Chlopeck Fish Co. v. City of Seattle

• Decision Date: 26 July 1911
• Citation: 64 Wash. 315,117 P. 232
• Parties: CHLOPECK FISH CO. et al. v. CITY OF SEATTLE et al.
• Court: Washington Supreme Court

117 P. 232

64 Wash. 315

CHLOPECK FISH CO. et al. v. CITY OF SEATTLE et al.

Supreme Court of Washington, En Banc.

July 26, 1911

Appeal from Superior Court, King County; John F. Main, Judge.

Action by the Chlopeck Fish Company and another against the City of Seattle and another. From a judgment for defendants plaintiffs appeal. Affirmed.

Kerr &amp McCord and Farrell, Kane & Stratton, for appellants.

Scott Calhoun and H. D. Hughes, for respondents.

ELLIS J.

The state's first plat of the Seattle tidelands and water front was filed in February, 1895. It extended every alternate street of the city streets originally running to the water front in a direct line over the tidelands and harbor area fo the outer harbor line. Among these streets was Vine street, which was thus extended a little over 300 feet practically at right angles to the upland. All of these extensions were 100 feet in width.

In 1897 the city of Seattle caused to be prepared a correction or revision of the above-mentioned plat and submitted the same to the state Legislature for action thereon, and the Legislature, by chapter 28, Laws of 1897, authorized and instructed the state land commissioners to correct and revise the original plat to conform thereto. By this replat the same streets were extended over the tidelands and across the harbor area to the outer harbor line, not in a direct line as before, but at an angle of about 45 degrees to the upland. The extension of Vine street was thus increased from about 300 feet to over 500 feet. On the revised plat the extensions are all 100 feet in width, excepting Vine street, Madison street, and Harrison street, the extensions of which are 150 feet in width. All of these extensions or prolongations are designated in large letters as streets, the name in each instance being the same as that of the corresponding upland street, thus, 'Battery street,' 'Vine street,' etc. In the case of Vine street, underneath the street designation appears in small letters, in parenthesis the words 'city slip.' This is explained by a witness, Mr. George F. Cottrill, who actually made the replat and presented it to the Legislature on behalf of the city, as follows:

Prior to the adoption of the replat, and for some years thereafter, the city maintained on the site of the proposed present structure, hereinafter described, a public slip or landing place somewhat similar to the one now sought to be enjoined. A copy of this replat, so far as applicable to Vine street, is in the record and shows this old structure. Mr. Cottrill states that these three streets, Vine, Madison, and Harrison, spaced practically at uniform intervals along the city's central water front, were platted each 150 feet in width, and the words 'city slip,' in parenthesis were placed upon each of them, and the extra width given with the intention of perpetuating at Madison street and Vine street the then existing municipal facilities for slips, public landings, and general transition from water to land, and to provide that such could be done at Harrison street whenever the development of the city should demand it. He further says that he explained these things to the Legislature as features of the replat, and the necessity of these wider streets for the purpose of landings for municipal purposes. This witness also testified that the old structure in the Vine street extension was at a later date remodeled and used as a garbage scow wharf and a public landing generally.

The appellants the Chlopeck Fish Company and the Columbia & Puget Sound Railroad Company are, respectively, the owners of the upland and tideland lots abutting the south and north sides of Vine street, at its intersection with the waters of Eliot Bay. They are also the lessees from the state of the harbor area in front of their respective tidelands. The tidelands on either side of Vine street are narrow; the inner harbor line lying about 20 to 25 feet westward from the westerly line of Railroad avenue, which crosses Vine street at the point here in question practically at right angles. The fish company has built a dock extending outward over the harbor area a distance of 175 feet into a depth of water at the outer end at low tide of about 25 feet. This dock has a frontage of 142 feet. It is of a value of $150,000. The railroad company has also built a dock on the north side of Vine street extending outward over the harbor area 190 feet. This dock is of a value of $100,000.

