Port of Seattle v. Oregon & Washington RailroadPort of Seattle v. Oregon & Washington Railroad
delivered the opinion of the court.
The main question in this case is whether the Oregon .& Wаshington Railroad Company acquired, as owner of-land adjoining East Waterway in the Port of Seattle, the right to build in the waterway piers, wharves, and other structures over which it would secure access from its-land to the navigable channel. The question arises in a suit to quiet the title of. the State which was brought against the Railroad in a state court of Washington, in 1917, by the Port, a municipal corporation,
1
created, by the laws of Washington. J. F. Duthie & Co., lessees of the Railroad’s land, were joined as defendants; but they have no substantial intеrest in the controversy; and their peculiar rights do not require consideration. The case
When the State of Washington was admitted into the Union there lay in front of the City of Seattle extensivo tide lands in the area now comprised within the limits of the municipál corporation known as Port of Seattle. Under appropriate legislation of the State this area has been developed as a port. Waterways have been' established and in part dredged; tide lands abutting- upon the waterways have been filled, platted as city blocks and laid out with street's; and lots therein- have been sold for business -and other purposes. Among the waterways so established is that known as East Waterway, which connects Duwamish River with Elliott Báy, an arm of Puget Sound. East Waterway, as established, has 'at the point in question, a width of 1,000 feet. The bed of the waterway was in.its natural state tide land. The 750 feet of the waterway which lie in the centre have been dredged to a depth at mean low tide of from 26 to 30 feet. The rést of the waterway, being that portion which expends on either side for a distance of 125 feet-from the bulkhead of the filled' land to the fairway, is of varying .depth and is not navigable by large vessels. The bed of the waterway within these 125 feet areas slopes from the bulkhead to the line of the fairway.' It is. exposed at low tide ordinarily at points about thirty-six feet from the
bulkhead.
Chapter 168 of the Laws of Washington 1913, p. 582,. provides: that:
“Whenever, in any waterways created under the laws of the State of Washington,, the government" of the United-States shall have established pierheM. lines in said waterway at any distance from the-boundaries thereof established by the state, no structure shall be allowed in the strip of waterway- between the boundary and the nearest pierhead line except by the consent of the state land commissioner and. upon plans approved and terms and-conditions fixed by him, and'then only for such period of use as shall be designatеd by him,- but any permit shall not extend for a longer period than thirty (30) years: Provided, however, That the owner of dand abutting upon either side of any such waterway shall have the right, if application be made therefor within a period of niriety (90) days following the date when this act shall go into effect, to obtain . . . ” a permit authorizing the improvement and use of such area under conditions to be prescribed by -the state authorities upon the payment of an annual rental dependent in amount upon the assеssed value of an equal area of the abutting land.
The Railroad failed to apply for such a permit. Asserting the rights above stated, it leased a part of its land to J. F. Duthie & Co, for a shipbuilding, and manufacturing plant, and purported to authorize the construction of wharves, piers and other’ structures upon the adjoining water area up to the 125-foot pierhead fine. By the Act of 1913 the control over the waterways therein conferred upon land--commissioners is to be exercised in port dis
The decree entered by the lower court .declared in substance (1) that the State has no proprietary interest in the water area between the bulkhead and the pierhead line;-(2) that it is not entitled ta lease the same or otherwise to deprive the Railroad of ¿ccess to the fairway; (3) that c. 168 оf the laws of 1913 in so far as it provides for such leasing violates the Federal Constitution; (4) that the Railroad has no proprietary interest in the waterway, .but as owner of the abutting lots is entitled to access to the deep or navigable waters “subject to proper governmental supervision.” The decree declared further that the State had never established harbor lines in the waterway, and expressly recited that the court does not determine whether or not the State nоw has power to establish harbor lines, nor what the effect might be of hereafter establishing them.
