2 Wash. 236 | Wash. | 1891
Lead Opinion
The opinion of the court was delivered by
— In this case this court is called upon for the first time to determine the rights of littoral proprietors of lands abutting upon the shore of an arm of the sea in which the tide ebbs and flows; and, while it is scarcely necessary to look beyond our own constitution and laws for authority to guide us to a conclusion, still, owing to the importance of the questions both to individuals and the public, and the magnitude of the interests involved, we have examined the numerous authorities cited by the learned counsel for the respective parties in the elaborate briefs which they have filed, in order that we might familiarize ourselves with the decisions of other courts upon the subject, and with the reasons upon which their decisions are based. We shall not attempt, however, to review all of the decisions in detail, for that would be impracticable, if it were desirable, but will only refer to a few of the eases especially alluded to by counsel.
In this state the common law is our rule of decision in the settlement of questions requiring judicial determination, when not specially provided for by statute. And it seems to be generally conceded that at common law the title to the soil under tide water was vested in the crown. The ownership .of the soil was regarded as a jus privatum, and
This question was thoroughly discussed by the supreme court of the United States in the case of Martin v. Waddell, 16 Pet. 367„ That was an action of ejectment for land under the waters of Raritan Bay in New Jersey, over which the tide ebbed and flowed. The land in controversy was included in a large tract which was granted by the King of Great Britain to the Duke of York, and subsequently became vested in the proprietors of East Jersey, who after-wards surrendered to the crown all their governmental powers, but retained all their rights of private property. One of the parties to the action, as the grantee of the state of New Jersey, under a law of the state, claimed the exclusive right to take oysters in the place granted, and the other claimed the same right by virtue of his title from the proprietors. The right of the crown to make the grant to the Duke of York, which not only included the tide land, and also the waters and soil under the waters, as well as the power of the state to convey the same, were questions thus brought directly before the court for determination; and it was held that the king, as the representative of the nation, had an unquestionable right to make the grant to the Duke of York, with all the prerogatives and powers oí government therein contained. In discussing the question as to whether, since Magna Charta, the king had power to grant land covered by navigable waters to an individual, so as to give him an exclusive right of fishing within the limits of the grant, Mr. Chief Justice Taney said s
u And we the more willingly forbear to express an opinion on this subject because it has ceased to be a matter of*242 much interest in the United States; for, when the revolution took place, the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government. A grant made by their authority must therefore manifestly be tried and determined by different principles from those which apply to the grants of the British crown.”
The natural and logical conclusion of the court was that the grant by the state conferred upon its grantee the exclusive right to take oysters within the territory covered by the grant.
The question of the ownership of lands under tide water was. again raised in the same court in the ease of Pollard’s Lessee v. Hagan, 3 How. 212, which was ejectment for a lot of land in the city of Mobile, in Alabama, which lay below high water mark, and which had been granted to plaintiff by congress. After approving the decision in the case of Martin v. Waddell, Mr. Justice McKinley, in the course of his opinion, says:
“Then to Alabama belong the navigable waters, and the soils under them, in controversy in this case, subject to the rights surrendered by the constitution to the United States; and no compact that might be made between her and the United States could diminish or enlarge these rights.”
The court further says that, “by the preceding course of reasoning, we have arrived at these general conclusions — (1) The shores of navigable waters, and the soils under them, were not granted by the constitution to the United States, but were reserved to the states, respectively; (2) the new states have the same rights, sovereignty and jurisdiction over this subject as the original states; (3) the right of the United States to public lands, and the power of congress to make all needful rules and regulations for the sale and disposition thereof, conferred no
Again, in the case of Weber v. Board of Harbor Commissioners, 18 Wall. 57, it was held that to the State of California, upon her admission into the union, passed the absolute property in and dominion over all soils under tide water within her limits, with the consequent right to dispose of the title to any part thereof in such manner as the state might deem proper, subject to the paramount right of navigation over the waters, so far as such navigation might be required by the necessities of commerce with foreign nations and among the several states, the regulation of which was vested in the general government. Opinion of Mr. Justice Field, at page 65.
The court went still further in the case of McCready v. Virginia, 94 U. S. 391, and there held that not only the soil under tide waters in the state, but the waters themselves, and the fish in the waters, so far as they are capable of ownership, belonged to the state, and that the legislature had the constitutional right to pass a law prohibiting any person not a citizen of the state from fishing in such waters. And in Willson v. Black Bird Creek Marsh Co., 2 Pet. 245, the court sustained an act of the legislature of Delaware authorizing the damming up of a navigable stream for the benefit of adjoining lands.
The case of Hoboken v. Penn. R. R. Co., 124 U. S. 656 (8 Sup. Ct. Rep. 643), was an action of ejectment for land occupied by the railroad company along the margin of the Hudson river. Plaintiff claimed by dedication of the street to the water by the original proprietor of the land, as evidenced by the “Loss” map. Defendant claimed by virtue of a grant from the state. Mr. Justice Matthews, speaking for the court, said;
“ The nature of the title in the state to lands under tide water was thoroughly considered by the Court of Errors*244 and Appeals of New Jersey in the case of Stevens v. Patterson & Newark R. R. Co., 34 N. J. Law, 532 (3 Am. Rep. 269). It was there declared (page 549) ‘ that all navigable waters within the territorial limits of the state, and the soil under such waters, belonged in actual propriety to the public; that the riparian owner, by the common law, has no peculiar right in this public domain as incidents of his estate; and that the privileges he possesses by the local custom, or by force of the wharf act, to acquire such rights, can, before possession has been taken, be regulated or revoked at the will of the legislature. The result is that there is no legal obstacle to a grant by the legislature to the defendant of that part of the property of the public which lies in front of the lands of the plaintiff, and which is below high water mark.3 It was therefore held in that case that it was competent for the legislative power of the state to grant to a stranger lands constituting the shore of a navigable river under tide water, below the high water mark, to be occupied and used with structures and improvements in such a manner as to cut off the access of the riparian owner from his land to the water, and that without making compensation to him for such loss.33
And again %
“Our conclusion, therefore, is that the grants from tüe state of New Jersey, under which the defendants claim, respectively, are a complete bar to the recovery sought against them in these suits.33
And finally s
“Under these grants they have and hold the rightful and exclusive possession of the premises in controversy against the adverse claim of the plaintiff to any easement or right of way upon and over them, by virtue of the original dedication of the streets to high water mark on the Loss map.33
The foregoing decisions of the highest judicial tribunal of the United States, without other or further authority, would seem to settle, beyond controversy, the question of title to the tide lands of this state, and to leave no doubt whatever that they belong to the state in actual propriety,
But, in order that there might be no doubt upon this vexed question, the constitution of the state has spoken upon the subject. Sec. 1, art. 17 of that instrument, declares that “the State of Washington asserts its ownership to the beds and shores of all navigable waters in the state, up to and including the line of ordinary high tide, in the waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes i Provided, That this section shall not be construed so as to debar any person from asserting his claim to vested rights in the courts of the state.” And so zealous were the people of the state in guarding their rights in these lands that they inserted a proviso in the constitution to the effect that no law of Washington Territory, granting shore or tide lands to any person, company, or any municipal or private corporation, should be deemed valid. Const., art. 17, § 2.
