410 P.2d 20 (Wash. 1966), 37583, Hughes v. State

Docket Nº:37583.
Citation:410 P.2d 20, 67 Wn.2d 799
Opinion Judge:WEAVER,
Party Name:Stella HUGHES, Respondent, v. The STATE of Washington, Appellant.
Attorney:John J. O'Connell, Atty. Gen., Olympia, Harold T. Hartinger, Laurel L. Tiller, Asst. Attys. Gen., for appellant., Charles B. Welsh, South Bend, for respondent.
Case Date:January 20, 1966
Court:Supreme Court of Washington

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410 P.2d 20 (Wash. 1966)

67 Wn.2d 799

Stella HUGHES, Respondent,


The STATE of Washington, Appellant.

No. 37583.

Supreme Court of Washington, En Banc.

January 20, 1966

Rehearing Denied April 14, 1966.

John J. O'Connell, [67 Wn.2d 800] Atty. Gen., Olympia, Harold T. Hartinger, Laurel L. Tiller, Asst. Attys. Gen., for appellant.

Charles B. Welsh, South Bend, for respondent.

WEAVER, Judge.

The questions of law generated by this appeal spring from Article 17 of the state constitution, its historical background, and its interpretation, legislative, administrative, and judicial.


§ 1 DECLARATION OF STATE OWNERSHIP. The state of Washington Asserts its ownership to the beds and shores of all navigable waters in the state Up to and including the line of ordinary high tide, in waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable

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rivers and lakes: Provided, that this section shall not be construed so as to debar any person from asserting his claim to vested rights in the courts of the state.

§ 2 DISCLAIMER OF CERTAIN LANDS. The state of Washington disclaims all title in and claim to all tide, swamp and overflowed lands, patented by the United States: Provided, the same is not impeached for fraud. (Italics ours.)

Plaintiff, Stella Hughes, is the owner of an upland tract of land on the Long Beach Peninsula near Ocean Park, [67 Wn.2d 801] Pacific County, Washington. Title is deraigned from a patent issued prior to statehood. In this action to quiet title plaintiff alleges 1 that the west boundary of the tract is described as

the line of Ordinary high tide of the Pacific Ocean. (Italics ours.)

She prays that the court establish the westerly boundary of her property to be 'the line of Mean high tide of the Pacific Ocean.' No time for the determination is indicated.

The trial court found that since the original survey and establishment of the meander line by the United States government in 1859, imperceptible accretions have formed in front of plaintiff's property, both Before and after November 11, 1889, and that all the accretion belongs to plaintiff as upland owner. The state does not claim the accretion prior to 1889, the date of its admission to the union. It contends, however, that the present western boundary of plaintiff's land and the present eastern boundary of the state's tidelands is the line of 'ordinary high tide' as it existed November 11, 1889. In its answer and cross-complaint, the state alleges that this line on November 11, 1889 was described as follows:

Beginning at a point whose Y coordinate is 436,139.17 and whose X coordinate is 1,104,683.64, referred to the Washington Coordinate System, South Zone, and running thence on an azimuth of 1 14 05 3412.79 feet to a point whose Y coordinate is 432.727.18 and whose X coordinate is 1,104,610.10, referred to said coordinate system.

The state appeals from a judgment deted February 10, 1964, which determines:

that the western boundary of the foregoing property (of plaintiff) is the line of Mean high tide of the Pacific Ocean [67 Wn.2d 802] As it now or hereafter may exist, which line is the average elevation of all high tides as observed at a location in front of the property through a complete tidal cycle of 18.6 years. (Italics ours.)

We point to the possible difference between 'ordinary high tide,' as set forth in the constitution, and 'mean high tide as it now (February 10, 1964) or hereafter may exist,' as determined by the trial court. We also point out that the superior court determined a possible changing or shifting western boundary for plaintiff's property.

This appeal brings into sharp focus the following questions: (a) When did title to the tidelands vest in the State of Washington? (b) What is the Nature of the State's ownership? (c) What is the Extent of the State's ownership? i.e. what is the dividing line between and upland property and the state-owned tideland? (We are not concerned with the seaward line in the instant case. See the Submerged Lands Act of 1953, 43 U.S.C. §§ 1301--1315 (1958 ed.)). (d) Is the dividing line a fixed line or is it a changing line depending upon accretion or reliction? (e) If a fixed line, as of what

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date should it be established? The trial court said in its oral opinion:

It is a rather interesting circumstance to me that this being 1964, it is about 75 years since statehood and that our State Supreme Court would not have been called upon specifically and directly to decide the questions involved here and particularly that question of moving line.'

