note to Gibson v. United | so to destroy wharfage rights of States, 41 L. ed. U, S. 997.

shore owner-see note to Cobb v, LinAs to state decisions and laws as coln Park, 63 L.R.A. 264. rules of decision in Federal courts-see

On title to land under water-see note notes to Clark v. Graham, 5 L. ed. U. to Goff v. Cougle, 42 L.R.A. 161. S. 334; Elmendorf v. Taylor, 6 L. ed.

As to the right of riparian owner to l'. S. 290; Jackson ex dem. St. John v.

construct wharves-see notes to Ex Chew, 6 L. ed. U. S. 583; Mitchell v. parte Easton, 24 L. ed. U. S. 373; and Lurlington, 18 L. ed. U. S. 351; United Madison v. Mayers, 40 L.R.A. 635. States ex rel. Butz v. Muscatine, 19 L.

As to title to bed of navigable river-ed. U. S. 490; Forepaugh v. Delaware, see note to Kinkead v. Turgeon, 1 L.R.A. L. & W. R. Co. 5 L.R.A. 508; and Snare (N.S.) 762. & T. Co. v. Friedman, 40 L.R.A.(N.S.) On right of way on shore-see note to 380.

Hartman v. Tresise, 4 L.R.A.(V.S.) 872.

On removal of causes On the right of government to divert

cases of diwater from nontidal stream without verse citizenship-see notes to Whelan compensation to riparian owner-see

v. New York, L. E. & W. R. Co. 1 L.R.A. note to Fulton Light, Heat & P. Co. v. I. 'Co. 1 L.R.A. 108; Huskins v. Cincin

65; Seddon v. Virginia T. & C. Steel & State, 37 L.R.A.(N.S.) 307.

nati, N. 0. & T. P. R. Co. 3 L.R.A. 545; On right of action by owner of up- Bierbower v. Miller, 9 L.R.A. 228; Brodland for interference with access to

head v. Shoemaker, 11 L.R.A. 567; Delanavigable water--see notes to Thiesen

ware R. Constr. Co. v. Meyer, 25 L. ed. Gulf, F. & A. R. Co. L.R.A.1918E, 738; U. S. 593; Butler v. National Home for Ferry Pass Inspectors & Shippers' Asso. Disabled Volunteer Soldiers, 36 L. ed. v. White River Inspectors & Shippers' U. S. 346; Torrence v. Shedd, 36 L. ed. Asso. 22 L.R.A.(N.S.) 345; and State ex U. S. 528; St. Louis & S. F. R. Co. v. rel. Denny v. Bridges, 40 L.R.A. 593. Kitchen, 50 L.R.A.(N.S.) 828.

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the plat by reference to which all lots were, is the real party in interest, so far as sold showed a pierhead line at the point the same appears in the record, and if of navigable water.

the real party is a state, and the nomi[For other cases, see Waters, I. d, 2, b, in Digest Sup. Ct. 1908.)

nal party but a representative thereof, Waters relative rights of state and jurisdiction in the Federal court will be

United States rights in bed and held not to exist. shores wharfing out.

Murray v. Wilson Distilling Co. 213 9. The establishment of pierhead lines U. S. 151, 53 L. ed. 742, 29 Sup. Ct. Rep. by the United States in a navigable water: 458; Lankford v. Platte Iron Works Co. way did not create any riparian right to wharf out, as against the state. Such lines 235 U. S. 461, 59 L. ed. 316, 35 Sup. Ct. merely fixed the point beyond which piers Rep. 173; Re Ayers, 123 V. S. 443, 31 mighť not extend, and the lines so fixed, L. ed. 216, 8 Sup. Ct. Rep. 164; Hagood although acted upon by the erection of v. Southern, 117 U. S. 52, 29 L. ed. 805, piers, could be changed by the United States 6 Sup. Ct. Rep. 608; Louisiana v. Jumel, at any time.

107 U. S. 711, 746, 27.L. ed. 448, 460, 2 [For other cases, see Waters, 1. b, 2, in Digest Sup. Ct. Rep. 128; Missouri, K. & T. R.

Sup. Ct. 1908.) Waters relative rights of public and Co. v. Missouri R. & Warehouse Comrs.

individual tidelands pierhead (Missouri, K. & T. R. Co. v. Hickman) lines.

183 U. S. 53, 46 L. ed. 78, 22 Sup. Ct. 10. State officials had no power, under Rep. 20; Ferguson v. Ross, 3 L.R.A. 322, the law of Washington, to establish pier- | 38 Fed. 161; Stone v. South Carolina, head lines when platting tidelands.