Appellee contends, however, that whatever may be the title of the state to the soil under tide water, he, by virtue of his contiguity to the water, has certain rights in the shore beyond those of the general public, and which are peculiar to himself, among which are a right to wharf out opposite to his upland, a right of ferriage, a right of unobstructed access to the navigable water in front of him, and a further right to accretions that may hereafter be formed, and that all of these rights are property, and are “ vested rights.” And in support of this contention the learned
In Dutton v. Strong, cited by appellee as an authority in favor of his right to wharf out against his premises, the facts before the court were as follows: The defendant in the court below had constructed a landing or bridge pier in front of his premises, extending to the navigable waters of the lake. Plaintiff’s vessel was moored to this pier in a storm and, by force of a gale, was about to pull down and destroy defendant’s structure, when he, after requesting the master of the vessel to detach the same, but who refused to do so, cut the hawser, whereby the ship was set adrift and sunk. Plaintiff sued for the resulting damage. The court held that the defendant had a right to erect the pier where it was, and to protect the same by cutting the vessel’s fastenings, even although it was thereby exposed to destruction. Speaking of the origin of riparian rights in this country, Mr. Justice Clifford said:
“Our ancestors when they immigrated here undoubtedly Drought the common law with them as part of their inheritance; but they soon found it indispensable in order to secure these conveniences, to sanction the appropriation of the soil between high and low water mark to the accomplishment of these objects. Different states adopted different regulations upon the subject, and in some the right of the riparian proprietor rests upon immemorial local usage. No reason is perceived why the same general principle should not be applicable to the lakes, although those waters are not affected by the ebb and flow of the tide.”
We have no doubt of the correctness of that decision,
The case of Railroad Co. v. Schurmeir involved the title to land on the Mississippi river at St. Paul. Schurmeir’s premises were bounded by high water mark of the river, but the laud in front liad been filled in and built upon, down to extreme low water mark • and it was held that he had a right, as riparian proprietor, to the reclaimed land, as against the railroad company. And, at page 289, Mr. Justice Clifford said:
“Although such riparian proprietors are limited to the stream, still they also have the same right to construct suitable landings and wharves, for the convenience of commerce and navigation, as is accorded riparian proprietors bordering on navigable waters affected by the ebb and flow of the tide.”
But it will be remembered that the same learned judge said in Dutton v. Strong that different states adopted different regulations upon the subject; and no doubt the decision of the case was in no way in conflict with the “regulations” of Minnesota.
The question before the court in Yates v. Milwaukee was as to the validity of an ordinance of the city of Milwaukee declaring a wharf belonging to Yates a nuisance; and it was remarked by Mr. Justice Miller, in speaking generally of riparian rights on navigable streams, that, whether the title of such owner extended beyond the dry land or not, he has the right of access to the navigable part of the river, and to make a landing, wharf or pier for his own use, or that of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights ot the public, whatever they may be, and that it is a valuable right and property, and a right of which, when once vested, the owner can only be deprived in accordance with established law, and, if necessary that it be taken for the public good, upon due compensation.
“Nor is it necessary to controvert the proposition that in several of the states, by general legislation or immemorial usage, the proprietor whose land is bounded by the shore of the sea, or of an arm of the sea, possesses a similar right to erect a wharf or pier in front of his land extending into the waters to the point where they are navigable. In the absence of such legislation or usage, however, the common-law rule would govern the rights of the proprietor, at least in those states where the common law obtains. By that law the title to the shore of the sea and of the arms of the sea and in the soils under tide waters is, in England, in the king, and in this country in the state. Any erection thereon without license is therefore deemed an encroachment upon the property of the sovereign, or, as it is termed in the language of the law, a purpresture, which he may remove at pleasure, whether it tend to obstruct navigation or otherwise.”
We think the above is a correct statement of the law applicable to riparian rights on tide waters, and that it is fully supported by the authorities. Gould, Waters, § 167, and cases cited; Com. v. Alger, 7 Cush. 53; Dana v. Wharf Co., 31 Cal. 118 (89 Am. Dec. 164); Martin v. O’Brien, 34 Miss. 21. And in this connection it must not be forgotten that iu the cases of Dutton v. Strong, Railroad Co. v. Schurmeir, and Yates v. Milwaukee, as well as that of Case v. Toftus, 39 Fed. Rep. 730, also cited by counsel, the respective ri
e< In this case the wharf which it was attempted to condemn as a nuisance was actually built.”
In Ravenswood v. Flemings, 22 W. Va. 52 (46 Am. Rep. 485), which is a well considered case, it was held, under a law of that state, that a riparian proprietor on a navigable river had no right to build a wharf, ferry or bulk-head, below high water mark, without the consent of the town council, and that he might be prevented from so doing by injunction. And in Com. v. Alger, supra, the court, in a most learned and elaborate opinion by Chief Justice Shaw, sustained an indictment against the defendant for extending a wharf beyond the harbor line in the city of Boston, on his own land j and, further, that the statute establishing harbor lines, and taking away the rights of proprietors of fiats in the harbor beyond the lines, to build wharves thereon, even when they would be no injury to navigation, and providing for no compensation to such proprietor, was not unconstitutional as taking private property for public uses without compensation.
