98 Wash. 635 | Wash. | 1917
This appeal is from a judgment of the lower court quieting in the respondents title to a portion of the waters and bed of Lake Terrell, in Whatcom county. The state has appealed.
The only question presented is whether Lake Terrell is a navigable body of water within the meaning of § 1 of article
It is not claimed by the Attorney General, as we infer from his argument, that the waters of the lake are, or ever were, navigable for commercial purposes, but it is claimed that the constitutional provision referred to should be construed as creating a division of waters into public and private waters; that those waters which are subject to a public use, such as bathing, boating, fishing, hunting, skating, sailing, and for the removal of ice, watering stock, and other purposes, are navigable public waters; and that those waters which are not subject to public use, but are of a private character, are nonnavigable waters. The constitutional provision referred to is as follows:
“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 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. . . .” Const., art. 17, § 1.
It was shown in the evidence that the waters of this lake had been used some years ago for bathing, boating, fishing, hunting, and skating, and that ice had been removed from the lake, and that some of the water thereof had been used for
The Attorney General argues that, because this lake has been used in times past for boating, hunting, fishing, and the like, it is therefore water which has been, and can be, devoted to public use, and that we should therefore declare the lake navigable water. The trial court, after hearing all the evidence, concluded:
“That this lake is not navigable for any purpose . it is apparent that the lake is not suitable even for rowboat navigation for pleasure purposes; it has marshy shores which make its approach disagreeable and the lake itself is only shallow, stagnant water unfit for any use. . . .”
The appellant relies upon the cases of Lamprey v. State, 52 Minn. 181, 53 N. W. 1139, 38 Am. St. 541, 18 L. R. A. 670; Chicago, M. & St. P. R. Co. v. Minneapolis, 115 Minn. 460, 133 N. W. 169, Ann. Cas. 1912D 1029, 51 L. R. A. (N. S.) 236; Attorney General v. Woods, 108 Mass. 436, 11 Am. Rep. 380, and cases of that character, where it was held that waters suitable for public use are navigable waters, but this court has taken a different view. In the case of Kalez v. Spokane Valley Land & Water Co., 42 Wash. 43, 84 Pac. 395, where we held that Liberty lake was a navigable lake, it appeared that the average depth of the water in that lake
“It is well established that, except in salt-water streams, the question of navigability is one of fact that must be established by those who seek to use it as such; and it is also well established that the stream must be navigable in its natural state, unaided by artificial means or devices. This proposition was announced by this court in East Hoquiam Boom, etc. Co. v. Neeson, 20 Wash. 142, 54 Pac. 1001, where it was said: ‘It is well settled that a stream which can only be made navigable or floatable by artificial means is not a public highway,’ citing many cases to sustain the proposition. In Rowe v. Granite Bridge Corporation, 21 Pick. 344, Chief Justice Shaw, delivering the opinion of the court, said: ‘Nor is it every small creek, in which a fishing skiff or gunning canoe can be made to float, at high water, which is deemed navigable. But in order to have this character, it must be navigable for some purpose, useful to trade or agriculture.’ ”
In the case of Watkins v. Dorris, 24 Wash. 636, 64 Pac. 840, 54 L. R. A. 199, we held that Elochoman creek, a stream eighteen miles long, with an average width of 100 feet, and a depth of about three feet, which could be used during freshets profitably for floating logs to the Columbia river to market, was not a navigable stream within the meaning of § 1 of article 17 of the constitution. We there said:
*639 “We do not believe, however, that the said constitutional provision was intended to include streams of the character of this one, but only such as are navigable for general commercial purposes.”
In State ex rel. Pealer v. Superior Court, 58 Wash. 565, 109 Pac. 340, we held that the Humptulips river, which was only navigable in a restricted sense for a distance of three or four miles at high tide, for small boats drawing three and four feet of water, was not a navigable river. And in Bernot v. Morrison, 81 Wash. 538, 143 Pac. 104, Ann. Cas. 1916D 290, we held that Sáltese lake, which covered 1,400 acres of land, was not a navigable lake. In that case, we said, at page 558:
“We hold that the common law, as declared by the supreme court of the United States, so far as all unnavigable waters, whether in streams or lakes, are concerned, that is to say, waters not actually navigable, is the common law and rule of decision in this state. We know of nothing in the character of our institutions or in the state of our society militating against its application to all such waters.”
See, also, Denee v. Morrison, 95 Wash. 76, 163 Pac. 382.
We think it is plain that, in the use of the words “navigable waters” within the constitutional provisions above referred to, waters navigable in fact were meant, and not such waters as the lake here in question. If the waters of this lake may be held to be navigable waters, then the waters of all lakes which are mere stagnant marshes, but which are capable of floating a flat-bottomed rowboat or a canoe, may also be held to be navigable waters. We think it is clear that no such idea was meant by the use of the words “navigable waters” in the constitutional provision above referred to.
It follows that the judgment of the trial court must be, and it is, affirmed.
Ellis, C. J., Holcomb, Parker, and Fullerton, JJ., concur.