Eisenbach v. Hatfield

• Decision Date: 12 March 1891
• Citation: 26 P. 539,2 Wash. 236
• Parties: EISENBACH ET AL. v. HATFIELD.
• Court: Washington Supreme Court

26 P. 539

2 Wash. 236

EISENBACH ET AL. v. HATFIELD.

Supreme Court of Washington

March 12, 1891

Appeal from superior court, Pierce county.

STILES J., dissenting.

Calkins & Shackleford, for appellants.

Doolittle, Pritchard, Stevens & Crosscup for appellee.

ANDERS, C.J.

In this case this court is called upon for the first time to determine the rights of littoral proprietors of lands abutting upon the shore of an arm of the sea in which the tide ebbs and flows; and, while it is scarcely necessary to look beyond our own constitution and laws for authority to guide us to a conclusion, still, owing to the importance of the questions both to individuals and the public, and the magnitude of the interests involved, we have examined the numerous authorities cited by the learned counsel for the respective parties in the elaborate briefs which they have filed, in order that we might familiarize ourselves with the decisions of other courts upon the subject, and with the reasons upon which their decisions are based. We shall not attempt, however, to review all of the decisions in detail for that would be impracticable, if it were desirable, but will only refer to a few of the cases especially alluded to by counsel.

In this state the common law is our rule of decision in the settlement of questions requiring judicial determination when not specially provided for by statute. And it seems to be generally conceded that at common law the title to the soil under water was vested in the crown. The ownership of the soil was regarded as a jus privatum, and could be conveyed to individuals, subject only to the public right of navigation and fishing, which public right was under the absolute control of parliament. In this country we have the highest authority in support of the doctrine that the state has succeeded to all the rights of both king and parliament, and hence is the absolute owner of all navigable waters, and the soil under them, within its territorial limits.

This question was thoroughly discussed by the supreme court of the United States in the case of Martin v. Waddell, 16 Pet. 367. That was an action of ejectment for land under the waters of Raritan bay in New Jersey, over which the tide ebbed and flowed. The land in controversy was included in a large tract which was granted by the king of Great Britain to the Duke of York, and subsequently became vested in the proprietors of East Jersey, who afterwards surrendered to the crown all their governmental powers, but retained all their rights of private property. One of the parties to the action, as the grantee of the state of New Jersey, under a law of the state, claimed the exclusive right to take oysters in the place granted, and the other claimed the same right by virtue of his title from the proprietors. The right of the crown to make the grant to the Duke of York, which not only included the tide-land, and also the waters and soil under the waters, as well as the power of the state to convey the same, were questions thus brought directly before the court for determination; and it was held that the king, as the representative of the nation, had an unquestionable right to make the grant to the Duke of York, with all the prerogatives and powers of government therein contained. In discussing the question as to whether, since Magna Charta, the king had power to grant land covered by navigable waters to an individual, so as to give him an exclusive right of fishing within the limits of the grant, Mr. Chief Justice TANEY said: "And we the more willingly forbear to express an opinion on this subject because it has ceased to be of much interest in the United States; for, when the Revolution took place, the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government. A grant made by their authority must therefore manifestly be tried and determined by different principles from those which apply to the grants of the British crown." The natural and logical conclusion of the court was that the grant by the state conferred upon its grantee the exclusive right to take oysters within the territory covered by the grant.

The question of the ownership of lands under tide-water was again raised in the same court in the case of Pollard's Lessee v. Hagan, 3 How. 212, which was ejectment for a lot of land in the city of Mobile, in Alabama, which lay below high-water mark, and which had been granted to plaintiff by congress. After approving the decision in the case of Martin v. Waddell, Mr. Justice MCKINLEY, in the course of his opinion, says: "Then to Alabama belong the navigable waters, and the soil under them, in controversy in this case, subject to the rights surrendered by the constitution to the United States; and no compact that might be made between her and the United States could diminish or enlarge those rights." The court further says that, "by the preceding course of reasoning, we have arrived at these general conclusions: First, the shores of navigable waters, and the soils under them, were not granted by the constitution of the United States, but were reserved to the states, respectively; second, the new states have the same rights, sovereignty, and jurisdiction over this subject as the original states; third, the right of the United States to public lands, and the power of congress to make all needful rules and regulations for the sale and disposition thereof, conferred no power to grant to the plaintiffs the lands in controversy in this case."

Again, in the case of Weber v. Commissioners, 18 Wall. 57, it was held that to the state of California, upon her admission into the Union, passed the absolute property in, and dominion over, all soils under tide-water within her limits, with the consequent right to dispose of the title to any part thereof in such manner as the state might deem proper, subject to the paramount right of navigation over the waters, so far as such navigation might be required by the necessities of commerce with foreign nations and among the several states, the regulation of which was vested in the general government. Opinion of Mr. Justice FIELD, at page 65.

The court went still further in the case of McCready v. Virginia, 94 U.S. 391, and there held that not only the soil under tide-waters in the state, but the waters themselves, and the fish in the waters, so far as they are capable of ownership, belonged to the state, and that the legislature had the constitutional right to pass a law prohibiting any person, not a citizen of the state, from fishing in such waters. And in Willson v. Marsh Co., 2 Pet. 245, the court sustained an act of the legislature of Delaware authorizing the damming up of a navigable stream for the benefit of adjoining lands.

The case of Hoboken v. Railroad Co., 124 U.S. 656, 8 S.Ct. 643, was an action of ejectment for land occupied by the railroad company along the margin of the Hudson river. Plaintiff claimed by dedication of the street to the water by the original proprietor of the land, as evidenced by the "Loss" map. Defendant claimed by virtue of a grant from the state. Mr. Justice MATTHEWS, speaking for the court, said: "The nature of the title in the state to lands under tide-water was thoroughly considered by the court of errors and appeals of New Jersey in the case of Stevens v. Railroad Co., 34 N. J. Law, 532. It was there declared (page 549) 'that all navigable waters within the territorial limits of the state, and the soil under such waters, belonged in actual propriety to the public; that the riparian owner, by common law, has no peculiar right in this public domain as incident of his estate; and that the privileges he possesses by the local custom, or by force of the wharf act, to acquire such rights, can, before possession has been taken, be regulated or revoked at the will of the legislature. The result is that there is no legal obstacle to a grant by the legislature to the defendant of that part of the property of the public which lies in front of the lands of the plaintiff, and which is below high-water mark.' It was therefore held in that case that it was competent for the legislative power of the state to grant to a stranger lands constituting the shore of a navigable river under tide-water, below the high-water mark, to be occupied and used with structures and improvements in such a manner as to cut off the access of a riparian owner from his land to the water, and without making compensation to him for such loss." And again: "Our conclusion, therefore, is that the grants from the state of New Jersey, under which the defendant claims, respectively, are a complete bar to the recovery sought against them in these suits." And finally: "Under those grants they have and hold the rightful and exclusive possession of the premises in controversy against the adverse claims of the plaintiff to any easement or right of way upon, and over them, by virtue of the original dedication of the streets, to high-water mark on the Loss map."

The foregoing decisions of the highest judicial tribunal of the United States, without other or further authority, would seem to settle, beyond controversy, the question of title to the tide-lands of this state, and to leave no doubt whatever that they belong to the state in actual propriety and that the state has full power to dispose of the same, subject to no restrictions, save those imposed upon the legislature by the constitution of the state and the constitution of the United States; and, if this be true, it necessarily follows that no individual can have any legal right...