We think the authorities abundantly show that a riparian proprietor on the shore of the sea, or its arms, has no rights as against the state or its grantees to extend wharves in front oi his land below high water mark.
But, if this were not so, we would still be constrained to hold that appellee has no such rights j for the constitution ot the state, which is the supreme law of the land, expressly declares that the legislature shall provide for the appointment of a commission, whose duty it shall be to locate and
But appellee claims that he has a vested right to future accretions to his land, and cites as authority to sustain his position the case of County of St. Clair v. Lovingston, 23 Wall. 46. And the court in that case does say that the riparian right of future accretions is a vested right. But we are unable to see how one can have a present vested right to that which does not exist, and which may never have an existence. It seems to us that the more reasonable doctrine is announced in the case of Taylor v. Underhill, 40 Cal. 471, in which case the court says:
“The plaintiff, as a riparian owner, has also a right to accretions to his land, and it is said the claim of defendant will be a cloud upon his title to such accretions. But, as yet, there is no such property, and there may never be. He cannot ask the court to interfere in advance, and prevent a cloud being cast upon his title to that which may never had an existence.”
The case of Railway Co. v. Renwick, 102 U. S. 180, cited by appellee, was an action for damages by a riparian proprietor on account of the building of a railroad along the Mississippi river in front of his premises. The court
The same question was before the court of appeals of New York in the case of Gould v. Railroad Co., 6 N. Y. 522, and was decided the same way. In that case the court, quoting Lansing v. Smith, 4 Wend. 9 (21 Am. Dec. 89), said;
“ The bank of the Hudson river, between high and low water mark, belonged to the people, and the riparian proprietor had no better right to the use of it than any other person. If he built on it or erected a wharf there, it would be a purpresture, which the legislature might direct „to be demolished, or to be seised for the use of the public. Or the legislature might authorize erections in front thereof, as in case of Smith’s wharf on the Thames.”
And in Stevens v. Railroad Co., 34 N. J. Law, 532 (3 Am. Rep. 269), it was held that, although an owner of land adjacent to navigable water is more conveniently situated for the enjoyment of the public easement than others, he has, by virtue of common law, no more or greater rights than the rest of the community. In Langdon v. Mayor, 93 N. Y. 129, 155, it was said that the legislature of the state, where not restrained by constitutional inhibitions, could authorize a
Many decisions of the various state courts have been cited by appellee as sustaining a contrary doctrine to that of the above eases, but we find, upon examination, that they are mostly (especially those referring to riparian rights in tide waters) based either upon statutes or local customs, and are therefore not precedents binding upon us. Our attention is also called to the English cases of Buccleuch v. Board of Works, L. R. 5 H. L. 418, and Lyon v. Fishmongers’ Co., 17 Moak, Eng. R. 51, only the latter of which, however, we have had an opportunity to examine j and in that case the principal question involved was the construction of an act of parliament which distinctly recognized riparian rights in the owner, and which provided (§ 179) that “none of the powers by this act conferred, or anything in this act contained, shall extend to take away, alter or abridge any right, claim, privilege, franchise, exemption or immunity to which any owner or occupier of any lands, tenements or hereditaments on the banks of the river, including the banks thereof, or of any aits or islands in the river, are now by law entitled, nor to take away or abridge any legal right of ferry, but the same shall remain and continue in full force and effect as if this act had never been made.” The statute is a very broad and comprehensive one; and, as it was not questioned but that Lyon’s wharf was erected and used where it was in accordance with the law, the owner was entitled to the “privilege” of continuing to use it, as against the Fish
The result of our investigation of the authorities leads us to the conclusion that riparian proprietors on the shore of the navigable waters of the state have no special or peculiar rights therein as an incident to their estate. To hold otherwise would be to deny the power of the state'to deal with its own property as it may deem best for the public good. If the state cannot exercise its constitutional right to erect wharves and other structures upon its public waters in aid of navigation without the consent of adjoining owners, it is obviously deficient in the powers of self-development, which every government is supposed to possess — a proposition to which we cannot assent. See Galveston v. Menard, 23 Tex. 349. Nor do we think this view in any way conflicts with the constitution of the state, but, on the contrary, we believe it is in strict harmony with it, when all its parts are construed together. We cannot think that the building by the state or its grantees of wharves upon shores of navigable waters would constitute either a taking or damaging of private property for public use, in contemplation of the constitution. See Com. v. Alger, supra.
The next question to be considered is, by what right, if
We think, by a fair construction of this statute, that appellants are rightfully in possession of the disputed premises and have a right to maintain their improvements as they were on March 26, 1890, but that they have no right to enlarge their erections prior to such time as they
Dissenting Opinion
(dissenting). — The plaintiff in the superior court, the appellee here, alleged ownership of lots 15, 16 and 17, in blocks 1 and 2, in Wallace’s addition to the city of Tacoma; that his lots had a water frontage on Puget Bound, a navigable arm of the sea, for a distance of more than one hundred and fifty feet; that defendants had, about May 1, 1890, taken exclusive possession of the shore in front of his lots, including all the area between high and low water marks, and had placed certain obstructions in the way of his access to the water, and were threatening to increase the obstructions, and refused him any access to the water from his land, or to permit him to enjoy any of his riparian rights. The prayer of the complaint Avas for a mandatory injunction to secure the removal of the obstructions. The ansAver admitted plaintiff’s ownership to high water mark, but denied his right of access and all other riparian rights; admitted taking possession of the shore; claimed improvements in actual use for commerce, trade and business on March 26,1890, and prior thereto, and the right to purchase the land improved under the act of that date; and alleged the distance between high and low water marks to be not exceeding Iavo hundred and fifty feet, and from high Avater to Avater of the depth of five fathoms to be four hundred feet. The court below sustained a demurrer to the answer, and the opinion of this court has reversed the ruling.
