*1
January 20,
Banc.
37583. En
[No.
1966.]
Washington,
Hughes,
Stella
The State
Respondent,
Appellant.*
*Reported in
L. for respondent. Charles Welsh, B. for questions generated by ap- J.—The of law this Weaver, peal spring from article 17 constitution, of state its background, interpretation, legislative, historical and its judicial. administrative, and
Article XVII —Tide Lands 1 Declaration Ownership. of state of State § asserts its beds shores navigable including up all waters in the to and ordinary high tide, line in ebbs waters where the tide up including to and flows, navigable water within the of all banks rivers and Provided, lakes: that this section shall not be construed any person asserting so to debar from his claim to rights vested in courts of the state. of Certain Lands. The state of Wash- 2 Disclaimer §
ington swamp tide, disclaims all title and claim to all patented by lands, and overflowed the United States: impeached (Italics Provided, the is not same fraud. ours.) Hughes, upland
Plaintiffs, is the owner of an Stella tract Long Beach Peninsula Park, land near Ocean County, Washington. deraigned pat- Pacific Title prior quiet ent to issued statehood. In this action to title plaintiff alleges1 boundary that of the tract west described as (Italics line tide of the Pacific Ocean. ours.) prays westerly boundary
She the court establish of her “the line mean Pacific Ocean.” No time for the determination is indicated. survey original
The trial court found that since the establishment of the meander line the United States government imperceptible accretions have formеd plaintiff’s property, in front of both before and after No- belongs plain- 11,1889, vember all the accretion tiff as owner. The state does claim the accretion prior the date of its admission to the union. It present contends, however, that the western *3 plaintiff’s present boundary and the land eastern of the “ordinary high state’s tidelands is line of tide” as it 11, existed November 1889. In its answer and com- cross alleges plaint, the state that this 11, line November 1889 as follows: was described
Beginning point at a Y 436,139.17 whose coordinate is 1,104,683.64, and whose X coordinate is referred to the System, running Zone, Coordinate South point azimuth of 1°14/05// thence on an 3412.79feet a is 432,727.18 whose Y coordinate X and whose coordinate system. referred to said 1,104,610.10, is coordinate judgment appeals February frоm The state a dated 1964, which determines: boundary foregoing property [of
that the plaintiff] western high line mean tide of the Pacific Ocean 1 alleges following property: Plaintiff described “Beginning point 1353 feet north at line between Sections 9, Township R. 11 N. W. M. and 437.3 feet west from West Highway 12-A, feet, the west line of State thence No. north 226.6 thence west feet or tide of the Pacific more less Ocean, feet, 226.6 thence East 300 feet more or less to thence South beginning.” ours.) (Italics average may exist, as it now or which line is the hereafter at a in observed location elevation all tides as cycle through complete property tidal
front of the (Italics years. ours.) 18.6 “ordinary point possible We difference between constitution, and “mean tide,” as set fоrth 1964) (February exist,” or hereafter tide as it now point determined the trial court. We also out changing possible superior determined a shift- ing plaintiff’s property. western following ques- appeal brings sharp into
This focus tions:
(a) did to the tidelands the State When title vest Washington? (b) nature owner- is the State’s What ownership? (c) ship? i.e. the extent of State’s What is dividing line what is the between (We are not concerned with the state-owned tideland? Submerged Lands in the instant case. See seaward line (1958 (d) ed.)). §§ Is the Act of 43 U.S.C. 1301-1315 changing depending dividing a fixed line or is it a line line (e) line, If a fixed as of what or reliction? accretion in its oral The trial court said date it be established? should opinion: interesting to me that this It a rather circumstance years
being and that 1964, since statehood is about Supreme have сalled Court would our State directly questions upon specifically to decide the moving question particularly here and involved line.” *4 might Undoubtedly questions that arise, are there other present foregoing issues sufficient we deem the but of the instant case. clarity illustrate the facts and in order to
For the sake prepared following the court sketch, forth we set scale. record. It is not drawn to from exhibits History Constitutional Provision questions presented by the instant case are not new. early legislature granted As the territorial owners navigable abutting right waters to build wharves, certain under conditions, and to “extend them so far into said waters or water courses as the convenience of shipping may require,” and to them maintain for not more years.2 than 20 legislature
On numerous occasions the territorial me- Congress grant territory morialized tidelands so might they be sold used funds for internal improvements,3 grant or to them to certain towns and cities development.4 legis- to aid in their In 1873 territorial Washington Territory 1854, p. 2Laws of 357. Washington Territory 1869, p.
