The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-11-27
THE TACOMA HARBOR LINE.
Attorney General Jones' Reasons fol
Denying Northern Pacific's Claims.

In his opinion the claims of the
Northern Pacific railroad to 400-foot strip
on the water front OF Tacoma, in opposition to
the harbor line as proposed by the harbor line
commission. Attorney General Jones takes up
the arguments advanced in the brief of the
Northern Pacifcs attorneys and answers them
seriatim, and reaches the conclusion that the
action of the barbOr limo commission would be
lawful
He states that the strip mentioned is claimed
by the railroad company part of its right-of-
way, and quotes the contention of the railroad
attorneys that the commission has no authority
10 include this strip within the harbor line,
and that by so including 1t the commission
would impair the company s legal rights
He then quotes the passages in the compapys
charter on which its claim is based, namely the
grant of right-of-way through the public lands
extending 200 feet on each side OF the railroad
where it May pass through the public do
main"
He then sums up the contentious of the COM
pany's attorneys as follows
First, that the words of the charter granting
the right-of-way through the public lands and
defining its width where it passes through the
public domain are sufficient in themselves to
authorize the railroad company to construct its
line Of Yailrsad on the shore of nayigable arm
of she sea, below the line OF ordinary high tide,
and claim right-of-way of the width designated
on such shore.
Second, That congress had the power to
authorize the railroad company to appropriate
a right-ef-way on the tide lands to nayfgable
waters by virtue of the constitutional provision
which empowers congress to regulate commerce
between the states.
Third. That congress had the power to grant
tide lands in the state of Washington prior to its
admission into the Union.
Fourth, That the grant of right-of-way as
above claimed was equivalent to patent and is
expressly confirmed by section of article II of
the constitution OF this state
The attorney general proceeds to express the
opinion that 'the words public lands do not
include any of the soil lying below the line of
ordinary high tide in water where the tide ebbs
and flows saying that this opinion has been
repeatedly affirmed by the most eminent courts
and jurIsts, and quoting the decision of the
state supreme court in the case of Baer vs.
Moran Bros, that tide lands are not land
but water. to which none of the public or
special and private land laws, including the
Valentine scrip act, have any application. He
quotes several decisions from other states 10
the same effect
In answer to the railroad company's claim
that the words 'publie domain" include more
than the term "public lands" he says that from
the connection in which the former term is used
II is clearly used synonymous with s'pubIic
lands" He observes that the term public do
main is not used in the granting part of the
section, but only in the part incidentally speci-
tying the width of the right-of-way. He cannot
n
ing OF the term public lands" and pronounces
il not clear, explicit and unambiguous grant
OF the right-of-wsy on the shore OF tide waters.
He claims that the devotion by counsel of many
pages 10 an argument that public domain" has
broader significance than public lands" is
itself an admission that the land conteuded for
is not clearly Included in the grant He pro-
ceeds:
Itis one OF the most familiar princinlas of tho
grants
private individuals, that they are strictly con-
stFueI against the grantee and in favor of the
public teat nothing will pass by the grant ex-
eepNng what is included within il by plain, spe.
clhc and unambiguous language.
IN support Of this statement he quotes the de-
disioGs u the United States supreme eourt and
OF several states and Judge Cooley on "Con-
stI.utioual Limitations"
lie also calls attention 10 the fact that. while
the Northern Pacific charter expressly provides
for the construction Of necessary bridges. etc.
nothing in IL authorizes, either expressly or by
the fIlntest Implication, the construction of any
wasrf or other isci!ity TO reach uavlgable water
He fails 10 see that, when congress rroyided for
the construction of a railroad to a point On
Puget sound, il could have intended 70 provide
tor the construction ef a railroad INTO the @ouud
A. 10 The second contention. lie comedies The
power oi congress TO authorize the railroad com
p&ny 20 appropriate right-ot-way over the tide
lands tn nayIgable water un1er the cnnstittl-
tional provision which authorizes congress -
regulate commerce between the states, but adds
thst. il congress had deemed il important 10
grant sucA authority, IL would have ex pre..at
is iuteatton clearly and explicitly lie also
comedies tina. the grant OF such power would
have been more convenient for the railroad com,
pany IN tae transaction OF It's business but saws
81 is sufficient answer 70 both these conteYt-
tlens that congress did not see 1T 70 make the
grant
As 20 The railroad eompanys third contention.
ne considers & unnecessary 70 discuss the cues
ton whether congress had power 10 make 8
valid grant OF tide lands prior 10 the admission
Of the state, for congress not having made the
grant, the question is rot material. He, how.
ever, quotes the United states SUR sms eaurt in