I think the demurrer should have been sustained — ■ First, for the reason that the allegations of the answer, intended to show improvements March 26, 1890; were not
This is the first instance in the recorded history of English or American law where private persons, for private ends, have been sustained by a court in taking and maintaining permanent possession of the shore of an arm of the sea, or of any navigable water, to the exclusion of the owner of the bank from passing over it to the water; and if the act of March 26, 1890, has the effect ascribed to it, it is the first act of an English or American legislature, not excepting those of New York and New Jersey, which has ever done so much. The public right in navigable waters, and to the soil underlying them, have been freely regulated and disposed of by both parliament and the legislatures; but both have held sacred the rights admitted to exist in connection with the lands bordering the waters, whether with or without constitutional rules against taking private property without- compensation. These rights have been regulated in divers ways proper to their locality, according to the complicated necessities of crowded harbors or the unfrequented shores of remote waters; but while it is true that a few courts have theoretically denied, many have actually upheld them, and no other legislature has ever ignored them. Even the act o. the legislature of New York, in 1840, which gave rise to the case of Gould v. Railroad Co., 6 N. Y. 548, made the most ample provision for drawbridges, so as to continue navigation in bays and streams cut off by the railroads, and for the extension of wharves and docks across the tracks to the river beyond; all of which was in obedience to the settled policy of the state, inaugurated in 1786, which prohibited the sale of any shore lands to other than riparian owners. Rumsey v. Railroad Co., 114 N. Y. 423 (21 N. E. Rep. 1066). Of the other old states, every one, from the Massachusetts colony in 1641
We are not a new people. As an organized community we date from 1853. True, the sovereignty was withheld until 1889; but, upon the faith of a policy adopted and placed among the statutes of the territory in 1854, lands were acquired upon the shores of our navigable waters, and improvements made at great cost by private persons — improvements which had a large share in making it possible for Washington to become a state, but which the principle of the court’s decision would render it possible for the very next legislature to sweep out of existence or confiscate without compensation. This was a territorial statute, it is true; but the territory was competent to frame, and did frame, policies in a hundred other particulars between which and this I can see no distinction. If Massachusetts, in 1641, when a mere colony of Great Britain, could absolutely grant away the soil beneath the waters, so as to bind her when she became a state, as well as the states of Maine and New Hampshire; and if the provincial governor of New York could, in 1689, grant to the city of New York the fee of the shore between high and low water marks, whereon are now based some of the most valuable titles in that city and in the world — it would seem tobe no
But it is said that the constitution, or the act of 1890, or both together, have repealed the act of 1854. Let us see. In the schedule of the constitution (art. 27, § 2), in obedience to the last clause of § 24 of the enabling act, it was provided that all laws in force in the territory, not repugnant to the constitution, should remain in force until they expired by limitation or were repealed by the legislature; and then there was a proviso “that this section shall not be so construed as to validate any act of the legislature of Washington Territory granting shore or tide lands to any person, company, or any municipal or private corporation.” What effect does that proviso have on any such act? It prevents the constitution from “validating” it. If the act was a valid law, it continued so; if it was invalid, it continued the same. Everybody knows that the proviso was aimed at a single ease where the legislature of the' territory did once attempt to grant shore lands to a railroad company; and it was merely to prevent that act from gathering force from the constitution, so as to render that valid which it was suspected had become or had always been invalid, that the proviso was enacted. The grant was believed to have been a fraud, and dead in law, and the proviso was to prevent its being galvanized into life. But the act of 1854 (code, § 3271) was not a grant of lands in any sense. This court has said it was “but a license, at most”; and, while I do not agree that the right to wharf out was dependent upon the act, the court’s statement is good law, to the effect that it was not a grant of tide or shore lands, and therefore was not covered by the proviso in question. But mark the difference
The only other provision on the subject in the constitution is in § 1 of article 17, where the state’s ownership of the beds and shores of all the navigable waters in the state to ordinary high water mark is asserted. But it did not require any such assertion to vest those lands in the state j for by an unbroken line of decisions, from far back of Pollard’s Lessee v. Hagan, the courts have held that this ownership is in the state, thrust upon it as sovereign, in trust for its own people and those of the nation, for purposes of commerce and navigation as natural highways. It is idle to say that this assertion in the constitution conferred or strengthened the actual title of the state, and this could not, therefore, have been its purpose. But there was a valid purpose to subserve by this assertion, and that was to put it beyond question that in this state the sovereignty assumed was to high water mark, and not merely to low water mark. The United States, in 'hll its grants, has conceded that the fast land stops at high water mark; but in some of the states, as Massachusetts, Bhode Island, Illinois, and Minnesota, the title of the shore owner has been conceded to extend to low water, or a certain distance below high water mark. This concession was by legislation in some states, and by the decisions of courts in others. Meyers v. St. Louis, 8 Mo. App. 266. I hold that it was to
The article (15) on harbors and tide waters is nothing more than a limitation upon the legislature prohibiting it forever from disposing of the sea or river beds beyond certain lines in front of incorporated towns. Such lines exist in all important harbors, and are drawn to preserve the public right of navigation. Usually their location is changed from time to time as circumstances require, and it was a change of this kind, fully authorized by the state, that produced the case of Yates v. Milwaukee, 10 Wall. 497. The court seems to construe § 2 of this article as
Turning now to the act of March 26, 1890, the first thing that attracts attention, as having a bearing on the matter under discussion, is that, for some reason, the law gives the pre-emptive right to buy tide lands, with certain exceptions, not to the public at large, but to the upland owner] and therein, I maintain, is fashioned the general policy of the state on this subject, which is to enlarge the right conceded to be in upland owners by the act of 1854, and is exactly in harmony with the legislation of every other state in the union which has lands of this character and laws upon the subject. I say this is the policy, because it is not going outside of proper bounds to further say that, of all the shores of navigable waters within the State of Washington, not one ten-thousandth part will be free from this pre-emptive right of shore owners or their grantees, under § 12 of the act. This § 12 has some striking language in it, which, to my mind, further shows the policy. Under it, when an abutting owner has attempted to convey tide lands in front of his uplands, or littoral rights therein, his grantee may purchase the tide lands to the extent of the tract or rights (littoral rights) so conveyed. Now, what are the “littoral rights55 which the upland owner could so convey? Are they what the constitution speaks of as “vested55 rights? The mere license under the act of 1854 was not one of them, because a license is personal
Lastly, touching the proviso of the eleventh section:
“That if valuable improvements, in actual use for commerce, trade or business, have been made upon said tide lands by any person, association or corporation, the owner or owners of such improvements shall have the exclusive right to purchase the land so improved: Provided, That nothing in this act shall be so construed [as] to apply to any improvements made after the passage of this act.”
