Brace & Hergert Mill Co. v. State

• Decision Date: 22 April 1908
• Court: Washington Supreme Court
• Parties: BRACE & HERGERT MILL CO. v. STATE.

95 P. 278

49 Wash. 326

BRACE & HERGERT MILL CO. v. STATE.

Supreme Court of Washington

April 22, 1908

Appeal from Superior Court, Thurston County; O. V. Linn, Judge.

Action by the Brace & Hergert Mill Company against the state of Washington. Judgment for defendant, and plaintiff appeals. Affirmed.

H. A P. Myers, for appellant.

John D Atkinson, A. J. Falknor, and R. G. Sharpe, for the State.

FULLERTON J.

This is an action to quiet title to real property brought by the Brace & Hergert Mill Company against the state of Washington. In its complaint the mill company alleged that it was the owner in fee simple of the west half of block 94, in D. T Denny's First addition to North Seattle, all of block A, in D. T. Denny's Sixth addition to North Seattle, and all of lot 12, in block 1, and lots 1, 2, 3, and 4, in block 3, of Mercer's Water Front addition to the city of Seattle, and that it was in the possession of such property, and had been in the open, public, notorious, adverse, and actual possession thereof for more than 10 years prior to February 26, 1903. It further alleged that the state of Washington claimed some interest in the property described, but that such claim was without right. The state for answer denied the allegations of the complaint, save the allegation that it claimed the property, and the allegation that the mill company was in possession thereof, and for a further and separate answer alleged that all of the lands described in the complaint were shore lands, lying below the line of ordinary high water in the bed of Lake Union, a navigable meandered lake; that such land became its property on its admission into the Union as a state; and that it had never parted with its title to the same. It further alleged that the mill company's possession of the property had not been adverse to it, but in virtue of its laws granting a preference right of purchase to occupants who had placed on such lands, prior to March, 1889, valuable improvements which were in actual use for commerce, trade, or business. In reply the mill company deraigned its title, showing that a link thereon consisted of a mortgage and its foreclosure in the courts of the United States, that it had paid taxes on the property to the county and state ever since they had been in possession, and alleged again that it had been in adverse possession of the property for the statutory period.

The evidence tended to show that the land in dispute bordered on the shores of Lake Union, and were platted into lots and blocks as parts of the donation land claims of D. T. Denny and Thomas Mercer; that lot 12, in block 1, and lots 1, 2, 3, and 4, of Mercer's addition, were wholly in the bed of Lake Union below the line of ordinary high-water mark as it exists at the present time; that the west half of block 94 of Denny's addition is entirely above that line; that block A of the same addition is partly above and partly below such line. It appeared, also, that Lake Union is a fresh-water lake of irregular shape, having an extreme length north and south of some two and one-fourth miles, with an extreme width of about seven-eighths of a mile; that it has a total area of some 905 acres, some 499 acres of which has a depth of over 25 feet, with a maximum depth of 60 feet. Boats of considerable dimensions, as well as many smaller craft, have at different times plied upon its waters. Booms of logs, piles, shingle bolts, and other timber products have been transported from place to place thereon, as well as moored in booms while awaiting the process of manufacture. In 1852 or 1853 a dam was thrown across the outlet of the lake, causing the waters therein to rise some 11 feet above its general level. While this dam was still standing, a meander line was run to mark the shore line of the Denny and Mercer Donation land claims. This meandered line shows the shore line to have been entirely south of block 94, leaving the entire property in question in this action in the bed of the lake below low the line of high-water mark. A second meander line, also run by the government surveyors, although it does not strictly correspond with the first, shows the same thing; and the recorded plats of Denny's additions show the shore line to pass through block 94 somewhere near the center of the block, leaving the north half of block 94, with the other described lands, below the line of ordinary high water. The dam mentioned went out in part some few years after its construction and was not rebuilt, and later on the balance of it went out, leaving the water level of the lake substantially as it was originally. The present shore line, as found by the court, lies entirely below block 94, passing through block A in a diagonal direction, running from a point 30 feet north of the southwest corner of the block to a point 170 feet north of its southeast corner. On the question of possession the evidence tended to show that the lands in dispute had been in the possession of the mill company and its predecessors in interest since early in territorial days, and there was evidence, although not uncontradicted, that the owners claimed adversely to the state for a period of more than 10 years prior to February 27, 1903, the date the act relieving the state from the operation of the general statute of limitations went into effect. It was further shown that the mill company and its predecessors in interest had placed improvements upon the lands in question having an aggregate value of some $85,000, and that a considerable part of such improvements were upon that part of the land the court found to be shore lands. It was shown also that these as well as some of the adjoining lands had been filled to a considerable depth by the mill company, and that its action in this regard made it difficult, if not impossible, to trace with precision the shore line as it originally existed, or would now exist, but for such fills. On the foregoing record, the trial court found that Lake Union was a navigable body of water, the property to the beds and shores of which was in the state of Washington; that the line of ordinary high-water mark marked the boundary between the uplands and the shore lands rather than the meander line run by government surveyors; that the mill company had acquired no title to the shore lands by its possession; that the state had acquired no title to the lands lying between the shore line and the meander line as the court had located it; that of the lands in dispute all of block A that lay to the north of that line, together with lot 12, in block 1, and lots 1, 2, 3, and 4, of Mercer's Water Front addition to the city of Seattle, were shore lands belonging to the state of Washington, and that all of block A lying south of the line described, together with the west half of block 94, were uplands, and the property of the mill company. It entered a decree in accordance therewith, from which both parties appeal.

