Eisenbach v. Hatfield , 2 Wash. 236 ( 1891 )

The opinion of the court was delivered by

Anders, C. J.

— In this case this court is called upon for the first time to determine the rights of littoral proprietors of lands abutting upon the shore of an arm of the sea in which the tide ebbs and flows; and, while it is scarcely necessary to look beyond our own constitution and laws for authority to guide us to a conclusion, still, owing to the importance of the questions both to individuals and the public, and the magnitude of the interests involved, we have examined the numerous authorities cited by the learned counsel for the respective parties in the elaborate briefs which they have filed, in order that we might familiarize ourselves with the decisions of other courts upon the subject, and with the reasons upon which their decisions are based. We shall not attempt, however, to review all of the decisions in detail, for that would be impracticable, if it were desirable, but will only refer to a few of the eases especially alluded to by counsel.

In this state the common law is our rule of decision in the settlement of questions requiring judicial determination, when not specially provided for by statute. And it seems to be generally conceded that at common law the title to the soil under tide water was vested in the crown. The ownership .of the soil was regarded as a jus privatum, and could be conveyed to individuals, subject only to the public right of navigation and fishing, which public right was under the absolute control of parliament. In this country we have the highest authority in support of the doctrine that the state has succeeded to all the rights of both king and parliament, and hence is the absolute owner of all navigable waters and the soil under them within its territorial limits.

This question was thoroughly discussed by the supreme court of the United States in the case of Martin v. Waddell, 16 Pet. 367„ That was an action of ejectment for land under the waters of Raritan Bay in New Jersey, over which the tide ebbed and flowed. The land in controversy was included in a large tract which was granted by the King of Great Britain to the Duke of York, and subsequently became vested in the proprietors of East Jersey, who after-wards surrendered to the crown all their governmental powers, but retained all their rights of private property. One of the parties to the action, as the grantee of the state of New Jersey, under a law of the state, claimed the exclusive right to take oysters in the place granted, and the other claimed the same right by virtue of his title from the proprietors. The right of the crown to make the grant to the Duke of York, which not only included the tide land, and also the waters and soil under the waters, as well as the power of the state to convey the same, were questions thus brought directly before the court for determination; and it was held that the king, as the representative of the nation, had an unquestionable right to make the grant to the Duke of York, with all the prerogatives and powers oí government therein contained. In discussing the question as to whether, since Magna Charta, the king had power to grant land covered by navigable waters to an individual, so as to give him an exclusive right of fishing within the limits of the grant, Mr. Chief Justice Taney said s

u And we the more willingly forbear to express an opinion on this subject because it has ceased to be a matter of much interest in the United States; for, when the revolution took place, the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government. A grant made by their authority must therefore manifestly be tried and determined by different principles from those which apply to the grants of the British crown.”

The natural and logical conclusion of the court was that the grant by the state conferred upon its grantee the exclusive right to take oysters within the territory covered by the grant.

The question of the ownership of lands under tide water was. again raised in the same court in the ease of Pollard’s Lessee v. Hagan, 3 How. 212, which was ejectment for a lot of land in the city of Mobile, in Alabama, which lay below high water mark, and which had been granted to plaintiff by congress. After approving the decision in the case of Martin v. Waddell, Mr. Justice McKinley, in the course of his opinion, says:

“Then to Alabama belong the navigable waters, and the soils under them, in controversy in this case, subject to the rights surrendered by the constitution to the United States; and no compact that might be made between her and the United States could diminish or enlarge these rights.”

The court further says that, “by the preceding course of reasoning, we have arrived at these general conclusions — (1) The shores of navigable waters, and the soils under them, were not granted by the constitution to the United States, but were reserved to the states, respectively; (2) the new states have the same rights, sovereignty and jurisdiction over this subject as the original states; (3) the right of the United States to public lands, and the power of congress to make all needful rules and regulations for the sale and disposition thereof, conferred no power to grant to the plaintiffs the lands in controversy in this case.”

Again, in the case of Weber v. Board of Harbor Commissioners, 18 Wall. 57, it was held that to the State of California, upon her admission into the union, passed the absolute property in and dominion over all soils under tide water within her limits, with the consequent right to dispose of the title to any part thereof in such manner as the state might deem proper, subject to the paramount right of navigation over the waters, so far as such navigation might be required by the necessities of commerce with foreign nations and among the several states, the regulation of which was vested in the general government. Opinion of Mr. Justice Field, at page 65.