3Laws Washington Territory 1859, p. (Olympia). 4Laws Washington Territory p. (Olympia). Laws Washington Territory 1871, p. (Seattle). Laws of *5 804 passed confirming
lature an act the title of Seattle Transportation Company and Walla Walla Railroad and to King the tidelands south of in and Street Seattle around Bay Elliott “from extreme tide, to extreme and low deep city . to water . derived deed from the of August company pro- Seattle to the 19, said dated 1873,” vided the first section of 15 of miles railroad be constructed years. territory purported convеy three within The such belong state, title “as and would otherwise vest upon Washington Territory the admission of into the Fed- eral Union a state.”5 as proceedings
One cannot read the record of the of the newspaper state constitutional convention6 and the and (Yelle published during comment editorial convention Bishop, (1959)), 292, P.2d 55 347 Wn.2d be- July concluding, August 22, 1889, tween and without period,7 vexing and do the of that most historians problem confronting politically the convention sensitive ownership, control, harbors, use, and the that of was disposal of state to be. No other of the tidelands new problem concern to the economic devel- of more vital opment state, of for the tidelands front Seattle Puget of Sound the ocean were and other cities value. tremendous suggested proposals
During constitutional convention ownership of ranged inalienable from a declaration leasing privileges, to no declaration limited with tidelands leaving questions tideland all all, at thus legislatures. major source of future the whim use to state, cities, or whether arose of difference corporations should control private individuals groups brought pressure Generally, five water front. (1) the convention: the own- members the 75 bear Territory p. Washington 5Laws Convention, Constitutional State Journal 6The Publishing 1962). seq. (Book Co. p. et p. seq. (University et of Wash Nesbit, Built Seattle” “He 7See Burke, biography Chief Justice 1961). of Thomas Press, This is ington Court, Supreme 1888-1889. Territorial upland property; (2) occupiers ers of preemptors placed improvements tidelands (3) who had thereon; (5) land speculators; (4) cities and towns; the railroads. sharp reported conflict of interests was and the debates were acrimonious. *6 August
It was not day until 22, 1889, the final (quoted convention, supra) adopted.8 article 17 was The is, article compromise truth, a Janus-like contentions of thought the various schools of in the con- Although stitutional convention. ownership it asserts state right of tidelands and disclaims all to tidelands theretofore patented by the United States, it makes no declaration of policy govern disposition to the use or of such lands. The convention left the use and sale of state-owned tidelands to politics legislatures of future interpretation and to the given by to Supreme be article 17 Court. discussing
Before our necessary decisional law, it is to briefly review subsequent tideland statutes to state- hood, the definition of “the line of tide,” superior the administrative and interpretations of the statutes. Subsequent
Tideland Statutes to Statehood in 1889 Since compromise article 17 was a of the various interests represented in the constitutional convention, it is not sur- prising politics to find tideland carried forward into sub- sequent legislative sessions. early provide
The survey, statutes for classification, appraisal of state-owned tidelands9 and set forth the method and Oyster manner of sale or lease thereof. beds were “withdrawn and reserved from sale or lease for the purpose establishing oyster a natural bed reserve.”10 A granted right railroad was to maintain tracks and (а convention), 8Austin Mires member constitutional “Re Washington,” marks on the Constitution of the State of The Quarterly, 22, 4, p. 1931, Vol. No. Oct. Historical 276. 1889-90, p. 431, 731; 1891, p. 403; 9Laws of 1893, Laws of Laws of p. 17, 26; 49, p. ch. ch. 241. 1891, p. 10Laws of
806 Although abutting property
