2 Wash. 405 | Wash. | 1891
Lead Opinion
—The court below, in deciding this case, gave the same effect to a town plat, part of which covered upland and part tide land, that we have given in the case of Kenyon v. Knipe, ante, p. 394 (just decided), and it fol
Dissenting Opinion
(dissenting). — This case was commenced in September, 1889, before the constitution went into effect, and by his complaint the appellant showed that he was the owner in fee and in possession of certain property in Plummer’s addition to the city of Seattle, and that his land extended to and upon the waters of Elliott Bay, a navigable arm of the sea. He further showed that defendants were driving piles and erecting other obstructions between him and the deep water. Other allegations made a good complaint, conceding that the defendants were mere trespassers without rights in themselves. A demurrer to the complaint was sustained, and judgment went against the appellant, from which judgment this appeal was taken. I am unable to see why, under the decision in the case of Eisenbach v. Hatfield, ante, p. 236, and that of Kenyon v. Knipe, ante, p. 394, the demurrer should not have been overruled, unless, as seems to be hinted at in the briefs on both sides, the court below looked beyond the record in the case, and considered that, inasmuch as the plaintiff’s property was shown to be certain lots and blocks in the city at Seattle, there must be other lots, blocks and streets beyond him, covering part of the tide lands, and which were also embraced in Plummer’s addition. This feature was not in the case, and was not disclosed by plaintiff’s complaint. The suit having been commenced before the constitution became operative, and before any subsequent laws on the subject were passed, I think appellant was entitled to have some relief under the pleadings, even under the holdings of this court in the cases above mentioned. Van Dolsen v. Mayor, etc., 17 Fed. Rep. 817.
