Caminiti v. Boyle
| Decision Date | 12 February 1987 |
| Docket Number | No. 52459-9,52459-9 |
| Citation | 107 Wn.2d 662,732 P.2d 989 |
| Parties | Benella CAMINITI, an individual; Committee for Public Shorelines Rights, an association, Petitioners, v. Brian J. BOYLE, Commissioner of Public Lands of the State of Washington; Robert S. O'Brien, Treasurer of the State of Washington, Respondents. |
| Court | Washington Supreme Court |
Kenneth Eikenberry, Atty. Gen., Nixon Handy, Sr. Asst. Atty. Gen., Ann C. Essko, Asst. Atty. Gen., Olympia, for respondents.
FACTS OF CASE
This action was commenced by a petition filed in this court seeking a writ of mandamus directed to the Commissioner of Public Lands and the State Treasurer. 1 Petitioners ask us to declare unconstitutional the state statute (RCW 79.90.105) which allows owners of residential property abutting state-owned tidelands and shorelands to install and maintain private recreational docks on such lands without payment to the state. We concluded that the petition met the necessary criteria for retention by this court and retained original jurisdiction. 2 Having now considered the parties' briefs and oral argument on the merits, we decline to hold the statute unconstitutional. Issuance of the writ will be denied.
The case was submitted on agreed facts. Those pertinent "By the Laws of the State of Washington of 1983, 2nd ex. sess., ch. 2, sec. 2, p. 2160 (), the following legislation became effective on June 13, 1983:
to our disposition of the case are as follows: 3
There is one principal issue.
Does RCW 79.90.105, which allows owners of residential property abutting state-owned tidelands and shorelands 4
to install and maintain private recreational docks on such lands free of charge, violate article 17, section 1 of the Washington State Constitution or the "public trust doctrine"?
The short answer to the question posed by this issue is "no". Upon admission into the Union, the state of Washington was vested with title in, and dominion over, its tidelands and shorelands. Since statehood, the Legislature has had the power to sell and convey title to state tidelands and shorelands. Prior to 1971, when the Legislature by statute changed its policy, the state had sold approximately 60 percent of its tidelands and 30 percent of its shorelands. The Legislature has never had the authority, however, to sell or otherwise abdicate state sovereignty or dominion over such tidelands and shorelands. By enacting the statute at issue in this case (RCW 79.90.105), the Legislature has seen fit to grant only a revocable license allowing owners of land abutting state-owned tidelands and shorelands to build recreational docks thereon subject to state regulation and control. The Legislature did not thereby surrender state sovereignty or dominion over these tidelands and shorelands, but through the Department of Natural Resources and local subdivisions of state government continues to exercise control over them.
By our state constitution, "[t]he 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 rivers and lakes ..." Const. art. 17, § 1 (part). This was but a formal declaration by the people of rights which our new state possessed by virtue of its sovereignty, 5 and which declaration had the effect of vesting As this court has repeatedly held, under the foregoing constitutional provision the state of Washington has the power to dispose of, and invest persons with, ownership of tidelands and shorelands subject only to the paramount public right of navigation and the fishery. 7 Perhaps the clearest exposition of the nature of the state's ownership in this regard is that contained in this court's opinion in the early case of New Whatcom v. Fairhaven Land Co., 24 Wash. 493, 499, 64 P. 735 (1901):
title to such lands in the state. 6
The title to lands under tide waters in the sea, arms, and inlets thereof, and in tidal rivers, within the realm of England, was, by the common law, deemed to be vested in the king, as a public trust, to subserve and protect the public right to use them as a common highway for commerce, trade, and intercourse. The king, by virtue of his proprietary interest, could grant the soil so that it should become private property; but his grant was subject to the paramount right of the public use of navigable waters, which he could neither destroy nor abridge. In every such grant there was an implied reservation of the public right. Upon the American Revolution the title and dominion of the tide waters, and of the lands under them, vested in the several states of the Union within their respective borders, subject to the rights surrendered by the constitution to the United States.
And further:
The provision of art. 17, § 1, of the constitution was evidently for the purpose of establishing the right of the state to the beds of all navigable waters in the state, whether lakes or rivers, or fresh or salt, to the same extent the crown had in England in the sea, and in the arms and inlets thereof, and in the tidal rivers, and to eliminate the distinctions existing under the rule of the common law in this respect.
New Whatcom, 24 Wash. at 500, 64 P. 735.
The New Whatcom court also stated that
the public has an easement in such waters for the purposes of travel, as on a public highway, which easement, as it pertains to the sovereignty of the state, is inalienable and gives to the state the right to use, regulate, and control the waters for the purposes of navigation; ...
New Whatcom, 24 Wash. at 504, 64 P. 735.
From the foregoing it is clear that the state's ownership of tidelands and shorelands is not limited to the ordinary incidents of legal title, but is comprised of two distinct aspects.
The first aspect of such state ownership is historically referred to as the jus privatum or private property interest. 8 As owner, the state holds full proprietary rights in tidelands and shorelands and has fee simple title to such lands. Thus, the state may convey title to tidelands and shorelands in any manner and for any purpose not forbidden by the state or federal constitutions and its grantees take title as absolutely as if the transaction were between private individuals. 9 In the case before us, the state has not by this statute conveyed title to the land, but as will be discussed shortly, has given a revocable license only. 10
The second aspect of the state's ownership of tidelands and shorelands is historically referred to as the jus publicum or public authority interest. 11 The principle that the public has an overriding interest in navigable...
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