wharves tidelands.11 owners given right preferential purchase were tidelands, to one having placed improvements prior 26, thereon to March right purchase had exclusive to if used “com merce, trade, residence, 1899, ch. or business.”12 Laws legislative recognition p. §83, first accre provided: tion to tidelands. statute may any any That accretions that added tract or be to may tracts tide or shore lands sold or that heretofore by belong state, sold be the state shall hereafter (Italics ours.) . . . The statute “here treats with accretion to tidelands tofore sold or thаt hereafter sold” the state. be belongs purport accretion state. The statute does the tidelands determine of accretion when State, have not been sold. See Strand v. Wn.2d (1943). do statute in not construe the P.2d We any tide of its interest in waiver sense *7 legislative logical a It is to conclude that this is lands. more recognition after 1889 claim to all accretion of state’s or The statute is at least the tidelands sold not. be whether legislative to claim accretion for intent indicative of the limited circumstances identified. under the state p. 217, 105, ch. ch. 1901, of not until Laws It was public’s p. interest tide shoreland 225, that 110, chapter recognition. legislative 2, 1 and Sections received 171) provide: (RCW 79.16.170, Ocean, of Pacific includ- and beach That the shore abutting fronting spаce lying, on ing or said the area or ordinary high tide extreme low and between ocean may (as beach now are or such shore hereafter Cape Disappointment be) or river Columbia from the southerly point hundred three feet the south to 88, p. 1897, ch. 228. of 11Laws 89, 45, p. 1897, ch.
12Laws § 1897, 51; 83, amending 89, 1, ch. 1899, Laws of § ch. 13Laws of § 1927, 255, 123; now codified as RCW 79.01.492. ch. § Laws reenacted wording. changes in the See a few minor reenactment made changes. (1946) 650, State, P.2d 955 26 Wn.2d Ghione government jetty the Point, line of south on Peterson’s north, State on the and the same be hereby public highway are declared a and as forever, highway open such shall remain forever to the use public. (Italics ours.) part No of said shore or sold, beach ever con- shall veyed, disposed leased or otherwise of.
The statute declares certain shore and tidelands “public highway purport forever.”14 It does not to reserve vicinity all high public state-owned tideland in the aas way. point public highway We out that the is not described abutting upland property; “abutting as it is defined as or fronting boundary on said ocean.” Its seaward is “extreme boundary “ordinary high tide”; low its inland is the line of tide ... as such shore and beach now are [1901] may Assuming hereafter be.” that there had been accretion between 1889 and it does not follow this statute disclaims state therein. land State-owned boundary “public still remain between the inland highway” (ordinary high tide as such shore and beach now are) might, and the 1889 line of tide. It subject abutting upland course, be to sale to the owner or provide. others True, statutes boundaries public highway may reserved shift seaward because of (a question decide), accretion we do not but such move affect would nowise the inland of state-owned simply preserve prime portion lands. It would public. beach for the interpretation (RCW
Our of Laws of 1901 79.16.170 quoted supra) is fortified Laws of ch. 78, which provides: highway 14The created a road intended for automobile traffic. *8 Judge explained It is a recreational area. As Fullerton in Williams Fishing Savidge, 165, 181, 459, (1929): v.Co. 152 Wash. 277 Pac. “ year legislature 1901, . . Prior the when the declared the public highway, tide lands to abe the beach had become a favored seeking people recreation, resort for the of the state who were rest and gather surroundings and, history I the as from and the current of the legislaturе
times, was, purpose of the the so much to establish a preserve thoroughfare, ground it the as was to beach as a recreational public. of the for the use ...” hereby public
The commissioner of authorized lands pro- offer for and in sale sell the manner hereinafter any portion. following vided, all, of, or described lands:
[described] may lying above and on the land side of and of ordinary high chapter hereafter exist. highway CX reservations made tide as the same is [110], (Italics ours.) Laws of of by chapter now the inner same located or as it being CV boundary a line [105] legislature recognized boundary Thus, of an “inner highway reservation” and of lands authorized sale lying highway inland of this inner of the reser- vation.15
