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

distinction vet in determining land owners
rights to the ..shore, and waters covering u,
of the tide as well as 1.-The sea and arms thereoi
were in one class. aud all Others in the other
that state one of the few holding that the ripar
ian owner has title to low water mark IN all
naVIgabie waters, IL mist be distinctly DoFne ~
mind, that the ownership OF the shore was net
the ground upon which the decision was based,
but squareiy on the right of riparian proPrie-
tor bordering on naeigabIe river, irrespective
OF whether he owned TO the high water or low
water mark. The court squareiy based Its de
elsion upon the several acts OF congress, making
provision for the survey and sale of the pubic
lands bordering on public navigablc rivers ald
the construction OF riparian rights under the
patents issued by the United states for suen
lands.
An examination OF the case of Yates VS.. Mil
waukee, supra, decided two years afterwards,
will remove any doubt If such be entertained,
that the court in the SchGermeir ease squarely
decided the rights OF an upland owner deriving
his title by patent from the United States on
navigable waters irrespective of the state doc
trine whether he owned to high or low water
mark.
Say the eourt in Yates case:
Though it soil was original part OF the puplic
lands OF the United States the case OF
the Railroad VS.. Schuermeir would limit the Ute
to the margin OF the stream" Therefore. the
Schuermeir case in addition to the two PROPOSE
tons upon which il was stated. also IS authority
defining the rights OF upland owners OF land
bordering on navigable waters, the title whereof
is derived from the United states. lease VS..
Tuft, 80 Fed. Rep. 40, : G. 5th Law, Am. Rep.
$50 and notes; Brisbine vs.. St Paul f. X: Co.,
% Mimi. ia. 100; Morrill, eft nj. vs.. Anthony
Power Co., 20, Mimi. 222; st Louis Co. ct al vs.
Ramsey, Law, Am. Rep. 500, Ark see also 81
Louis Schools VS.. Risler, 10 Wall. Ito, Bk, 10 l.
Ed $50: St Clair vs.. Livingston, % Wall %, Bk
% J.. Ed. 99.i
4 legislature cannot deprive the grantee of the
United states oil the possession ana enloyment
OF the property granted by the United states.
lGibson VS.. Chanteau, Is Wallace, ,. G., Bk -,
Law Ed, $50, 537.
TT. 30 fial apd
etc, have been extended tn Washington, as well
all the rights, etc. of the ordinance OF 1IsI.
[Act 18th Ang., ISIS, Vol. ?. Y; 5. Statute -,
Feb. u, 1888, Vol. 10, l5s. Act March ., 1S5S.l
We think the Hoboken case does not aid the
contention of the state nor applicable to titles
derived direct from the United States.
The court is careful to speak of "the riparian
laws of the state of New jersey because each
state regulates its riparian laws Tor ITSELF Also
cisions. In that state the owner OF
mark, provided he reclaimed the shore
low water mark. TT he had not the state was
the owner ana could sell to any stranger. (Bell
VS.. GoH, 2lst " J. Law, 1885, 22d n. AZ and I'D
!. j. Law, 625l This is a leading case, review.
ing and citing nearly all the authsrities). 1t
may be profitable to note that in 1869 New Jersey
like New York (the latter, however, at a very
justice of the Stevens case, for in that year,
March 81, 1859, 1t passed supplementary act 10
the act OF April il, 1864, and thereafter the
riparian policy OF the state was first to offer
the shore TO the riparian proprietor. and If he
declined TO buy in six months then 1t could be
sold to a stranger. provided, however, that the
interest of the riparian owner as such IN the
shore, and front of his lands. should be paid Tor
at valuation to be iudicially ascertained
Does not even New Jersey. who owns the shore
and is governed by the stevens case, recognize
by the supplemental act the right OF the littoral
owner such in front of his land?