Here, again, the care of the legislature to preserve the right of the upland owner to acquire these lands is manifested most broadly; for, subsequent to the passage of the act no enlargement of the improvements can be
But I maintain that the statute did not and could not deprive the upland owner of his full right to move promptly in the courts for the removal of any obstruction to his access to the water, where it was placed there against his will, and under threats of force and violence, as the fact is admitted to be in this case, and that whenever such a state of facts exists any title derived from the state roust be held in trust for the upland owner. Such cases are precisely within the principles of Atherton v. Fowler, 96 U. S. 513, and numerous other cases, where force, fraud and the misconduct of officers have transferred lands patented by the United States to their rightful owners. Emphasis is laid upon the construction by the last paragraph of the section, where it is provided that nothing in the act shall apply to improvements made after the date of its passage; showing the legislative intention to discourage all scrambling possessions or claims not founded upon the upland owner’s deed. Conceding, however, that the act was intended to apply to such a claim as the one at bar, it cannot be regarded in any other light than as showing the intention to make improvements alone the basis for the state’s parting with its legal title, leaving the holders of adverse equities to resort to the courts for their enforcement. United States v. Schurz, 102 U. S. 378. And here the importance attached to a pleading of the facts in the answer appears. None of the material averments of the complaint were denied; for the allegations therein of the plaintiff’s various rights were not material. If by nature the plaintiff had the rights claimed, it was not necessary to plead them, and the statute gave him the exclusive right to purchase. The answer was a confession and avoidance
The court has found that upon authority a riparian proprietor on the shore of the sea or its arms has no rights, as against the state or its grantees, to continued access to the water, or to extend wharves in front of his land below high water mark. In the language of Mr. Lewis, in his work on Eminent Domain (p. 83), it has done so “by a narrow and technical course of reasoning, based upon the fact that the title to the soil is in the state or the public;” and has not, as I conceive, accepted the great weight of authority both in England and America. To my mind, in reading its conclusion, it has completely ignored the prime common source of the state’s title, and of the riparian claim to access, which is that the navigable waters are natural public highways. Yet, as compared with this matter of substance, all questions of reclamation, of accretion, and reliction, of fishery and sea weed, pale and fade into insignificance. It is as highways that the sovereignties of the world, and particularly our own, have any jurisdiction over the navigable waters, differing in any respect from their jurisdiction over the fast land, and their different jurisdiction is of precisely the-same character as the jurisdiction over highways upon the land. Under the constitution of the United States, congress has the power to regulate commerce between the states and with foreign nations; but, while under this power it has never yet undertaken to dictate concerning the manner of construction of any land highway not undertaken by itself, it has gone upon the water highways, both tide and fresh, and assumed .the broadest control, deepening channels, changing harbors, building dikes, and regulating the building of bridges, in all of which it has been sustained by the supreme court of the United States, solely because the waters are natural
In the case at bar the appellants, possessing themselves of the exact line which borders the land and the highway, say to the land owners “You can reach the water by yonder street, or, if you will wait until we have built a wharf here, you can pass over it at the same rate of toll as any other person. In the mean time, you cannot pass at all.”
The appellants, however, in order to sustain their own position, are forced to maintain the very doctrine they fight against1 — that of the right of access. They oppose the upland owner’s access, but, having planted themselves in the highway, they propose to build wharves and maintain access themselves. By their improvements they propose to turn the shallows into land, and then will claim that access to the water is necessary to its enjoyment. But here is land formed by nature that since time was had no other outlet than over the sea, put there by nature as a highway. The land passed from the sovereign owner by right of discovery, the United States, by solemn patent to the appellee, who is now told that the highway he relied upon is forever closed without his consent and without any compensation for his loss. Has he been damaged? “ Actually, oh, yes,” will be admitted by his bitterest opponent 3 “but not in law, because the title to the land beneath this water is in the state.” But wherein does the nature
‘“Once a highway, always a highway,’ is an old maxim of the common law, to which we have often referred, and so far as concerns the rights of abutters, or others occupying a similar position, who have lawfully and in good faith invested money or obtained property interests in the just expectation of the continued existence of the highway, the maxim stills holds good. Not even the legislature can take away such rights without compensation.” Elliott, Roads & sf, p. 658.
To illustrate this by more explicit authority: It has long been settled that running a street railroad is a proper public use of a street, when built so as not to interfere unnecessarily with the public right to travel over it • and that the mere erection of such a structure on the surface of the street does not entitle an abutting owner to compensation, even when the fee of the street is in him. But in some large cities it became necessary to have elevated railroads to carry on the traffic. These were authorized by the leg
“The judgments for damages which have been recovered and sustained against the elevated railroads do not and cannot rest on the ground that the roads are public nuisances, for they were constructed pursuant to statute; and besides, as before stated, a public nuisance does not create a private cause of action, unless a private right exists and is specially injured by it. The only remaining ground upon which they can and do stand is that, by the common law, the plaintiffs had private rights in the streets before the roads were built or authorized to be built. . „ „ The constitution of this state provides: Nor shall private property be taken for public use without just compensation.’ It is settled by Story v. N. Y. Elevated R. R. Co., 90 N. Y. 122 (43 Am. Rep. 146), and Lahr v. Metropolitan Elevated Ry. Co., 104 N. Y. 268, that such rights as the plaintiff has in*270 Pearl street are private property, within the meaning of the constitutional provisions quoted. ... It follows that the authority conferred by the legislature to construct the road is not a defense to the action.”
