9 Wash. 414 | Wash. | 1894
The opinion of the court was delivered by
— This was a contest between an alleged improver of tide lands and one claiming the right to purchase tide lands lying in front of upland owned by him.
Gen. Stat., § 2168, requires the local board of tide land appraisers to deposit one copy of their plat and record
The facts were, as the court found, that the report of the appraisers was deposited with the county auditor and filed by him December 7, 1891, On December 10 a member of the local board gave the duplicate of the report to the secretary of state (a member of the state board); but there was no meeting of the board until January 7, 1892, and it was not until then that it in any wise recognized the existence of the report, and ordered it placed on file. In the mean time, and because of the absence of this appraisement from the records of the state board, the commissioner of public lands refused to accept any applications for purchase of tide lands covered by it. Appellants filed their application March 3, 1892, which was within the time prescribed by the statute. The ‘ ‘ filing of the final appraisal ’ ’ or the final filing of the appraisal, as the legislature most likely meant, was the date of the authorized filing by the state board, and not the other. Any other construction would make the law a trap, and cause unending confusion in the state land offices.
Upon the merits of this case we shall pass on one point, and that involves the single question whether the respondent was an improver of tide lands, who, under the statute, is given a preference right to purchase. The right of improvers, it is to be remembered, depends upon improvements made prior to March 26, 1890.
The Fairhaven Land Company, by its lease, dated February 25, 1890, but acknowledged March 6, let to one Frankenburger a tract of tide land known as block 10, in the town plat of Fairhaven, together with three other small parcels of tide land which it assumed to own,- all of
“During the term of this lease and thereafter, the said I. Frankenburger hereby agrees to respect the rights and claims of the Fairhaven Land Company to the title to the said land and its rights and claims therein as the owner of the shore in front of which the said lands are situated, and agrees to assert no claim of right in or to the said lands or any part thereof not granted by the terms of this contract. And should any right inure to the said I. Fraukenburger under any laws now in force, or hereafter to be enacted by reason of his having improvements upon the said lands, then the said improvements for the purpose of acquiring title shall be deemed to inure to the benefit of the Fair-haven Land Company, and shall, if necessary, be conveyed by the said Frankenburger to the said Fairhaven Land Company.”
On March 24, 1890, Frankenburger sold to respondent and others all the machinery in the saw mill, including everything connected with and used in working and running the same, by a bill of sale of personal property; and on the next day he executed to them an assignment of his lease, which was assented to by the Fairhaven Land Company, the assignee of the lease expressly covenanting to assume and carry into effect all of the terms and conditions of the lease. The tide lands applied for are entirely outside of the descriptions in the lease, being certain lots of open water lying to the north of Gambier street, which respondent claims are necessary for his convenient use of the saw mill as a place to secure logs in while awaiting the process of sawing up, and certain other lots which had been filled up with debris and are used as a lumber yard. These lumber yard lots had been filled up and were used by
We are of the opinion that the respondent’s application to purchase should have been refused, and that appellants’ application should stand as uncontested, leaving it to the commissioner to determine their rights under the law. The judgment is reversed, and the cause remanded for a new judgment and certification in accordance with the statute. Appellants will not be allowed for forty pages excessive bi’ief.
Dunbar, C. J., and Scott, Anders and Hoyt, JJ., concur.