117 U, S. 430, 433, 29 L. ed. 962, 963, 6 (For other cases, see Waters, 1. d, 2, a, in Digest Sup. Ct. 1908.)

Sup. Ct. Rep. 799; Germania Ins. Co. v. Removal of causes - state as party

Wisconsin, 119 U. S. 473, 30 L. ed. 461, immunity from suit.

7 Sup. Ct. Rep. 260; Arkansas v. Kan11. The interest which the state of sas & T. Coal Co. 96 Fed. 353. Washington has in the result of a suit by

The right to remove a case from the the Port of Seattle--a municipal corpora state to the Federal court is determined tion—to quiet the title of the state to tide solely upon the face of the record made lands as against a foreign corporation claiming, as grantee from the state, the in the state court, and if an inspection right to wharf out to the navigable chan. of that record does not disclose ground nel, does not prevent the removal of the for removal, it must be remanded. cause to a Federal district court for diverse Crehore v. Ohio & M. R. Co. 131 U. S. citizenship, since the Port had both the 240, 33 L. ed. 144, 9 Sup. Ct. Rep. 692; power and the duty to bring suit to protect Alabama G. S. R. Co. v. Thompson, 200 the interests involved, and had an inde U. S. 206, 50 L. ed. 441, 26 Sup. Ct. Rep. pendent direct financial interest in the result, a statute providing for the payment 161, 4 Ann. Cas. 1147; West Side R. Co. by abutting owners, in the nature of a

v. California P. R. Co. 202 Fed. 331; rental, for a permit to use parts of the Phillips v. Western Terra Cotta Co. 174 waterway in the erection of wharves, docks, Fed. 873; Thompson v. Ward, 199 Fed. or other structures, and requiring that a | 861; Key v. West Kentucky Coal Co. 237 specified portion of such rental be paid Fed. 258; Smith v. Western U. Teleg. Co. to the county for the use of the Port. (For other cases, see Removal of Causes. IV.

79 Fed. 132; Berry v. Mobile & 0. R. Co. b; States, IX.'b, in Digest Sup. Ct. 1903.) | 228 Fed. 395; Beadleton v. Harpending,

32 Fed. 644. (No. 107.]

The Federal court cannot retain juris.

diction of a case improperly removed on Argued December 6, 1920. Decided January the ground of diversity of citizenship, 31, 1921.

even though a Federal question is raised in the case after its removal to the Fed

eral court. the United States for the Western

Creshore v. Ohio & M. R. Co. 131 U. S. District of Washington to review a de- 240, 33 L. ed. 144, 9 Sup. Ct. Rep. 692; cree which dismissed the bill in a suit Jackson v. Allen, 132 U. S. 27, 33 L. ed. to quiet the title of the state of Wash- 249, 10 Sup. Ct. Rep. 9; Healy v. Mcington to tidelands. Reversed and remanded for further proceedings.

Cormick, 157 Fed. 318; Fitzgerald v.

Missouri P. R. Co. 45 Fed. $12; Shane The facts are stated in the opinion.

v. Butte Electric R. Co. 150 Fed. 801; Mr. Leander T. Turner argued the Broadway Ins. Co. v. Chicago G. W. R. cause, and, with Messrs. Harold Preston Co. 101 Fed. 507; Santa Clara County v. and O. B. Thorgrimson, filed a brief for Goldy Mach. Co. 159 Fed. 750; Grand appellant:

Trunk R. Co. v. Twitchell, 8 C. C. A. This court will, for the purpose of 237, 21 U. S. App. 45, 59 Fed. 727; Mildetermining jurisdiction, determine who I ler v. Soule, 221 Fed. 493.

1

1920.

The pierhead line on the tideland plat, and, with Messrs. F. T. Merritt and is not available to respondents in sup- Lawrence Bogle, filed a brief for appelport of respondents' claims.

lees: Wilson v. Oregon-Washington R. & The case was properly removed from Nav. Co. 71 Wash. 102, 127 Pac. 847; | the state court to the Federal court. Puget Mill Co. v. State, 93 Wash. 128, Chicot County v. Sherwood, 148 U. S. 160 Pac. 310.