The court went still further in the case of McCready v. Virginia, 94 U. S. 391, and there held that not only the soil under tide waters in the state, but the waters themselves, and the fish in the waters, so far as they are capable of ownership, belonged to the state, and that the legislature had the constitutional right to pass a law prohibiting any person not a citizen of the state from fishing in such waters. And in Willson v. Black Bird Creek Marsh Co., 2 Pet. 245, the court sustained an act of the legislature of Delaware authorizing the damming up of a navigable stream for the benefit of adjoining lands.

The case of Hoboken v. Penn. R. R. Co., 124 U. S. 656 (8 Sup. Ct. Rep. 643), was an action of ejectment for land occupied by the railroad company along the margin of the Hudson river. Plaintiff claimed by dedication of the street to the water by the original proprietor of the land, as evidenced by the “Loss” map. Defendant claimed by virtue of a grant from the state. Mr. Justice Matthews, speaking for the court, said;

“ The nature of the title in the state to lands under tide water was thoroughly considered by the Court of Errors and Appeals of New Jersey in the case of Stevens v. Patterson & Newark R. R. Co., 34 N. J. Law, 532 (3 Am. Rep. 269). It was there declared (page 549) ‘ that all navigable waters within the territorial limits of the state, and the soil under such waters, belonged in actual propriety to the public; that the riparian owner, by the common law, has no peculiar right in this public domain as incidents of his estate; and that the privileges he possesses by the local custom, or by force of the wharf act, to acquire such rights, can, before possession has been taken, be regulated or revoked at the will of the legislature. The result is that there is no legal obstacle to a grant by the legislature to the defendant of that part of the property of the public which lies in front of the lands of the plaintiff, and which is below high water mark.3 It was therefore held in that case that it was competent for the legislative power of the state to grant to a stranger lands constituting the shore of a navigable river under tide water, below the high water mark, to be occupied and used with structures and improvements in such a manner as to cut off the access of the riparian owner from his land to the water, and that without making compensation to him for such loss.33

And again %

“Our conclusion, therefore, is that the grants from tüe state of New Jersey, under which the defendants claim, respectively, are a complete bar to the recovery sought against them in these suits.33

And finally s

“Under these grants they have and hold the rightful and exclusive possession of the premises in controversy against the adverse claim of the plaintiff to any easement or right of way upon and over them, by virtue of the original dedication of the streets to high water mark on the Loss map.33

The foregoing decisions of the highest judicial tribunal of the United States, without other or further authority, would seem to settle, beyond controversy, the question of title to the tide lands of this state, and to leave no doubt whatever that they belong to the state in actual propriety, and that the state has full power to dispose of the same, subject to no restrictions save those imposed upon the legislature by the constitution of the state and the constitution of the United States j and, if this be true, it necessarily follows that no individual can have any legal right whatever to claim any easement in, or to impose any servitude upon, the tide waters within the limits of the state, without the consent of the legislature.

But, in order that there might be no doubt upon this vexed question, the constitution of the state has spoken upon the subject. Sec. 1, art. 17 of that instrument, declares that “the State of Washington asserts its ownership to the beds and shores of all navigable waters in the state, up to and including the line of ordinary high tide, in the waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes i Provided, That this section shall not be construed so as to debar any person from asserting his claim to vested rights in the courts of the state.” And so zealous were the people of the state in guarding their rights in these lands that they inserted a proviso in the constitution to the effect that no law of Washington Territory, granting shore or tide lands to any person, company, or any municipal or private corporation, should be deemed valid. Const., art. 17, § 2.

Appellee contends, however, that whatever may be the title of the state to the soil under tide water, he, by virtue of his contiguity to the water, has certain rights in the shore beyond those of the general public, and which are peculiar to himself, among which are a right to wharf out opposite to his upland, a right of ferriage, a right of unobstructed access to the navigable water in front of him, and a further right to accretions that may hereafter be formed, and that all of these rights are property, and are “ vested rights.” And in support of this contention the learned counsel for appellee have cited many authorities, among which are Dutton v. Strong, 1 Black, 23; Railroad Co. v. Schurmeir, 7 Wall. 272; Yates v. Milwaukee, 10 Wall. 497. But, before proceeding further, it may be proper here to observe that riparian rights in the several states are settled by the respective states for themselves. See St. Louis v. Myers, 113 U. S. 566 (5 Sup. Ct. Rep. 640); Barney v. Keokuk, 94 U. S. 324; Willson v. Marsh Co., 2 Pet. 245.

