1920.

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

Wilson v. Oregon-Washington R. & Nav. Co. 71 Wash. 102, 127 Pac. 847; Puget Mill Co. v. State, 93 Wash. 128, 160 Pac. 310.

The shore of navigable waters, and the tidelands thereunder, are owned by the state in which they lie as a part of its all rights therein sovereignty, and claimed under state grants are to be determined by the local law of the state in which the lands are situated, and the decisions of the courts of such state in the construction of such grants and the law applicable thereto are binding upon the Federal courts.

Hardin v. Jordan, 140 U. S. 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, 838; Shively v. Bowlby, 152 U. S. 1, 13, 38 L. ed. 331, 336, 14 Sup. Ct. Rep. 548; St. Anthony Falls Water Power Co. v. St. Paul Water Comrs. 168 U. S. 349, 42 L. ed. 497, 18 Sup. Ct. Rep. 157; United States v. Mission Rock Co. 189 U. S. 391, 47 L. ed. 865, 23 Sup. Ct. Rep. 606; Weber v. State Harbor Comrs. 18 Wall. 57, 21 L. ed. 798.

Every grant by a sovereign state is construed most strongly against the grantee. Nothing passes by intendment or implication. And if the law or the state deed fixes no limit to a grant, it becomes the duty of the court to fix the narrowest limit that will reasonably satisfy the terms of the grant.

Pearl Oyster Co. v. Heuston, 57 Wash. 533, 135 Am. St. Rep. 1007, 107 Pac. 349, 832.

The sale by the state of Washington to respondents' grantors carried with it no right of access to or wharfage in the East Waterway.

Eisenbach v. Hatfield, 2 Wash. 236, 12 L.R.A. 632, 26 Pac. 539; Harbor Line Comrs. v. State, 2 Wash. 530, 27 Pac. 550; Lownsdale v. Grays Harbor Boom Co. 54 Wash. 542, 103 Pac. 833; Newell v. Loeb, 77 Wash. 182, 137 Pac. 811; Hill v. Newell, 86 Wash. 227, 149 Pac. 951; State ex rel. Seattle v. Savidge, 95 Wash. 245, 163 Pac. 738; Puget Mill Co. v. State, 93 Wash. 128, 160 Pac. 310.

The right to wharf out, where conferred by statute, is, until exercised, a mere revocable license, and creates no vested right.

|

The case was properly removed from the state court to the Federal court.

Chicot County v. Sherwood, 148 U. S. 529, 37 L. ed. 546, 13 Sup. Ct. Rep. 695; Cowles v. Mercer County, 7 Wall. 121, 19 L. ed. 87; Lincoln County v. Luning, 133 U. S. 530, 33 L. ed. 767, 10 Sup. Ct. Rep. 363; Camden Interstate R. Co. v. Catlettsburg, 129 Fed. 421; Illinois C. R. Co. v. Adams, 180 U. S. 28, 45 L. ed. 409, 21 Sup. Ct. Rep. 256; Scully v. Bird, 209 U. S. 481, 52 L. ed. 899, 28 Sup. Ct. Rep. 597; Missouri, K. & T. R. Co. v. Missouri R. & Warehouse Comrs. (Missouri, K. & T. R. Co. v. Hickman) 183 U. S. 53, 46 L. ed. 78, 22 Sup. Ct. Rep. 18; Scranton v. Wheeler, 179 U. S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48; Tindal v. Wesley, 167 U. S. 204, 42 L. ed. 137, 17 Sup. Ct. Rep. 770; United States v. Lee, 106 U. S. 196, 27 L. ed. 171, 1 Sup. Ct. Rep. 240; Pennoyer v. McConnaughy, 140 U. S. 1, 35 L. ed. 363, 11 Sup. Ct. Rep. 699; Howell v. Miller, 33 C. C. A. 407, 62 U. S. App. 17, 91 Fed. 129; Interstate Constr. Co. v. University of Idaho, 199 Fed. 509; Hopkins v. Clemenson Agri. College, 221 U. S. 636, 55 L. ed. 890, 35 L.R.A. (N.S.) 243, 31 Sup. Ct. Rep. 654; Reagan v. Farmers Loan & T. Co. 154 U. S. 362, 391, 38 L. ed. 1014, 1021, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047.

The plats showing the pierhead lines, having been made by state officers, and filed as required by the state law, acquiesced in by the state for years, and the lots sold according to these plats, and the money received and kept by the state, it and its grantees are now estopped to say that the pierhead lines shown on the plat were not established by authority of the state.

Lindsey v. Hawes, 2 Black, 554, 17 L. ed. 265; Bigelow, Estoppel, 341.

Riparian and littoral rights belong to the owner of the abutting tide or shore land, whether such owner be the state or its grantee; and as to natural, as distinguished from artificial, navigable waters, these rights include the right of access and the wharfing-out right.

