Gifford v. Horton

• Decision Date: 15 September 1909
• Citation: 103 P. 988,54 Wash. 595
• Parties: GIFFORD et al. v. HORTON.
• Court: Washington Supreme Court

103 P. 988

54 Wash. 595

GIFFORD et al. v. HORTON.

Supreme Court of Washington, En Banc.

September 15, 1909

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Application by Jonathan Gifford, James D. Horton, and others to purchase shore lands. From a judgment affirming the award of the Board of State Land Commissioners, James D. Horton appeals. Affirmed.

Louis Henry Legg, for appellant.

Frank C. Park and H. D. Moore, for respondent De l'Archerie.

Reeves Aylmore, Jr., and J. L. Corrigan, for respondent Simonsen.

Frank S. Bayley and H. A. P. Myers, amici curiae.

GOSE J.

The state, through its proper officers, platted the shore lands upon Lake Union, filed the plat in the office of the commissioner of public lands July 1, 1907, and offered the lands for sale according to law. The appellant, Horton, the respondent Gifford, the respondent Francies R. Day in her own right, and the respondents Smith and Westby, as executors of the will and as devisees of the estate of B. F. Day deceased, the first two acting severally and the last three acting jointly, claimed the preference right to purchase lots 23, 24, and 25, of block 96, Lake Union shore lands as platted. The respondent T. De l'Archerie claimed the preference right to purchase lot 23, and the respondent Simonsen claimed the preference right to purchase lots 24 and 25. The several parties filed their applications to purchase according to their respective claims. The several applications were made to the board of state land commissioners in which the power to sell and convey shore lands is vested by law, and on the 10th day of December 1907, the board awarded the right to purchase lot 23 to respondent De l'Archerie, and awarded the right to purchase lots 24 and 25 to the respondent Simonsen. The appellant, Horton, and the respondent Gifford appealed from the award to the superior court of King county, and upon stipulation and an order of the court such appeals were consolidated. The case was tried to the court upon a stipulation of facts and certain plats, and the award of the board was affirmed. This appeal was taken by the appellant Horton, from the judgment affirming the award. Gifford did not appeal.

The facts stipulated, in substance, are: That on June 22, 1889, one B. F. Day and Francies R. Day, his wife, owned certain community property which they on that day platted into lots, blocks, streets, and alleys, as B. F. Day's Eldorado addition to the city of Seattle, dedicated the streets and alleys to the public use, and filed the plat for record; that the plat was duly accepted by the city; that the dedicators at that time owned the platted land to the line of ordinary high water of Lake Union; that on the easterly side of block 15 Day and wife dedicated a street 80 feet in width, named 'Lake Union avenue'; that the line of ordinary high water on the lake is east of the center line of the street; that lots 23, 24, and 25 in block 96 of Lake Union shore lands, as platted by the state board of land commissioners, are identical with lots 4, 5, and 6, in block 16, as shown upon the Day plat, and are directly in front of lots 16, 17, and 20 of block 15, as shown in the plat of dedication; that on August 24, 1895, Day and wife, being then the owners, conveyed to one Smith lots 1 to 26 in block 15, together with the tenements, hereditaments, and appurtenances thereunto belonging and appertaining, with covenants of seisin free from incumbrances, by a deed of general warranty and by a reference to the plat, which deed was recorded August 31st following; that respondent De l'Archerie, since September 11, 1906, has been the owner in fee of lot 16 in block 15, through mesne conveyances from Smith; that the respondent Simonsen, since July 1, 1907, has been the owner in fee of lots 17 and 20 of block 15, through mesne conveyances from Smith; that the title deeds of both of the respondents contain like recitals, grants, and covenants as the deed from Day and wife to Smith. It was further stipulated: That on the 19th day of October, 1895, a community debt judgment was entered against the Days, and that B. F. Day's one-half interest in lots 1 to 8, inclusive, in block 16, was sold on the 23d day of May, 1901, on an execution issued upon such judgment; that on the 13th day of May, 1899, Francies R. Day was adjudged a voluntary bankrupt, and on the 28th day of February, 1900, lots 1 to 8, inclusive, block 16, were sold by the trustee in bankruptcy; that by mesne conveyances the respondent Gifford owns whatever title passed to the purchaser at the execution and bankruptcy sales; that from and after the filing of the Day plat, lots 4, 5, and 6, block 16, were assessed annually for county, state, and municipal purposes; that the taxes were paid by the Days until the year 1892; that the tax upon the lots last described for the year 1892 went delinquent, and a certificate of delinquency was issued to King county, which was foreclosed, and a decree entered thereon on the 29th day of September, 1902, directing a sale of the lots; that they were sold thereon on the 15th day of November, 1902; that the appellant, Horton, through mesne conveyances, is the owner of whatever title passed at such sale, and was such owner before filing his application to purchase; that taxes have been assessed annually against these lots from 1890 to 1907, inclusive and paid by the appellant and his grantors. It was further stipulated: That B. F. Day died testate and childless on the 24th day of March, 1904, leaving, him surviving, his widow, Francies R. Day; that by his last will he devised his estate in equal shares to Everett Smith and Marthine West-by; that the will was admitted to probate on the 4th day of October, 1904; that on October 8, 1907, the widow and Everett Smith, devisee, quitclaimed to appellant lots 23, 24, and 25, block 96, and lots 4, 5, and 6, block 16, together with the riparian, littoral, and water-front rights appertaining to the upland upon which they abut, with the preference right to purchase them from the state. In the stipulation the regularity of the execution and bankruptcy sales is admitted by the respondents; but they do not admit that they passed any title. The appellant denies that any title passed under either of said sales, and the respondents deny that any title passed to the appellant under either the tax deed or the Day and Everett Smith deed.

We have seen that Day and wife owned all the platted land to the line of ordinary high water of Lake Union, and that the shore line is east of the center of the avenue as it was dedicated. While the dedicators platted all the land they owned, they did not own all the land they platted. In front of lots 16, 17, and 26, block 15, and east of the avenue, they platted shore lands and designated them as lots 4, 5, and 6, block 16, which we have seen are identical with lots 23, 24, and 25, block 96, Lake Union shore lands.

The appellant assigns numerous errors; but they all revolve about his one claim that he is the owner of the upland, and therefore entitled to the preference right to purchase the shore lands upon which they front. The title to the shore lands on Lake Union at the time the plat of dedication was filed, it being navigable, was in the United States, and since the adoption of the Constitution in November, 1889, the title has been in the state. It follows therefore that the platting and the assertion of title by Day thereto was of no legal force, and that the tax sale under which the appellant claims did not invest him with any title, nor did the execution or bankruptcy sale convey any title to the respondent Gifford. Seattle & Montana Ry. Co. v Carraher, 21 Wash. 491, 58 P. 570; Eisenbach v....