In Dutton v. Strong, cited by appellee as an authority in favor of his right to wharf out against his premises, the facts before the court were as follows: The defendant in the court below had constructed a landing or bridge pier in front of his premises, extending to the navigable waters of the lake. Plaintiff’s vessel was moored to this pier in a storm and, by force of a gale, was about to pull down and destroy defendant’s structure, when he, after requesting the master of the vessel to detach the same, but who refused to do so, cut the hawser, whereby the ship was set adrift and sunk. Plaintiff sued for the resulting damage. The court held that the defendant had a right to erect the pier where it was, and to protect the same by cutting the vessel’s fastenings, even although it was thereby exposed to destruction. Speaking of the origin of riparian rights in this country, Mr. Justice Clifford said:

“Our ancestors when they immigrated here undoubtedly Drought the common law with them as part of their inheritance; but they soon found it indispensable in order to secure these conveniences, to sanction the appropriation of the soil between high and low water mark to the accomplishment of these objects. Different states adopted different regulations upon the subject, and in some the right of the riparian proprietor rests upon immemorial local usage. No reason is perceived why the same general principle should not be applicable to the lakes, although those waters are not affected by the ebb and flow of the tide.”

We have no doubt of the correctness of that decision, and this court would undoubtedly follow it in a similar case.

The case of Railroad Co. v. Schurmeir involved the title to land on the Mississippi river at St. Paul. Schurmeir’s premises were bounded by high water mark of the river, but the laud in front liad been filled in and built upon, down to extreme low water mark • and it was held that he had a right, as riparian proprietor, to the reclaimed land, as against the railroad company. And, at page 289, Mr. Justice Clifford said:

“Although such riparian proprietors are limited to the stream, still they also have the same right to construct suitable landings and wharves, for the convenience of commerce and navigation, as is accorded riparian proprietors bordering on navigable waters affected by the ebb and flow of the tide.”

But it will be remembered that the same learned judge said in Dutton v. Strong that different states adopted different regulations upon the subject; and no doubt the decision of the case was in no way in conflict with the “regulations” of Minnesota.

The question before the court in Yates v. Milwaukee was as to the validity of an ordinance of the city of Milwaukee declaring a wharf belonging to Yates a nuisance; and it was remarked by Mr. Justice Miller, in speaking generally of riparian rights on navigable streams, that, whether the title of such owner extended beyond the dry land or not, he has the right of access to the navigable part of the river, and to make a landing, wharf or pier for his own use, or that of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights ot the public, whatever they may be, and that it is a valuable right and property, and a right of which, when once vested, the owner can only be deprived in accordance with established law, and, if necessary that it be taken for the public good, upon due compensation.

But if the court in these cases really intended to say that the same rule applied to the shore of the sea, or the arms of the sea, and that a riparian proprietor has a right as against the state to erect wharves extending below high water mark, we cannot see how these can be reconciled with other decisions of the court, especially with that of Hoboken v. Railroad Co., supra. But it would seem, however, that the court in the later case of Weber v. Commissioners did make a distinction between tidal and non-tidal waters ; for in that case Mr. Justice Field, after approving the doctrine laid down in Yates v. Milwaukee, says;

“Nor is it necessary to controvert the proposition that in several of the states, by general legislation or immemorial usage, the proprietor whose land is bounded by the shore of the sea, or of an arm of the sea, possesses a similar right to erect a wharf or pier in front of his land extending into the waters to the point where they are navigable. In the absence of such legislation or usage, however, the common-law rule would govern the rights of the proprietor, at least in those states where the common law obtains. By that law the title to the shore of the sea and of the arms of the sea and in the soils under tide waters is, in England, in the king, and in this country in the state. Any erection thereon without license is therefore deemed an encroachment upon the property of the sovereign, or, as it is termed in the language of the law, a purpresture, which he may remove at pleasure, whether it tend to obstruct navigation or otherwise.”

We think the above is a correct statement of the law applicable to riparian rights on tide waters, and that it is fully supported by the authorities. Gould, Waters, § 167, and cases cited; Com. v. Alger, 7 Cush. 53; Dana v. Wharf Co., 31 Cal. 118 (89 Am. Dec. 164); Martin v. O’Brien, 34 Miss. 21. And in this connection it must not be forgotten that iu the cases of Dutton v. Strong, Railroad Co. v. Schurmeir, and Yates v. Milwaukee, as well as that of Case v. Toftus, 39 Fed. Rep. 730, also cited by counsel, the respective riparían proprietors had already erected their improvements, presumably with the license of the state, and therefore had vested rights of property which it was proper to recognize and protect. This seems to have been the view of Mr. Gould, for, in a note to § 149 of his work on waters*, in which he quotes from the opinion of the court in the case of Yates v. Milwaukee,’ he uses this language;

e< In this case the wharf which it was attempted to condemn as a nuisance was actually built.”

