The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-06-16
HARBOR LINE CASES.
Brief for Commission in Appeal
to Supreme Court.
RIPARIAN OR LITToRAL RIGHTS.
Statement OF Grounds Upon which
Members or Board Acted In
Drawing the Lines.

cmoers OF Board Acted In
Drawing the Lines.
The brief and argument for the harbor line
commission in the appeal TO the supreme court,
was published yesterday. The case IL the
state oil washington ex relatione the Columbia
ruget sound Railroad Company, defendants in
error, vs.. w. +. Prosser, Eugene Semple, Frank
ID. Richards, H. +. Garretson and d. C. Guern-
seg, naroor line commissioners, plaintiffs In
error The brief is drawn for the plaintiffs by
Engene semple and Wiley, Hale & Scott
Wnen the commission was about to file plat
on the harbor lines last October, the Columbia
d Puget Sound railroad applied to the superior
court for writ of prohibition. to prevent the
strip from taking in the coal bunkers. The
complaint alleged that the company was the
owner OF the west half of block 4, in David S.
Maynard's plat; also Of the littoral and riparian
rights, right of access 20 deep water, and prefer
enee right OF purchase, and of the tide lands
appertaining or belonging to the west half
oil block 3, and block q Maynards plat. On this
property the company had constructed the
bunkers The company complained that the ex-
tension OF the harbor lines over said improve
ments was an attempt to exercise unauthorized
power; that said commission had not authority
nor jurisdiction to include within the harbor
lines the wharyes, coal bunkers, docks and other
were not prevented by writ Of prohibition, the
company would be deprived OF the use and ben
eht OF Its waarves without compensation or due
process of law, and the title would be clouded
SO as to hinder the company in the legitimate
use OF the property Another point urged was
that II. +. Garretson, one OF the members OF the
commission, had not attended the meetings.
On October 20 temporary writ of prohibition
was issued by Judge j. A. Stratton until the case
should come to hearing, November 20. The
cause was finally heard before Judge I. j. Lch-
tenberg, December IS, 1890, on motion by de-
PENDANTS to quash; and January %, 1891, the
judge issued decree making the writ absolute.
The commission then appealed TO the supreme
court The brief gives the following statement
of issues.
The issues herein TO be determined by this
court appear to be as follows:
Firet--Is the writ OF prohibition proper rem
Second-Was the act of the harbor line COM
mission in locating the harbor lines in the Seat
tie harbor, alleged in the petition, ultra viresf
Third-Can the powers OF the harbor line com
| missioners be exercised by majority thereof?
Fourth-Have the defendants in error any
riparian littoral rights as against the state,
| in the shore lands, or in the lands under the
navigable waters of the state, by virtue of their
ownership of the upland?
Fifth-Did the territorial statute OF 1854 give to
the defendants In error any equities, or legal
rights which must remain unaffected by articles
| XIV and XVII of the constitution of the state?
Sixth-Does the statute of the state, approved
| March rs, 1890, give TO defendants in error any
| equities or legal rights which must remain un-
| affected by the act creating board of harbor
line commissioners, and the act to establish and
define public ways for water craft ETC., both
approved March Is, 1890?
As to the first issue the attorneys for the COM
mission argue that writ of prohibition can
| only be issued from a superior to an inferior
court.
The question of action ultra wires is dismissed
by a reference to the section of the constitution
authorizing the establishment of harbor lines
and the absence of Mr. Garretson is also touched
| in only line or two.
The main argument rests on the last three is
| sues, as follows:
Fourth-Have defendants In error any riparian
| or lttoral rights, as against the state, in the
| shore lands, or in the lands under navigabie
waters, by virtue of their ownership of the up
land?
This question has been fully and ably dis
cussed by the attorney general in the case OF 81.
L. Yesler VS.. Board of Harbor Line Commission
ers in this court, and his brief in that case is
hereby referred to as an authority, and made
part of the brief of plaintiffs in error in this
case, which is exactly parallel on that question.
We, however, desire to discuss the question here
from slightly different standpoint, and in view
OF the great Importance Of the question, to fur.
| some additional authorities.
The position of defendants in error, and the
decision of the court below Is, that while the fee
| OF the shores and beds OF navigable waters is in
| the state the exclusive right of user is in the
| upland owner This decision completely multi
| fes the constitution and laws of the state in re-
gard to tide and shore lands, and IL sustained
| the whole question of harbor control by the
| state must be dismissed from further discussion
| for ii would be impracticable to obtain control
| by condemnation and compensation on account
| OF the high values set upon the wharfing rights
by those now in possession thereof.
Our position ia, that the state, by virtue of its
| inherent sovereignty, took, Immediately upon
| its admission INTO the Union, a clear and unin-
numbered title to the shores and beds OF all
| navigable waters within its jurisdiction, with
full power to deal Herewith as it should please
| III any structure or improvement be found there
on, the person in possession of the same must
/ deal with the state from the standpoint of tres
| passer. He has no legal rights and no technical
| equities.
1t is true that there exists in the federal gov
eminent, as incidental to its granted powers to
| make treaties and regulate commerce, a right TO
| prevent the destruction or impairment OF har-
| bors and waterways, but this is a revisory
| power, and Jurisdiction is only asserted where
| complaint is made by some competent party, or
| where the federal government is called upon to
supervise the expenditures of its own appropria-
lions. The primary right OF control it conceded
most stringent provisions OF recent river and har-
| Dor bills Admission of the jurisdiction OF the
| state over tide or shore lands was made by the
/ federal government when il sent one of its army
officers to request OF the constitutional conven-
ton of this state the incorporation of a clause
| such lands where they lay in front of reserva-
| tons made for purposes OF Notifications and
lighthouses. The state takes these tide or shore
| lands, and the lands under its navigable waters
by virtue of its sovereignty not at all, for it
| has no grant. II this be conceded. then II must
| be also conceded that ii took manageable
| and unincumbered estate. If the federal
| government, during the minority of the state
I was only a trustee, with no power TO grant the
| shore lands and lands under the nsvigabe
| waters, ii could have no power to incumber
| them, for the creation of an incumbrance is an
| act of ownership. The principal authorities re-
4 lied upon by defendants in error to coutroyert
| the claim of exclusive Jurisdiction and owner
| ship in the state of shore lands and lands under
| navigable waters is the celebrated fishmonger's
| case and other cases decided by the English
| house of lords, body that, from recent develop
| ments, We might conclude could be decimated
by process involving an inquiry into its morals
II must be remembered, Also that these decisions
| oyerruied decisions of the highest courts of
| England. When the harbor line commissioners
point to the constitution of this free people for
| their authority, defendants in error point to a
| corrupt house of lords in a country whose ale
| glance we threw of more than q century ago
They say, in effect, and the court below saws in
| OF Washington are of no force because they con-
| fiet with the institutions of the British Empire
! We conclude, therefore, that the title to tide or
| shore lands, or 10 lands under navigable waters,
or the right, or license, TO use said lands, must
! emanate from the state, and as defendants in
! error have not set up or shown title, or license
| from the state. they have no standing in court
| Fifth-Did the territorial statute of 1854 give
| TO defendants IN error any equities or legal
! rights which must remain unaffected by articles
| XIV. and XVII. of the constitution of the state?
/ As we have said before, the state OF Washing
ton has no grant OF shore lands, and no grant of
/ jurisdiction over her waters or lands under
lying the waters. IL she takes, in either case, IL
| must be by virtue OF her sovereignty, and her
| estate must be an unincumbered and manage
I ne haV iY4y