Hardin v. Jordan, 140 U. S. 381, 382,
35 L. ed. 433, 11 Sup. Ct. Rep. 808, 838;
Shively v. Bowlby, 152 U. S. 1, 38 L. ed.
331, 14 Sup. Ct. Rep. 548; Puget Mill
Co. v. State, 93 Wash. 137, 160 Pac. 310;
Pac. 1035, 138 Pac. 650; Van Sielen v.
State v. Sturtevant, 76 Wash. 158, 135
Muir, 46 Wash. 38, 89 Pac. 188; Muir
Mr. W. H. Bogle argued the cause, v. Johnson, 49 Wash. 66, 94 Pac. 899;

Eisenbach v. Hatfield, 2 Wash. 236, 12
L.R.A. 632, 26 Pac. 539; Shively v.
Bowlby, 152 U. S. 1, 13, 38 L. ed. 331,
336, 14 Sup. Ct. Rep. 548.

503

An intention to separate the water right of access and wharfage from the abutting property will not be inferred from the mere platting of the ground with a line running along the shore. Watson v. Peters, 26 Mich. 508; Bailey v. Burges, 11 R. I. 330.

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 brought against the railroad in a state court of Washington, in 1917, by the Port, a municipal corporation, created by the laws of Washington. J. F. Duthie & Company, lessees of the railroad's land, were joined as defendants; but they have no substantial interest in the controversy, and their peculiar rights do not require consideration. The case [59] was removed to the district court of the United States by petition of the railroad, which is an Oregon corporation; and a motion to remand was denied. Upon full hearing on the merits a decree was rendered dismissing the bill. The case comes here by direct appeal of the Port under § 238 of the Judicial Code, it having been contended by the railroad and held by the lower court that the validity of chapter 168 of the Laws of Washington of 1913, p. 582, is involved, and that its provisions violate the contract clause and the due process clause of the Federal Constitution. The following facts are material:

Where the state has established a line marking the line of navigability, it is generally held by the courts that the establishment of such a line operates as an invitation and concession to the shore owner to utilize the area between the shore and such line for access to the navigable waters, and that a grant by the state of the abutting lands carries with it this right of access and the right to wharf out to such established line, in the absence of any legislation by the state to the contrary.

Aborn v. Smith, 12 R. I. 373; Miller v. Mendenhall, 43 Minn. 95, 8 L.R.A. 89, 19 Am. St. Rep. 219, 44 N. W. 1141; State v. Sturtevant, 76 Wash. 158, 135 Pac. 1035, 138 Pac. 650.

When the water front is artificially created by the state, all subsequent purchasers from the state hold their property on such water front subject to the terms and with the incidents given by the act creating the water front.

Dana v. Jackson Street Wharf Co. 31 Cal. 118, 89 Am. Dec. 164; Weber v. Harbor Comrs. 18 Wall. 57, 21 L. ed. 798.

If the right of access claimed by the respondents attached to the abutting property as an appurtenance at the time the state conveyed it, such rights become vested property interests, and the state could not, by any action which it might take thereafter, deprive the respondents of these property rights, except by condemnation and making due compensation.

State v. Sturtevant, 76 Wash. 158, 135 Pac. 1035, 138 Pac. 650; Weems S. B. Co. v. People's S. B. Co. 214 U. S. 345, 53 L. ed. 1024, 29 Sup. Ct. Rep. 661, 16 Ann. Cas. 1222; Yates v. Milwaukee, 10 Wall. 497, 19 L. ed. 984.

Mr. Justice Brandeis delivered the opinion of the court:

When the state of Washington was admitted into the Union there lay in front of the city of Seattle extensive tidelands in the area now comprised within the limits of the municipal corporation known as Port of Seattle. Under appropriate legislation of the state this area has been developed as a port. Waterways have been established and in part dredged; tidelands abutting upon the waterways have been filled, platted as city blocks, and laid out with streets; and lots therein have been sold for business and other purposes. Among the waterways established is that known as East Water

SO

1 Chap. 92 of the Laws of 1911, p. 412, 202. It has power, among other things, to as amended by Laws of 1913, chap. 62, p. improve navigable and non-navigable waters of the United States and of the state within the Port district; "to create and improve for harbor purposes new waterways within the Port district; to regulate and control within the limits

all such waters

to

of such Port district so far and to the full
extent that this state can grant the same,
and remove obstructions therefrom; to
straighten, widen, deepen, and otherwise
improve any and all waters
execute leaves of all lands, wharves, docks,
and property owned and controlled by said
Port district, upon such terms as to the
Port commission may deem proper." It
exercises also powers similar to those exer-
cised by counties, including the power to
sue and be sued. State ex rel. Hill v.
Bridges, 87 Wash. 260, 151 Pac. 490. The
state did not transfer to the port districts
its ownership in the beds and shores of

The main question in this case is whether the Oregon & Washington Railroad Company acquired, as owner of land adjoining East Waterway in the Port of Seattle, the right to build in the waterway piers, wharves, and other structures over which it would secure access from its land to the navigable chan-navigable waters.

way, which connects Duwamish river with alleged by the railroad that this pierhead Elliott bay, an arm of Puget sound. East line, 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 obstructing 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 ordinarily at points about 36 feet from the bulkhead.

Chapter 168 of the Laws of Washington 1913, p. 582, provides that:

"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 the improvement and use of such area under authorities, upon the payment of an anconditions to be prescribed by the state de-nual rental, dependent in amount upon the assessed value of an equal area of the abutting land.

