The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-06-19
HARBOR LINE CASE.
Arguments Against the Com
missions Action.
BRIEF OF OPPOSING COUNSEL.
Riparian Rights of Upland owners-Ju-
risdiction Of the state Govern
ment-Access to Sea.

Yesterday Judge Thomas Burke and Colonel
J. c. Haines, counsel for the appellee In the mar
Dor line suit, fled their brief with the supreme
j. SQUIRT. The case Is that OF Henry l. Yesler
0agginst the harbor line commission. He OBJ
<ained from the superior court writ OF prohl-
fbition restraining the commission from taxing
Into the harbor strip any part OF his wharf, Inc
ycommission appealed the case, and an abstract
of their brief was published on Tuesday
\ The opposing brief, prepared By Thomas K.
}6hepard and ]. C. Haines, Is a document OF
boRs seven.y-eight pages, from which the foi-
lowing more important extracts are taken:
FONTS.
T. The relator has private rights OF property In
The improvements erected By him on the shore
of Elliott bay, connected with and extending
from bis own upland.
IL The relator has private right OF properly ~
the access 70 the waters OF Elliott Gay from nis
own upland AUDITING thereon
Ill The REALTORS rights of property, both In bis
Improvements and his access 70 the sea. viii
be taken away or damaged, for public use, by
the contemplated action OF the board OF harbor
line commissioners IL permitted.
~. The contemplated action OF the board OF
harbor line commissioners Is Illegal
l. Because the statute empowering the COM
misSioners provides no mode or means OF COM
pengation for private property taken or dam
AGED DIV euc6 6etOu.
2 Because IL amounts 70 depriving the relator
of his property without due process OF law
& Because IL concerns matter now within the
exclusive Jurisdiction and control of the gov
eminent of the United States.
v. such illegal action of the board OF harbor
line commissioners ia In excess of its powers
and jurisdiction.
VI A writ OF prohibition is an appropriate and
the only available remedy.
ARGUMENT
4 - ~r~<r 4~b& as L..
the improvements erected by him on the shore
Of Elliott bay, connected with and extending
from his own uplsnd.
Section ] of "An act 70 authorize and regu-
late the erection of wharves," statutes OF Wash
ington territory OF the year 1854, p 49, reads as
follows:
ANY person owning land adjoining any navi-
gable water or water course, within or border
ing upon this territory. may erect upon hts own
land any wharf or wharves, and may extend
them 80 far into said waters or water courses a.
he may charge for wharfage such rates as may
Be reasonable: prorided that ne shall at all
times leave sufficient room In the channel for
the ordinary purposes OF navigation
This statute WAS in existence when the re-
lator, more than thirty years ago, built his
wharf and dock Whether the statute was but
legislative declaration of q common law right,
Or permission TO do something not guaranteed
~ the common law. IL equally held out its In
xnuon 10 the relator and hundreds of others
owning property washed, like his, BY navigable
wafer. On the faith OF its authoritative voice
ne and they expended their money in improving
tneir water frontage, 90 as 70 render more prac-
ueaole and valuable their access to and from
sne sea, so a. TO render more approsehable from
me sea, that highway of nations" this then
unpenetrated land. Into this work they threw
tneir toll, their forethought, their faith. But
sor .ne development Of navigation and
sc 81 hsy . sSs% P1s
sound would be little else than the Indians
nshing ground, and there would be no state to
claim is bed as subject of sale and lease. And
Nniie they dd this for private profit they did il
no less upon valuable considerations moving to
the territorial commonwealth and from the i'm
provers. To the commonwealth, because with
land by private land owners no practicable ac-
cess would have been established or used and
no commonwealth would have built up. From
the improvers because in improving the access
they laid out vast sums of money that presum-
ably would have brought them a. great re-
turns elsewhere unless ii be held that by
M ,Sylng them out they acquired property right.
more valuable, more sought after, than interior
land, unless because IL does and shall continue
to aout on the sea- and of what advantage is
that, except for the opportunity IL affords of
embarking and debarkingf and OF what value is
q theoretical opportunity TO embark and debark,
unless 1t be made available by wharves and
docks3 The land by sea is generally more rug
ged, less fertile, than that farther back There
can be no question in the mind OF any man that
the interior land; in the early days and now,
for at higher price than that washed by the
sea, viewed merely ss land and without reference
10 access directly from II TO the sea-not by
nome adjoining highway leading from the inter
ior 20 the sea, which would be equally available
20 the interior land. Yet there can be NJ little
doubt that in point of fact the land abuttiug on
the sea was the most sought after, earliest taken
mp highess paid for by later Corners; that the
growth OF every commonwealth in q new coun-
try Is from the highways of nature-the sea, the
navigable streams back into the interior. Ger
w hn nm
the less desirable land as land, and put his
money into Improvement of its access to the sea
so 40 TO make II the more desirable land, on the
faith o. statute that said he might do so, there
moved valuable considerations considers
tion thrown away IL the commonwealth is now
TO deny him the ownership OF that improve
ment
The state Is bound by the highest obligations
OF honor and equity to observe good faith
toward those who have been thus led on by an
ancient statute Even IL the strict rule of law
were against the deriving of any right under
that statute, justice would demand that its
spirit be respected by the state wherever IL has
been acted upon ~ great outlay. A man whose
border of honor is the fast line OF the law is a
scoundrel at heart; and so with a common
Mealth. And the conscience of the state is not
alone in the keeping OF its legislature. but of its
courts as well. IL is OF matter of conscience
that the whole doctrine of equity is built up.
But IL is not honor alone that estops the state
from now denying the force of this ancient
ststute of the territorial commonwealth never
repealed or amended and standing today in the
compilation OF the states new code. The situa-
tion presents all the elements of an equitable
estoppei, on which the courts uniformly decline
20 allow the revocation of an executed license.
For the contention of the commissioners is that
the wharf act is but a license, and revocable at
any time. and that somewhere in the constitu-
ton or statutes of the state II has been revoked
A mere iiceEseg Very well, but il has been
acted under, at large expense, and structures
have been built on the faith OF il, over waters
the bed whereof is vested IN the ssate-struct-
ures that cannot be removed, and II removed
would be worthless elsewhere. Thus the "li-
eeuse' became coupled with an interest" and
Is irrevocable.
Bat further: The stide land act of lS0o. even
II II recognized no existing property right in the
prior improyer, creates one hy its own express
provision in its favor. Did the legislature re-
gard him as q mere intruder On the shore. I'M
Ger the sanction OF no valid law Good; bat il
recognised that he was there, and had expended
money 10 build out there, and by its enactment
vested IN him prior right OF purchase of the
~, exclusive OF his improvements, a. its ap-
Praised value.
% that IL all else that has been said were i'll
Sl1.a. II the old statute that led him 10 build
wnart created neither an easement nor q
st.ase grown irrevocaoe, IL Ii transcribed leg
:. I've power, II the constitution mas arnulled
49, =. &C sAc laid out his means depending on
So 1oekery Of legislation has no appeal
49,. aousa tals court TO the honor and hon
co3,,o. ne state, still the fact the law.
$3.50 - tnis court that the legislature has
- ~ ~ sne lnproyer first call. before all BID
$3.50 ~ sae lee title Of the shore whereon his
I,sn =. .ssss a. valuation that shall bear no re-
lsuon 70 the cost or worth OF the wharf. This is
no IaoiSn gift" 20 he recalled AZ will or
ikncreui by boSrS Of the s,sta ~ il ,,r,nr.,-tv