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

own benefit. works injuriously affecting the
land OF an adjoining proprietor by buying the
snore between the dry land aud the inner
line OF the harhor strip and erecting on
| sneh purchase whatever lawful structure the
| purchaser desires, but the constitution, like
! thc Thames act, also has a saving clause
! providing for compensation. These two
English cases, whilst deciding that under the
| Thames act littoral owner is entitled TO COM
| pensation Tor acts done by another under the
powers conferred by the act, yet the decision is
based upon, sqnarely and distinctly, the fright
OF access, fright OF wharfage And that these
rights are private rights of property existing and
1 special to the littOral owner
second The American cases, button VS..
STRONG decided in 1s6l. from state of Wisconsin,
/ relate TO navigable waters and wharfs erected
therein. "Wharves were constructed
in nayigable waters OF the Atlantic states by
riparian proprletors at very early period in the
colonial times. and in point OF fact the right to
Dulid such erections, subject so the limitations
before mentioned regulations has been claimed
ana exercised from the first settlement of the
| country to the present time" Our ancestors,
wnen they emigrated here, undoubtedly
| part OF their inheritance but they soon
| found II indispensable in order TO secure these
conveniences, 10 sanction the appropriation of
: the soil between low and high water mark. to
/ the accomplishment of these objects loading
OF vessels, ete.) Different states adopted differ
ent regulations upon the subject, aud in some
| the right OF the riparian proprietor rests upon
iInmemorial local usage" and then proceeds to
| discuss general principles applied to navigable
| lakes and waters not affected by the ehb ana
I
| wharyes may be private or public, ana that the
riparian owner may construct for his own ex-
| elusive use and benefit The riparian owner,
| II says, may build wharf for the accommoda-
ton OF the public navigating the river, and Tor
| his own private profit, not interfering with the
navigation of the river. Wharfs are necessary
| for the convenience of transportation and COM
merce, and if constructed So as not
| to Interfere with the navigation aid and faeili-
tate it, II is very well settled by the authorities
that the owner OF land bordering ON a nayigabe
stream, though his title extends no further
| than the stream, not embracing the shore
land between low and high water marx, may
| build such wharf"
Railroad VS.. Sehuermeir decided in 1869
| This case is cited TO support the proposition,
flrst, that riparian proprietors nayigable pub
lie highways have the right to wharf, etc; see
ono, that state cannot deprive the owner of
such right without compensation. This case
was brought from the supreme court Of Min
nesota. 1t is practically contest between the
state and an individual. The owner OF the up
land derived his title by patent from the United
states. The space between the lot and river
was dedicated as "a street, leyee ard landing"
Under the Minnesota law he was the owner in
Tee OF said street and ieyees, subject 10 the pub
lie right To and occupy the same as said
"strect, leyee and public landing
The railroad company were constructing n
railroad over "the street levee and landing
place. Claiming that all land between premises
OF complainant and river in front were part and
parcel OF land surveyed and granted by the
United States Icy act of congress to the territory
OF Minnesota; that the territory granted
the same 10 the railroad company in fee
The complainant sought 10 restrain the build
ing or the railroad over and along the street,
IeNee or landing, and from obstrueting and inn
pedIng the free use of the same by the public.
