Seattle daily post-intelligencer. [volume] (Seattle, W.T. [Wash.]) 1881-1888, 1883-06-26

the title 70 any part Of said soila. a "a
state may deem proper, subject only !
the permanent right Of navigation owe
the waters, 30 far es such nayicatio,
may be required by the necessitias q
commerce With foreign natisna. q
among the several State ., the Regulation
OF which i vested in the eeneralGovern
ment weber Va. Harbor Commissioners
10 wallace; p. 81. Pollard's lessee Va
nagan, Howard, 2i2. Hence the It'll,
20 the tract In question is held in trus
Dy the United States for our futur,
state. and never pissed to Maynard. 2
Ins proprietor Of the uplands contig
aous 10 the shore has IN general pr
greater right to the shore than other,
wne have No interest in the upland. Ths
only known possible exc ption to thin
general rule. where the common Law ex
ists unchanged, Is where the proprietor
Of the adjoining uplands builds wharf
or makes other improvements condu
sive 70 the public advantage. What.
ever 10 the common Law 10 conclusive OF
this question IN this Territory. Opinion
81 Chief Justice Greene in MCGOWAN vs.
Petit ct. al, District Court at vancou-
Yer, 1872. II 10 not pretended by Plum
mer that be il the owner of the upland,
nor that bis possession of the shore il
for the purpose Of building a wharf "or
any other improvement conducive to
the public advantage" His enclosure
OF the tract by fence, and the cree
ton of structure thereon, is NOT for
any public purpose, nor for any pur-
pose connected with shipping, bat
purely and exclusively for bis private
bus,ness purposes 8. The common
Law rule governs the rights of riparian
proprietors in Washington Territory.
by that law the title to ehe shore of the
sea and Of tbs arms of the sea and in
the soils under tide waters, Is, in Eng
land in the King, and in this country in
the State. Any erection thereon with
out license is therefore deemed an en-
croachment upon the property of the
sovereign; or, as il is termed in the Ian
guage of the law, purpresture, which
he may remove at pleasure, whether il
tend TO obstruct navigation or other
wise. Angel ON Tide Waters, 1893, 1873:
IL Wallace, Is. 4. The Legislature of
this Territory, acting within the SCOPE
Of its powers has undertaken 70 give
such license or franchise to the ripar-
ian proprietor by providing that any
persons owning land adjoining any nav
igable waters or water course within or
bordering upon this Territory. may
erect upon his own land any wharf or
wharves, and may extend them 80 far
into said waters or water course as the
convenience Of shipping may require,
ETC., etc. Code of Washington Terri
tory, 1881; Section 327l.
Such a franchise is obtainable in the
manner provided by section 1872 and
3273 II the Code, and possibly in this
olty under its charter as amended in
1877. See Stat. Of Wash. Terry, 1877,
p. 354, SEQ. Is.
8. such . franchise ia an inoorpo-
real hereditament appurtenant to and
inseparable from the upland, and can
not be used or enjoyed by any one ex-
cept by the upland proprietor. The
franchise by the Legislature is given to
the owner who may erect a wharf ION
his own land" and extend such wharf
to deep water.
Hence Plummer not being the owner
of any upland, could have no license or
franchise to erect wharf, much less to
fence in the shore and erect a structure
thereon for business purposes not con-
nected with shipping as he has d me.
Hence 1t IS also that the deed from
Maynard to Plummer pretending to
convey his right. title or interest in and
to the strip in question is wholly mop.
erative as it conveys nothing, because
Maynard had no right, title or interest
therein to convey, The right to wharf
out was not an incident to the shore be
tween high and low water mark which |
Plummer claims aud has taken possess
sion Of, but il Is an inoorporeal heredit- |
ament appdrtenant to and inseparable |
from lots q, and 8, in block s, which |
were conveyed together with the tene-
ment hereditament and appurtenances"
by Plummer TO VIM. b. Cheney in 1869, |
and by him through sundry grantees to |
Mckinley, the present owner. Plum |
mer IS In no sense riparian proprietor, |
and to none other such franchise is |
granted. As between Plummer and |
Mckinley, the latter alone could claim |
the right to use the land in controversy
for the purposes contemplated by law.
q. Riparian pr0prietors have the |
right TO erect piers, wharves, ETC.. IL |
they conform TO the regulations of the
oe1tEp aAA4 W. hOs OOotEuOt tu0 U6I6-
mount right Of navigation. Durton vs.
Strong. Black. q.
There Is no pretext in this case of any
compliance with any regulations pro-
vided by the Legislature authorizing the
construction Of wharves.
The claim to the strip in question by
the city of Seattle, rests upon express
legislation and by acts in pals of the city
and persons holding under them and OF
the upland proprietor. BY the charter
of the city. approved Nov. 18th, 1876, it
was provided:
Sec. IL. The city Of Seattle has power
TO lay OF, widen, straighten,
narrow, change. extend, vacate and es-
tablish streets, highways and alleys and
all public grounds.
By SEQ. &c, Amendatory Charter,
stat. Washington Territory, 1877, page
35, il vas provided:
SEQ. 6. The city of Seattle shall have
power to make harbor regulations and
rules and to build, construct
aud regulate wharves, piers and landing
places at the foot of any street termi-
mating at the shore of Elliott bay or
Lake Washington, and to regulate and
the limits of the extension Of
Wks0k 10 AAsO sao WosCAo Va my A0A Ookb
within the city limits; to prevent the
of wharves beyond suoh
limits and to remove any wharf or
wharves that have heretofore been or
shall hereafter be constructed beyond
such limits.
The powers thus granted being q right
full subject of legislation are deemed
ample 70 give the city authorities Of
Seattle the right TO lay out, set apart
and establish this unoccapied shere land
belonging to the public and q part of
the harbor Of the city as part Of King
street and to exercise dominion and
control over il.
Barney vs.. Keokuk, 81, q. s. Reports,
sa4.
The city of Seattle. by its ordinances
and other acts has for q number Of
years claimed and recognized King
street from Commercial street east to
Fourth street, and recognized tho exist
enoe of . public way over the land in
dispute.
BY Ordinance No. l40. establishing
grades, approved July 2, 1877, the grade
Of King street at It's intersection with
and Second streets was