8 Wash. 490 | Wash. | 1894
The opinion of the court was delivered by
— Respondent brought an action to restrain the appellants from driving piles upon a certain part of the tide lands in front of the city of Ballard. The complaint alleges, among other things, that respondent was the owner of the upland in front of which such portion of the tide land was situated. The appellants, in their answer, denied such ownership,.and set up the fact that they were in possession, with such improvements as were contemplated by the tide land act of 1890 (Laws, p. 431), at the date of its passage; and, as such improvers, were entitled to the prior right of purchase under the provisions of said act. The questions of fact, as to which a large number of affidavits were introduced, were confined substantially to those growing out of the allegations and denials as to these two propositions. The superior court, after an examination of the proofs offered by the respective parties, granted a temporary injunction, as prayed for by the respondent, and from the order granting it this appeal has been prosecuted.
Appellants, in their brief, rely upon the facts in relation to the questions submitted to the lower court, and further claim that even if the facts were correctly decided, the law would not warrant the interference of the court by its writ of injunction. As to such questions of fact there was such a substantial conflict that upon an appeal from an order of this kind this court ought not to disturb the finding of the lower court. The order made is but a tentative one, and the bond required of the respondent will protect appellants, if, at the end of the litigation, it is found that the
Upon this state of facts the court below was of the opinion that the law warranted its interposition to prevent the appellants from making improvements contrary to the will of the respondent; and whether or not it was right in so interpreting the law is the sole question presented for our consideration.
We held in the case of Eisenbach v. Hatfield, 2 Wash. 236 (26 Pac. 539), that the upland proprietor, as such, had no rights as to tide lands in front of him which the state was bound to respect. There is a suggestion in the brief of the respondent that decisions of the court of appeals in the State of New York, and of the supreme court of the United States, subsequent to our decision of that case, have been such that we ought again to enter upon an investigation of the questions there decided. But in view of the
That case, however, did not go to the extent of holding that an upland proprietor had no interest in the tide land in front of him, except as against the state, and the question as to what would be his rights as against one not claiming under the state has not been passed upon, so far as we are advised, by this court. Nor is it necessary that we should pass upon it in determining this appeal, as, in our opinion, the state, by the enactment of the tide land law above referred to, has conferred upon upland proprietors a valuable right which they hold to the exclusion of all others excepting such improvers as under the terms of said act have superior rights; and, as we have seen, from what we have said about the facts of this case, that for the purposes of the decision of this appeal the appellants are not in a situation to assert such rights under said act, there is nothing which prevents full force being given to the rights of the respondent as the upland owner. The respondent, then, under the provisions of the laws of the
Such being the situation and rights of the respondent, we think that a fair interpretation of the statute will show that it was the intent of the law making power that no mere trespasser upon the tide lands of the state should be allowed to occupy or in any manner interfere with the possession by the upland owner of the tide lands in his front, until such time as he could exercise his right to purchase the same from the state. The appellants, then, had no right whatever to do the acts complained of, and the respondent had a right to enjoy the possession of the location in question until such time as it would be allowed to purchase under the laws of the state. It follows that the action of the appellants was in contravention of the rights of the respondent.
This being so, it would follow, under the general maxim, that it must be entitled to some protection under the law. This court held in the case of Pierce v. Kennedy, 2 Wash. 324 (26 Pac. 554), that such upland proprietor had no remedy at law. Hence, if it has any remedy at all it must be in equity. We are not prepared to hold that in such a case as this the exception to the general rule must be held to obtain, and that by reason of such exception the respondent, though having an undoubted right, must submit to its violation by a stranger, for the reason that the courts are powerless to afford it protection. It is no doubt true, as contended by appellants, that the question of who shall have the right to purchase, and other matters of that kind, before they can be finally determined, should be acted upon by the board authorized by the legislature, and that as to the final rights of the parties to controversies of this kind the courts will have no jurisdiction until action has been had by said board. But it does not follow that
There being no person who could acquire any right as against the respondent to occupy the location until after the action of such board, it must follow that it is entitled to protection in its right of possession. It would not be questioned but that an improver is entitled to protection of his possession until such time as he has opportunity to purchase under the law; yet the rights given to him by the act are no more positive than are those conferred upon upland proprietors, and if he is to be protected in his possession so that his right to purchase may in no manner be interfered with, the upland proprietor should be entitled to like protection. While the question might not have been directly involved in the case of Eisenhach v. Hatfield, supra, that was said by this court in its opinion which clearly tended to show that the improver would be entitled to protection as to his possession; and for that reason we think it must be held that the upland proprietor should have a like protection.
It is contended on the part of the appellants that in the case of Morse v. O'Connell, 7 Wash. 117 (34 Pac. 426), this court decided that it could not interfere in favor of one claiming the right to purchase as against one trespassing upon the location as to which said right was claimed. But an examination of the facts of that case will show that what was said by the court in regard to that question cannot fairly be so interpreted. In the first place, the question of law presented there was different from the one presented here. In that case the improver did not claim
If the courts should hold that the upland owner had no right to prevent one having no claim whatever from squatting upon tide lands in his front, we should have such a state of facts existing as would tend greatly to the prejudice of the public interests. The delays of the law are such that it may be years before it will be finally determined as to the right to acquire ownership under the state, and if, during all that, time, the possession of such tide lands is to be the subject of an uncontrolled scramble between those claiming no right whatever thereto, a most objectionable state of affairs will be inaugurated. In our opinion, the courts are not obliged to sit idly by and allow the unrestrained cupidity and passions of trespassers, in which might will be the all powerful factor, to have full play. The courts, by retaining matters in statu quo, will in no manner interfere with the rightful jurisdiction on the part of the proper authorities as to the possession and ownership of the tide lands of the state.
The order granting the temporary injunction must be affirmed.
Dunbar, C. J., and Stiles, Scott and Anders, JJ., concur.
Reported in 14 Sup. Ct. 548.
