The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1890-12-19
HARBOR LINE SUITS.
Argument on Yesler's Suit Be-
fore Judge Liehtenberg.
JONES WILL NOT SHOW HIS HAND
He states the Commissions Case--shep-
ard and Haines for shore-own-
ers-BelIingham Bays Plea.

others. on the motion of Acknowledgement
Jones to quash the writ of Prohibition.
Judge Lichtenberg issued writ of prohibi-
ton to prevent the harbor line commission
from hling its map and plat of the harbor
lines and from establishing the lines which
they had proposed to adopt, on the grounds
that the property rights of individuals
would suffer. and irreparable injury would
result from such action.
There are number of cases, both In the
state and federal courts, against the harbor
line commissioners, but the issues involved
in them are identical, and the case OF
Yesler against the commission will be
precedent for the others. Thomas X.
Shepard and ]. G. Haines are attorneys for
Yesler, and Attorney-General Jones and
Wiley, Hall Scott represent the state and
the harbor line commission. The parties
in the other suits against the commission
are represented by Attorneys Shepard,
Haines. Burke, Carr and others.
The motion to quash the writ of prohi-
bition was made on two grounds, the hrst
being that the court has no jurisdiction in
the premises, and the second that the pc
tition hled on which the writ was based
does not state facts authorizing the issu-
ance of such writ.
Acknowledgement Jones opened the case
in brief argument. He refused to cite
any authorities, but said he would first
hear the authorities on which the other
side relied to sustain their case and then
he would offer his authorities. He argued
that the writ of prohibition should not
have been issued and that no occasion had
arisen for the court to exercise
such power. He explained
that the extreme width of the har-
Dor lines is speciaed by the state
constitution and is put at 600 feet, and
that the harbor line commissioners had no
alternative in the matter but to place the
lines in such manner as to embrace a
strip of that width, and il is not in the
power of the court to annul the action of
the commission in it's establishment of the
harbor lines. He denied the power of this
or any other court TO determine what
width the harbor lines should be when
the constitution provided for it and for a
harhor line commission; that constitution
had been submitted 10 the people and
adopted by an overwhelming majority.
He stated that the present. harbor line
commission had been appointed In pursu-
ance of the constitution and had located
the Seattle harbor lines, and having been
created by the constitution, it was not sub
ject to the writ of prohibition unless the
constitution of the state is to be repealed
or the supreme court of the United States
is to be overruled.
The court-Neither of which this court
proposes TO do.
Mr.. Shepard then began his argument,
which consumed the rest of the forenoon
and the entire afternoon. He read a num-
Der of authorities in support of riparian
rights of owners of property on the shores
of navigable waters. He claimed all power
is derived from the people, and that COM
missions or courts, whose powers are ju-
dicial, are subject to the writ of prohibit
ton, writ which is of ancient origin and
was the great remedial writ prescribed by
the common law in force in England for
many generations. He said that it is the
only remedy that is available in this case
10 prevent the Entertainments of the state
upon private rights. Pursuing his argu-
ment he said:
The judicial act which we seek to restrain is
the locating OF our hsrbor lines by this commits
sion in such manner as to encroaeh upon our
property rights The fling OF their map is the
completion of the judicial act which we seek to
prevent. When these commissioners undertake
are doing an act OF tyranny and one that is sim
spread their harbor rim over all OF this property
they ply an act OF confiscation. This aci must be
controlled by the constitution, and the limit of
It's power 70 the jurisdiction over the states
property and not the property of private indi-
viduals. And when they encroach upon private
vested rights they do an act that is unconstitu-
tional.
The state has undertaken to ignore the rina
rian rights incident TO the upland property
owners, but those rights must be respected and
protected The persons who endured the hard
ships and encountered the dangers which fell
10 the lot OF the early settlers on Puget sound
are entitled to have their rights respected
There IS something back of the constitution
which reaches beyond it and controls and
limits it-that is the principle that no person
shall be deprived OF his own private rights of
property without due process OF law. The con-
stitution cannot operate to extinguish the pri-
waite riparian rights Of owners OF the upland
AUDITING on navigable waters, because they are
rights OF property granted 20 the people by the
feaerat constitution. Owners of private prop
erty have an inherent right to get on TO the sea
which Is a public highway. Ii the state can
take away these private rights, then il can take
other rights Ii 1t can take and control a COO
loot rim of shore and lease IL on certain terms,
u can lease II ON any terms, however extoTticn
Riparian propretors have the right 10 wharf
out their access in aid Of navigation where the
water Is shallow This right is connected with
the land Itself, and exists as incident to the
ownership OF the lands adjacent, and in this
case Is the most valuable part OF the property
The nilng of this map will Law the foind9fion
for excessive jurisdiction on the part of the
hareor line commissioners, and this is what we
seek To prevent by writ of prohibition The
Ilght 20 the shore is in the state, but only as Il
trustee iof the people. The state could not sell
the properly or cut off riparian owners
The Court-Conceding thar upland owners
nave an easement and rights 10 adjacent prop
eTty, and cOnceding that these riparian rights
are property, does the fact that the harbor line
commissioners have established their lines on
paper lusuty you in taking these steps Had
YOU not better wait until their slsp is hicds
MI SheIard-lhe threatened act viii cloud
our title and en}oarTaSS us in the Improvement
OF cur property in Il multitude Of WAYS An in.
Junction viii not lie. tor there are no parties To
enloin, hence awrit OF prohibition is our ouly
remedy.
The Court--what is the injury in fling this
map would there be any injury until the
st1te should take poSscSSiOn2
-Nt shepaFV~tne INJURY would be inCalcula-
hle 10 as, wherefore IL Is necessary to have free
nId undiSturhcd possession.
lhe tourt-Do you want writ Of prohibition
10 issue unnI the legislature can pass au act
c9@ipenSGting you for the property takeus
AF ShtpAfd-t the legislature makes nroyi-
SONS 70 compensate us, IL can then proceed 10
nave tne writ cease By moving 10 vacate IL
The Court-The question is Whether or NOT
any h@m VIII DC done. surprising the map
Il hied' Your rights OF access are Just the same.
The court then took a recess until :
O'Clock, at which time Colonel Haines, one
ot the counsel for II. L. Yesler. made his
argument III the case. He said:
be state hss no power whatever 70 establish
this s0caOed hSrhoy line and take a St-in al e.s1
iSst eN'ending cut into the ravlgable waters oi
al arm ~ the sea IL wants 10 take possession
81 tAis SNIP which contains most u The vhsrvss
ano improvements along the shores Of Elliott
Gay. suppose they Tie this map. they have a
strln ~ ieet wide and these valuable improve
TnentS, AID they can pe6Gle out 20 tie Highest
h00er TIE best part % Elliott hav. Now et -
zee ~eai TiRAt the state has upon the sea aud %
lay toll ana tribute UpOu every ship that c1rrfs
hsX 81 u..s -