The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-08-02
AGAINST THE SCRIP.
Lower Courts Decision Affirmed
in Moran Case.
FULL TEXT OF THE OPINION.


appeal from King county:
The appellant brought ejsctment for the fol-
lowing described real estate In King county,
viz: Beginning at point 6sS feet south and $50
feet west of the east quarter post of section
8. township "a north, range east willametts
meridian, thence west $50 feet; thence south 2l0
feet; thence east l50 feet; thence north 30 feet
to the place OF beginning, being the premises
covered by Moran Bros. Co.'S foundry and
machine shop.
The complaint showed the plaintiffs owner
snlp OF Valentine scrip No. 1919 for forty acres, and
that on the 2sd day of September, 1859, he duly
selected the following described tract OF unsur-
yeyed land for location hereunder, 10 wit: Be-
ginning at point l60 rods south of the northeast
corner of section 6, township "a north, range 4
east, w. NJ; thence west 80 rods; thence south
so rods; thence east 50 rods; thence north so
rods to the place of beginning; containing forty
acres Which said tract of land. when surveyed,
viii conform to the general system OF the United
States land surveys. and will be known and
designated as the northeast quarter of southeast
quarter OF section 6, township "A north, range
east, w. II.
The complaint then proceeds:
That this plaintiff selected the said tract OF
land in the manner following, to-wit: On the
23d day of September, 1889, this plaintiff filed
with the register and receiver Of the United
states Land ONCE at seattle, washington, notl-
approved April s. ls72, the said plaintiff had
selected the said tract of land, describing it,
together with the affidavit of this plaintiff to
the effect that the said tract of land was not
mineral In character, and at the said time and
place the said plaintiff filed with the said
States land ONCE the said piece zee of scrip
numbered No 1919. for cancellation, and ten
dered 10 said receiver the sum of 81 being the
amount of fees allowed by law to the register
and receiver of the United States land Offices in
the territory of Washington, on the entry of
forty acres of land with Valentine scrip.
Thirteenth-Thst the said tract of land SO Sc
lected by said plaintiff was, at the time of its
selection by said plaintiff, unoccupied and un-
appropriated public land OF the United States,
no. e and wa. s Situated hat in 'Rs sd
ton, was portion of the tide flats,
was covered and uncovered by the flow and ebb
OF the tide uncovered at ordinary low tide and
was covered with wafer at ordinary high tide,
and had never been set apart by the United
States for any particular use; that the said
tract or any portion thereof, was not in the pos
session OF any person claiming or intending to
claim any title thereto, under or in pursuance
of any statute or treaty of the United states,
valuable for mineral, and that the said Indian
right of occupancy thereto had been extin-
guished.
general demurrer to the complaint was sus
tanned in the court below, and on the plaintiffs
refusal to plead further judgment was rendered
for the defendant, dismissing the action.
The appellant contends: First-Tnat the''act for
the relief of Thomas b. Valentine" was a grant
upon conditions which have been strictly per-
formed, whereby the title vested, citing Ruther-
ford VS.. Green's Heirs, Wheaton, 1893, and other
cases involving the construction of congress
ional donation of public lands. For the pur-
pose OF this decision the proposition may be &C.
cepted without discussion.
second-That ON the 23d day of September, 1889,
the tract in question was public land OF the Uni
ted States washington then being territory,
and that congress could at all times up to that
date dispose Of it as it saw fit insurance Co.
va Cantsr. / Peters, 542 Goodtitlo VS.. Kibbe,
Howard, All; Case Toftus, 80 Fed. Rep, 733
This point, also, may DO admitted for the sake of
the argument.
Third-That said tract not havingibeen reserved
by competent authority, or not occupied in good
faith by intending claimants under the United
States land laws, was subject to selection by
Valentine or his assigns, in satisfaction of his
grant
Upon this proposition the issue in the case Is
made and upon its determination the appeal
will succeed or fail.
The act OF April S, 1872 II 8. A. L $40, COM
monty known m the Valentine scrip act author
lied Thomas b. Valentine, or his legal repre-
sentatives, in lieu of the lands claimed by him
in the Rancho Arroyo de San Antonio, in the
county of sonoma, California, to select and have
patents for an equal quantity of the unoccupied
and nnappropriated public lands OF the United
States, not mineral, and in tracts not less than
the subdivisions provided for in the United
States land laws, and If unsurveyed when taken,
70 conform, when surveyed, TO the general sys-
tenn of United States land surveys.
The complaint, as above quoted, contains al
legations which negative any claim that this
tract was occupied or appropriated In pursu-
ance OF any statute or treaty of the United
States, or was mineral in character, or had been
reserved or was subject TO an Indian title
These allegations and the pro forma admissions
~ Hrce md A nSr,4.
of every defense, except that the tract in ques-
ton was not "public lands" within the meaning
OF the act Of 1872
In our view it was not such land, and for the
following reasons:
First-The complaint shows that Il is por-
ton OF the lido Aals, is covered and uncovered
by the flow and ebb of the tide being uncoy-
cred a, ordinary low tide and covered at ordi-
nary high tide, aud by reference to the public
surveys we ind that tt is a portion of the bot
tom OF Elliott bay, an arm of the sea, In front
of the city of Seattle
second-Within the meaning of the acts OF
congress and the policy thereby clearly estAb-
fishing from the earliest times, the decisions OF
courts aad the general understanding, this
10 not "land' but ''watsr,' to which none of the
public or special aud private land laws, includ-
ing the Valentine scrip act, have any appliea-
tion- II may be conceded that congress, by
clear and explicit enactment, coGld have granted
the bottom of navigable waterN TO any per-
son it saw fit before the admission of
the state, but ii viii not be colatended
that the language OF the valeatine
scrip act is 10 receive any construction oAher
than that awarded to the hundreds of other acSs
which relate to the public Glands" subject ID,
Mr.. Valentines selection, or that the lands
therein meant are any lands different from those
subject to the entry under presumption, home
stead and other laws. Therefore, il 10 but proper
that constituting this Faferaura ShouId h.
hsd in this manner to the hitherto universally
sustsinsdrule that "pubuc land means upland,
aud not son beneath nayigsble waters"
The supreme court OF the United states in the
case OF Hardin VS.. Jordan, decided May II, 1891.
On Sup. Court Rep, sOSl uses the following
pointed language.
1t has been the practice Of the government
from Its origin, in disposing OF public lands, To
measure the price 10 be paid Tor them by the
Qnsntity of upland granted, no charge being
made for The lands under the bed of the stream,
or other body Of water The meander lines run
along or near the margin OF such water are ran
for The purpose OF ascsrtainlng the exact GUAM
ally ot upland 20 be charged for, and not for the
purpose OF limiting the title of the grantee 10
such meaadsr lines. IL has frequently been
held, both by the Federal and state courts, that
such mesnder lines are not intended tor the pur-
pose OF bounding aud abuttiug the lands granted
upon the waters whose marquis are thuslv
msandered, aud that the waters themselves
constitute the real boundary. Railroad Com
cases. IL mas never been held that the
lands under water In front OF such
grant are reserved by the United
States or that they can be Afterwards
granted on, &c other persons. TO the fnjgry Of
the original grantee. The attempt TO uaAkesIch
grant, calculated 10 render titles uncertain Snd
rice. ike streams AMI bottles of water With
regard 20 grants o! the government for land
bordering on tids water IL has been distinctly
settled that they only extend In high water.
hat "a a tn h. zNsara