Ex parte Davidson

• Decision Date: 23 August 1893
• Citation: 57 F. 883
• Parties: Ex parte DAVIDSON.
• Court: United States Circuit Court, District of Washington, Northern Division

57 F. 883

Ex parte DAVIDSON.

United States Circuit Court, D. Washington, Northern Division.

August 23, 1893

E. M Carr, for receiver.

P. P Carroll, for respondent.

HANFORD District Judge, (orally.)

The parties to this proceeding and the subject-matter are within the jurisdiction of the court, and the respondent having voluntarily set forth in his answer his claim to the premises, and thereby submitted the same for adjudication in this summary proceeding, I hold that the objections to such form of proceeding have been waived.

In reaching a determination of the question at issue as to the right of possession, it is proper to take into account the character and description of the land itself, as well as the grounds upon which the parties respectively base their claims to right of possession. This land appears by the undisputed testimony in the case to be a low ledge or sand spit extending out from the mainland into the harbor of Seattle. In making the government surveys the surveyor took no account of it. It is either land that has been made by accretion since the survey was made, or else the surveyor intentionally or negligently made no note of it as land, and ran the lines so as to leave it outside of the government survey. It is 'land,' as distinguished from 'tide flats,' over which the tide ebbs and flows. It lies above the line of ordinary high tide, and is not land to which the state of Washington has any right or claims any right. The declaration in the constitution of this state (article 17) that the people of this state assert proprietorship in the shores and beds of rivers and navigable waters up to the line of ordinary high water is sufficient to exclude this from any claim of the state, because, by the undisputed testimony in the case, it is above ordinary high tide. No claim therefore can be predicated upon the rights of the state of Washington.

It is land to which the United States government had the title, and the government is the primary source of title. Whatever rights can be claimed by any one must rest upon the laws of the United States or a patent or grant from the government of the United States. Now, the receiver representing this railroad corporation is the plaintiff in the case, and should, if he prevails at all, prevail by virtue of having shown by the evidence a prima facie right to have possession; and after a prima facie showing is made, if there appears to be opposed to it a colorable claim, then his right should appear by the evidence to be superior or paramount to that of the defendant. The government being the source of title, the question is whether this railroad company has acquired any right to claim this land under the laws of the United States or any patent or grant from the government. It appears by the maps that, in making the surveys, sections were cut into fractions, and were made fractional by the shore of this bay, and all the grants or conveyances that the United States has made of those fractions are grants of land bounded upon tide water. The meander line is not controlling as fixing the boundary; it is simply a series of tangents run at different angles for the purpose of ascertaining approximately the quantity of land in each legal subdivision to be paid for. But the navigable water of the bay is the boundary. It is true that the decisions establish the rule that conveyances of land upon tide water convey no riparian rights; that is, no legal title to anything beyond the boundary. But a patent does convey title to all the lands within the established boundaries shown by official maps of the government surveys. Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 838; Forsyth v. Smale, 7 Biss. 201; Mann v. Land Co., 44 F. 27. Now, the surveys have fixed the boundaries of those fractions fronting upon the tide water of this bay, and I think that, according to the rules established by the decisions, whatever ledges or spits or tongues or points of land project out beyond the meander line are included as part of the fractions conveyed by the patents. If that is the correct view of this matter, by the claim of title including conveyances from the patentee of the United States the railroad company has acquired the title to this sand spit and owns it.

In addition to the conveyances, there is undisputed evidence that the railroad company had prior possession, and, as against this defendant, Davidson, has now the right of possession. It appears from the testimony that Mr. Rice was engaged in burning a coalpit at the time the projectors of the railroad went there to make surveys, and he was living in a cabin close to the bank, and claiming nothing except the privilege of burning a coalpit there. He was afterwards employed by the railroad company for the express purpose of...