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


IA 'front.' 81 bis dry land in aid of commerce. that
=. me rgh's are special 10 himself, not exercised
y, common with the pnblici that these rights
aIt MS ana incident 10 the upland contiguous to
the water. Has he such rights? Before answer
ihg aiireciiy we will state a few propositions:
~ u now the accepted doctrine, rrst The
common law doctrine OF the ebb and flow OF the
tide Is not the test of a nayigable stream, but
navlgabllfty, in fact, is the test In this test
We aaopt OF follow the civil law, but do not
ADOPT that system in all questions Affecting
iittoral rights. Tyler on Bond, chap. ? TO I0l
Maiiy or the earlier authorities before and for a
lew years subsequent TO the ciencsee Chief case,
i HOW NJ Bk Il J.. Ed. Loss, are either not
applicable to the main query or can be recon-
eiied or understood by remembering this test
5 ,sesten We. Mace, Lawyers Annotated Reports
S9l fuli notes: Cushing VS. Laird II Otto 90 BIZ
=, Lawyers Ed 39i: Str. Ball VS.. United states,
10 all, 5o7, Bk J., Lawyers Ed. 1901: swanson
vs. MISS Co, Lawyers Annotated Reports 67s,
second-While some learned Judges hold that
the title in the shore is not in the state in fee
sun at the argument il was conceded that the
state OF Washington was the owner in fee and
tbls concession further is supported BY the
authorities tease VS. LOTUS. 50 Fed 730 ) Law
yers Annotated Reports, 6S5, full notes; Martin
W. nv; " adaeu 10 Pet S6 Blk. 10, Lawyers Ed, 997
Ihird.. hat the owner of lands bounded by nav
lgapie water possesses important riparian rights
aside from that OF fishing. says one court ais
i no, open 10 question Parker vs.. West Coast
Packing Company, decided IN 1889; II Oregon
=; s. G. racine Reporter, SD; :. G. 5; Lawyers
Annotated Reports, 81 and 81, and full notes1
ne plaintiff maintains that among these I'M
portant rights mot open to question" are the
rlght.of access and right to wharf in aid OF com
lAerce ana navigation THE state DISPUTES aud de-
mes ihese rights As usualauthorities are cited
supporting Doth contentious To review all the
authorities cited at the argument, rs well as "A
number examin not cited, would involve an
expenditure OF space We cannot accord.
These rights, if they exist, must exist by
reason OF the ownership of the upland, lGould
on waters, sec lis ct seq.1 not in the
ownership OF the ''shore," because title 10 the
Cfnfn No, fn&a
ton, or claim to these rights, does not necessa-
rily dispute the title of the state in and to the
sou on the shore, but they are asserted as a
right TO the Use and benefit OF the water cover
ing the shore, because the title of the state be-
ing by reason OF its sovereignty, as such it has
Two interests or rights: One, the proprietary in
terest; the other, the sovereign or governmental
Interest tBoboken VS.. Railroad Company, In
ira. Com. VS.. City of Roxbury, GRAY, i79 to
4f., and notes; Com. Va. Alger, Cush., 20; Tyler
on boundaries, supra.
To support his position the plaintiff cites
Gould on Waters; Lewis on Eminent Domain:
Dlilon on Municipal Corporations: Cooley ON
Lyons, | II. L. App. CO., IL Eng. Rep 81; Duke OF
Buecleneh VS. Met. Board OF Works, Law Rep,
H. OF J., as. Eng; Rep. AS; Dutton VS..
.; Yates VS.; Milwaukee, 10 Wall. 437, Bk 10 L.
Ed. 9sf: Railroad VS.. schuermeir IL Wallace
az; S. c; Blk 10. LAYERS Edition, "a; Railroad vs.
ton 81 Bagley vs.. City OF Keokuk, "a Z. 5. 32i;
Bk. "a, Lawyers Edition, pa; Weber VS. Harbor
CON-, Is Wall %. Kk. II, Lawyers Edition, 79s
upon by the statel; Providence Steamboat Co.
vs. steamboat Co., II Rhode Island, 34s, s. C. 81
Am Rep, 652; Shirley We. Bishop, Pacific Re-
clfic Reporter, So; Case VS. Tuft, 81 Fed. Rep,
go, 5; G. Lawyers Annotated Reports, Supra;
Despiaine vs.. Railroad, Y Wisconsin, 2l4; bet
rick VS.. Railroad Co., AZ Wisconsin, 24S.