The respondent, the city of Seattle, is proposing to erect between the inner and the outer harbor line, and in the middle of the above-described extension of Vine street, a structure which is termed in the record a 'gridiron.' This will be, if constructed, a low wharf or cradle and roadway built on piling, submerged, except as to the roadway, three or four feet at ordinary high tide, so that scows, barges, and water craft of like character can be floated over it and allowed to settle upon it for the purpose of unloading and transferring their cargoes to vehicles which may be driven from the lateral roadway onto the vessels and off again and likewise for loading. This gridiron wharf will occupy a space about 51 feet wide, including the roadway, and will be 220 feet in length. The southerly 20 feet will constitute the roadway. There will be approximately 50 feet of open water on each side of the structure.

The city has let a contract to its corespondent for the erection of this structure. It will be for the use of the public and all persons desiring to load and unload thereat brick, sand, gravel, hay, oats, or any other thing or commodity for transportation by water craft of the character above mentioned. The city is intending to establish a wharfage charge to persons using this wharf to defray the reasonable cost of maintenance. That fact, however, would seem to be immaterial to any issue involved in this case.

The evidence shows that if the appellants extend their docks to the outer harbor line, as they may do under their leases, there will still be 360 feet of open water 150 feet wide alongside the dock of appellant railroad company, and 260 feet along the dock of appellant fish company.

The appellants brought this action to enjoin the construction of the proposed gridiron wharf, challenging the right of the city to erect the same in the place proposed, and claiming that it will injure them in the use of their wharves and will be a damaging of their property without just compensation. A temporary restraining order was granted by the trial court, and upon final hearing this order was discharged, appellants' bill dismissed, and judgment rendered against appellants for costs. From this final judgment, this appeal was prosecuted.

The appellants contend that the city has no right or authority to erect the proposed gridiron wharf, or any other structure in the extension of Vine steet between the inner and the outer harbor lines, because, as they claim, that part of said extension is not a street, but a part of the harbor area; that the city cannot extend its streets across the harbor area; and that the Constitution and legislative enactments show an intention to devote the harbor area to the purposes of navigation and commerce by means of 'water crafts,' and negative any power in the state to extend streets as such over the harbor area.

The initial power of the state to extend streets across the reserved area to the outer harbor line, if it exists at all, must be sought in the state Constitution. That document, in section 1, art. 15, provides as follows: 'The Legislature shall provide for the appointment of a commission whose duty it shall be to locate and establish harbor lines in the navigable waters of all harbors, estuaries, bays, and inlets of this state, wherever such navigable waters lie within or in front of the corporate limits of any city, or within one mile thereof upon either side. The state shall never give, sell, or lease to any private person, corporation, or association any rights whatever in the waters beyond such harbor lines, nor shall any of the area lying between any harbor line and the line of ordinary high tide, and within not less than fifty feet nor more than six hundred feet of such harbor line (as the commission shall determine) be sold or granted by the state, nor its rights to control the same relinquished, but such area shall be forever reserved for landings, wharves, streets, and other conveniences of navigation and commerce.'

This is the only provision of the Constitution authorizing the state, through its Legislature, to provide for the delimitation of any harbor area. By necessary implication it also gives authority to plat the area in order to carry out the purposes for which it is reserved, namely, 'for landings, wharves, streets, and other conveniences of navigation and commerce.' It is conceded that this section confers power on the state to lay out streets over tidelands, but it is urged that the streets must be confined to tidelands and cannot be laid out across the harbor area. A reading of the section with the context convinces us that this position is not tenable. This section is as plain a recognition of streets as conveniences of navigation and commerce as it is of landings and wharves. It evinces no stronger intention to confine streets to tidelands than it does to so confine landings and wharves. Moreover, section 3 of this same article 15 authorizes cities to extend their streets across the harbor area. It reads as follows: 'Municipal corporations shall have the right to extend their streets over intervening tidelands to and across the area reserved as herein provided.'

It can hardly be conceived that the framers of the Constitution intended to grant to the state less power in...