The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-01-24
Judge Lichtenberg Rules for
the Wharf Owners.
THEY MUST BE PAID DAMAGES.
legislature Has Not Provided for
Compensation.
Harbor Line Commission Is Still Pro.
hibIted, the Writ Heretofore Issued

the larDOr llife cOfilIuiSslOn Dy Judge
Lichtenberg in the equity department of
the superior court yesterday.
The case was brought by Henry l.. Yes
Ter against the commission, and was heard
last month on the motion of Attorney
General Jones TO quash the plaintiffs writ
Of prohibition.
The matter had been under advisement
for some time, and Judge Lichtenberg
prepared his opinion in writing. and read
ii in presence of members of the harbor
line commission, attorneys in the various
suits against the commission and others
yesterday morning, the delivery occupying
nearly three hours.
The case is probably the most important
ever brought before an equity court in
Washington, as the interests involved
amount TO several million dollars.
Mr.. John Wiley, one of the attorneys on
The other side, excepted TO the opinion
snd gave notice Of a motion for new
rial.
Following is the full text of Judge
Lichtenberg's opinion:
10 the superior court of King county, state OF
Wsshington-H L. Yeslsr VS. Board of Harhor
Qussh alternative writ of prohibition.
Columbia & Puget Sound Railway Company VS..
Harbor Line Commission-No 9,457; motion to
qnash alternative writ of prohibition.
sfirnson Mill Company VS.. Board of Harbor Line
Commission ct ai.-No 9,453; motion to quash
alternative writ OF prohibition.
LICHTENBERG, j.
On the 18th day of October, 1890, alternative
vrits q prohibition issued in these cases against
The defendants, upon petition and affidavit. The
fesler case, plaintiff setting forth that for more
than thirty years he was the owner of certain
upland AUDITING on the shores OF Elliot bay, and
wharf which extended from his upland Into
said bay; that the wharf and structures thereon
had been erected and maintained at large cost
snd expense, towit: Fifty thousand dollars
that the wharf and structures were in aid of
commerce and navigation; that by virtue OF an
act OF the legislature, approved March %, 1880,
San act TO create board of harbor line commits
SION the defendants care about to take final &C
ton In the location and establishing of the har-
Dor lines in said Elliot bay, and if not prevented
BY the court, the lines located and established
viii "depriye the plaintiff of the and benefit
o. his said wharves and docks" and cloud bis
hile IN such a manner as to greatly damage the
plaintiff in the legitimate use of his property,
and that no compensation has first been made or
provided for the damage.
in Columbia d Puget Sound railroad, the petit
ton sets forth that the plaintiff corporation,
duly organized under the laws of the territory of
Washington, was the owner of certain upland
Bordering on Elliot bay, also the littoral rights
agf, landings, etc. That in the year 1875 the
Plaintiff constructed, built and maintained
Nhafves and STRUCTURES thereon. for the accom-
medallion OF commerce and navigation at a cost
and expense of 100000: that the same being de-
eIuyed by the great fire on the LIST day OF Sep
tenher the waryes and structures were regretted
enc maintained at cost and expense OF 500, 900,
ana the same facts are set forth as in the Yes
icr case Ms 20 defendants acts and damage and
nc compensation,
In the Stimson Mill Company case the facts
are practically similar, except as to location,
salne and nature OF structures existing on
sharves On the return day of the alternative
VIM, the defendants, by the attorney general of
sae state, moved 10 quash the respective writs.
fHst, because the court bad no jurisdiction:
second. THAT the petitions filed herein do not
sise iaets authorizing the issuance of said writ
twas agreed that the motion TO quash should
peconsdered as a demurrer. and the decision of
.ae court thereon as final judgment. IL was also
agreed that these three eases and another in
shleh the Seattle, Lake Shore & Eastern Rail
ieaa company was plaintiff should be treated
sna disposed OF as one, but we now only decide
upon The three above mentioned, as the seattle,
LAKE shore IL Eastern Railroad Company's case
PRESENTS other questions, among them the valid
~ OF Railroad avenue. That question being be-
ioie US IN another case we viii pass upon both
u the same time
Realizing the Importance of the question for
.ohsaerafion before ms and the responsibility,
seeetner With the fact that we have no light
,Iom or own supreme court TO aid us, we shall
invoke the aid Of the highest tribunals oi sister
s,a'es, when applicable quote at length the
,Ansuage OF their judges, and also of eminent
.sAt writer's. The authorities we shall cite,
ulough lew OF the vast number on the subject
, rad examined, yet with but one or two excep-
uons, are eases discussing the principles IN
',etNca' ana an examination OF them VIII dis
cHse many of the other authorities. "In pro-
Ncuihg 10 give Judgment In the present case the
aUlIl are deeply impressed with the importance
wans principles which it involves aud the mag
atnue ano extent of the great public Interests
~ the Importance and value of the private
,shts directly indirectly, to be affected by IL.