As will be seen from the decision, so far as the public generally was concerned, no matter how great was the nuisance in the street, it could remain, because the legislature authorized it.
And while I am so near the subject, I will here refer to the case of Hoboken v. Railroad Co., 124 U. S. 656 (8 Sup. Ct. Rep. 643), relied on by the court to sustain its decision; for the student of that case, it seems to me, must see that the only matter there in issue and decided was whether the State of New Jersey, as the superior of the city of Hoboken, could wholly destroy the public right of passage over filled up lands at the end of a street, beyond the end of the street as originally dedicated. No pi’ivate citizen was complaining, and the court says, on page 693:
“The right insisted upon in these actions by the city of Hoboken is the public right, and not the right of individual citizens claiming by virtue of conveyances of lots abutting on streets made by Stevens or his successors in the title. The public right represented by the plaintiff is subordinate to the state, and subject to its control. The state may release the obligation to the public; may discharge the land of the burden of the easement, and extinguish the public right to its enjoyment. Whatever it may do in that behalf conclusively binds the local authorities, when, as in the present cases, the rights of action asserted are based exclusively on the public right.”
And it might have added that the legislature of New Jersey could have altogether destroyed the corporation of Hoboken, but it could not touch the right of a single lot owner, corporation or no corporation, to pass from his lot to the street, and thence abroad. The difficulty which the court finds in harmonizing Yates v. Milwaukee and the other leading cases in the United States supreme court with Ho
And now, the right to wharf is derived by strict analogy from the abutter’s right in connection with a land highway; for no one questions the right of an abutter, where the improved roadway covers but a narrow strip in the middle of the way, to build for himself a convenient means to reach the traveled track over the intervening land; and so, on the waterway, the navigable part of the water is the actual way, to which the wharf is the reasonable means of access. And, as the right of access to the road pertains to every portion of the abutter’s front, so the right to wharf belongs to all the riparian owner’s front. I know it is said, in response to this, that the abutter cannot charge a toll to‘any member of the public who goes upon his side-way. Granted; but there is no question here of charging wharfage, which must be always reasonable, and is always under the public control. Transportation Co. v. Parkersburg, 107 U. S. 691 (2 Sup. Ct. Rep. 732). It was strongly intimated in Yates v. Milwaukee that, whenever the waterway was made navigable up to the line of the upland owner’s land, he could then no longer maintain his right to project his wharf. But, except in very contracted waters, the cheaper and more practical way is to build out the wharves, instead of deepening the water. The deprivation of these private rights by the state, for its own public purposes, is the taking of property, whether on land or water, and must be compensated. Why, at this day, are these rights denied? I think this is the reason: Sometimes it happens that it is not necessary, for purposes of navigation, that the waterway should be as wide as
I now come to consider the cases cited by the court as requiring its conclusion. Theoretically that is not “land” which is beneath navigable water; from the high water mark all beyond is water. Grants of land stop at the margin, no matter how shallow or extensive may be the shoals beyond. Yet, although we do not endow the state as an ordináry landlord, we say that the title to the sea and river bottoms is in it. The state holds upland upon the same terms and with the same rights as a private citizen. 'We enforce this rule, even upon the federal government, in all but the matter of taxation and the right of eminent domain. There was a time when it was thought that the land beneath navigable waters belonged to the United States; but the supreme court in Pollard’s Lessee v. Hagan awarded it to the several states. Yet in that great case (3 How. 229)
“A right to the shore between high and low water mark is a sovereign right, not a proprietary one. Rivers do not pass by grant, but as an attribute of sovereignty. The right passes in a peculiar manner; it is held in trust for every individual proprietor in the state or the United States, and requires a trustee of great dignity. Rivers must be kept open; they are not land which may be sold. Martin v. Waddell”
I think there is a popular idea that Pollard’s Lessee v. Hagan in some way involved the question of riparian rights. On the contrary, it was a contest between a patentee of tide flats from the United States, who was not an upland owner, and a squatter on the tide flats, who had no license whatever from the State of Alabama. The same repute is true of Martin v. Waddell, 16 Pet. 367. But the case was this? The titles to nearly or quite all the land in New Jersey came from the grantees of the Duke of York, to whom Charles II, in 1664, in consideration of the annual payment of forty beaver skins, gave a charter bestowing upon his royal brother the sovereignty and proprietorship of all the lands, bays, waters, rivers, soils, fisheries, etc., within a vast area. The duke immediately parceled out his domain, under grants equally generous in their terms with that of the king to himself, and under one of these the proprietors of East Jersey became vested with all his rights in the lands and waters
“The sovereign poAver itself, therefore, cannot, consistently Avith the principles of the laAV of nature and the constitution of a Avell-ordered society, make a direct and absolute grant of the Avaters of the state, divesting all the citizens of their common right [of fishery]. It would be a grievance which never could be long borne by a free people.”
In 1824 a statute of New Jersey gave to riparian owners the right to drive stakes in the waters of the bay, in front of their lands, to Avhich to fasten nets, they not interfering with the navigation or any fishery. Waddell drove stakes accordingly, within the lines of a several fishery theretofore granted by the proprietors, and Martin, the grantee of the fishery, brought ejectment. The cause resulted as did Arnold v. Mundy, and reached the supreme court oí
It will be seen from the opinion of the court here that its decision is based mainly upon these United States supreme court cases. It is worthy of remark that they have not been so interpreted in any but a very small minority of the states; and the supreme court itself has never in a single instance based its ruling in a case, where the riparian right of wharfage was in issue, upon any state statute or ascertained custom or usage. In its most clearly cut decision, Yates v. Milwaukee, no such interpretation was allowed to interfere with its declaration of a riparian right of wharfage in Tates, although he was contending, not only against the city of Milwaukee, but against the state of Wisconsin, which had chartered the city to regulate the wharves on her water front, and herself to build and maintain such aids to navigation at the ends of streets. In Weber v. Commissioners, 18 Wall. 57, notwithstanding the language quoted by the court in its opinion, Judge Field distinctly and broadly announced the adherence of the supreme court to the doctrine of Yates v. Milwaukee, and showed that Weber was not a riparian owner. It is worth remembering, at this point, that San Francisco was the successor of a Mexican pueblo, and that the municipal corporation was the owner of all the land to high water mark; so that when the State of California fixed the harbor line, and surrendered the tide lands within it to the city, it was making the surrender to a riparian owner. Hart v. Burnett, 15 Cal. 530.
