The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-07-09
THE HARBOR LINES.
Supreme Court Decides Against
the Wharf Owners.
THE STATE HAS SOVEREIGNTY.
Commission Can Establish Limits Re-
gaxdIess of shore Proprietors-
All the Judges Concur.

OLYMPIA, July Especial 1.-The follow
ing decision was handed down today by
the supreme court, all the judges concur
ing:
: state OF Washington, en- rel II. L Yesler. re-
spondent VS.. William r. Prosser ct al, appel
ients. Opinion by Hoyt,J.
The most important questions in this case are
the same as those discussed and covered by the
opinion IL the case of Eisenbaeh VS.. Hatfield,
decided at the last session OF this court
Yet in view of the interest involved
in the principles therein announced We
have again gladly listened TO the able
argument of counsel made before US and have
carefully examined the exhaustive briefs fled,
and have again reviewed all of the questions
decided in the case above cited. And it is only
necessary for me 70 say that the opinion OF the
court has not been changed by such g re-
examination. The court Is still OF the opinion
that as against the state littorai owner, simply
rs such owner, can assert no valuable rights be-
low the line of ordinary high tide.
The somewhat careful examination which /
have given this case, has confirmed my opinion
that in common law the sovereign power-resting
in England in parliament-could take such
lands without compensation and absolutely ex-
clude littoral proprietors from any rights there
TO- In fact, such is conceded TO be the power OF
parliament by nearly all OF the courts. Even
those which have taken the strongest grounds
against the doctrine of the case above cited,
have admitted such to be the rule. Note the
argument of Chancellor Seabriske in his dis
senting opinion, "a ". j., Law, 55l While con-
ceding this, they say parliament has this power
because II is all powerful and can legisate as it
pieases. This is true, but why is IL true? simply
because in IL Ia embodied the sovereign power.
In my opinion the same power that is vested in
parliament and the king In England, is here
vested in the people, who are fully as much SOW
ereign here 40 the parliament and king are
there. Here the people of the state are
absolutely sovereign, except as controlled by the
of the United States, and do not
think that it can be successfully contended that
the powers Of the people of the state have been
thus controlled rs to the questions here in
volved. am unable to find any clause of the
constitution of the United States looking to such
control, and as read in the decisions OF the Uni
ted States supreme courtit has expressly decided
that the states are in no wise controlled
IN this matter. Acting within the SOW
ereign power as above recognized, the people of
this state in forming the constitution saw fit to
assert the title Of the state to the lands in ques
ton. and having done so they are the only power
that can interfere with such titles. But it in
said that while such an assertion of title is good
in the constitution il is so made subject 10 the
vested rights of riparian owners to be asserted
in the courts
am of the opinion that this vested right can
not be held 70 be such as is incident TO riparian
owners simply as such, but must be held to APP
ply only 70 some special right held by such
owner by way of improvement made under
express or implied license from a representative
OF sovereign power. To hold that the former
was intended would practically destroy the title
of the state, and would, therefore, be inconsist-
ent with the assertion of such title, while the
latter construction will give force to every word
and MAKE the provision in It's entirety q consist
ent one. When people say that they assert the
states title, IL must be held 70 mean the entire
and exclusive title. OF course, the rights of
states, as above stated, are subject to the para
mount right OF the United States to regulate
commerce and navigation, a. TO which shall
say a word later on.
The doctrine OF the case OF Eisenbach VI. Hat
fled, above cited, must obtain, and under il the
rights of the parties hereto must be determined
II win thus be seen that the petitioner has no
right 70 the LAND In controversy, and, at most,
the onlv vested right he has is in the wharf con-
s;ructed thereon, and for the purpose of this
case, shall assume Though we do not decide
the question: that the petitioner has such a
right in such wharf, and that IL could only be
taken from him after compensation paid therefor
But will this right aid him in this controyersvY
Will the fact that he has q right to be COM
pensated for his said improvements allow him
to prevent the carrying out of q great state pol
icy in the establishment of harbor linesY Can
IL be contended that this work must stop, or
that lines must be laid around the several
wharves which have been erected by riparian
owners7
think all these questions must be answered
In the negative. The riparian property owner
as we have seen, has no interest in the
land but simply in the wharf On the land.
and this being so, il cannot be said
that simply including said wharf within the
harbor lines 10 such taking or damaging of the
wharf as viii entitle the owner to compensa-
tion- IL does not follow from such including
within the harbor line that the state has or ever
will interfere with the ownership or possession
of such wharf. II his property is neither taken
nor damaged, the only ground upon which he
can ask the interposition of the court is
that cloud is about to be cas-,
upon his title. Upon this Question. I
am OF the opinion that his title is not
OF nature to be clouded, but only q right to the
structure upon the land itself without any right
IN the land. But even il IL were, the proceedings
complained of could constitute cloud thereon
For If the contention of the petitioner ia cor.
rect, the harbor line commission could not law
fully act until legislation had been had proyid-
ing q method by which the vested rights
VI oAA Ilpatthn owners, who had
whhrfed out could be protected: and IL
this Is so, then their want OF authority to act is
known TO everyone and must be held to be an
parent from the face of the proceedings, and
therefore their acts could not constitute an act
IL, on the other hand, they nave authority 10
act at all in advance of such legislation. they
must be held to have authority to Law their nnas
across the wharf of petitioner and all other,
similarly situated.
think the argument OF counsel that th,s
legislation is opposed 10 that OF congress en-
acted upon the subject OF navigation and hs--
bor lines, cannot be sustained All such ls.i.-
lation must be presumed TO De in the intsras,
Of commerce and navigation until the coD-
trsry appears Besides, the United States. bv a..
proper officers, Is the only party that could in
tsrtere in such cases The extraordinary wr;,
OF prohibition should be granted in
clear cases and when no other remedy is avail.
able, and am Of the opinion that the petitioner
has no cause of complaint, and IL he has am
not satisfied that the ordinary proceedings in
Law CT equity VIII nos ultimately completely
protect his rights.
msnded with instructions to dismiss the peti.
ton.
We eoneuf' ANpERs, c. J.
scoTT, j.
DUNBAR.
STILES. J.
concur In the disposition OF this case "a I
look upon the threatened action OF the board Of
haroor line commissioners In the ding of man
OF the hareor line of the city OF Seattle as a
clearly legitimate exercise OF the power of tia
state 70 regulate and control the harbors within
its limits to the extent OF axlng the potnt be
yond which the whsryes must not extend.