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


thereof whether existing by reason OF the pre-
sumption or enactment OF the legislature conced-
ing thai II was to apply to rights OF property and
rights OF persons es well rs remedies; the ma
terial question would be whether il was the
common law OF England as il existed prior to
the settlement OF the colonies or at the date OF
independence, as modified before that date, by
the general English statutes or common law of
England as II was in 1853 or the common law OF
the several colonies or states. But whichever it
was, one feature must be remembered in connee-
ton herewith and one which always exists,
and that Is lis applicability to the wants, situa
ton. condition and local affairs OF the people,"
I'll Pacific, 81 (Nevada); Is Wis, III: so Wis,
ITO; Mich, Isl; 5 Mich, Is; Pacific, 677 (New
Mexico; Ohio, 2SS, 245; LIST HaHmond's Black
which we arrive at this applicability" is
through the courts. They decide Sayward VS..
Carlson, % Pac., $50. SSs tWashingtonl. Ii is by
reason of this applicability that the common
law or doctrine OF apportionment OF the water
was not applicable to states on the Pacific coast
Concedlng. however, that we are TO be governed
either at the date OF the settlement of the coll
oues, or at the date of our independence, or in
1855, the Duke of Buccleueh case and Fish
supreme court eases would he decisive.
As TO the right of wharfage, that being the
moro important of the two rights, as far as the
cases III hand are concerned, We have the fol-
lowing result that, concediug the right to wharf
did not exist i'll England under the common
law still by the statute of LIST Elizabeth, chapter
Ill. which was passed between 1855 and 1908:
"Proper wharves and quays in each port for the
exclusive landing and loading OF merchandise
was granted by thecrown. through the commits
sion. IL Cooley's Blackstone, Sd Ed, 263
Therefore, II this statute modified the common
law, by all the authorities it became a part OF
the common law at about the time OF the settle
ment OF some of the original colonies. The
fact is that many original colonies before, at,
and after the date of Independence, exercised
the right OF wharfage without any legislative
enaetments. Is not this fact an evidence that
the right to wharf was a right at common law of
England as well as the common law of England
and adopted by these colonies, whether by
reason OF the statute of Elizabeth or not? AS to
the wharyes erected by the plaintiffs, there is no
question OF nuisance nor none OF police power
OF the state. The question is not whether lit
toral owners in exercising their right OF wharf
age are restricted to the line adopted by the
state, beyond which no wharf shall extend into
navigabie waters as in Com. VS.. Alger. supra,
nor DO We discuss or base our decision upon the
proposition whether OF not under our constitu-
ton that portion of plaintiffs wharf which is
within the harbor strip can be taken without
compensation, the wharf having been erected
either by virtue of the common law or local
usage, or the statute of 1854. Whether the
wharves are erected at the end of a street or
public highway, or whether in front of the up
land aside from the street. the petitions do not
clearly show. The fact, however, is the wharves
are IN front OF the upland as well as the street.
This only would become material, however, In
ascertaining under which section of the statute
the wharves were erected, if they were erected
by virtue OF the statute. If at the end of street
II required certain authority and was for Ger
tain length of time. If not, then neither that
authority nor the time is material, as has been
stated the attorney general not raising any tech
meal objection, we do not. That the wharves are
not nuisance is conceded. They might be
puTprestare according to whether they were
confined TO the width OF the street or not, but
even ii such, they could not be taken by this
method. An action by the state to abate the
nuisance would be required If the common
law OF England did not recognize the right OF
wharfage prior to LIST Elizabeth, or if it did be-
cause modified by that act, or il ii did not, the
fact is that from the first settlement of our coun
try the colonists claimed and exercised the
right. tDutton VS.. Strong. supra; Schuermeir
vs. Railroad, supra: Providence Steamboat Com
pany. II r. l., p. 1858; S. G. 81, Am. Rep, p. 6b4;
Clements VS.. Burns, 4S n H., p 6O9-6l,; Com
wealth VS.. City of Roxbury, Grey, p 492, and
authorities, mira
Either by reason of the common law, or usage,
then, the right was not only claimed but
exercised by the colonists, because of the
necessities OF commerce and navigation, and
was for the interest of the colony, its develop
ments and because of the applicability to the
situation, condition and needs of the colony.
