The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-01-24

case-was not the minority of the New jersey
court right, the majority wroug2 Instead o.
'.the few American cases being misaPpheu,
the highest American Judicial tribunal, the
United states supreme court. has also, as we
have seen, affirmed the doctrine
Toniin vs. Railroad Com pany, decided July,
1871. As far as applicable 20 the case al bar this
case decides. first, what is the test OF nasigabe
waters, applying the same 10 the MISSISSIPPI
river Second, that the state has tne tl.ls 70 me
water mark. IL is based on and follows Lead
ing case OF that state and quoted IN many
and most elaborateIy considered cases
or riparian rights [McManusys. Caruichci, 90
Iowa, IL But the McManus case expressly
avoids and does not decide whether or not ripa-
rian or adjacent owners shave some rights be-
tween high and low water mark, which are pc
Guitar to himself and not common nor does the
ton OF the right to make wharyes or structures
for the convenience of navigation and com
rnerce. and other questions OF a similar nature.
SAYS the court. ..Tbe conclusion is that plaintiff
has" not title to the land between high and
low water so as to enable him TO
sand" (see last of opinion on page
ST. The case OF Haight VS.. Kcokuk, 4th Iowa,
1oi, which followed aud adopted the Meaauus
holds: first, that riparian or upland owner owns
IN high water mark, affirming Sd Iowa; second,
bighwsy. Observation-Disclosures it was excepted in the
dedication from being public highway ;thlrd,Dy
reason OF said street lying between two lots and
had not the riparian right 10 wharf. These two
cases being the basis upon which the Tomiin
case was ruled. there Is no doctrine In either OF
them sustaining the Tomlin case. But has the
Tomlin case, based on these two cases, the
sfnrce' OF any authority 90 sustain Mr. Wood!
II is by reason of the Tomiin case alone, and not
on the cases cited therein to support it. BE this
as il may, there are subsequent cases IN Iowa
that have "force on the question we are now
investigating. In 1876 change began. ii change
ii was. for In Mnsser vs. Hershey, 43d Iowa, $50,
we find Sd Iowa and 4th Iowa and the Tomlin
case only cited rs the settled doctrine OF the
state that riparian proprietor upon naTigable
stream owns only TO ordinary high water mark.
But sthst such party would have right TO con-
below high s Teesn p pe se e
form to the regulation OF the state, and did not
obstruct the paramount right OF nayi-
road road VS.. scbuermeir, Yates vs. Mil
waukee" Having made this departure
and conceded the right the fbwa supreme court
are somewhat guarded and say: This right
does not exist by virtue of any proprietorship
of the soil between high and low water mark
tits q franchise, appurtenant to the riparian
proprietors and depends upon the ownership OF
The adjacent soil" In 1874 the Iowa Legislature
enacted, inter ALA, first, that owners and lessees
of lots on the Iowa bank of the Mississippi and
Missouri rivers were authorized to construct and
maintain piers and other erectons; second, pro-
hibiting persons or corporations from construct
ing railroads between such lots and rivers or
shore unless the injury and damage to such
owners were compensated. And few years
after this enactment, in 1878, when Renwiek VS..
the supreme court of that state, the Tomlin case,
as far as the right of access il concerned. was
dropped--was repudiated. We now ascertain
what really the Tomiin case decided. TO wit:
THAT riparian owner was not entitled 10 dam
sges because OF the construction of railroad in
front OF his premises, between high and low
water mark - that when il was decided, "seetiou
I,s2S OF the revision was in force, which pro-
vided that any railroad corporation might use
any lands of the state without payment
of damages. The theory of that decision
is that the state is the owner of the soil between
high and low water marx. i granted the de-
PENDANT the right TO construct its railroad there
on without payment of damages. Sec
ton f-32S has been repealed, and in it's place
statute OF 1874 has been enacted. The rule of the
Tomlin case is therefore no longer applicable.