A fundamental error of the trial court in the instant case language statutory application of and is the the 1901 is or as to “a line of as same now (italics may ours) to a factual situation exist” hereafter application. it has no Tides Nature of gravitational attraction are the result of Tides heights Their the earth. and the waters of moon sun changing positions moon, and earth vary sun with Changes winds, barometric each other. relation to together droughts rivers, pressures, the freshets or geography cause tides to be locale, will with the predicted the United Coast higher States than or lower usually Survey. and two two There are and Geodetic designated, They may day. lower or tides low waters higher high water. water, water water, low low heights reference) (plane from which datum portion p. provides ch. 15Laws of 1901, сhapters 105 and 110 highway Laws of public established high tide, vegetation of mean the line “lying line of between public hereby be, declared hereafter now are such lines for the hereby forever reserved set aside area and is recreation legislative ours.) first (Italics is the believe this public.” We use of the vegetation” tide” as dis “mean “line the terms use of “ordinary high tinguished tide.”
809 (with excep- tides are calculated on the Pacific Coast Panama) average Balboa, of tion is the mean or of day.16 lower of the low waters of each two (U.S. Dep’t p. Marmer, In Tidal Datum of Planes, Survey, Special Commerce, Coast Geodetic Pub. No. 1951), it 135, rev. ed. is stated: height high
In view of variations to which the of subject, high any place [tide] mean water water at simply аverage height high be defined as the place period years. at that over a waters of 19 findings fact, In its the trial court stated: high mean tide of the Pacific Ocean is defined as the average high elevation of all as a loca- tides observed at through complete cycle years, tion a tidal of 18.6 boundary plaintiff’s property the actual western line of is where that elevation at meets the shore as it exists any particular (Italics ours.) time. high average the line “mean
Since tide” is an over period years daily high being tides, two one higher apparent higher high than the other, it is that the high tide will wash inland from the line of “mean tide.” by showing This is illustrated an exhibit the observed January point at a few feet south of plaintiff’s property to have 130 feet inland predicted “mean tide.” The difference in ele- line plaintiff’s case, In the vation 3 feet. instant in front of “ordinary high the distance between by state, tide,” defined and “mean 1889,as tide” in by presently the United Coast and determined States by adopted Survey trial court, is 561 Geodetic 14.25feet. in elevation is the difference feet; by pinpointed presented one problem author as follows: Navy Navigator, p. 252, Dept. 16Bowditch, U.S. Practical American Tables, p. 7, Dept. (1943); Tide Hydrographic Office, U.S. No. 9 Survey; See United States Commerce, v. Cali and Geodetic Coast Sup. (May 17, 1965), Ct. 1401
fornia, 14 L.Ed. 2d 381 U.S. equated “line of low water” with the court in which Shalowitz, and Sea 2 Shore Boundaries 255 water.” lower low “mean 1964). Dept. (U. Commerce S. Boundaries determined in- course of the tides engineering aspeсts: predicated one, volve two a vertical height during on the reached the tide its vertical rise constituting plane fall, datum, a tidal such high water, water, etc.; as mean mean and a horizon- low plane one, the line tal the shore to form the tidal related to where the tidal intersects example, desired, high-water mark, mean The first is mean mark. . . low-water
derived alone, and, from tidal observations (on long-term observations), once derived the of basis practical purposes permanent is all a one. Shalowitz, (United Depart- and Sea Boundaries States Shore 1962). (Italics ours.) ment of Commerce high “Mean tide” is measurable and determinable. ordinary high hand,
