The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-08-02

any event IL would require the most explicit
and unmistakabIe words in an act OF congress
70 cause q court to construe any grant upon toe
wster to extend beyond high water marx, even
though its date were In territorial times, ana
there were no argument to be made upon sne
theory of trust imposed upon the general gov
ernment for the benefit of the future state.
Whatever the theory may be the TACT Is tnas
the government never intended 70 nave any
grant under its public or private land LAWS con-
strued to include the soil deneafh the water,
and all OF It's grants are fully and justly salts
fed by making them spply to the iano ana not
70 the water.
Third.-ws are urged to consider that this
tract is not covered by water navigaoie In fact
becauseit 10 uncovered at low uoe, ana though
1t is conceded that the ordinary high uoe does
cover IL, and that the ordinary nigh water marx
Is between IL and the upland But the rule is
fixed one, that high water marx ID the limit OF
government grants, therefore 1t can make no
difference whether at low tide the area exposed
IL great or little, or whether the huctuation OF
the waters is as great in the bay of Funday or as
slight as at St Augustine. The high tide is the
boundary beyond which there is no land to be
granted.
Fourth-Another suggestion 10, that at various
points, some OF them within this state, the pat
ents of the government do purport to cover
tracts below high water mark, showing the
action of the land department In that particu-
lar. Ii may be there are such patents. The
convenience of the surveyors may have led
them 70 show meander lines on their plats
which do not exactly accord with the sinuosi-
ties of the shore; but they are probably errors
coming within the maxium de minimis non
curat lex. If they are more, the answer is, that
the practice of the land Offices In . few cases
does not make the law. Such cases are mere
mistakes on the part of the governments
agents.
Fifth-It is contended that In San Francisco
Savings Union vs. Irwin, % fed. Rep, 709, IL
Sawyer, 667, it was held that the title OF the
state of California to submerged tide fats capa-
bic of reclamation by embankments was not
based upon her sovereignty, but solely upon the
act of 1850. g. S. A L., SIG, granting swamp and
overtiowsd within the borders of the state.
But although the brief asserts that the land in
the case of the Savings Union Va. Irwin, and
that in the case at bar, were identical In charac-
ter, we do not understand the case to be SO.
In the former case the controversy was over the
possession of "overhowed" lands lying in front
of Mare island, which were sometimes called
"tule'' or "marsh" lands. They were lands over
which the monthly tides flowed, but not the or
binary day tides, and between the islands
and portions of them were navigabe
sloughs They were more or less covered
with vegetation, and were in no sense the bot
tom OF the sea or river. Moreover the real con-
troversy there was whether q Mexican grant,
followed by q United States patent, for Mare
island, bounded by the waters edge, author
lied q subsequent grantee TO convey the island,
"including all the tuie or low and marsh lands
belonging TO the same, or which has ever been
reputed or claimed to belong to the same"
which the court settled in the negative, citing
United States VS.. Paccatco, Wall, $50. 1t
Is currently reported that there are thous-
81 AxA DC a4a "a
of the general character of the lands in the Mare
island case, much of which has been patented
by the United States and is now under a high
state of cultivation. But they are not such
lands as the daily tides of Elliott bay cover.
They are tide, marsh or prairie lands, composed
of alluvial soil where the interfering OF the ex-
IRENE tides or high water caused by wind cur
rents does not prevent an actual growth OF
vegetation.
sixth-Lastly, the constitution of this state is
appealed to, to show that there are no objections
from that source to the appellants claim. Sec
ton 2, Article IL, of the constitution, declares
that ssThe State of Washington disclaims all
title in and claim to all tide, swamp and over
flowed land, patented by United States, pro-
vided the same Ia not impeached for fraud"
There was no occasion for mentioning swamp
and overfowed land since they were expressly
withheld from the state by the enabling act,
section IL. Whether the section amounts to a
recognition or confirmation Of such patents or
not as claimed by appellant need not be de-
termined.
The language 10 'disclaims all title" The
state merely asserts nothing. But appellant
claims that his attempted location of scrip few
days before tho constitution went into effect,
entities him to share in the disclaimer, since he
may get patent which will relate to the date Of
his location. This position in some cases might
require decision OF what is meant by this
''patented" in the section quoted, but 1t is not
necessary here We have seen from the highest
judicial authority that the United States never
would, if it could, patent this tract or recognize
q filers claim to it, unless through the mistake
of its officers, and no such impossible case was
templated by the constitution.
The Judgment OF the superior court Is af-
frmed. T. L. STILES, j.
We concur:
TT. ANDERs, G. J.,
ELMos SCOTT, j.,
r. o. DUNBAR, j.,
JOHN p HoYT. J.