In Ravenswood v. Flemings, 22 W. Va. 52 (46 Am. Rep. 485), which is a well considered case, it was held, under a law of that state, that a riparian proprietor on a navigable river had no right to build a wharf, ferry or bulk-head, below high water mark, without the consent of the town council, and that he might be prevented from so doing by injunction. And in Com. v. Alger, supra, the court, in a most learned and elaborate opinion by Chief Justice Shaw, sustained an indictment against the defendant for extending a wharf beyond the harbor line in the city of Boston, on his own land j and, further, that the statute establishing harbor lines, and taking away the rights of proprietors of fiats in the harbor beyond the lines, to build wharves thereon, even when they would be no injury to navigation, and providing for no compensation to such proprietor, was not unconstitutional as taking private property for public uses without compensation.

We think the authorities abundantly show that a riparian proprietor on the shore of the sea, or its arms, has no rights as against the state or its grantees to extend wharves in front oi his land below high water mark.

But, if this were not so, we would still be constrained to hold that appellee has no such rights j for the constitution ot the state, which is the supreme law of the land, expressly declares that the legislature shall provide for the appointment of a commission, whose duty it shall be to locate and establish harbor lines in the navigable waters of all harbors of the state, wherever such navigable waters lie within or in front of the corporate limits of any city, or within one mile thereof, upon either side; and, further, that the legislature shall provide general laws for the leasing of the right to build wharves, docks and other structures, upon certain designated areas, or the legislature may provide by general laws for the building and maintaining, upon such area, wharves, docks and other structures. Const., art. 15. Nor can the right to wharf out be claimed under the act of the territorial legislature authorizing bank owners to build wharves in front of their premises. That act was but a license, at most, and, until availed of, was revocable, and the constitution and subsequent laws have abrogated the law.

But appellee claims that he has a vested right to future accretions to his land, and cites as authority to sustain his position the case of County of St. Clair v. Lovingston, 23 Wall. 46. And the court in that case does say that the riparian right of future accretions is a vested right. But we are unable to see how one can have a present vested right to that which does not exist, and which may never have an existence. It seems to us that the more reasonable doctrine is announced in the case of Taylor v. Underhill, 40 Cal. 471, in which case the court says:

“The plaintiff, as a riparian owner, has also a right to accretions to his land, and it is said the claim of defendant will be a cloud upon his title to such accretions. But, as yet, there is no such property, and there may never be. He cannot ask the court to interfere in advance, and prevent a cloud being cast upon his title to that which may never had an existence.”

The case of Railway Co. v. Renwick, 102 U. S. 180, cited by appellee, was an action for damages by a riparian proprietor on account of the building of a railroad along the Mississippi river in front of his premises. The court held that the plaintiff could recover, but placed its decision upon a statute of Iowa (1874), providing for compensation to riparian owners in such cases. Previous to this statute it was held in the case of McManus v. Carmichael, 3 Iowa, 1, after an exhaustive review of the authorities, that the title of riparian owners extended only to high water mark; and in the case of Tomlin v. Railroad Co., 32 Iowa, 106, 109 (7 Am. Rep. 176), the court held that “the doctrine dedueible from adjudged cases is that, by the rules of the common law, the owner of land along the shore of a navigable river is entitled to no right, either in its shores or waters, as an incident of his ownership, except the contingent ones of alluvion and derelictum. Hence he is not entitled to damages for an improvement made along the banks of such river, by authority of the state, the effect of which is to deprive him of free access to the stream.”

The same question was before the court of appeals of New York in the case of Gould v. Railroad Co., 6 N. Y. 522, and was decided the same way. In that case the court, quoting Lansing v. Smith, 4 Wend. 9 (21 Am. Dec. 89), said;

“ The bank of the Hudson river, between high and low water mark, belonged to the people, and the riparian proprietor had no better right to the use of it than any other person. If he built on it or erected a wharf there, it would be a purpresture, which the legislature might direct „to be demolished, or to be seised for the use of the public. Or the legislature might authorize erections in front thereof, as in case of Smith’s wharf on the Thames.”

And in Stevens v. Railroad Co., 34 N. J. Law, 532 (3 Am. Rep. 269), it was held that, although an owner of land adjacent to navigable water is more conveniently situated for the enjoyment of the public easement than others, he has, by virtue of common law, no more or greater rights than the rest of the community. In Langdon v. Mayor, 93 N. Y. 129, 155, it was said that the legislature of the state, where not restrained by constitutional inhibitions, could authorize a boom to be placed across the Hudson river for private use, and that the right of the state to grant the navigable waters, except as restrained by constitutional checks, is as absolute as its rights to grant the dry land which it owns, and that the state holds the public domain as absolute owner, and not as a trustee, except as it is organized, and possesses all its powers and property for the public benefit. See, also. Wood, Nuisances (2d ed.), 538, and notes.

