The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1888-06-03

Deeisioa Affecting RipaEian
Rights-
Al orrx1or II suDsE AIIss-

p~ek.enang GheWsssgeossnas es
- Re.esss Wasaangs>s = 1ssr
rsv csspssssssss rssDsa-cssss-
q miosss1any.
rseous. yune 2.--Judse Allyn ssse
ehis sfterDocn fled his judgments snd
s.;nIon m Tie riparian rights esss'
(:slvin 3. Barlow and J. ". f1nkssson
s~.iu,s Ros<st wingste- The tempo
vsrv injup<4ion was dissolved foa-
L,-irx {. he text Of The option:
C,cmpaainsnts aiieee that shey are
a. ovuers Of Ects q in block 9 accord
iox TO . cesfsia pat Of Is<onas s,sy
~ the sespoudenf Il the owner % sos
; 80 - hist the respondent Be- re-
s1,~irr,i from iriyins piles % cor
S~,.rf : vhay< In front o. company
srss. i0k 8 and hetveen said ios sisd
~ vsters q Psext sound a tempe
80 rr~frsfpinx order VS. iss0ed.
~ ,.suoo<tent denies al the ahekz-
49,. n fhe TN, alleges thaS ne - tne
49,, ~ ID 4: that his lot exfends 70
~ navixsbIe watrrs OF Puget sound
~ fsnnfs and atyutts on said sound
go - hsd commenced the con.sfuc-
-. n ! vhasf o. alleged and thes Il
- vb0iIy beiow the ordinary nne
- high vxter upon which MS .os
s,rnts The issue thus raised = tne
~. q compaainxnt 10 lot . ana tne
s.s.e.4ion 81 he frontage and fiparizn
yf~kfs Il Lot I. The main question .
stThere & the shore line q ordinary
Ai~h fide With references 70 ssid prop
sr2yf The original owner ~ patent
Sers,m whom both complainant Anc re-
Snnndent derived their title) owned 70
800 e known ~ the nseande1inG lire.
thsf e 70 ssy, the time OF ordinary
hi~h tj.ie and this in my judgment Is
~ controlling point In this case re-
~.rdi~.s 81 other features. THIS line
q Ordinary high tide undoubtedly
1920 hark upon lot !. . greater or
- ssi.tsnce a. will hereafter be re-
S~~rai ID. The original patentee laid
s,.t raafted and Yecordesi . map by
vhirh Iots 4. s and lying In the water
oufsisie Of lot ! and entirely below the
msrk Of ordinary high tide were IN.
Sic.srd with an alley thus plated
- i,,.iissfesf hetween said lots D ana q.
ssseh aIIey. however, was never known
- need a. an alley in any sense save
= indicated on this plat. Il hsd no ex-
s.f.nce. On the contrary. the tide
sbI,ed and flowed over il without OBJ
sfructiou: booms OF logs were moved
aver il and logs were until compari-
lively of late date shot over the bill
and into the water upon lot and this
aIIcy. In this condition OF affairs the
grnntor Of respondent extended line
81 piles from ordinary high water
marx ard from his lot : across said
Alley and upon the shoal water OF the
bey. embracing lot o. or the greater
paft II II. Subsequent to this com
f,lsinants acquired lots 4, 5 and g. II
= in evidence that complainants knew
81 the construction OF the piling by the
owner u lot ., aequiesced IN II perhaps
advised II and piled his property In
the adjoining block ut the same time
and for the same purpose respondents
grantor did, viz. TO preserve
wharfage privileges 9r rights: and
notwithstanding such knosledge aud
participation, later they purchased the
water lot q MS Indicated on the map.
These facts. while not controlling,
might be very properly con sidered In
determining the equities. The ques-
ton In this cnse. however, l. where Is
the line Of ordinary high tide7"
According % the hest evidence. con-
eludc that the original line OF ordinary
high tide was back upon lot 4. to the
extent III from twenty to twenty-five
feet ON one side, increasing upon the
westerly side to depth OF about forty
feet. The water thus came back upon
this lot 10 depth OF from four 10 sew
en- feet, and this plated alley was COW
cred from seven 10 ten feet. The orig
tnal owner held under patent His
boundaries were defined by Il. II IL
we'll settled that the United States, his
gSantor, Ii not the owner OF lands be-
tween high and low water marks.
1.-THE title To lands bordering on navi-
gable streams shall stop at the stream.
Although such riparian proprietors
are limited TO the stream, they have
the right 10 construct landings and
wharvcs;" It'll Wallace 2s9.
IL WAS decided great many years
Ego by the supreme court Of the Unit
ID States that ''such lands are not
granted by the constitution Of the
United States, but are reserved 10 the
strtrH respectively "3rd Howard 30.
This decision has ever since been ad-
hered TO BY the hishes 4 tribunal.
In determining the cwnership OF |
these lots we first determined the high |
water mark. That far the United |
States may patent and convey and no |
farther; and that far Il did convey 10 |
Che patcntec, who subsequently plated |
herein and no farther. "Proprietors |
Of lands bordering on navigable waters |
under title derived from the United |
States hold only ~ the stream" 4th |
Wallace 2s7.
The tide lands extending beyond
such tide mark are reserved, as has |
been quoted. to the states respectively.
They are held hy the United States in
the nature Of trust for the future
state 10 be conveyed 10 the state when |
y becomes one. The shore line il all |
that can be acquired by the patcntee.
and when he has sold 10 the shore line
no has sold all he may sell and convey
regardless Of how far he may choose |
- plat and map out upon such tide
hands, which are thus reserved as
stated. II follows that the line OF high
tide upon lot Z Il the limit OF private
subject IL certain wharfage
privileges hereinafter referred Ia.
II Is commended that an alley having
been plated outside Of respondents
lot Z. the grantee can only take Ia such
alley. That by thus plating such
alley the granior reserves 10 himself
privilege 81 wharfage etc, ! am not
unaware Of decisions in Rhode Island
. few others sustaining this doctrine.
but do not believe this to he the
weight 81 authority or sound in prin-
ciple as applied TO this case. Had the
alley an actual existence and had ID
been known aud used as an alley or
public way, the contention would be
stronger. but IL was existent only in
imagination. The common waters
ebbcd and flowed over il; II was en-
tircly outside of the line of ownership
ef him who was plotting IL. and II this
can lie eountenanccsi. l know no good
reason 10 stop the march out of any
wilf,il trcspasser upon this trust prop.
ertv.
The owner 81 an ahntting water
front hat certain rights or privileges Of
wharfage. Thee I shall now refer To.
hui I cannot conceive that because he
Is given such privilege he may 50 out
beyond his legal boundaries and his
ownership AMI lay ont and dispose of
blocks and alleys on the very property
that the government itself could not
lay gu, or ell. This act Of assuming
on ncrShip aud disposition over prop
srty t~sord his tale was wholly void
and vain thing. Ry IL no one acquired
any right- and ~ IL no ono lost any.
II necessarily fellows that the right III