The main question presented for our decision is whether the Railroad, acquired, in connection with the lots of filled land abutting on the waterway, a private riparian or littoral right to construct wharves, docks and piers on this 125-feet area, in order to provide for itself, as owner .of the land, and for those claiming under it, convenient access to the fairway for purposes of navigаtion and commerce. The Port contends that the Railroad acquired no such right, nor any private right whatsoever, in any part of the adjoining waterway; and that the State is free either to use this portion of East Waterway directly for purposes' of navigation, as the present fairway is used, or to use it as a part of the harbor; and that, since it is also the proprietor of the tide land, under this water, area, it has the full right to develop it, or authorize its development by others,-thrоugh the erection..of wharves,
First.
The right of the United States in the navigable waters within the several States is limited to. the control thereof for purposes of navigation. Subject to that right Washington became, upon its organization as a-State, the owner of the navigable waters within its boundaries and of the land under the same.
Weber v. Board of Harbor Commissioners,
Second . Under the law of Washington (which differs in this respect from the law generally prevailing elsewhere) a conveyance by the State of uplands abutting upon a. natural navigable waterway grants no right of any kind either in land below highwater mark, Eisenbach v. Hatfield, 2 Washington, 236; or in, to, or over the water, Van Siclen v. Muir, 46 Washington, 38, 41; except the limitеd preferential right conferred by statute upon the owner of the upland, to purchase the shoreland, if the State concludes to sell the same. Act of March 26,1890, §§ 11 and 12, Laws of Washington 1889-1890, p. 505. The grantee of the upland cannot complain of another who erects a structure below highwater mark, Muir v. Johnson, 49 Washington, 66. He does not acquire any right of access over the intervening land and water area to the navigable channel, Lownsdale v. Grays Harbor Boom Co., 54 Washington, 542, 550, 551. So complete is the absence оf riparian or littoral rights that the State may — subject to the superior rights of the United States —wholly divert a navigable stream, sell the river bed and yet have impaired in so doing no right of the upland owners whose land is thereby separated from all contact with the water. Newell v. Loeb, 77 Washington, 182, 193-194; Hill v. Newell, 86 Washington, 227, 228. 1
The cases most strongly relied upon by the Railroad do not relate to tide lands. They deal with the rights of shoreland owners on an inland lake, the level of which had been lowered by the Government.
State v. Sturtevant,
76 Washington, 158;
Puget Mill Co.
v.
State,
93 Washington, 128. Shore lands differ from tide lands not only in their situation; which in many cases , makes an almost indefinito filling in of the latter a possibility, but also in legal definition. Tide lands have a definite boundary at the line of mean low tide; or, by later legislation, of extreme low tide.
State
v.
Scott, supra,
pp. 68, 69. The shore lands, .on the other hand, were those “below the line of ordinary high water and not subject to tidal flow.” They had no defined outer boundary. Accordingly when the waters of the lake' there in question were lowered, it became necessary to determine the ownership both of the lands exposed and those below the new line of ordinary high water. The court held that the outer boundary of thе shore land was the line of navigability and that grantees were entitled to follow that line out when it was moved b^ act of their grantor. The considerations which brought the court t.o this, result were, it is true,, largely the’
It appears, therefore, that the law of Washington does not recognize as appurtenant to upland, tide land or shore land in its natural condition, rights of any sort beyond the boundaries of the property. A right of access to the navigable channel over intervening land, above or below low water, must arise from a grant by the owner of the intervening property.
Fourth.
The Railroad contends that a different rule should be applied here where we are dealing with made land abutting on an artificial waterway. East Waterway is not properly described as such. It is a natural waterway deepened and confined. Compare
Fox River Flour & Paper Co.
v.
