, 1892-04-20
A CASE REV ERSED.
Action in Relation to the Har-
boz Line Commission.
The Case Remanded with Instruc-
tion to Dismiss of
Moment Decided In the Case.

tion to Dismiss Questions of
Moment Decided in the Case.
TNotice-An decisions Of the supreme
courtwill appear in The DAILY and WEEK
TX TRIBUNE.
stimson Mill Company, respondent, VS..
Board of HarbOr Line Commissioners,
appellants. No. 339.
The more important questions presented
by this record are the same as those de-
cided by this court in the case of Harbor
Line Commissioners vs. State; 2 Wash,
$50. They are of such importance to the
welfare Of the state. that Notwithstanding
that fact we should be willing to re-exam-
inc them had not said case been appealed
to the supreme court of the United States,
where q speedy and final determination
thereof willEbe had, but as such is the case
further discussion of said questions here
would be Of little value. We shall, there
fore, content ourselves with an examina-
tion of the questions presented by this
record which are different from those de-
cided in that case. One of these is purely
a question of fact. 1t is claimed by the
respondent that the affidavit, which
ing, showed that the appellants were
about to include, within the har-
Dor lines to be established by them,
portions of its upland property, and that
for that reason, if for no other, the court
below rightfully granted the writ. There
are some expressions in said affidavit
which tend to support this contention but
when we take it altogether and eonstrue it
as we think we ought, most strongly
against the party presenting it, it fails TO
sustain this contention of respondent. And
even if there were some statements therein
which might be construed as thus CON
tended, we do not think they should con
\ it,i.O ga 0E
the statement by appellants that they con-
cede that they have no power to include
said property within such harbor lines.
Beside, under the decision in the case
above cited, the attempt to include even
portions of the upland within the harbor
line could not be prevented by the writ of
prohibition.
The next question is one Of mixed fact
and law. The facts, however, are not
made to appear from the affidavit, or other
portions of the record, and if before this
court at all are here by agreement Of coun-
sci upon the argument, or by the judicial
notice which this court must take of
Salmon Bay. IF we consider them pro-
perly before us, it appears that said
bay has only narrow mouth, or outlet,
which goes dry or nearly dry at low water,
at which time the water in the bay covers
only limited portion thereof in the shape
of an enclosed lake in the center. at high
water, however, said bay and such outlet
are navigable to boats of the class which
do nearly all the transportation of freight
and passengers on the entire Puget Sound.
Under these circumstances we think a
fair construction of the constitutional and
legislative provisions upon the subject
authorizes the harbor line commissioners
to extend their Jurisdiction over the wa
ters in said bay. five were to hold that be
cause said bay was not nayigable at low
water it did not come within the definition
Of "navigabIe waters as defined by the
constitution and legislation relative to the
duties of the hasbor line commissioners,
the usefulness Of that body would be very
much interfered with. If it is not naYi-
gable for the reasons stated it would follow
that the naEigable portion Of any Of the
waters Of the Sound extended only to low
water Such, at least, seems to us the nee
essary result Of such a holding, and if we
were to hold this latter proposition to be
true, the board Of harbor line commission
ers had better be dissolved at once.
Concluded tomorrow.