On the other “the of tide” line as used article of the constitution is not a term of It at and technical exactness. is indefinite best an over phenomenon inherently simplification complex of a and any contrary, In the of indication to the variable. absence “ordinary” everyday used in its deem the word be we of tide” fixed context. The “line is to be high by singular, exceptionally tides, uncommon, or but customary, average, high regular, by and normal, usual the tide reach and watch the its stand cannot sit tides. One on each turn as it and floods elevations ebbs different at by realizing fixed that a line to it must be without “ordinary high average. upon Thus an based during cycle. average the tidal of all tides the tide” is Interpretations Superior Court Administrative supports the the conclusion us record before The the common public has established lands of commissioner upland property land state-owned between ordinary it tide where existed No- of the line to be affecting years, 73 lawsuits the Over 11, 1889. vember against the ownerships instituted state have been private superior boundary. judgments this establish in the instant case. None as exhibits us are before court accurately judg- described these appealed. The state opening brief: in its said when ments every In one these divided cases court has lands accreted lands on same formula: those accreted private prior property formed to statehood are upland owner; those accreted formed since state- lands public hood are beach and shore. language judgments of these minor re- varies in spects. In some the 1889line of is related surveyed by bounds; corner and described metes being others it is feet described as stated number “line water,” above the of mean low thus a standard lower by Survey set the United Coast and States Geodetic recognized; in others, still the 1889 line is described with by particularity Coordinate reference to System, Zone, South as claimed the state in the instant practically judgments case. In all of the the 1889 line as surveyed judicially therein described determined “ordinary high to be the line of tide where it existed on day November, 1889, 11th established com- years only public Thus over missioner of lands.” general jurisdiction constitutional established applied relied a rule of which has been *11 pur- many sold tidelands when the has occasions authority. statutory suant to
Following
this
in Harkins v. Del
the decision of
court
(1957),
superior
237, 310P.2d 532
Pоzzi, 50 Wn.2d
judgments
thereafter further described
entered
by
impressed
the water
on the soil
line
the “line which
periods
deprive
vege-
covering
to
for
soil
sufficient
already
nothing
the line
to
which had
This added
tation.”
Logging
surveyed
In Shelton
Co.
and established.
(1901),
126, Pac. 151
this court
had
Gosser,
v.
26 Wash.
vegetation and
already
the line of
line
considered
supra,
Further,
Harkins,
in
tide to
same.
mean
be
finding
equating
unchallenged
of fact
“the
there
an
was
“line
of mean
water” with
line of
necessary.
description was
further
tide.” No
Decisions
Court
adoption,
landmark
years
case of Eisen-
its
after
Two
(1891), brought
236,
Plaintiff, аbutting high- owner of Puget claiming water mark of Sound, he was entitled to rights, sought certain enjoin littoral defendants from maintaining using improvements upon certain tidelands property. improvements front of the had been prior erected to March 1890, were in actual use for subject by purchase commerce, trade and business, and (See p. supra.) § under 1889-90, 11, defendants Laws of 435. emphasize, outset, At the we as does the Eisenbach opinion, rights “riparian in the several states are set respective tled states for themselves.” The decision adopted made when the constitution was in 1889 and by the confirmed admission of the state into the federal equal union an basis with other states. ownership The state of asserts its to the navigable up and shores of all
beds to and where the tide waters the state including tide, in waters § . ebbs flows. . Const. art. The constitutional assertion of state is clear unambiguous. Judge As Anders said in his well-considered opinion, scarcely necessary beyond “it is to look our own authority guide constitution and laws us to con- clusion.” plaintiff
In
case,
the Eisenbach
contended that whatever
the title of the state to the soil
water,
under tide
contiguity
he,
water,
virtue
his
had certain
rights
peculiar to himself. He
in the shore
claimed a vested
(a)
opposite
right
to wharf out
his
navigable
access to
water in
have unobstructed
front
Chronological History
Supreme
Court of
17See
the State of
*12
(1963).
