[No. 9353.

Department One.

July 14, 1911.]

#### John T. Nassa *et al., Appellants,*v. Arthur Seaborg *et al.,*Respondents.1

Public Lands — Boundaries — Meander and High Tide Lines. Land below the government meander line, and above the line of high tide at the time of the admission of the state to the Union, is upland and passes with the government patent of the meandered upland.

Appeal from a judgment of the superior court for Wahkiakum county, Rice, J., entered July 15, 1910, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action of ejectment.

Affirmed.

*N. H. Bloomfield (E. S. Snellmg,*of counsel), for appellants.

*C. C. Dalton (Herbert W. Meyers,*of counsel), for respondents. ,

1

Reported in 116 Pac. 658.

*165Parker., J.

The plaintiffs commenced this action to recover from the defendants a tract of land in Wahkiakum county bordering upon the Columbia river. A trial before the court without a jury resulted in findings and judgment in favor of the defendants, from which the plaintiffs have appealed.

Appellants claim title to the land under a deed from the state of Washington conveying to their predecessors in interest the tide and shore lands of the-second class owned by the state in front of government lot 4 of sec. *IS,*tp. 8, N-. It. 6 west, W. M. Respondents are in possession of the land in controversy, have made valuable improvements thereon, and claim title thereto under a patent from the United States conveying lot 4 to their predecessors in interest. The right of appellants to recover depends upon whether or not the land claimed by them and in possession of respondents was land belonging to the state at the time of its giving the deed under which appellants claim title. Upon this question the trial court found, in substance, that the land in controversy is a part of, and belongs’ to, the government lot 4; that it is all upland, situated above the line of ordinary high tide of the Columbia river and between that line and the government meander line; and that the tide and shore land described in the deed from the state, under which appellants claim title, does not include the land claimed by them in their complaint in this action. These findings are claimed to be erroneous, and constitute the principal ground of error relied upon by appellants for a reversal of the judgment.

The evidence renders it certain that in the year 1905, at the time of the giving of the deed by the state for the tide and shore land, under which appellants claim title, the land here involved was not tide or shore land, but was upland above the line of high tide and immediately below the government meander line of lot 4. The finding of the trial court that it is a part of government lot 4 must have been made upon the theory that it was upland at the time of the admission of the *166state to the Union, and is, therefore, a paid of lot 4, notwithstanding it is between the meander line of that lot and the line of high tide, under the decisions of this court in *Washougal etc. Transp. Co. v. Dalles etc. Nav. Co.,*27 Wash. 490, 68 Pac. 74, and *Johnson v. Brown, 38*Wash. 588, 74 Pac. 677. Upon the question of the exact condition of this land at the time of the admission of the state to the Union, the evidence is not at all satisfactory. If, however, it were not for the certainty existing as to the land being upland in 1905, and the growth of trees upon it indicating considerable age, we might be influenced by the testimony of some of the witnesses to regard it as being formed by accretion since the admission of the state; and such a view of the facts might lend some support to the state’s title thereto and appellants’ claim under the state’s deed. Const., art. 17, § 1; Pern. & Bal. Code, § 6763; *Eisenbach v. Hatfield,*2 Wash. 236, 26 Pac. 539, 12 L. R. A. 632; *Welsh v. Callvert,*34 Wash. 250, 75 Pac. 871.

A careful review of the entire record leads us to conclude that we would not be warranted in disturbing the trial court’s finding that the land is a- part of government lot 4, and that it therefore passed to respondents’ grantors under the government patent for lot 4. *Washougal etc. Transp. Co. v. Dalles etc. Nav. Co.,*and *Johnson v. Brown, supra.*

Other contentions of counsel for appellants we think are without merit, and in any event are not such as would affect our disposition of the cause in respondents’ favor upon the grounds we have discussed. Therefore, they do not call for further notice. We find no error. The judgment is affirmed.

Dunbae, C. J., Fullerton, Gose, and Mount, JJ., concur.