snsS,s the relative rights of the public and OF
nasuitidual proprietors-" ICom. vs..
Agar, Gush 81 81
~ ~ oehtied the great state OF Washington and
~, ~ Importance OF the question: the learned AT
sssaey general discussed the question ON
i rvau ossss, tree from technicalities, narrow
shlIS or minor points, aud irrespective OF
aasther or not every essential fact was in the
a~asoh; lie euntcnded for the maintenance OF
~. ~ fundamental proposition namely. That lit
49, 49, owner Gas no rights in the water frontage
~ WIS iahd special 10 himself, no right oI prop
~ ~ such water; Incidental 10 that, another,
i T G;neiy; the writ of prohibition did not lie
4 atsuselt treating and discussing the question IN
1 an, s .lhahner, he desired on Our part the same
'5Isssmeni, the same ''broad gauge basis
go, ~ necessary 10 give our attention 10 the
49, constitution as bearing upon the problem
i , SSsule US In that instrument is found, hrst,
~, ughts OF the state, the powers OF the leglsia-
,. 10y. hafbor commissioners, the duties OF the
sIs,,lary second, the rights OF the plaintiff.
.,,, ~. W seek Ia gather the meaning OF the con
/ Asuion "irnm the four corners OF the instru-
49, 20 ascertain its meaning, its intent the
tes OF the state on what II commonly
y, a iueu Tie tide land question. aud clauses
/ igAt have a bearing thereon What are ''tide
y y defined IN Davidson vs.. People, " tai &,
We must be governed by certain We'll
/ So" n principles. Among Others are TO dc
/ -. tie law rs Written. The meaning OF the
80. tailon II fixed when 1t is adopted, aud II
80 inherent 10 any subsequent time, when "a
4 sos,, ma occasion to pass upon 1t. ana me
a~nHsN n IA
"a ~ ~ adopting Il. tCOoiey, tou. liin.- ,
- ed, "a. This futent must be found IN
r. tnNfament itself: the entire instrument
&C. q examined. and effect is to be given.
y = iessleie, "a the whole of the instrument, ana
t.hefs section and clause. II different pof-
isn,s stvhl u conflict, the court must harmon
iA S'el. II practical. and must lean in ia'of oi
o. NhNfhctlon which Will render every Nofu
ysistsuVe. rather than one which may make
60 words IDLE ana uugaIory. III, after
Ieas,s sl the legitimate lights, TIE
Ioe,s!t one called upon 10 act, where, IA bis
{e,.i'' tir proposed sets would be OF dcubtnt
IN - 'l"nalty, Is bound upon the douot
1feSps ~ abstain from acting Whoever aeriNSs
49, iteia the constitution - perform any pun
.5.' ,lop Is dislsyal 10 that Instrument sud
4fSsss derclct IN duty ~ he does that which
- n'i reasonably satisfied the constitution
Is,iul's' whether the mower lc legislative. exec
NV or judicial There is manifest disregard
INh' tntN'it utl0nai aud moral obligation by one
&s,r,s, any luG taken the oath % observe that IN
~. ~ r. aAe, part ia an action which ne can
<sj..e9 ne believes 20 DC no violation Of us pro
IN 80, ttooiey. Con lin. I'd, 10, - 9 Ea,
1arss s.lu N Endi5ch on Interpretation 81 stat
&,s,s' - 90, - scql With these prime iples IN
- VIC examine, first. clauses al constitution
ser~e directly "a the slide lands Second,
ulat mas modify or control or have a
ret.,z 80 tee nrst So as 20 give effect 10 the
50 ~ instrument
II, Isl IN a.l navis8hIc waters, whether fresh or
~. n, .hti Nue Gibbs or flows whether SifcSIu,
@the "a ah aFm ei the sra the ow pcrship ia