Washington,
After a meticulous said: judicial foregoing highest tribunal The decisions of the authority, further or States,
of the United without other controversy, beyond question of settle, seem would to doubt state, to the tide lands of this and to leave no title they belong propriety, in actual whatever that state dispose power same, that the has full and subject to imposed upon the no to restrictions save those legislature con- of the state and the cоnstitution and, true, if this States; stitution of the United legal necessarily right any that no can have follows individual any impose in, claim or to whatever to easement any upon, the tide the limits of servitude waters within (Italics legislature. state, without the consent of the ours.)
The court concluded: abundantly think We the authorities show that ri- proprietor
parian no wharves on the sea, arms, shore of the has its rights against grantees the state or its to extend land front of his below water mark. completely plaintiff’s did not resolve second right in the Eisenhach claimed contention case—his vested The court to future accretion. said: present are to how one have a we unable see can vested right that not exist, to does and which never which (Italics ours.) have an existence. point did, however, that The court out the authorities contrary were “based either or local statutes precedents binding upon not customs, and are therefore us.” did not That exist when Eisenhach was upland property ex seaward decided—accretion —now that its is resolved conclude ists. We accretion formed No Eisenhach since rationale of property, an addition to state-owned vember upland property. As the court said: investigation leads our authorities result of proprietors riparian the conclusion us *13 814 navigable special
shore of the waters the state have no rights peculiar as an therein incident to their estate. deny power To hold otherwise would be to state to deal with its own for the the of the property may as it dеem best public good. startling. simply Our conclusion is not It reaffirm- by many prior iance of a rule of established su- perior court decisions heretofore discussed, and of the rule years myriad relied over the ain of land transactions between individuals and between the state and individuals. Supreme questions
At the next session of the Court again in Eisenbach discussed were to and re submitted by the Harbor examined court in Line Comm'rs v. State (1891). Yesler, 2 27 Pac. 530, ex rel. Wash. 550 The court said: opinion against
The court is still that, of the simply can state, owner, owner, a littoral as such assert rights no valuable below tide. given The somewhat careful examination I have which my opinion this case has confirmed at common law sovereign power (resting England parliament) in in compensation, сould take such lands without abso- lutely thereto. proprietors any rights exclude the littoral The state’s constitutional assertion of in 1889 any rights terminated owner have had to rights possible up- future Thereafter, accretion. of an might by land are owner those that be established legislature. by opinion
This conclusion is fortified court’s in Washougal Transp. & LaCamas Co. v. Dalles P. & A. Nav. (1902), Co., 74 27 68 Pac. wherein state’s Wash. grantee sought claim created shorelands shorelands accretion) by (the part by opposite debris erosion caught by pilings. The court held: held created the erosion of lands
It cannot be shore private of a stream within boundaries the banks can the state; nor claim inure benefit lands, in a river caused artificial fills claim, as shore means. argument plaintiff’s (respondent’s)
In thе instant case judgment support around trial court orbits Angeles, 296 Los Borax Consol. Ltd. v. three decisions: (1935), State, Sup. Ghione v. 80 L.Ed. Ct. U.S. (1946), United States P.2d 955 635, 175 26 Wn.2d apparently 1961). (9th It Washington, Cir. F.2d triggered action. this third decision supra, apposite. Borax, do find the three cases We height (the average *14 high tide mean the rule that establishes cycle) complete through tidal of all waters “ordinary high not case does water.”19 criterion question of accretion. involve the supra, language Ghione, read in without Some of particular court, seems to the facts before to reference argument weight respondent’s support to in lend ownership judgment. case, involves the however, This of surveyed in rivers, of first 1865. River two courses bed years; changed gradually changed over the one was had artificially Finally river ceased in 1913. one to flow when Lake the level of the water of was lowered in involve tidelands. 1915. The case does not We have no applied quarrel the facts; not, with decision as to we do controlling however, deem it instant case. Washington, (1961), In United v. F.2d 830 States abutting Grays certain on the Pacific Ocean lots Harbor government belonged subject patent the federal to a trust to Quinault Johns, in 1916 to Indian. The issued Samson part public pat domain lots at all times until were applied law and federal determined ented. The belonged uplands subject to the owned accretion question govern patent. not the federal the trust We do right property, applied the rules over its own but ment’s by Appeals do United Court of not override thе States sovereign property rules state in a established controversy its it and one of citizens. between Realty are of the footnote reference Narrows Co. aware 19We equating (1958), State, 843, 329 “the line of P.2d Wn.2d tides,” necessary “neap but reference tide” with therefore, is, dictum. decision and In acquired conclusion, we hold that the state propriety' tidelands in actual November 1889. The line is the line of tide, we equate rights mean tide on that date. Littoral Upland only owners were terminated. owners have rights subsequently recognized by legislative those enact- subsequent ment. All accretion November 1889 is owned the state and public be sold or reserved as a highway public legislature recreation area as the shall determine. judgment is reversed and the cause remanded for
entry judgment not inconsistent with the views herein expressed.