529, 37 L. ed. 546, 13 Sup. Ct. Rep. 695; The shore of navigable waters, and the Cowles v. Mercer County, 7 Wall. 121, tidelands thereunder, are owned by the 19 L. ed. 87; Lincoln County v. Luning, state in which they lie as a part of its 133 U. S. 530, 33 L. ed. 767, 10 Sup. Ct. sovereignty, and all rights therein Rep. 363; Camden Interstate R. Co. v. claimed under state grants are to be Catlettsburg, 129 Fed. 421; Illinois C. R. determined by the local law of the state Co. v. Adams, 180 U. S. 28, 45 L. ed. in which the lands are situated, and the 109, 21 Sup. Ct. Rep. 256; Scully v. decisions of the courts of such state in Bird, 209 U. S. 481, 52 L. ed. 899, 28 the construction of such grants and the Sup. Ct. Rep. 597; Missouri, K. & T. R. law applicable thereto are binding upon Co. v. Missouri R. & Warehouse Comrs. the Federal courts.

(Missouri, K. & T. R. Co. v. Hickman) Hardin v. Jordan, 140 U. S. 371, 35 183 U. S. 53, 46 L. ed. 78, 22 Sup. Ct. L. ed. 428, 11 Sup. Ct. Rep. 808, 838; Rep. 18; Scranton v. Wheeler, 179 U. Shively v. Bowlby, 152 U. S. 1, 13, 38 S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. L. ed. 331, 336, 14 Sup. Ct. Rep. 548; 48; Tindal v. Wesley, 167 U. S. 204, 42 St. Anthony Falls Water Power Co. L. ed. 137, 17 Sup. Ct. Rep. 770; United v. St. Paul Water Comrs. 168 U. S. 349, States v. Lee, 106 U. S. 196, 27 L. ed. 42 L. ed. 497, 18 Sup. Ct. Rep. 157; 171, 1 Sup. Ct. Rep. 240; Pennoyer v. United States v. Mission Rock Co. 189 McConnaughy, 140 U. S. 1, 35 L. ed. U. S. 391, 47 L. ed. 865, 23 Sup. Ct. Rep. 363, 11 Sup. Ct. Rep. 699; Howell v. 606; Weber v. State Harbor Comrs. 18 Miller, 33 C. C. A. 407, 62 U. S. App. Wall, 57, 21 L. ed. 798.

17, 91 Fed. 129; Interstate Constr. Co. Every grant by a sovereign state is v. University of Idaho, 199 Fed. 509; construed most strongly against the Hopkins v. Clemenson Agri. College, 221 grantee. Nothing passes by intendment U. S. 636, 55 L. ed. 890, 35 L.R.A.(N.S.) or implication. And if the law or the 243, 31 Sup. Ct. Rep. 654; Reagan v. state deed fixes no limit to a grant, it Farmers Loan & T. Co. 154 U. S. 362, becomes the duty of the court to fix 391, 38 L. ed. 1014, 1021, 4 Inters. Com. the narrowest limit that will reasonably Rep. 560, 14 Sup. Ct. Rep. 1047. satisfy the terms of the grant.

The plats showing the pierhead lines, Pearl Oyster Co. v. Heuston, 57 Wash. having been made by state officers, and 533, 135 Am. St. Rep. 1007, 107 Pac. filed as required by the state law, ac349, 832.

quiesced in by the state for years, and The sale by the state of Washington | the lots sold according to these plats, to respondents' grantors carried with it and the money received and kept by the no right of access to or wharfage in the state, it and its grantees are now esEast Waterway.

topped to say that the pierhead lines
Eisenbach v. Hatfield, 2 Wash. 236, 12 shown on the plat were not established
L.R.A. 632, 26 Pac. 539; Harbor Line by authority of the state.
Comrs. v. State, 2 Wash. 530, 27 Pac.

Lindsey v. Hawes, 2 Black, 554, 17 L.
550; Lownsdale v. Grays Harbor Boom ed. 265; Bigelow, Estoppel, 341.
Co. 54 Wash. 542, 103 Pac. 833; Newell Riparian and littoral rights belong to
v. Loeb, 77 Wash. 182, 137 Pac. 811; the owner of the abutting tide or shore
Hill v. Newell, 86 Wash. 227, 149 Pac. land, whether such owner be the state
951; State ex rel. Seattle v. Savidge, 95 or its grantee; and as to natural, as
Wash. 245, 163 Pac. 738; Puget Mill Co. distinguished from artificial, navigable
v. State, 93 Wash. 128, 160 Pac. 310. waters, these rights include the right of

The right to wharf out, where con- access and the wharfing-out right.
ferred by statute, is, until exercised, a

Hardin v.

Jordan, 140 U. S. 381, 382, mere revocable license, and creates no 35 L. ed. 433, 11 Sup. Ct. Rep. 808, 838; vested right.