The plaintiffs grantor patent from the United
States issued in 1919 He caused the land TO be
surveyed and laid ont into town lots. blocks and
streets, etc. as part of the town of ~ Paul, the
land described as extending to main channel OF
river. From the time that town OF st. Paul was
organized under charter, the city exercised
municipal control over the land between the
main channel and river and block ~ where the
warehouse of the plaintiff situated. The
city claimed the control street. etc, the rail-
road claiming that the river was not the bound
airy of the plaintiffs land, but ''that the survey
stopped at meander posts and described trees on
the bank OF river" Hence, claimed the land
did not extend to the river, but "wheTe town
ship and section lines interseeted line of river
as shown by meander posts" The meander lire
in the official survey was run along the bank of
achannel which then extended between that
bank and piece of land in front of same, Island
No. ii. The island was not mentioned in the
field notes of official survey, nor was it on the
official plat. The court below found and the
United states supreme court adopted the find
ing, sthat the river in this ease and not the me-
ander lines, is the west boundary of the lot The
court then proceeds to discuss the of congress
declaring navigable rivers streams public
highways, and congress INTENDED TO provide
that the common law relations of riparian
ownership should apply to lands bordering on
the latter (nayIgable streamsl but that title to
lands bordering on nayigabe streams should
stop at the stream. > And the court
holds, although such riparian proprietor's title
is limited to the bank OF nayigable river, still
the riparian owner had the same right under the
United states patent, to construct suitable
,wnarves, for the convenience of commerce, las
is accorded riparian proprictors bordering on
naylgable waters affected by the ebb and flow of
the tide" citing Dutton VS.. Strong. 1t is also
authority although not material to the question
now under discussion. 3rd, That a street dedi-
Gated by the owner a '.street, levee and land
ing" though the title in fee TO the street is
vested in the state by the laws OF the state still
where there is a street subject to other uses,
in this case, "leree and landing, the title of the
state is taken ''in trust implicitly, il not
pressly designated by the act of the party in
making the dedication, In the Potomac steam
ship Company case. 100 T. S., 6SI Bk 81, !. Ed,
l0,70the court distinguishes the Potomac steam
ship case and the Schuermeir case, by reason of
''the trust" ''The trust will readily be per-
ceiyed, because il was not an ordinary street or
highway, but street to be used in addition
with ga lesee and landing.
Yates VS. Milwaukee,, decided in 1870, from
Wisconsin: The owner OF lot fronting on two
rivers commenced TO build wharf at the juno
ton OF these two rivers; afterwards, in 1885,
yeyed to Yates his interest in the wharf and in
the front of the lot to the center OF the river.
The wharf was on the shore which was covered
with more or less water but was all in use for
navigation. The title of the shore was sup
built the wharf the width of the lot and ex-
tended il to reach the navigable part OF the
river. In 1864 the city OF Milwaukee declared
the wharf an obstruction to navigation and
ordered ii to be abated as a nuisance suit was
commenced TO restrain the city from doing so.
There was no evidence i'll the record to show
navigation, or was ii in either sense a nuisance.
The city, in defense. relied FIRST, upon the
want OF title in plaintiff to the locus in quo;
aud, second, on the absolute power OF the city
to determine the character and
location of the wharf In passing upon and
deciding first defense, namely, the title in the
shore" the supreme court said il was no defense
whether lit extended TO the thread OF the
channel or not aud in giving the facts Justice
Miller. definite words could make IL, said
the same. +" Between the margin of the water
(Which, for the purpose OF this case, may be
assumed TO be the eastern boundary OF shepard
sons lot y These were not idle words, because
prior 10 these words, in the statement of facts,
the learned justice had giving the actual fact
referring To the conveyance 10 Yates convey
ing the interest that he had in
the front OF the lot to the center of the
river" Why this assumption against
the actual fact Was it not because be knew
that at the time the doctrine OF Wisconsin was
that the upland owner had title TO low water
mark? Again, Justice Miller says, Z" But
whether the title oi the owner of such lot ex-
tends beyond the dry land OF not And, again,
"the supreme court OF Wisconsin has gone
further and asserts the doctrine that
extends to the center OF such
stream. subject, etc" Why these references?
The justices of the United States supreme court
usually do not waste words. but the oppO-
We think there can De bat one answer namely,
that the decision not based ON the NiscOn-
sin doctrine of ownership Of title to low water
mark. Proceeding % state what the nights OF a
riparian owner are, whether his title is to high
or low water mark, the courts say these rights
are. "Aceess to the navigable part Of the river
fronting ON his lot: the right to make a
wharf for his use. or for the use of
the public, subject 10 the general rules
the legislature may see proper - Nor Is
this new proposition before the court. The
doctrine is not Tor the first time established.
This proposition has been decided 10y the court
n ease. of Uuttgn Strong, | Black, ., and