It is so ordered. J., Donworth, C. Rosellini, Finley, Ott, Hamiilton, JJ., concur. Hale, (dissenting) myself J. find lost in admiration Hill, —I scholarship majority at the and erudition manifested in the opinion. legal signposts However, all the I can read point opposite and understand in the direction, I am so *15 compelled to dissent. (seaward) westerly must decide
We
whether the
bound-
Hughes’
present
ary
property
is the
mean
Stella
line,
is
or whether it
tide
Washington computes it to have
as the state of
been
really
simple
as
11, 1889. It is
as that.
November
plaintiff’s westerly (seaward)
Signpost
1: Location
question.
boundary
a federal
is
patent
plaintiff
her title to
federal
traces
a
The
issued
recognized
a state. This court
became
before
right
ago
long
of federal
courts to ascertain the
a
time
limit,
Washougal
grants.
Transp.
& LaCamas
See
of federal
Co.,
Signpost being “shifting applicable, 2: Federal law boundary theory” applies. applicable,
If federal
is
then
law
United States Washi
ngton,20
(9th
1961),
denied,
This is the western or seaward line fixed the trial case, this and it should affirmed. ridiculously If simple a this seems short and solution of apparently complex problem majority with which the only say opinion I can deals, that it is the result dictated (as seen) by law,22 common we have the federal interesting 20It note that in the case cited the state of Wash ington arguments made all makes here its fixed 11, 1889, Appeals of November but found the Circuit Court of a forum rewriting friendly to idea of less its the law relative to accretions. township 21The involved: “Lots 3 and 4 of section 15 in range Meridian, adjacent 12 west of the 18 north of Willamette to the Grays belonged County, Washington,” Ocean in Harbor Pacific patent subject States, Johns, to a trust in 1916 United issued to Samson Quinault surveyed Indian who died in 1930. In these lands were Office, along Land the General which established meander line adjacent pushed the Pacific accretions Ocean. The *16 belong high-water held to mark seaward were United States subject Johns, Washington. of Samson and not to the state the heirs 22“ person by sea, ... common law the land is At whose bounded any resulting imperceptible additions thereto lake or river owns Washington, supra (p. Shively 834); United States v. v. accretion.” page 331, Sup. Bowlby, (1894). at 38 L.Ed. Ct. 548 152 U.S. legal plain path. arrive To It is a and well-traveled law. approves), (and majority the state desires at the result rarely explored, route, and rather devious new, circuitous the state’s brief This is conceded in when must followed. says: course, a state denies occurrence, rare when It is a tidelands[23] riparian have owner title to by become imperceptible accretion, at slow but fast lands least two other states done have so. interesting my point out extend discussion to four I would sight of, at have that have been lost least circumstances obscured, to date: meaning previously defined the exact haveWe ordinary phrase tide,” as in art. used “line § 1 of our constitution. 237, 240, Del Pozzi, Harkins v. 50 Wn.2d
The case of (1957) P.2d 532 states: ordinary high tide is that line the watеr
The line of which by covering periods impresses to it for sufficient on the soil destroy vegetation deprive value its the soil agricultural purposes. authority proposition an However, the cited for this actually concerned with the Idaho case which was Oreille. The Circuit Court Lake Pend water mark on rejected Appeals a definition United States v. such saying: Washington, supra, here, are such involved of tidal waters In the case high-water water as mark means tides, not as determined the course of determined ground by markings by physical made water. making determination, method of this The latter only appropriate court, the district followed and other non-tidal of streams waters which
in the case
no
level because of variations
have
ascertainable
absolute
causes, (p. 834)
a multitude of
of flow from
Realty
State,
in Narrows
Co. Inc.
