21 Wash. 491 | Wash. | 1899
The opinion of the court was delivered hy
Contest for preference right to purchase tide lands. A plat of the tide lands in the city of Seattle was filed as required hy law March 15, 1895, and in pursuance of the act of March 26, 1890, and the supplementary and amendatory act of March 26, 1895. Carraher and Polk, the respondents, and the appellant filed applications for the purchase of the same tide lots. The hoard of state land commissioners awarded the right to purchase the lots to Carraher and Polk. An appeal was taken hy the present appellant to the superior court, where the award of the hoard of state land commissioners was af
“ When the abutting upland owner has attempted to convey by deed to a bona -fide purchaser any portion of the tide lands in front of such uplands, or littoral rights therein, such right of purchase herein given to the upland owner shall be construed to belong to such purchaser, or to any person, association or corporation claiming by, through or under such purchaser, to the extent of the tract or rights so conveyed;”
it is maintained, confers the preference right upon the appellant as the grantee of the tide land lots by the upland owner. The controversy seems to be whether the grantee of the upland, together with the tenements, hereditaments and appurtenances thereunto belonging, by conveyance made to him by the common source of title, prior to a grant made by the common grantor to the grantee of tide land abutting and fronting upon such upland, has the preference right to purchase such tide land. The common grantor, Burns, conveyed the upland with its appurtenances, and respondents now claim by such conveyance against a subsequent grant of tide lands as such to appellant through its grantors. It may be conceded that neither MeüSTaught, nor Burns after him, had any right to the tide lands. Such right is the creature of the statute. Bespondents, at the time of their application, were the upland owners and thus entitled to a preference right to purchase the abutting tide lands. But § 59 of the statute, supra, gave the grantee of the upland owner the preference right to purchase. Bespondents, however, became upland owners by purchase from Burns prior to any attempted grant by Burns to the grantor of appellant.
The cases of Kenyon v. Knipe, 2 Wash. 394 (27 Pac. 227), and Eisenbach v. Hatfield, 2 Wash. 236 (26 Pac. 539), did not involve a construction of the tide land statute above mentioned, and cannot, therefore, be in point here. In the case of Denny v. Northern Pacific Ry. Co., 19 Wash. 298 (53 Pac. 341), it was determined that the statute confers the preference right of purchase of tide lands on the owner or owners of lands abutting or bounded by the shore, and that this refers to the upland owner and not the owner of merely tide lands.
The judgment of the superior court is affirmed.
Gordon, O. J., and Anders, Dunbar and Bullerton, JJ., concur.