Kelley,
70 Wisconsin, 287, 300. And obviously the mere fact that tide land conveyed has been filled would not, by .the law of Washington, confer , upon the grantee, as appurtenant to the land, riparian rights in adjoining navigable waters. But the Railroad insists'
Even if the assumptions upon which the arguments rest were all true, the. conclusion contended for would not follow. Ever since the organization of the State it has been the clearly defined policy of Washington not to .grant riparian rights in navigable waters. This policy, declared in its constitution and expressed in careful legislation, has been consistently enforced by its courts. A grant by implication of the riparian right here asserted might perhaps be inferred in other jurisdictions from the circumstances stated. But in Washington such an implicatiоn .seems wholly inadmissible. If in the development’in question it had been the intention of the State to make such a radical departure as that for which the Railroad contends, the intention would doubtless have been expressed by appropriate language in the deed. But East Waterway was not even mentioned in it. Until we are so informed by the Supreme Court of Washington, we cannot, in the light of the waterway history of the State, believe that there were implications in the situation describеd which without more are sufficient to indicate an' intention to depart from the settled policy of the State.
So far as the pierhead lines are concerned, the Railroad concedes that their establishment by the United States did not create as against the State a right to wharf out. They merely fixed the line beyond which piers might not extend. Compare
Wilson
v.
Oregon-Washington Railroad & Navigation
Co.,
supra,
pp. 107, 108. And the power of the United States in this respect was not exhausted by
“The use of the words ‘pierhead line’ on the plat prepared by the state, and in the decree, is an unfоrtunate misuse of terms. The words mean nothing under our constitution and statutes. In some of the eastern states, we understand that ‘pierhead lines’ are defined, but the constitution makers in this state were careful to avoid the confusión that may result from the drawing of an ..arbitrary line beyond which piers and docks should not be erected, by providing for an inner and an outer harbor line with an intervening' area subject to state ownership and control.’’
It is unnecessary, therefore, for us to consider whether on this record it is open to the Port to contend that pier-head lines were in fact never fixed by any state official.
Fifth. The Port renews here the objection that the case was improperly removed from the state court,
Germania Insurance Co.
v. Wisconsin,
Reversed, and the cause remanded to the District Court for further proceedings in conformity with this opinion.
Notes
C. 92, of-the Laws of 1911, p. 412, as amended by Laws of 1913, e. 62, p. 202; It has power, among other things, to improve navigable and non-navigable waters of the United States and of the State within the port district; “to create and improve for harbor purposes new waterways within the port district; to regulate and control all such waters within the limits of such port district so far and to the full extent that this state can and hereby does grant the same, and remove obstructions therefrom; to straighten, widen, deepen and otherwise improve any and alljwaters; .. . ~7 - to execute leases of all lands, wharves, docks and property owned and controlled by said port district upon such terms as the port commission may deem proper.” It exercises also powers similar to those exercised by counties including the power to sue and be sued.. State v. Bridges, 87 Wash.. 260. The State did not transfer to the port districts its ownership in the beds and shores of navigable waters.
The form of the deed is as follows:
First'party does hereby grant, bargain, sell and convey unto the' second party, and to his heirs and assigns, the following'described tide lands of- the first class, situated in front of the City of Seattle, King County, Washingtоn, to-wit:
Lots one to nine, inclusive, block 393, as shown on the official map of Seattle Tide Lands, filed with the Board of State Land Commissioners at Olympia, Washington, March 15, 1895.
Subject, however, to any lien or liens that may arise or be created inconsequence of an act of the Legislature of the State of Washington, entitled, “An Act prescribing the ways in which waterways for the uses of navigation may be excavated by private contract; providing for liens upon tide and shore lands belоnging to the State, granting rights of way across lands belonging to the Slate,” approved .March 9, 1893.
Witness the seal of the state affixed, ' Henry McBride,
Govemon
See
Scurry
v.
Jones,
In some States the shore between the high and the low water mark belongs to the private owner of the upland and as such owner he has all rights not inconsistent with the public’s rights incident to navigation. In other States,' although the land below high water mark belongs to the State,' the private.owner of the upland has the right of access over it to the navigable channel aiid the right to‘use the State’s land in connection therewith. See 27 R. C. L., §§ 273-279, 284. But, in