dictum
There is also
(1958),
n.3,
The of whether the “line of tide” shifting presented squarely is a line here, and I believe phrase (and the definition of this constitutional should must) perhaps identical with the definition of “mean high quoted by adopted tide” heretofore and the federal courts.
2. The state’s
navigable
and
of all
the beds
up
shores
waters in the state
including
to and
tide, in
waters where the tide ebbs and flows ...
. Const.
§17, 1.
art.
questioned.
rights
Any
riparian
is not
or littoral owners
properly
pre-
such “beds and shores” have
been held to
question
sent a
of local law. Such a case was Eisenbach
(1891),
Hatfield, Wash.
No state over navigable and all Hence, “beds shores” of waters raised. application. no has, me, the Eisenbach case seems had, state November the state has today intervening times, had at all has title to the beds navigable lying all waters of the state shores sea- ordinary high (properly equated of the line of tide ward herein). tide,” “the line of mean as defined mean by shifting boundary, no loses tidelands because always “fastland,” the accreted land and it has has become had title tide shore beach between (mean high tide) and extreme low tide. the fixed- But, rule, which and “at least two other upland invented, states” have the “fast- owner loses land,” has added to been his slow imperceptible accretion, with the line of and his contact many instances, have which, meаn property. acquisition the reason for the *18 purpose apparent that of the state not It is also the is primarily greater public use, make a area available for to private dispose of such accreted lands to individuals but to upland grantees put the a owner between and new original upland and the line of mean tide. That owner beach, shore not accretion as state consider the does certainly for the state thereof, its sale would evidenced statutory disregard declaration that . . [S]hore Ocean, of the Pacific tide . be- and beach ordinary high [mean tide] and extreme tween low tide open . forever to the use . remain shall public. RCW 79.16.170 conveyed, part sold, be that no thereof “shall ever and (RCW 79.16.171) disposed of.” leased or otherwise really pertinent decision in not the The 3. nothing imperceptible do with has to case, which Eisenbach State, 26 Wn.2d the case Ghione accretions, but (1946). there, asserted does The as it state P.2d 955 by navigable lands covered entitled to all that it was here, contended it was entitled The also in 1889. waters by navigable subsequent submerged to waters all lands including Eisen- number discussed cases— (cited here on accretions 1899 statute an and bach shifting boundary theory adopting a majority) —before imperceptible upland accretions in title to vested distinguish majority the Ghione case seeks owner. river, court there believed but it involved because applied theory boundary “to both shifting tidewaters apparent waters,” and there reаson for fresh is no distinguishing them. between given
4. No consideration has to the effect of theory boundary fixed there an erosion where has been only speculate an can as to how instead of accretion. We majority opinion read an would if this were erosion places, case. At certain the 1889 line of tide long way or mean out in the Pacific is now a consequence upland Ocean, erosion, and the owner upland seen his tideland to which he here- has become has thought majority had title. rule, tofore he no Under the owner would continue to have title to the 1889 seemingly, public, enjoy line, and the have to would swim to “highway” rights. Only shifting its under the beach boundary rights public always pre- rule will property in the in the beds shores of all navi- served gable up including state, waters in the ordinary high tide—“in waters where tide ebbs flows.” shifting cases,
I the federal would follow adhere to the and affirm the rule, trial court. J., concurs with J. Hell, Hunter,
April rehearing 14, 1966. Petition for denied.