10 Wash. 458 | Wash. | 1895
The opinion of the court was delivered by
In the year 1889 the Globe Mill Company constructed a saw mill upon tide lands in front of the city of New Whatcom. When the surveys made by the tide land appraisers were completed, and the streets extended by the
It is conceded by the Globe Mill Company that its only claim to blocks 199 to 204 inclusive, constituting a range of blocks between Canoe and Bay streets on the north and south, Maple street on the east, and the harbor area on the west, is that on March 26, 1890, when the tide land law went into effect, it had improvements on these lands within the meaning of that law, consisting of its mill and certain piles driven at intervals, to which it was accustomed to tie up
“12. That at the time of beginning the construction, and as a part of its plant, said Globe Mill Company drove a row of piles in and along Bay street from a point adjacent to said block No. 200 extending out to and within what is now the harbor reservation ; that from said piles there was hung sheer booms and boom sticks to which booms of logs shipped to said Globe Company are tied, and' boom sticks have been strung along said piles, and said piles and boom sticks are used for staying and holding logs shipped to said mill for the purpose of being manufactured and sawed into lumber; and subsequent to the 26th day of March, 1890, and as a continuation of its original plan and construction, said mill improved and enclosed the space between Canoe and Bay streets as a booming ground, and set in water breaks and no other or further improvements were ever placed upon said tide lands or any part or portion thereof by the said Globe Mill Company, and no part of said tide lands were otherwise improved by it than as heretofore set out, and such booming grounds are needful and necessary to the successful operation of said mill and business conducted by the Globe Mill Company, and all such lands have upon them valuable improvements in actual use for the purpose of business, trade and commerce.
“13. That all of the tide lands embraced within said blocks No. 200, 201, 202, 203, 204, are necessary and requisite for the convenient use and successful operation of the business of said Globe Mill Company. ’ ’
It will be noticed that these findings are all in the present tense, and that the court does not find precisely what improvements existed on the ground on the 26th day of March, 1890 ; but in this case that fact is not very material, inasmuch as substantially nothing has been added to the improvements existing at that date.
The theory of the court seems to have been that the intention of the tide land law was to permit improvers of the tide lands to buy whatever lands might be shown to be necessary or convenient for the transaction of the business con
This portion of the tide land- act was not adopted upon the principle of the homestead and pre-emption laws of the-United States government, but it was passed in consideration of the fact' that large sums of money had been expended by persons who in good faith expected in some way to be permitted to continue their occupation of the lands to which they had no title, and to save them from what would otherwise be a confiscation of all their improvements, or the destruction of them, which would amount to the same thing. Such acts, while they are to be construed reasonably, are not within the category of laws which require what is termed a “liberal” construction. It is a concession by the state which is to be construed strictly, and there is no greater reason for the courts extending the limits of such a grant beyond the lands actually improved than there would be in their allowing equitable considerations to extend the time beyond which applications for purchase must be filed in order to prevent the public generally from obtaining preferences.
The sole claim which the Globe Mill Company had to
A kindred claim is, however, that the area applied for was necessary for the storage of logs while awaiting the saw; but if open water to such an extent about a saw mill were to be considered as necessarily improved lands, by reason of the existence of the mill, then the right of the improver to purchase would be a floating right which he might locate anywhere on any of the waters surrounding the mill. There was no possession of this area, and navigation over it was free at all times when logs were not actually lying within it.
Still another ground insisted' upon is that these blocks 201 to 204 will furnish a passage way over which logs can be floated from deep water to the mill; and here, it seems to us, is one of the strongest arguments against the whole contention of this applicant. The Constitution, Article 15, § 3, confers upon municipal corporations the absolute right to extend their streets over tide lands intervening between the upland and the harbor area. In the case of New Whatcom, streets have been extended all over the lands in controversy. Three of them lie between block 200 and the inner harbor line. These streets the city has a right to improve by making them solid land if it sees fit, and it would be under no obligation whatever to leave any water way open for the passage of logs. Whatever may have been the intention of the legislature, therefore, in conferring upon tide land improvers a pre-emptive right of purchase, it could not interfere with this constitutional right of the municipal corporation, to cut off the possibility of-the Globe Mill Company’s using any of the lands - in blocks 201, 202
In our judgment, the rights of the Globe Mill Company as an improver must be further restricted to the block 200, upon which its actual improvements stood when the law went into effect.
Block 199 stands in no different position from that of the other excluded blocks, inasmuch as the only claim the mill company has to it is that it had set some piles on two sides of it, and it being behind the mill it was a convenient place for the storage of logs.
In considering this case, we make no account of the motives which may actuate the upland owner in opposing the improver’s claim, because the statute makes none in conferring upon him the right to purchase, except where improvements existing at the date of the act make an exception.
The judgment will be reversed and the cause remanded for the entry of a new decree in accordance with this opinion.
Dunbar, C. J., and Hoyt, J., concur.