Many decisions of the various state courts have been cited by appellee as sustaining a contrary doctrine to that of the above eases, but we find, upon examination, that they are mostly (especially those referring to riparian rights in tide waters) based either upon statutes or local customs, and are therefore not precedents binding upon us. Our attention is also called to the English cases of Buccleuch v. Board of Works, L. R. 5 H. L. 418, and Lyon v. Fishmongers’ Co., 17 Moak, Eng. R. 51, only the latter of which, however, we have had an opportunity to examine j and in that case the principal question involved was the construction of an act of parliament which distinctly recognized riparian rights in the owner, and which provided (§ 179) that “none of the powers by this act conferred, or anything in this act contained, shall extend to take away, alter or abridge any right, claim, privilege, franchise, exemption or immunity to which any owner or occupier of any lands, tenements or hereditaments on the banks of the river, including the banks thereof, or of any aits or islands in the river, are now by law entitled, nor to take away or abridge any legal right of ferry, but the same shall remain and continue in full force and effect as if this act had never been made.” The statute is a very broad and comprehensive one; and, as it was not questioned but that Lyon’s wharf was erected and used where it was in accordance with the law, the owner was entitled to the “privilege” of continuing to use it, as against the Fishmongers5 Company, "as if the act had never been made.55 Indeed, it was conceded in argument that he had a right of access from the river to the front of his wharf, but it was contended that he had no such right as to the side next "Wmckworth5s Hole, which was merely an inlet from the river. The court held otherwise j and its conclusion was evidently in accordance with the provisions of the act in question, although at variance with the earlier common-law doctrine, as laid down by Lord Mansfield in Rex v. Smith, 2 Doug. 425, in which that eminent jurist held that the king might authorize the erection of a structure in front of defendants premises, between high and low water mark in the river Thames, even though the defendant was thereby cut off from the use of his wharf.

The result of our investigation of the authorities leads us to the conclusion that riparian proprietors on the shore of the navigable waters of the state have no special or peculiar rights therein as an incident to their estate. To hold otherwise would be to deny the power of the state'to deal with its own property as it may deem best for the public good. If the state cannot exercise its constitutional right to erect wharves and other structures upon its public waters in aid of navigation without the consent of adjoining owners, it is obviously deficient in the powers of self-development, which every government is supposed to possess — a proposition to which we cannot assent. See Galveston v. Menard, 23 Tex. 349. Nor do we think this view in any way conflicts with the constitution of the state, but, on the contrary, we believe it is in strict harmony with it, when all its parts are construed together. We cannot think that the building by the state or its grantees of wharves upon shores of navigable waters would constitute either a taking or damaging of private property for public use, in contemplation of the constitution. See Com. v. Alger, supra.

The next question to be considered is, by what right, if any, do appellants occupy the shore in front of appellee’s premises? And in considering this question it must be remembered that the demurrer in this ease admits that they have thereon valuable improvements in actual use for commerce, trade and business, and that said improvements were on said lands on March 26, 1890, the date of the passage of the tide land act; that said lands are within one mile of the corporate limits of the city of Tacoma; that the harbor lines have not been fixed opposite to said lands; and that the same have not been disposed of by the state. Appellee has never erected any improvements on the shore, but claims that the appellants are trespassers, and that, as against them, he is entitled to relief by injunction. On the other hand, appellants claim to be rightfully in possession of the disputed lands by authority of the act of the legislature above mentioned. Section 11 of this act provides that “ the owner or owners of any lands abutting or fronting upon or bounded by the shore of the Pacific Ocean, or of any bay, harbor, sound, inlet, lake or water-course, shall have the right for sixty (60) days following the filing of the final appraisal of the tide lands, to purchase all or any part of the tide lands in front of the lands so owned : Provided, That if valuable improvements, in actual use for commerce, trade or business, have been made upon said tide lands by any person, association or corporation, the owner or owners of such improvements shall have the exclusive right to purchase the land so improved for the period aforesaid: . . . Provided, That nothing in this act shall be so construed to apply to any improvements made after the passage of this act.”

We think, by a fair construction of this statute, that appellants are rightfully in possession of the disputed premises and have a right to maintain their improvements as they were on March 26, 1890, but that they have no right to enlarge their erections prior to such time as they may be authorized to purchase the lands from the state. For the foregoing reasons the judgment of the court below is reversed, and the cause remanded for further proceedings in accordance with this opinion. Bo ordered.

Hoyt, Scott, and Dunbar, JJ., concur.