Inasmuch as the cases above noted are chiefly relied upon
In support of this position I cite Ang. Tide Waters, 24 et seq., 224 et seq.; Cooley, Const. Lim. (5th ed.), p. 675, note 1; Ang. Water Courses (7th ed.), 732; 3 Washb. Real Prop. (5th ed.), 445; Gould, Waters, §§ 148-154; Lewis, Em. Dom., §§ 77 — 83; Dill. Mun. Corp. (4th ed.), § 106; Washb. Easem. (4th ed.), 324; Houck, Rivers, §§ 280, 281; 6 Atner. & Eng. Enc. Law, 558; 28 MyePs Fed. Dec., tit. “Riparian and Littoral Proprietors”; 3 Kent Comm. (13th ed.), p. 413, note; Kerr, Inj., pp. 264, 265. Mr. Wood, in his Law of Nuisances, is, I believe, the only modern text-book writer who maintains the opposite ground. But this author does not attempt to misconstrue Yates v. Milwaukee, or find excuses for this ruling. On the contrary, he attacks it boldly, characterizing the language of it as “mere dictum,” and declares the principle established by it as “wholly uusustained by any authority.” We are not accustomed to thus lightly- treat decisions of that great court, but the attack thus made is admirable for its audacity. Lyon v. Fishmongers’ Co., 17 Moak, Eng. R. 51, is also explained away by this court as never before. Mr. Wood found no explanation. He quotes at length from the opinions of Lords Cairns, Chelmsford, and Selborne, and then says:
“Thus it will be seen that there is considerable conflict upon the question discussed in the note, but, while we believe that the doctrines advanced in this case are utterly fallacious, and unsustained in principle as they are upon authority, it will not be profitable to pursue the matter further; but, as it is the business of an author to give the law as he finds it, I have felt constrained to give the lead*279 ing portions of the opinions of the lords justices in the case, that the question may be fairly presented.”
I take it that the author “gives the law as he finds it” when he quotes the opinion of the two highest courts of the civilized world, although he personally does not agree with the correctness of their decision.
The court assumes that inasmuch as many of the states have long had statutes regulating the riparian owner’s exercise of his right of wharfage, and in many instances enlarging it, therefore his right rests entirely upon the statute of his state. I do not see why it should be so regarded, since we constantly find what has always been the law enacted into statutory form j and we might as consistently say that the state’s title to the tide and shore lands is dependent solely upon article 17 of the constitution. It is sufficient to say that the courts of the states alluded to have not taken any such position, and I shall now cite some eases showing this to be the fact. One of the oldest of these statutes is that of Maryland, in 1745; but in Railroad Co. v. Chase, 43 Md. 23, the court said: “These riparian rights [of accretion and wharfage], founded on the common law, are property, and are valuable] and, while they must be enjoyed in due subjection to the rights of the public, they cannot be arbitrarily or capriciously destroyed or impaired. They are rights of which, when once vested, the owner can only be deprived in accordance with the law of the land, and, if necessary that they be taken for public use, upon due compensation,-” citing Yates v. Milwaukee. In New York, although for many years the courts have been handicapped by Gould v. Railroad Co., as a settled rule of property, in Mayor, etc., v. Hart, 95 N. Y. 443, the court said:
“ But it shocks every notion of justice and right to say that the riparian owner upon navigable water has no equities by reason of that ownership. It is a doctrine which*280 is repudiated by the entire legislation of our own state. . ■ . And whenever and wherever the state has granted to the city of New York exterior lands, under water, it has accompanied the grant with pre-emption rights to the adjacent owners. It is idle to say that all this has been done of pure grace, and without any equity in the abutters. There was reason for doing it, and justice in the act. Granting, as has been held, that the riparian owner has no legal or equitable right enforceable as such against the public right, it is nevertheless true that out of his situation upon the bank, and the convenience and benefit of the water front, he suffers peculiar damage and individual injury when cut off by the public use.”
If stronger language was needed to show that the New York court of appeals would now overturn Gould v. Railroad Co. if it could, it is to be found in Rumsey v. Railroad Co., 114 N. Y. 423 (21 N. E. Rep. 1066, and 25 N. E. Rep. 1080). Rhode Island has always maintained the doctrine contended for without reference to any statute. Providence Steam Engine Co. v. Providence, etc., S. S. Co., 12 R. I. 348 (34 Am. Rep. 652); Clark v. Peckham, 10 R. I. 35. Connecticut in like manner. Simons v. French, 25 Conn. 346; State v. Sargent, 45 Conn. 358. This case contains an eminently fair discussion of the powers of the state. In New Jersey the courts maintained the rule until Stevens v. Railroad Co., 34 N. J. Law, 532 (3 Am. Rep. 269) (see Keyport, etc., Co. v. Farmers’ Transp. Co., 18 N. J. Eq. 516; Gough v. Bell, 22 N. J. Law, 441; Bell v. Gough, 23 N. J. Law, 624), when in a long discussion, not in any wise necessary to the decision of the case, the court announced that riparian owners had no rights which could be injured by the state, but at the same time sustained a judgment for injuries of precisely the character discussed, in all essential parts. The decision on the main point, for which the case is celebrated, was based on the English case of Duke of Buccleuch v. Board of Works, L. R. 5 Exch. 221, which was reversed after-wards in the house of lords (L. R. 5 H. L. 418), and still
“ The state can grant authority to make such erections [of structures below high water] either to the riparian owner or to others, so long as the riparian owner is not thereby deprived of access to and the use of the river as a public highway, which is implied, if not expressed, in the grant to him of land bounded on the stream.”
