Ghione v. State, 29976.
| Decision Date | 12 December 1946 |
| Docket Number | 29976. |
| Citation | 26 Wn.2d 635,175 P.2d 955 |
| Parties | GHIONE v. STATE et al. (COMMERCIAL WATERWAY DIST. NO. 2 OF KING COUNTY, Intervener). |
| Court | Washington Supreme Court |
Department 2
Action by Noel M. Ghione against the State and Defense Plant Corporation and others as additional defendants, to determine boundaries of certain land, to quiet title to area involved as determined by the true boundaries thereof, and to recover compensation for portion of land appropriated by defendant and damages resulting from certain excavations made by defendant upon other portions of the land, wherein the Commercial Waterway District No. 2 of King County intervened. From judgment entered, both plaintiff and intervener appeal.
Reversed and remanded.
Appeal from Superior Court, King County; Howard M Findley, judge.
Monheimer Schermer & Mifflin, of Seattle, for appellant.
Wm. V. Cowan, of Renton, for intervener-appellant.
Smith Troy, Atty. Gen., and R. A. Moen, of Seattle (formerly Asst. Atty. Gen. in Olympia), for respondent.
Skeel, McKelvy, Henke, Evenson & Uhlmann, of Seattle, amicus curiae.
This was an action to determine the boundaries of certain land, to quiet title to the area involved, as determined by the true boundaries thereof, and to recover compensation for the portion of the land appropriated by the defendant and damages resulting from certain excavations made by the defendant upon other portions of the land.
Plaintiff alleged in his complaint that he was the contract purchaser of certain land located in the H. H. Tobin Donation Land Claim, in King county, Washington; that the western boundary of the land was uncertain; and that the state of Washington was asserting title to a portion of his land and, through its department of highways, had entered thereon, without plaintiff's consent, for the construction of a road and had also excavated and removed from the land large quantities of earth and gravel. He prayed that the court determine and fix the disputed boundaries, quiet title to his property as against the state, award him damages equal to (1) the value of the fill removed, (2) the amount by which the reasonable value of his property had been reduced by reason of such excavation, and (3) the value of the land taken by the state for its highway, if it should be found that the road encroached upon his tract, and allow him his costs and disbursements.
The state, through its attorney general, answered, alleging that it was the owner of the land from which the gravel had been taken, by reason of the fact that such land was a part of the bed of a navigable stream, Black river, at the time the state of Washington was admitted into the Union, and such river bed had become a part of the public lands by virtue of the state constitution as then adopted. It further alleged that the banks of Black river had become obscured by reason of its drying up in the year 1915, and the subsequent development in that vicinity. In further assertion of its exclusive ownership of the land as against certain owners of property bordering upon the banks of the former bed of Black river, in the particular vicinity, the state brought into the action, as additional parties defendant, Defense Plant Corporation, King County, Tom Harries and wife, and Eber Badcon and wife. In its prayer the state asked that the court fix the lines of ordinary high water of Black river between certain points, as those lines stood in 1889 when the state of Washington was admitted into the Union, and that the state be adjudged the owner in fee simple of all lands lying between those lines.
Commercial Waterway District No. 2 of King county duly intervened in the action, asserting in its complaint in intervention that it had become vested, by statute, with the state's title to the bed of Black river and also a portion of the bed of its tributary, Cedar river, and praying the court to quiet title in favor of the waterway district as against both the plaintiff and all the parties defendant.
King county appeared and was represented at the trial, but took no active part therein; Defense Plant Corporation and the Harrieses filed pleadings, but did not otherwise appear and were not represented at the trial; Eber Badcon and his wife were defaulted for failure to appear or answer.
At the conclusion of the trial Before the court, without a jury, the court rendered a memorandum opinion, and thereafter made findings of fact, drew conclusions of law, and entered judgment to the following effect: That the state was entitled to the bed of Black river as it existed when Washington was admitted to statehood, also to the bed of Black river as it was situate when it abandoned as a watercourse in 1915, and to the land, if any, intervening between the two locations as of those respective dates; that the plaintiff, Noel M. Ghione, was entitled to quiet enjoyment of his tract outside the state's boundaries, and to the sum of $83.44, which was stipulated to be the value of a small amount of fill taken from beyond the state's land; and that the intervener, Commercial Waterway District No. 2 of King County, had no interest whatever in the bed of Black river. Costs were not allowed to any party.
Both the plaintiff and the intervener have appealed from the judgment of the trial court. Plaintiff will hereinafter be referred to as appellant, and the commercial waterway district as intervener.
Before entering upon a discussion of the questions presented by the appeal, we deem it necessary to give a brief description of the land here involved and its pertinent history.