To intelligently apply these authorities we
VIII first analyze ana review the United States
supreme court eases, the highest American judi
Glal treatlse, ana the English cases, the highest
English Judicial tribunal II is necessary to
thus analyze TO ascertain how far they are appli-
cable or support the position of the plaintiff
First the English cases: The Duke of Buc-
cleueh vs.. Metropolitan Board of Works, decided
IN ls72. There has been much contention both
by Judges and lawyers in England and America
az 10 what these English cases really decide.
We Will, therefore, thoroughly analyze and quote
fully from these because only by such
thorough extracts can the applicability of the
two eases be fully understood. This case was
one In which the question OF damages for the
taking OF private property for public use was
raised without constitutional provision like
ours, to-wit: Taken or damaged" though acts
OF parliament give compensation for property
damaged; yet IN, America some cases in states
having eonstitutiops without the dalnage
clause have cite. cited The case with approval.
that it involved the taking of the shore
itself as well as the water covering the shores;
by Others this Is disputed. ''We will let the
judges decide" Lord Chelmsford said, in decid-
ing the case, whether the soil of the causeway
or only an easement over il was in him he was
entitled under the fourth section OF the Thames
Embankment Act TO compensation Tor the loss
of its use. Aud Lord Cairns said she was a ri
parian proprietor, having right to the undis-
turbed flow of the river along the whole front
age OF his property, and was entitled TO dam
ages for being deprived of this right and il
was held that the loss of the use OF the river
traitors to consider as occasioning deterioration
in the selling value of the property" Baron
Cleasby states the main question was 1'whether
the puke OF Bueeleuch can claim compensation
for the deprecated value OF Moptagu house re
sulting from the loss OF privacy and the noise and
dust caused by public road between il and the
river" and says she was the owner OF Montagu
house for the unexpired term OF lease under
the crown, with an agreement to renew for
ninety nine years. from the 9Th of January, 1850
The premises adjoined the river, aud the natural
fiow OF the river brought IL ut high water up
To- his garden. He had at the northeast
corner of the garden a landing place and
steps, with a causeway running down to low
water mark, which gave him the convenient use
of the river at all states OF the tide. The ground
between the house and the river is described in
the lease of 1910 as being used and occupied for
an ornamental garden or pleasure ground, and
as being separated from the river by iron rails
only. 20 tnat by means OF his lease, which ex-
prcssly gave him in the fullest terms ell the
rights OF water aud other rights belonging to the
premises, the duke entitled, as riparian
owner, 10 the regular flow of the water along
the extremity OF his garden. This valuable
water right insured 10 the house and garden
privacy, quiet, freedom from the noise and rat
lie of carriages by night and by day, and free
dom from the dust OF public road
Now the deprivation OF the water right is clearly
an injurious affecting OF the premises 10 which
II Is annexed within the proper meaning of the
term. The claimant may say 10 the de
icndantS in the present ease, 'You sever and
take away the water right annexed TO my house
and garden. and which gave value for habita-
ton by securing TO them privacy and freedom
from noise and dust, and in the exercise of the
powers OF your act, by constructing a public
road where the wats right existed YOU actually
deprive me 81 my privacy and my freedom
from noise aud dust > / cannot helm
thinking that the claimant has caused
the chief difficulty III this ease by making the
alleged ownership OF the jetty causeway the
pivot OF the whole ease, rs II the taking OF the
slip OF land Was the only injurious act. only
damuum cum inlurla, whereas that appears to
me 10 be only a part OF the ease, the main grev-
ance being the destruction OF the valuable water
right. And Mr.. Justice Hammer says: -
The plaintiff. as owner OF land AUDITING on a
naVigable river, entitled to a right OF access
To the stream along bis whole frontage and not
merely AT The spot " acre his jetty projected. H.
ia the course OF time, il should have become
advantageous 10 the plaintiff to use the whole of
the land admitting on the names a. a wharf or
Tor any other purpose. he would have been en-.
titled 20 do SO, and uything which would per
maneutiy deprive him OF that right of propertv
would bo the subject OF an action ii il were not
authorized by act OF parliament. The causeway
or letty was only constructed for the purpose OF
more conveniently using the right of access tn
the river, which might have been exercised, If
desired, at any other spot. This right of access
% the river is expressly recognized by
the 4th and 9th sections Of the special
act as enc OF the subjects Of compensation II
seems 10 me clear, therefore, that the plGiufitf
was entitled under this section 10 CONDENSATION,
not merely for the damage resulting from the
destruction OF his eaGseway by the embsukment
and roadway, bat also tor the loss thereby oeea-
stoned OF his whole right OF frontage.
Nj. Baron Martin. after giving the facts. says:
New, applying tals 10 the present case, the
duke had the land constituting the residence,
MuutSgu house, with the courtyard, Offices and
Garden attnched. and bad AnneXed and snInr.