Williams Fishing Co. v. Savidge , 155 Wash. 443 ( 1930 )

I concur in the result reached in the majority opinion, but do not concur in all that is said therein.

I agree that neither side adopted the correct method of proving the matter to be determined.

However, it seems to me that the majority decision is not explicit enough for the proper guidance of the trial court and the parties.

It is true, as was said in the prevailing opinion, that there is no case here for the apportionment of tide land. It is also correct that the southern terminus of the highway should be held to be the lands to the south of Cape Disappointment on the shore of the Columbia river and that it includes the terminal accretion thereto. It also, under this perpetual grant to the public, includes the lateral accretion as well as the terminal. The land which may have been added by accretion to the west of Cape Disappointment belongs to the shore and beach of the Pacific ocean which, by the statute, has been reserved and dedicated as "a public highway forever . . . forever open to the use of the public."

The inside line of that highway reserved and dedicated forever which shall never be "sold, conveyed, leased or otherwise disposed of," is the line of ordinary high tide. Wherever that is, or hereafter may be, is the inner line of the highway. All lateral accretions outside it belong to the highway. But as to the shore of the river, that is the ground lying between ordinary high and low water mark (Dalton v. Hazelet, 182 Fed. 561, 105 C.C.A. 99). Therefore, the southern terminus to the south of Cape Disappointment is the ordinary low water mark of the Columbia river. That is established by surveying the meander line thereof, and both that meander and the line of ordinary high tide on the west side of Cape Disappointment are doubtless easily surveyed, ascertained and established.

It is unnecessary to determine the place of discharge of the main stream of the Columbia river into the ocean; for that may be, theoretically at least, far to the west of Cape Disappointment. Neither is there any case, under our statute, for finding any angle of bisection by drawing a line following the general trend of the north shore of the Columbia river to the west, and then drawing a line following the general trend of the Pacific ocean and extending that line to the south until it meets the line of the north shore of the Columbia river extended, and then bisecting the angle formed by these two lines. The lines to be ascertained and determined are the line of the south terminus to the south of Cape Disappointment as it now is, by accretion or otherwise, and the line of ordinary high tide to the west thereof. All the shore or beach of the ocean to the west thereof is the perpetually granted public highway, and cannot be leased or otherwise disposed of.

This should be the direction and would be simple of solution, if followed.