In North Carolina, Bond v. Wool, 107 N. C. 139 (12 S. E. Rep. 281), is the latest of several cases on this subject, and there the court said:
“In the absence of any special legislation on the subject, a littoral proprietor and a riparian owner, as is universally conceded, have a qualified property in the water frontage belonging by nature to their land; the chief advantage growing out of the appurtenant estate in the submerged land being the right of access over an extension of their water fronts to navigable water, and the right to construct wharves, piers or landings, subject to such general rules and regulations as the legislature, in the exercise of its powers, may prescribe for the protection of the public rights in rivers or navigable water.” v
It will be said that the phrase, “in the absence of any special legislation on the subject,” means, “unless there be special legislation otherwise;” but it is not so. The sense is, “without any legislation to that effect,” and the decision shows it. Bond v. Wool is supported by decisions in other states, old and new, in numerous cases, of which I mention one or more in each, viz.: In Michigan: Rice v. Ruddiman, 10 Mich. 125; Lincoln v. Davis, 53 Mich. 375 (51 Am. Rep. 116; 19 N. W. Rep. 103). In Indiana: Bainbridge v. Sherlock, 29 Ind. 364 (95 Am. Dec. 644). In Wisconsin: Delaplaine v. Railroad Co., 42 Wis. 214 (24 Am. Rep. 386). In Minnesota: Brisbine v. Railroad Co., 23
Of these states, at least Missouri, Kentucky, Arkansas, North Carolina, California and Oregon stop the upland title at high water mark. Cases to the same undoubted effect in the United States courts are: Bowman v. Wathen, (Ind.) 2 McLean, 376; Packet Co. v. Atlee, (Iowa) 2 Dill. 479; affirmed, 21 Wall. 389; State v. Railway Co., 33 Fed. Rep. 730; Hollingsworth v. Parish of Tensas, 17 Fed. Rep. 109, 113; Rutz v. St. Louis, (Mo.) 3 McCrary, 261; Transportation Co. v. Parkersburg, 107 U. S. 699 (2 Sup. Ct. Rep. 732); Potomac Steam Boat Co. v. Upper Potomac Steam Boat Co., 109 U. S. 672 (3 Sup. Ct. Rep. 445). In Van Dolsen v. Mayor, 17 Fed. Rep. 817, decided in 1883, the facts were precisely those of the case at bar, and after considering all of the cases, both English, state and federal, the court holds that the New York elevated railroad cases are decisive of the law in that state, since there is no difference between the principles applying to the land way and the waterway; and, further, that in view of Yates v. Milwaukee, Lyon v. Fishmongers’ Co., and other like cases, Gould v. Railroad Co., 6 N. Y. 523; Stevens v. Railroad Co., 34 N. J. Law, 532 (3 Am. Rep. 269); Lansing v. Smith, 4 Wend. 9 (21 Am. Dec. 89), and Furman v. Mayor, etc., 10 N. Y. 567, are no longer to be regarded as controlling. There the lessee of the riparian owner sought an injunction to prevent the city of New York, which was the owner of the land between high and low water, from filling up the
This court, I think, misreads the case of Lyon v. Fishmongers’ Co., when it gives importance to the term “privilege,” as though the right sustained in Lyon were a concession of statute or usage merely. On the contrary, each of the lords who delivered an opinion was pronouncedly clear that the right was by nature. Said Lord Selboene:
“The rights of a riparian proprietor, so far as they relate to any natural stream, exist jure natural, because his land has by nature the advantage of being washed by the stream; and, if the facts of nature constitute the foundation of the right, I am unable to see why the law should not recognize and follow the course of nature in every part of the same stream. . . . Even if it could be shown that the riparian rights of the proprietor of land on the bank of a tidal navigable river are not similar to those of a proprietor above the flow of the tide, I should be of the opinion that he had a right to the river frontage belonging by nature to his land, although the only practical advantage of it might consist in the access thereby afforded him to the water, and the right of navigation common to him with the rest of the public. Such a right of access is his only, and is his by virtue and in respect of his riparian property; it is wholly distinct from the public right of navigation.”
No other state court has interpreted this case and the opinions of the judges to mean anything but what they say; and a very high English authority, the Encyclopaedia Britannica, cites the case in the concluding words of its article on riparian laws, in this way ;
“It should be noticed that rights of the public may be subject to private rights. Where the river is navigable, although the right of navigation is common to the subject of the realm, it may be connected with a right to exclusive access to riparian land, the invasion of which may form the ground for legal proceedings by the riparian proprietor.”
“By the common law the riparian owner has the right to establish a wharf on his own soil, this being a lawful use of the land. The right is judicially recognized in this country, and riparian owners on ocean, lake or navigable river have, in virtue of their proprietorship, and without special legislative authority, the right to erect wharves, quays, piers and landing places on the shore, if these conform to the regulations of the state for the protection of the public, and do not become a nuisance by obstructing the paramount right of navigation. This right has been exercised by the owners of the adjacent land from the first settlement of the country.”
The idea of “purpresture” furnishes forth a great difficulty in the mind of the court. There is a short and comprehensive history of that portentous institution in People v. Davidson, 30 Cal. 379, from which it appears to be not much more than an ancient prerogative ghost, whose original substance has been completely emasculated by the later law. Suffice it to say that whether the doctrine of purpresture, as applied to wharves extended by riparian owners, has any force in this country or not, it never, in its palmiest days, had the effect of permitting the king to shut off the riparian owner of land from access to the sea by an obstruction of any kind placed in the highway, which is the real ultimate point in issue in this case.
In .conclusion, I recur to the act of 1854, to remark that if that act is to be taken as now repealed, and if riparian owners have not the natural right of access and wharfage, then there is not, in the State of Washington, any authority under which the slightest convenience can be erected or maintained in aid of navigation, excepting in front of incorporated towns; and all the accumulations of labor and wealth, already expended by private enterprise in building ap a commerce second to none in present importance and