In its primitive state, Lake Washington, a large fresh water lake forming the eastern border of what is now the city of Seattle, had its outlet in Black river, at the Southern extremity of the lake. This river, normally a wide, shallow, sluggish stream, ran southwardly and then westwardly into the Duwamish river which in turn flowed into Puget Sound at the southern end of Elliott Bay, Seattle's harbor. From the region east of Lake Washington, through the foothills of the Cascade mountains, came Cedar river, a swift stream carrying large quantities of gravel along its course and emptying into Black river a short distance south of the lake. Both of these rivers flooded at times, overflowing their low banks, and, within the memory of witnesses, Cedar river has taken a temporary course through the city of Renton itself. When other connected rivers ran high, Black river even reversed its course, flowing into, rather than out of, Lake Washington. We may also add that, for the purposes of this case, it is conceded that the two rivers originally were navigable streams.
In the year 1865 a public survey was made of Township 23 North, Range 5 East, Willamette Meridian, which includes the land here in controversy, and a map was prepared therefrom by the Surveyor General for Washington Territory. Copies of the map and the survey notes were introduced in evidence in this case. The contours of Black and Cedar rivers as shown by this survey are hereinafter designated and referred to as the 'meander lines.'
Apparently, only one other reliable survey of these watercourses was made prior to the time when the two rivers were altered by projects for internal improvements. This was a War Department survey, undertaken by the United Stated District Engineer, entitled Duwamish-Puyallup Surveys 1907. Sheet 7 of that survey, introduced in evidence by the state, shows the land here under consideration and likewise shows the meander lines drawn in the 1865 survey. The diagram which follows is a copy of the material portion of this map, upon which, for clearer understanding, we have noted certain descriptive words and designations.
(Image Omitted)
The hatched lines represent the 1865 meander lines of the two rivers. The dotted areas represent shallow bars or dry sloughs. The crosses indicate approximately the northeastern and southeastern corners of the tract being purchased by the appellant, Noel M. Ghione.
In 1873 the Federal government issued letters patent to the widow and heirs of Henry H. Tobin, conveying to them a portion of Township 23, described by metes and bounds, and known as the H. H. Tobin Donation Land Claim. The northern and western boundaries, so far as are material here, were coincident with the 1865 survey description of part of the meander line of Cedar river to the point of its confluence with Black river, and of the meander line of Black river south from that point for some distance.
At some time not clearly disclosed by the evidence, but close to 1913, Commercial Waterway District No. 2 of King County, intervener and one of the appellants herein, diverted Cedar river from its course, above stream and east of the land here in controversy, so that Cedar river then flowed, and has since continued to flow, directly into Lake Washington. Consequently, a part of the former channel of Cedar river was abandoned, and thereafter that river contributed only indirectly to the waters of Black river, which, according to the testimony of old-time residents of Renton, was then reduced to a much smaller stream.
In the year 1915, the waters of Lake Washington were lowered by the completion of a canal connecting the lake with Puget Sound. The history of this improvement may be found in the case of Bilger v. State, 63 Wash. 457, 116 P. 19. As a consequence of the lowering of the lake, Black river ceased to flow at all. Thus only the dry bed of Black river and the dry bed of the abandoned portion of Cedar river remained to mark the boundaries of the H. H. Tobin Donation Land Claim on the north and west; and even these beds have been largely obliterated by the passage of time and the improvements made in that...
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State By and Through McKay v. Sause
...riparian rights, Bilger v. State, 63 Wash. 457, 116 P. 19; State v. Sturtevant, 76 Wash. 158, 135 P. 1035, 138 P. 650, in Ghione v. State, 26 Wash.2d 635, 175 P.2d 955, the court pointed out that the state's title to land was not determined finally upon the condition of things at the time o......
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Table of Cases
...v. Ill. Sur. Co., 99 Wash. 9, 168 P. 772 (1917): 4.5 Geyen v. Time Oil Co., 46 Wn.2d 457, 282 P.2d 287 (1955): 17.11(1) Ghione v. State, 26 Wn.2d 635, 175 P.2d 955 (1946): 5.4(4), 13.4(1) Gildesgard v. Pac. Warehouse Co., 55 Wn.2d 870, 350 P.2d 1016 (1960): 17.5(4)(e) Gillespie v. Seattle-F......
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§ 12.2 - Lands Managed by the Department of Natural Resources
...high water moved with erosion or accretion or remained in place like the meander line. The next development came in Ghione v. State, 26 Wn.2d 635, 639-41, 175 P.2d 955 (1946), when the Washington Supreme Court considered ownership of the bed of the Black River, a once-navigable river that d......
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Table of Cases
...(1986): 2.2(2) Gerla v. City of Tacoma, 12 Wn. App. 883, 533 P.2d 416 (1975), review denied, 85 Wn.2d 1011 (1975): 7.3(1) Ghione v. State, 26 Wn.2d 635, 175 P.2d 955 (1946): 12.2(5)(c)(i), 12.2(5)(c)(iii) Gifford v. Horton, 54 Wash. 595, 103 P. 988 (1909): 3.12(3) Gillis v. King Cnty., 42 W......
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Table of Cases
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