Shively v. Bowlby, 152 U. S. 1, 38 L. ed. Eisenbach v. Hatfield, 2 Wash. 236, 12 331, 14 Sup. Ct. Rep. 548; Puget Mill L.R.A. 632, 26 Pac. 539; Shivelyo v. Co. v. State, 93 Wash. 137, 160 Pac, 310; Bowlby, 152 U. S. 1, 13, 38 L. ed. 331, State v. Sturtevant, 76 Wash. 159, 135 336, 14 Sup. Ct. Rep. 548.

Pac. 1035, 138 Pac. 650; Van Siclen v.

Muir, 46 Wash. 38, 89 Pac. 188; Muir Mr. W. H. Bogle argued the cause, lv. Johnson, 49 Wash. 66, 94 Pac. 899;

503

State ex rel. McKenzie v. Forrest, 11, nel. The question arises in a suit to Wash. 227, 39 Pac. 684.

quiet the title of the state, which was An intention to separate the water brought against the railroad in a state right of access and wharfage from the court of Washington, in 1917, by the abutting property will not be inferred Port, a municipal corporation, created from the mere platting of the ground by the laws of Washington. J. F. Duthie with a line running along the shore. & Company, lessees of the railroad's land,

Watson v. Peters, 26 Mich. 508; Bailey were joined as defendants; but they have v. Burges, 11 R. I. 330.

no substantial interest in the controversy, Where the state has established a line and their peculiar rights do not require marking the line of navigability, it is consideration. The case (59] was regenerally held by the courts that the moved to the district court of the United establishment of such a line operates as States by petition of the railroad, which an invitation and concession to the shore is an Oregon corporation; and a motion owner to utilize the area between the to remand was denied. Upon full hearing shore and such line for access to the on the merits a decree was rendered disnavigable waters, and that a grant by missing the bill. The case comes here the state of the abutting lands carries by direct appeal of the Port under $ 238 with it this right of access and the right of the Judicial Code, it having been conto wharf out to such established line, tended by the railroad and held by the in the absence of any legislation by the lower court that the validity of chapter state to the contrary.

168 of the Laws of Washington of 1913, Aborn v. Smith, 12 R. I. 373; Miller p. 582, is involved, and that its provisions v. Mendenhall, 43 Minn. 95, 8 L.R.A. violate the contract clause and the due 89, 19 Am. St. Rep. 219, 44 N. W. 1141; process clause of the Federal Constitution. State v. Sturtevant, 76 Wash. 158, 135 The following facts are material: Pac. 1035, 138 Pac. 650.

When the state of Washington was adWhen the water front is artificially mitted into the Union there lay in front created by the state, all subsequent pur- of the city of Seattle extensive tidelands chasers from the state hold their proper- in the area now comprised within the ty on such water front subject to the limits of the municipal corporation known terms and with the incidents given by as Port of Seattle. Under appropriate the act creating the water front. legislation of the state this area has been

Dana v. Jackson Street Wharf Co. 31 developed as a port. Waterways bave Cal. 118, 89 Am. Dec. 164; Weber V. been established and in part dredged; Harbor Comrs. 18 Wall. 57, 21 L. ed.tidelands abutting upon the waterways 798.

have been filled, platted as city blocks, If the right of access claimed by the and laid out with streets; and lots therein respondents attached to the abutting have been sold for business and other property as an appurtenance at the time I purposes. Among the waterways the state conveyed it, such rights become established is that known as East Watervested property interests, and the state could not, by any action which it might

1 Chap. 92 of the Laws of 1911, p. 412, take thereafter, deprive the respondents 202. It has power, among other things, to

as amended by Laws of 1913, chap. 62, p. of these property rights, except by con- improve navigable and non-navigable waters demnation and making due compensa- of the United States and of the state within tion.

the Port district; "to create and improve State v. Sturtevant, 76 Wash. 158, 135 for harbor purposes new waterways within Pac. 1035, 138 Pac. 650; Weems S. B. Co. the Port district; to regulate and control v. People's S. B. Co. 214 U. S. 345, 53 of such Port district so far and to the full

all such waters

within the limits L. ed. 1024, 29 Sup. Ct. Rep. 661, 16 extent that this state can grant the same, Ann. Cas. 1222; Yates v. Milwaukee, 10

and

obstructions therefrom ; to Wall. 497, 19 L. ed. 984.

straighten, widen, deepen, and otheriviss

improve any and all waters Vr. Justice Brandeis delivered the execute leases of all lands, wharves, docks. opinion of the court:

and property owned and controlled by said The main question in this

case is Port district, upon such terms as to the

Port commission may deem proper." It whether the Oregon & Washington Rail

exercises also powers similar to those exerroad Company acquired, as owner of

cised by counties, including the power to land adjoining East Waterway in the

sue and be sued. State ex rel. lIill v. Port of Seattle, the right to build in the Brieges, 87 Wash. 260, 151 Pac. 490. The waterway piers, wharves, and other state did not transfer to the port districts structures over which it would secure ac- its ownership in the beds and shores of cess from its land to the navigable chan- | navigable waters.