The right OF wharfage was exercised before the
passage OF the Massachusetts ordinance in 1917.
not 1911, Grey, 465, 5lf, and in Rhode Island
before the passage of the wharf act in 1907, and
in Connecticut and New Jersey, the latter never
having wharf statute until ISL; the right,
therefore, not being questioned, being exercised,
Is 1T not right that to degree was
considered part of the common law
by those who emigrated from these origi-
nal states and "carved out new states
than by those who emigrated either from the
''carved-ou states or the soriginal states to
the new country, wilderness, as il then was,
Oregon and Washington. The authorities ali
agree that the right to wharf existed in Eng
land, and that the right was exercised early in
the history of our own country and in each of
the original sovereign states. On what principle
of law then does the right exist. either as usage
or az common law? 1.-THE principles out OF
which this usage sprang are common to both
countries, namely: Exclusive right OF access to
the water over his bank enjoyed by the riparian
owner; his title to the soil gained from the sea
40. al,
~ elements VS.. Burns. As n H., Gil;
Clark vs. Peckham, 10 r. l., - (map in K. l.,
455): Bowman VS.. Wathen, Mclean. S76;
Mather VS.. Chapman, 40 Conn, $50, S. C. 16 Am.
Rep 46 lin the note to this case will be found in
full Hale treatise on the seals Cityvs Roxbury,
supra; Providence Steamboat Co. vs. Steamboat
Co, supra: Meyers VS.. City of St Louis, Mo.
Appeals, 266; Dovanston VS.. Payne, , Smith
Lead. cases, Ed, note 1,ils; Miller VS.. Menden-
hall, a n. W. Rep, LII, $. c. Law Am. Rep,
Rep, s. C. z Law. Am. Rep, ~.
Is not the right OF access as being special to
the littoral owner, exclusive of that right being
his in common with the public, sustained by
principle and reason as well as authority?
What is applicable the courts of each state
respectively decide, having due regard to the de-
cisions OF courts of sister states. but the highest
court OF each state is not bound or compelled to
follow or adopt decision of sister state courts;
each state supreme court acts for itself, and the
United states supreme court acts for itself, fol-
lowing the doctrine OF each state, no matter how
peculiar or at variance with other states, pro-
flueu not III cO0ilict Win the bnlteu states con-
stitution. We have seen what the United States
supreme court holds bearing on the question be-
fore us. Common law.l Assuming that the
territory was governed by the common law or
England, aud that the common law is to be
taken as il existed at any one OF the different
periods, and with or without modification OF
statue by Great Britain, still il would not affect
the question; first, because the titles to lands
aud hence, the rights appertaining thereto,
were not derived from the territory, but from
the United States; second, in the absence OF de-
cisions by state or territory supreme court,
we would follow the weight OF the authority
herein stated. and hold the common law OF
England as existing in the l Dited states, recog
nizes the right of excess and OF Wharfage. Take
the decisions in New Jersey before the final de-
cision of the Stevens case (that state is prac-
tically yet a common law statel, and all the
cases are in accord with sister common law
states: Rhode Island, Connecticut, MaSSachu-
sets. Maine, New Hampshire (supral. that the
right to access apd wharfage were claimed and
exercised from the beginning OF the earliest
settlement.
Resuming the main discussion, the doctrines
OF New York, New Jersey and West Virginia, as
regards the rights we arc discussing, are not ap-
plieable, because they are doctrines OF different
sovereignties than the sovereignty from which
the land in the state OF Washington was ac-
quired
The pertinent question, the pivot point is:
What has the plaintiff, as the grantee OF United
states public land bordering on Elliott bay, an
of the sea, acquired under his United states
PATENT Was it simply an estate IL Zee IN ana
to the dry land, did he in addition 70 that fee
also acquire rights in and TO the waters which
wash his boundary? The patent was issued and
the plaintiff was the owner and IN possession
before the adoption OF the constitution, while
the state was still a territory. The rights OF
property existing, whilst in territorial condi-
ton, are az saeredly guarded as the same rights
acquired subsequent TO the admission. This We
must not lose sight of in deciding the rights OF
the parties. The principles upon. which the
United States holds its land we have before re-
ferred 10. As TO the public lands comprising