Undoubtedly there are other questions that might arise, but we deem the foregoing sufficient to present the issues of the instant case.

For the sake of clarity and in order to illustrate the facts we set forth the following sketch, prepared by the court from exhibits in the record. It is not drawn to scale.

(Image Omitted) [67 Wn.2d 803] History of Constitutional Provision

The questions presented by the instant case are not new. As early as 1854 the territorial legislature granted owners of property abutting navigable waters the right to build wharves, under certain conditions, and to 'extend them so far into said waters or water courses as the convenience of shipping may require,' and to maintain them for not more than 20 years. 2

On numerous occasions the territorial legislature memorialized Congress to grant

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tidelands to the territory so that they might be sold and the funds used for internal improvements, 3 or to grant them to certain towns and cities to aid in their development. 4 In 1873 the territorial legislature [67 Wn.2d 804] passed an act confirming the title of the Seattle and Walla Walla Railroad and Transportation Company to the tidelands south of King Street in Seattle and around Elliott Bay 'from extreme high to extreme low tide, and to deep water * * * derived by deed from the city of Seattle to the said company dated August 19, 1873,' provided the first section of 15 miles of railroad be constructed within three years. The territory purported to convey such title 'as would otherwise belong to and vest in the state, upon the admission of Washington Territory into the Federal Union as a state.' 5

One cannot read the record of the proceedings of the state constitutional convention 6 and the newspaper and editorial comment published during the convention (Yelle v. Bishop, 55 Wash.2d 286, 292, 347 P.2d 1081 (1959), between July 4 and August 22, 1889, without concluding, as do the historians of that period, 7 that the most vexing and politically sensitive problem confronting the convention was that of harbors, and the control, use, ownership, and disposal of the tidelands of the new state to be. No other problem was of more vital concern to the economic development of the state, for the tidelands in front of Seattle and other cities on Puget Sound and the ocean were of tremendous value.

During the convention suggested constitutional proposals ranged from a declaration of inalienable state ownership of tidelands with limited leasing privileges, to no declaration at all, thus leaving all questions of tideland ownership and use to the whim of future legislatures. The major source of difference arose from whether the state, the cities, or private individuals and corporations should control the water front. Generally, five groups brought pressure to bear upon the 75 members of the convention: (1) the owners [67 Wn.2d 805] of upland property; (2) the occupiers or preemptors of tidelands who had placed improvements thereon; (3) land speculators; (4) cities and towns; and (5) the railroads. The conflict of interests was sharp and the debates reported were acrimonious.

It was not until August 22, 1889, the final day of the convention, that Article 17 (quoted supra) was adopted. 8 The article is, in truth, a Janus-like compromise of the contentions of the various schools of thought in the constitutional convention. Although it asserts state ownership of tidelands and disclaims all right to tidelands theretofore patented by the United States, it makes no declaration of policy to govern the use or disposition of such lands. The convention left the use and sale of state-owned tide-lands to the politics of future legislatures and to the interpretation to be given Article 17 by the Supreme Court.

Before discussing our decisional law, it is necessary to review briefly the tideland statutes subsequent to statehood, the definition of 'the line of ordinary high tide,' and the administrative and superior court interpretations of the statutes.

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Tideland Statutes Subsequent to Statehood in 1889

Since Article 17 was a compromise of the various interests represented in the constitutional convention, it is not surprising to find tideland politics carried forward into subsequent legislative sessions.

The early statutes provide for the survey, classification, and appraisal of state-owned tidelands 9 and set forth the method and manner of sale or lease thereof. Oyster beds were 'withdrawn and reserved from sale or lease for the purpose of establishing a natural oyster bed reserve.' 10 A railroad was granted the right to maintain tracks and [67 Wn.2d 806] wharves on tidelands. 11 Although abutting property owners were given a preferential right to purchase tidelands, one having placed improvements thereon prior to March 26, 1890 had the exclusive right to purchase if used for 'commerce, trade, residence, or business.' 12 Laws of 1899, ch. 83, § 1, p. 132 13 was the first legislative recognition of accretion to tidelands. The statute provided:

That any accretions that may be added to any tract or tracts of tide or shore lands Heretofore sold or...

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