is the Tomlin case applicable to the case at
bar? Does it give any force to the contention of
the state? Has article !, section l6 OF our con-
gtitution any force2
kayensfoot vs. Flemming; this case decided
in 1883. 1t Is a case in which the riparian owner
claimed the right to build a wharf on navlga-
bic river, the legislature having forbidden such
ersetions without consent OF the state. The act
OF 1865 of the state, however, authorized "the
conversion OF private property to public use
number of authorities, following aud adopting
some, others not. Among those adopted are the
Gould case, and great stress is laid on the case
OF McManus VS.. Carmichael: also on Mr.. Justice
Bradey's opinion, Barney VS.. keokuk, which is
also an authority, relied on by the state in the
Virginia court attaches great weight to Mr. JUS
nee Bradleys opinion on these same points,
adding third. but not one of the three PROPOSE
public authorities had the right in Iowa to buiid
wharves and levies on the banks of the Missis
sppi river below high water, mark
without the consent of the adjacent proprietor
and without making him compensation" says
the West Virginia court. True, that was the law
hence in 1876, when the United States supreme
court decided Barney VS.. Keokuk Infral, il was
good law, but in 1878. as we have hereinbefore
shown, 1t was not the law in Iowa,
and, therefore, when, in 1885, West Virginia
said IL was good Iowa law and cited the Keokuk
case, the court was simply mistaken; and
kuk case in support of the states contention.
Second, go 80 In Iowa, as before stated
the more correct rule seems to have been
adopted" again says the West Virginia court
and the learned attorney general makes the
same statement based on the keokuk case. con
he Correct e Of law as IN pbs Is
but ii was not the Iowa law in 1873 and thereaf-
ter yet IL il was, still the United States supreme
court in the keokuk case did not hold as is con-
tended for. IL is true that in the Keokuk case
the court say, "That the correct rule seems TO
have been adopted in Iowa" But what 'rule'
was referred to- A careful examination of the
case Will quickly show that il was not the one
cited in both propositions, but All entirely dit
ferent one, towit. the rule rs to what navi-
gable waters in the United States the true test
OF nayigability. in fact, not the common law
rule of ebb and flow. To strengthen its
position the West Virginia court says: 1.-THE
cases evidently referred 10 by Mr. Justice Brad
ley Dutton Strong. Railroad
echuermeir, and Yates Milwaukee; this last
case Is cited and relied on by arpellees counsel
in his brief =. "The United States SUI
preme court certainly did not rely on the Yates
case because it is not applicable to the correct
rule adopted by Iowa, that is to say, ''the rule
which Justice Bradley was referring 70. An
authority based Oh such reasoning even If the
laws OF the state were like ours. viz: right To
wharf, compensation for private property taken,
or damage is not an authority TO follow in hold
ing that 'as against the state riparian owner
has not the right OF access and wharfage In
addition 10 wha. we have said applicable 10
not be forgotten each one of those have iuli,
careful and elaborate dissenting opinions. ami
oil the eminent text writers, before cited,
except the New York author. Mr. Wood, admit
the correctness al the position of these
dissenting judges, because they follow them and
not the majority. Even without the ANALYSIS
have entered into. would not should not
this fact have weight? Before leaving this
branch "Mr Woods doctrine" il may not he
snlSs 20 call attention that his statement in his
notes as to Yates and Milwaukee will not bear
criticism. II the United states supreme court
when IL held IN that case the doctrine ''that a
riparian owner has certain rights IS incident to
his ownership OF the bank i diCta. then that
the same doctrine in later eases tSupFa}. And
while II is true NJ the time the Yates case was
decided Wisconsin held as stated hy Mr. Wood,
that "in Wisconsin the riparian owners on the
hanks ot uSyigable streams owned TO the center
thereof" yet when he issued his second edition
y March, 1884, and repeated the statement Wis
e0nsin had repudiated that doctrine, or nj least
followed Railroad Company Sehuermeir. to-
wit: Ownership under the laws of the United
States "stops ut the edge of the stream" wis
eonsin River Improvement Company VS.
lyons, Sath Wisconsin. 81, decided in Jan
uary. lS72,l To his statement of the case
Of the Duke az Bueeleuch '.that il is
not st all in conflict with the doctrine of the
s~Nf chancellor ord Sal s,,f1