2 The form of the deed is as follows:

First party does hereby grant, bargain, sell and convey unto the second party, and his heirs and assigns, the following scribed tidelands of the first class, situated in front of the city of Seattle, Kings county, Washington, to wit:

Lots one to nine, inclusive, block 393, as shown on the official map of Seattle tide lands, filed with the board of state land commissioners at Olympia, Washington.

March 15, 1895.

The railroad failed to apply for such a permit. Asserting the rights above stated, it leased a part of its land to J. F. Duthie & Company for a shipbuilding and manufacturing plant, and purported to authorize the construction of wharves, piers, and other structures upon the adjoining water area up to the 125-foot pierhead line. By the Act of 1913 the control over the waterways, therein conferred upon land commissioners, is to be exercised in port districts [62] by the such use of the waterway by the railroad port commissioners. This bill to enjoin and its lessees, and to quiet title, was, therefore, brought by the Port of Seattle.

The decree entered by the lower court declared in substance (1) that the state

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.

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. 811; Hill 260, 151 Pac. 490. The proprietary v. Newell, 86 Wash. 227, 228, 149 Pac. right of the state over navigable waters 951.4 and of the soil thereunder is neither exhausted nor impaired by making a sale of a tract of tideland, be it the parcel nearest the upland or some other. The state may in one year fill and sell the hundred feet of tidelands nearest the upland, and in the next year fill and sell the parcel beyond. [66] Compare State v. Scott, 89 Wash. 63, 70, 72, 154 Pac, 165. Or it may sell first the parcel more remote from the upland, and later the one immediately adjoining it, or any other. In every case it may, in conveying the tideland, either grant or withhold rights in the water or in the water area, as it flow of the tide is conveyed by the state sees fit. When land washed by the ebb and with clearly defined boundaries, no rights of any kind beyond those boundaries ordinarily pass under the deed. Pearl Oyster Co. v. Heuston, 57 Wash. 533, 135 Am. St. Rep. 1007, 107 Pac. 349, 832. Where a tideland owner acquires rights of access to deep water, it is by arrangement with the owner of the intervening land. Compare Pioneer Sand & Gravel Co. v. Seattle Constr. & Dry Dock Co. 102 Wash. 608, 173 Pac. 508.

[65] Third. The railroad admits that such are the rights of a grantee from the state, where it is the upland which is conveyed. But it contends that a different rule applies where the sale is of tidelands. No basis for the distinction can be found, either in the decisions of the highest court of the state or in reason. Since the upland owner has been denied riparian rights, in deference to the asserted right of the state to control unhampered the course and development of navigable waters, the state's right must be superior also to the claim of the tideland owner. For the assertion of title in the state In some states the shore between the high and the low-water mark belongs to the private owner of the upland, and as such owner he has all rights not inconsistent with the public's rights incident to navigation. In other states, although the land below high-water mark belongs to the state, the private owner of the upland has the right of access over it to the navigable channel, and the right to use the state's land in connection therewith. See 27 R. C. L. §§ 273-279, 284. But, in Washington, it is "uniformly held that there is no riparian right in the owners of lands bordering on the navigable waters of the state," and that the state retains the proprietary right to the soil below high-water mark. State V. Sturtevant, 76 Wash. 158, 163, 135 Pac. 1035, 138 Pac. 650; Brace & H. Mill Co. v. State, 49 Wash. 326, 331, 95 Pac. 278. The language of some earlier cases apparently in conflict with these views was explained in Hulet v. Wishkah Boom Co. 54 Wash, 510, 517, 132 Am. St. Rep. 1127, 103 Pac. 814. The cases referred to go no further than to hold that the owner of uplands has a right in common with the public to use the stream for navigation, as it flows past his land; and that others conducting operations upon the river may not wilfully or negligently destroy his upland. Dawson v. McMillan, 34 Wash. 269, 75 Pac. 807; Monroe Mill Co. v. Menzel, 35 Wash. 487, 70 L.R.A. 272, 102 Am. St. Rep. 905, 77 Pac. 813; Burrows v. Grays Harbor Boom Co. 44 Wash. 630, 87 Pac. 937; see also Judson v. Tide Water Lumber Co. 51 Wash. 164, 98 Pac.

377.

The cases most strongly relied upon by the railroad do not relate to tidelands. They deal with the rights of shore-land owners on an inland lake, the level of which had been lowered by the government. State v. Sturtevant, 76 Wash. 158, 135 Pac. 1035, 138 Pac. 650; Puget Mill Co. v. State, 93 Wash. 128, 160 Pac. 310. Shore lands differ from tidelands not only in their situation, which in many cases makes an almost indefinite filling in of the latter a possibility, but also in legal definition. Tidelands have a definite boundary at the line of mean low tide; or, by later legislation, of extreme low tide. State v. Scott, supra, PP. 68, 69. The shore lands, on the other hand, were those "below the line of ordinary high water, and not subject to tidal flow." They had no defined outer boundary. Accordingly, when the waters of the lake there in question were lowered, it became necessary to determine the ownership both of the lands exposed and