Taking up the question suggested by the appeal of the mill company the first to be noticed is the contention that the property in dispute, both above and below the line of ordinary high water of the lake, passed by the patents from the government of the United States to Denny and Mercer, and from them by mesne conveyances to the mill company. In other words, the contention is that the upland owner on a navigable body of water has in virtue of his patent from the United States the right of a riparian proprietor in the water on which his land borders--a right which the state cannot by its laws take away. This question, in so far as it is within the powers of the courts of this state to determine it, has been determined against the appellant's contention. In its Constitution the state asserted ownership in the beds and shores of all navigable waters of this 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 rivers and lakes. By a uniform course of decision this court has held that this declaration vested title in the lands claimed in the state. It was so held with reference to tide lands in the following cases: Eisenbach v. Hatfield, 2 Wash. St. 236, 26 P. 539, 12 L. R. A. 632; Pierce v. Kennedy, 2 Wash. St. 324, 26 P. 554, 28 P. 35; Baer v. Moran Bros. Co., 2 Wash. St. 608, 27 P. 470; Harbor Line Commissioners v. State, 2 Wash. St. 530, 27 P. 550; State v. Harbor Line Commissioners, 4 Wash. 6, 29 P. 938; State v. Harbor Line Commissioners, 4 Wash. 816, 30 P. 734; Morse v. O'Connell, 7 Wash. 117, 34 P. 426; Allen v. Forrest, 8 Wash. 700, 36 P. 971, 24 L. R. A. 606; Lownsdale v. Gray's Harbor Boom Co., 21 Wash. 542, 58 P. 663; Sullivan v. Callvert, 27 Wash. 600, 68 P. 363. And with reference to shore lands, or lands on which the tide did not ebb and flow, in the following cases: McCue v. Bellingham Bay Water Co., 5 Wash. 156, 31 P. 461; Washougal Transp. Co. v. Dalles, etc., Nav. Co., 27 Wash. 490, 68 P. 74; Kalez v. Spokane Valley Land & Water Company, 42 Wash. 43, 84 P. 395; Van Siclen v. Muir (Wash.) 89 P. 188; Muir v. Johnson (Wash.) 94 P. 899. The statement that the line of ordinary high water marks the boundary of the upland grant is, of course, understood with the modification that the meander line established by the government does not run below that line. We have held, in obedience to another clause of the Constitution disclaiming title in tide and shore lands where the same had been patented prior to the adoption of the Constitution, that where it does run below the line of ordinary high water such line marks the boundary of the upland grant. Scurry v. Jones, 4 Wash. 468, 30 P. 726; Cogswell v. Forrest, 14 Wash. 1, 43 P. 1098; Washougal Transp. Co....