The Bell and Golf case decided first
in and tbaD in md fine ii. frpf-
erenee made in dissenting opinion in the Ste
yens easel are fully discussed by the judges and
seemingly attracted not only more than ordinary
interest, but held doctrines that differed from
the general understanding, both layman ana
lawyer, and in March, 1851, the legislature for
the first time enacted a wharf act Prior thereto
the right to wharf was either at common law or
by immemorial local usage When this act was
repealed by the supplementary act OF 1869. the
not be construed to restore any supposed usage,
right, custom or local common law founded
upon the tacit consent of the state, or otherwise
to fill in any land under water below mean high
tide" tHoboken case, supral. The supple
mentary act of 1860, recognizing the riparian
owners interest in the shore, was passed "to set
tie the questions which had arisen as to rights
of owners upon tide waters to the shore in front
of them" Because OF Golf VS. Bell lSteyens VS..
Railroad, Goth n. J. Equity, 1878, decided May,
1863, subsequently sAth ~ J. Law, in 1901
our object in analyzing the eases cited BY the
state is to demonstrate that they DO not support
either the states position or the Gould or
stevens case, ana, therefore, QeilneT the QlIeO
States or state cases cited are applicable and
pertinent to the question presented for decision
in the state of Washington That the Gould
case is the law of New York. though we think
we have shown that that state is gradually but
surely repudiating this doctrine as Iowa has the
Tomlin case, and that the stevens case is the
claimed. But these cases are not the law as held
in the United States or in Eng
land. or in any other state of the
1t is a violent presumption to presume that il
the doctrines of these cases had not become
.'rules of property they would not be reversed
in their own jurisdiction. Surely, in light of the
authorities, the dissenting opinion in the New
York, New Jersey and Iowa cases show the
proper view of the law, the true doctrine, "com-
mon law or otherwise, and il the minority
views had been adopted, there would have been
no conflict, no question as to the literal owners
right of access, right of Wharfage, but conflict
there is May not the court, in referring to these
cases, have been correct when it said 1.-THE states
were peculiarly situated as to railroad corpora
tions?" ~ +. |. Sol Supra.l
What shall govern uS2 Authorities. princi-
pies and reasons. As 70 authorities, we have on
the one hand such eminent text writers as
supreme court of tie United states, every state
of the Union excepting three, and Great Britain,
our mother country: On the other Mr.. Woods.
supported by New York. New Jersey and West
Virginia. The first if we correctly interpret its
late decisions, is gradually bat surely coming
into the ranks of the enemy.
II the eases we have thus reviewed both En-
glish and American, do not clearly and explicit.
ly sustain the proposition that literal owner
has the right of access, they certainly do sustain
clearly the proposition that he has the right OF
access 70 his wharf il he has erected wharf.
Having reviewed the authorities of the highest
tribunals of England and America, we will not
review the authorities from the various states
because at the most they are only applicable to
the respective states.
We therefore hold that the plaintiff being the
owner in fee of the upland bordering on Elliott
bay an arm of the sea, deriving his patent from
the United states years prior to the admission
of the state into the Union, while IL was terri
tory, and not having deprived himself of his
littoral rights. has the right of access and the
right of wharfage TO the navigable waters of the
bay, as incident to his ittoral ownership: that
they are rights of property: that under the CON
stitution OF the state of Washington he cannot
be deprived OF these rights by the state without
just compensation being first made
y littoral owner, therefore, having right of
access 20 the water and right TO wharf 10 the
navigable water, and the Same being a right OF
harbor commission in filing the plate is such
filing either damage a taking of prouertvP
The term property" although in
common parlanee frequently applied to tract
OF land or a ehattle, in its legal Specification
means only the rights Of the owner in relation
to it" at denotes a right a over a de-
terminate thing Property is the right of any
person to possess, use, enjoy and dispose al q
thing" II property and land consists in certain
essential rights and physical interference with
the land substantially subverts one of those
rights, such INTERFERENCE "takes" protanta the
owners property" The right OF indefnite
user Tor OF using indefinitely is an essential
quality or attribute of absolute property without
which absolute property can have no Jegal ex-
erty. If the right of indef-
mite user is essential element OF
absolute property or complete ownership what
ever physical interference annuls this right
takes property, although the owner may still
have left to him valuable rights lin tho artfcleS
Of more limited and circumscribed nature. He