after stating tbe case, delivered the opinion of the court.
Thе single question in this case is as to the title of plaintiff to the premises. The lands are tide lands, covered atad uncovered by the flow and ebb of the tide, and are situated in Commencement Bay, near to the city of Tacoma. He does not claim by any grant from the State of "Washington, nor by any act of Congress specifically granting him these lands, or in terms providing for the location of scrip upon tide lands, but insists that; although the statute under which this scrip was issued, only authorizеd its location upon “ unoccupied and unappropriated public lands,he had a right to locate it upon these tide lands, and acquire full title thеreto.
That the title to tide lands is in the State is a proposition which has been again and again affirmed by this court, some of the earlier opinions going so far as to declare that the United States had no power to grant to individuals such lands at any time, even prior to the admission of the State and during the territоrial existence. However, in the recent case of
Shively
v. Bowlby,
It is unnecеssary, in view of this recent examination of the question, to enter into any discussion respecting the same. It is settled that the general legislation of Congress in rеspect to public lands does not extend to tide lands. There is nothing in the act authorizing the Yalentine scrip, or in the circumstances which gave ocсasion for its passage, to make an exception to the general rule. It provided that the scrip might be located on the unoccupied аnd unappropriated public lands, but the term “ public lands ” does not include tide lands. As said in
Newhall
v. Sanger,
Further, in the act of February 22, 1889, c. 180, providing fof the admission of Washington, Montana, and the two Dakotas, into the Union, 25 Stat. 676, 677, among the conditions imposed was this: “ That the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof.” No one can for a moment suppose that it was the thought of Congress to change the whole policy of the government and reserve to the nation the title and control of thе soil beneath the tide waters and those of navigable streams. Indeed, in the constitution of Washr ington, (art. 17, sec. 1,) there is an express assertion of the title оf the State to the tide lands within its borders.
That there was no intent in the Yalentine scrip act to make any exception to the general rule is evident not mеrely from the use of a term having such, an accepted meaning, but from the further provision that the land, “ if unsurveyed when taken, to conform, when surveyed, to the gеneral system of United States land surveys,” for under that general system surveys are not extended to tide lands, nor those under navigable rivers above tide water.
In
Barney
v. Keokuk,
But it is claimed that there is a peculiar equity attaching to the Yalentine scrip because the Miranda grant in fact embraced tide lands, and was of great value — $2,000,000 as stated in the debate in Congress. It is said by counsel that the intentiоn of Congress, as indicated by this act, under the circumstances,, was manifestly to give Yalentine the right of selection of lands of the United States belonging to the same classes as were to be found in the Miranda grant, which he relinquished. The import of the language is precisely this, and the contract to be equal requirеs the construction which the language plainly means. Any other construction would be against the just intentions of the national legislature.
So far as respeсts the great value of the Miranda grant, it was that which was created by the building up of a city within its borders, and not something which inhered in the land itself. So that when Yalentine failed to secure a con-, firmation of that grant, he was not losing property which was of the value of $2,000,000 when granted by the Mexican government, but only losing the оpportunity to appropriate $2,000,000 worth of value created by the labors of others upon lands to which they supposed they had title.
Further, as aрpears from the statement made by the Secretary of the Interior, he had lost all legal right to this land, for when a commission had been provided for investigаting the validity of such claims, he presented his claim for confirmation and then withdrew it. Congress had fulfilled all obligations to him growing out of the treaty with Mexico, and when by his own act he had forfeited his legal claims to the land, it was a mere act of grace by which was given to him the right to select an equal amount of land elsеwhere. If Congress had thought that it was necessary in order to do justice that he should be permitted to select an equal quantity of land of like character, it was easy to have expressed that intention. Having failed to do so, and omitted any reference *286 ■to tide lands, its donation to him is to be construed as аny ■other grant of the government, and no unexpressed and unsuggested intention should be attributed to Congress — certainly no intention to make the people of the State of Washington, who otherwise would receive these tide lands for their general benefit, suffer by reason of his neglect to properly .assert his claim to lands in the State of California. There is, therefore, nothing in this matter of the Yalentine scrip to take the case out of the rule laid down in Shively v. Bowlby.
Reliance is also placed on article 17, section 2, of the constitution of the State of Washington, which reads: “The State of Washington disclaims all title in and clаim to all tide, swamp, and overflowed lands patented by the United .States; provided, the same is not impeached for fraud.” In respect to this it is enough to sаy that these lands were not patented. It is doubtless true, as said by this court in
Stark
v.
Starrs,
These are all the matters involved in this case. We see no error in the ruling of the Circuit Court, and its decree is
Affirmed.