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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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has no proprietary interest in the water, meander line, whichever of these lines is area between the bulkhead and the pier- the lower. The character of the state's head line; (2) that it is not entitled to ownership in the land and in the waters lease the same or otherwise to deprive the is the full proprietary right. The state, railroad of access to the fairway; (3) being the absolute owner of the tidethat chapter 168 of the Laws of 1913, lands and of the waters over them, is in so far as it provides for such leasing, free, in conveying tidelands, either to violates the Federal Constitution; (4) grant with them rights in the adjoining that the railroad has no proprietary inter- water area, or to completely withhold all est in the waterway, but, as owner of the such rights. Whether a conveyance made abutting lots, is entitled to access to the by the state of land abutting upon deep or navigable waters, "subject to navigable water does confer upon the proper governmental supervision." The grantee any right or interest in those decree declared further that the state had waters or in the land under the same is never established harbor lines in the water- a matter wholly of local law. Shively v. way, and expressly recited that the court Bowlby, 152 U. S. 1, 38 L. ed. 331, 14 does not determine whether or not the Sup. Ct. Rep. 548. Upon such questions state now has power to establish harbor the provisions of the Constitution and lines, nor what the effect might be of statutes of the state, and the decisions hereafter establishing them. of its highest court, are accepted by us The main question presented for our as conclusive. St. Anthony Falls Water decision is whether the railroad acquired, Power Co. v. St. Paul Water Comrs. 168 in connection with the lots of filled land U. S. 349, 42 L. ed. 497, 18 Sup. Ct. Rep. abutting on the waterway, a private 157. The precise question presented here riparian or littoral right to construct is whether the [64] state, by executing wharves, dock, and piers on this 125-feet the deed of the land, which in fact adarea, in order to provide for itself, as owner of the land, and for those claiming under it, convenient access to the fairway for purposes of navigation and commerce. The Port contends that the railroad acquired no such right, nor any private right whatsoever, in any part of the adjoining waterway; and that the state is free either to use this portion of East Waterway directly for purposes of navigation, as the present fairway is used, or to use it as a part of the harbor; and that, since it is also the proprietor of the tideland under this water area, it has the full right to develop it, or authorize its development by others, through the erection of wharves, [63] piers, docks, or other structures in aid of navigation and commerce, and to charge a rental for the privilege.

joined East Waterway, conveyed rights in that waterway. That question is, in essence, one of construction of the deed, taken in connection with the plat therein referred to.

Second. Under the law of Washington (which differs in this respect from the law generally prevailing elsewhere), a conveyance by the state of uplands abutting upon a natural navigable waterway grants no right of any kind, either in land below high-water mark ( (Eisenbach v. Hatfield, 2 Wash. 236, 12 L.R.A. 632, 26 Pac. 539), or in, to, or over the water (Van Siclen v. Muir, 46 Wash. 38, 41, 89 Pac. 188), except the limited preferential right conferred by statute upon the owner of the upland, to purchase the shore land, if the state concludes to sell the same. Act of March 26, 1890, SS 11 and 12, Laws of Washington 18891890, p. 435. The grantee of the upland cannot complain of another who ereets a structure below high-water mark. Muir v. Johnson, 49 Wash. 66, 94 Pae. 899. He does not acquire any right of access over the intervening land and water area to the navigable channel. Lownsdale v. Grays Harbor Boom Co. 54 Wash.

First. The right of the United States in the navigable waters within the several states is limited to the control thereof for purposes of navigation. Subject to that right Washington became, upon its organization as a state, the owner of the navigable waters within its boundaries and of the land under the same. Weber v. State Harbor Comrs. 18 Wall. 57, 21 L. ed. 798. By § 1 of article 17 of its Constitution the state asserted its owner- 3 See Scurry v. Jones, 4 Wash. 468, 30 ship in the bed and shore "up to and Pac. 726; Cogswell v. Forrest, 14 Wash. including the line of ordinary high tide 1, 43 Pac. 1098; Washougal & L. Transp. in waters where the tide ebbs and flows." Co. v. Dalles, P. & A. Nav. Co. 27 Wash. The extent of the state's ownership of the land is more accurately defined by the decisions of the highest court, as being the land below high-water mark, or the

490, 68 Pac. 74; Johnson v. Brown, 33

Wash. 588, 74 Pac. 677; Van Siclen V. Muir, 46 Wash. 38, 40, 89 Pac. 188; Brace & H. Mill Co. v. State, 49 Wash. 326, 331, 95 Pac. 278.