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way, which connects Duwamish river with alleged by the railroad that this pierhead Elliott bay, an arm of Puget sound. Eastline, established by the War Department Waterway, as established, has, at the point as prescribing the limits beyond which in question, a width of 1,000 feet. The structures obstrueting navigation would bed of the waterway was, in its natural not be permitted in the waterway, had state, tideland. The 750 feet of the water- been adopted also by the state authorities. way which lie in the center have been In 1914, by joint action of the War Dedredged to a depth at mean low tide of partment and of the state authorities, from 26 to 30 feet. The rest of the water- [61] and with the assent of abutting way, being that portion which extends owners, the pierhead line was moved on either side for a distance of 125 feet back to a point 125 feet from the bulkfrom the bulkhead of the filled land to head, leaving the fairway in the center the fairway, is of varying depth, and is 750 feet, as above stated, instead of 500 not navigable by large vessels. The bed feet, as originally indicated on the plat. of the waterway within these 125-feet The rights claimed by the railroad are areas slopes from the bulkhead to the line limited to this 125-feet area. of the fairway. It is exposed at low tide Chapter 168 of the Laws of Washingordinarily at points about 36 feet from ton 1913, p. 582, provides that: the bulkhead.

"Whenever, in any waterways created [60] The railroad's parcel here in under the laws of the state of Washington, question is filled land adjoining the west the government of the United States shall side of this waterway. The tract is a part have established pierhead lines in said of block 393, Seattle tidelands, shown on waterway at any distance from the a plat duly filed with the county auditor boundaries thereof established by the in 1895, and was acquired from the state state, no structure shall be allowed in the by the railroad's predecessors in title prior strip of waterway between the boundary to 1907. The deeds by which the state and the nearest pierhead line except by conveyed the land do not in words pur- the consent of the state land commissioner port to grant any right in the waterway; and upon plans approved and terms and nor is mention made of East Waterway, conditions fixed by him, and then only for either in the granting clause or elsewhere such period of use as shall be designated in the deed.? On the plat, by which by him, but any permit shall not extend the land was sold, the boundaries of the for a longer period than thirty (30) block, and of the several lots comprised years: Provided, however, That the owner within it, are set forth clearly, and lineal of land abutting upon either side of any measurements are given. East Waterway such waterway shall have the right, if is shown on the plat, and, on each side application be made therefor within a of the waterway, a broken line, called period of ninety (90) days following the “pierhead line," is marked at a distance date when this act shall go into effect, to of 250 feet from the bulkhead. It is obtain ... a permit authorizing tlie

improvement and use of such area under 2 The form of the deed is as follows: First party does hereby grant, bargain, authorities, upon the payment of an an

conditions to be prescribed by the state sell and convey unto the second party, and his heirs and assigns, the following de

nual rental, dependent in amount upon scribed tidelands of the first class, situated the assessed value of an equal area of the in front of the city of Seattle, Kings coun

abutting land. ty, Washington, to wit:

The railroad failed to apply for such Lots one to nine, inclusive, block 393, a permit. Asserting the rights above as shown on the official map of Seattle tide- stated, it leased a part of its land to J. F. lands, filed with the board of state land Duthie & Company for a shipbuilding commissioners Olympia, Washington. and manufacturing plant, and purported March 15, 1895.

to authorize the construction of wharves, Subject, however, to any lien or liens that may arise or be created in consequence of piers, and other structures upon the adan act of the legislature of the state of joining water area up to the 125-foot Washington, entitled : “An Act Prescrib- pierhead line. By the Act of 1913 the ing the Ways in which Waterways for the control over the waterways, therein conL'ses of Navigation May Be Excavated by ferred upon land commissioners, is to be Private Contract, Providing for Liens upon exercised in port districts [62] by the Tide and Shore Lands Belonging to the port commissioners. This bill to enjoin State, Granting Rights of Way across such use of the waterway by the railroad Lands Belonging -o the State," approved March 9,

and its lessees, and to quiet title, was, Witness the seal of the state asfixed. therefore, brought by the Port of Seattle.

Henry McBride, The decree entered by the lower court

Governor. declared in substance (1) that the state

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