27 Wash. 600 | Wash. | 1902
The opinion of the court was delivered by
This action was brought for the purpose of enjoining respondent, as commissioner of public lands, from issuing to one J. B. McMillan, or the Union Boom Company, a contract for certain tide lands of the second class, lying at and adjacent to the mouth of the Samish river, in Skagit county. The sale had been made by the eounty auditor of said county, and was pending approval by the state land commissioner when appellant instituted-this action to enjoin the issuance of a contract under the sale. A temporary restraining order was issued at the time of the commencement of the action, without notice, and a date fixed by the court for the hearing of an application for a temporary injunction. On the day set for the hearing of the application for a temporary injunction, respondent appeared and filed a general demurrer to the appellant’s complaint, which was sustained by the court; and, appellant electing to stand on his complaint, judgment of
The complaint was drawn on the theory that the property of appellant in the warehouses mentioned therein was being taken through the alleged sale of tide lands^ and the contemplated action of respondent in issuing the contract to others based thereon in violation of the rights of respondent under the law in relation thereto. The complaint was filed April 15, 1901, and, omitting formal averments, in substance it alleged that the appellant is the owner and in possession of lots 8, 9, and 10, section 5, township 36 N., range 3 E., W. M.; that this land had a water frontage on the waters of Puget Sound; that tide lands abut upon and lie in front of the same; that the appellant prior to the year 1890 improved the tide lánds in front of his land by erecting two warehouses thereon, of the aggregate value of $1,100, and ever since has maintained and used these warehouses in the shipping of grain and produce; that on the 13th of April, 1901, the auditor of Skagit county, by virtue of an order issued by the board of land commissioners, offered for sale and sold to one J. B. McMillan, or the Union Boom Company, the said tide lands; that a return has been made of such sale to the board of land commissioners for confirmation, and to have a contract for the same issued to the said purchaser under the law in regard to the sale of tide lands of the second class. It is alleged that the law for the sale of the tide lands was not complied with, in this: that the improvements of the appellant on said tide lands were never appraised prior to the sale or a.t all; that said tide lands were not offered for sale in tracts not exceeding 160 acres,
We say in a recent case, — Washougal & L. Transp. Co. v. Dalles, P. & A. Nav. Co., ante, p. 490 (68 Pac. 74),— that
“The title to all tide and shore lands passed to the state at the time of its admission into the Union. From thenceforward the state had the sole and absolute right and power of disposition over such lands, and it could, either in its fundamental law, or by statutory enactment, provide for their disposition.”
It is not contended that the land covered by the improvements mentioned in the complaint was patented by the United States to the appellant or his grantors prior to the admission of the state. With the exception of such patented lands, all lands covered by the ebb and flow of the tide below the line of ordinary high tide are tide lands, the title of which is in the state. The erection of buildings on such land did not vest in the -owner of the building any title or interest in the land covered by the buildings. In erecting the buildings he was trespassing upon the property of the state, or on property held in trust for the state, if the buildings were erected before the admission of the state into the Union. The state had the right to treat him as a trespasser, or to give him a preference right to purchase the land improved, and it might also provide for paying him for such improvements. The state has seen fit to treat improvers of the tide land, actually using the same for commerce, trade, or business, not as trespassers, but as having equities in the improvements, and rights prior to other citizens in acquiring title from the state to tide lands covered by such improvements. These acts of grace on the part of the state do not, however, vest in the improver any estate in the land; and, if he desires to, avail himself
The judgment of the court is reversed, and this action remanded for further proceedings in accordance with this opinion.
Reavis, C. J., and Fullerton, Hadley, Dunbar, Anders and Mount, JJ., concur.