course

542, 550, 551, 103 Pac. 833. So complete, was obviously made in order that it might is the absence of riparian or littoral not be hampered in developing waterrights that the state may-subject to the ways and harbors in the manner and to superior rights of the United States, the extent that the public interest should, wholly divert a navigable stream, sell the from time to time, demand. Such deriver bed, and yet have impaired in so velopment obviously includes harbor doing no right of the upland owners whose facilities, like piers, docks, and wharves, land is thereby separated from all con- as well as adequate channels. Compare tact with the water. Newell v. Loeb, 77 State ex rel. Hill v. Bridges, 87 Wash. Wash. 182, 193, 194, 137 Pac. $11; Hill 260, 151 Pac. 490. The proprietary v. Newell, 86 Wash. 227, 228, 119 Pac. right of the state over navigable waters 951.4

and of the soil thereunder is neither ex[65] Third. The railroad admits that hausted nor impaired by making a sale such are the rights of a grantee from of a tract of tideland, be it the parcel the state, where it is the upland which nearest the upland or some other. The is conveyed. But it contends that a state may in one year fill and sell the different rule applies where the sale hundred feet of tidelands nearest the upis of tidelands. No basis for the dis- land, and in the next year fill and sell the tinction can be found, either in the parcel beyond. [66] Compare State v. decisions of the highest court of the Scott, 89 Wash. 63, 70, 72, 154 Pac. 165. state or in reason. Since the upland Or it may sell first the parcel more reowner has been denied riparian rights, mote from the upland, and later the one in deference to the asserted right of immediately adjoining it, or any other. the state to control unhampered the In every case it may, in conveying the

and development of navigable tideland, either grant or withhold rights waters, the state's right must be superior in the water or in the water area, as it also to the claim of the tideland owner.

sees fit. When land washed by the ebb and For the assertion of title in the state flow of the tide is conveyed by the state

with clearly defined boundaries, no rights 4 In some states the shore between the of any kind beyond those boundaries or ihigh and the low-water mark belongs to narily pass under the deed. Pearl Oyster the private owner of the upland, and as Co. v. Heuston, 57 Wash. 533, 135 Am. such owner he has all rights not incon St. Rep. 1007, 107 Pac. 349, 832. Where sistent with the public's rights incident to navigation. In other states, although the

a tideland owner acquires rights of access land below high-water mark belongs to the to deep water, it is by arrangement with state, the private owner of the upland has the owner of the intervening land. Comthe right of access over it to the navigable pare Pioneer Sand & Gravel Co. v. Seattle channel, and the right to use the state's Constr. & Dry Dock Co. 102 Wash. 608, land in connection therewith, See 27 173 Pac. 508. R. C. L. S$ 273-279, 284. But, in Wash

The cases most strongly relied upon by ington, it is “uniformly held that there

the railroad do not relate to tidelands. no riparian right in the owners of lands They deal with the rights of shore-land bordering on the navigable waters of the state," and that the state retains the pro- owners on an inland lake, the level of prietary right to the soil below high-water which had been lowered by the governmark State Sturtevant, 76 Wash. ment. State v. Sturtevant, 76 Wash. 158, 158, 163, 135 Pac. 1035, 138 Pac. 650; 135 Pac. 1035, 138 Pac. 650; Puget Brace & H. Mill Co. v. State, 49 Wash. Mill Co. v. State, 93 Wash. 128, 160 326, 331, 95 Pac. 278. The language of some Pac. 310. Shore lands differ from tideearlier cases apparently, in conflict with lands not only in their situation, which these views was explained in Hulet v. Wishkah Boom Co. 54 Wash. 510, 517, 132 Am. in many cases makes an almost inSt. Rep. 1127, 103 Pac. 814.

The cases

definite filling in of the latter a possibility, referred to go no further than to hold that but also in legal detinition. Tidelands the owner of uplands has a right in com- have a definite boundary at the line of mon with the public to use the stream for mean low tide; or, by later legislation, of navigation, as it flows past his land; and extreme low tide. State v. Scott, supra, that others conducting operations upon the river may not wilfully or negligently de- pp. 68, 69. The shore lands, on the other stroy his upland. Dawson v. McMillan, 34 hand, were those "below the line of ordiWash. 269, 75 Pac. 807; Monroe_Mili Co. nary high water, and not subject to tidal v. Menzel, 35 Wash. 487, 70 L.R.A. 272, flow.” They had no defined outer bound102 Am. St. Rep. 905, 77 Pac. 813; Burrows v. Grays llarbor Boom Co. 44 Wash. the lake there in question were lowered,

ary. Accordingly, when the waters of 630, 87 Pac. 937; see also Jud v, Tide Water Lumber Co. 51 Wash. 164, 98 Pac, it became necessary to determine the 377.

ownership both of the lands exposed and

V.

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