McCloskey v. Pacific Coast Co.

• Citation: 160 F. 794
• Decision Date: 17 February 1908
• Docket Number: 1,414.
• Parties: McCLOSKEY v. PACIFIC COAST CO.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

160 F. 794

McCLOSKEY v. PACIFIC COAST CO.

No. 1,414.

United States Court of Appeals, Ninth Circuit.

February 17, 1908

J. A Hellenthal and Lorenzo S. B. Sawyer, for appellant.

Lewis P. Shackleford and Geo. W. Towle, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The appeal in this case is taken from an order of the court below granting a temporary injunction upon a bill in equity, the answer thereto, and the testimony and proofs of the respective parties.

The bill was brought to enjoin the appellant from erecting a structure on tide lands in front of property of the appellee fronting on Gastineaux Channel, an arm of the North Pacific Ocean in Alaska, the appellee alleging that, as a littoral owner of lands abutting the shore of the sea, it was entitled to free access to and from the navigable waters fronting thereon. The appellant in his answer denied that the appellee is a littoral owner on the seashore, and alleged facts to show that by the dedication and grant of a sidewalk and street in front of its land the appellee had parted with all littoral rights. The court below held that the appellee possessed the littoral right of access to the water in front of its land, and on that ground awarded the injunction.

The common law has, by act of Congress, been declared to be in force in the territory of Alaska. By the common law of England, the King was the owner of the bed of the ocean and of everything below the line of ordinary high tide, and the littoral owner held only to the line of ordinary high tide but he had the right of access to the navigable waters of the ocean in front of his land and of every part thereof. In Gould on Waters, Sec. 149, it is said:

'But a littoral proprietor, like a riparian proprietor, has a right to the water frontage belonging by nature to his land, although the only practical advantage of it may consist in the access thereby afforded him to the water for the purpose of using the right of navigation. It is distinct from the public right of navigation, and an interruption of it is an encroachment upon private right, whether caused by a public nuisance or authorized by the Legislature.'

In Shively v. Bowlby, 152 U.S. 9, 14 Sup.Ct. 548, 38 L.Ed. 331, upon an exhaustive consideration of the authorities, it was held that the common law of England is the common law of this country, except where it has been modified by the Constitution, statutes, or usages of the different states, or by the Constitution or laws of the United States. The court said:

'It is equally well settled that a grant from the sovereign of land bounded by the sea or by any navigable tide water does not pass any title below highwater mark, unless either the language of the grant or long usage under it clearly indicates that such was the intention.'

After reviewing the English decisions, the Supreme Court continued:

'It has been established in England that the owner of land fronting on a navigable river in which the tide ebbs and flows has a right of access from his land to the river; and may recover compensation for the cutting off of that access by the construction of public works authorized by an act of Parliament. ' 'The right thus recognized, however, is not a title in the soil below high-water mark, nor a right to build thereon, but a right of access only, analogous to that of an abutter upon a highway.'

So in Weber v. Harbor Commissioners, 18 Wall. 57-65 (21 L.Ed. 798), it was said:

'By that law, the title to the shore of the sea, and of the arms of the sea, and in the soils under tide waters is in England in the King, and in this country in the state. Any erection thereon, without license, is therefore deemed an encroachment upon the property of the sovereign, or, as it is termed in the language of the law, a purpresture, which he may remove at pleasure, whether it tend to obstruct navigation or otherwise.' There can be no doubt, therefore, that the appellee, while it had not the right to wharf out on the tide lands in front of its property, was, if its land abutted the shore, entitled to free access to the navigable waters at all points in front thereof, and was entitled to an injunction against the erection of any structure on the tide lands, or in the water in front thereof, which would interfere with such access. Gould on Waters, Sec. 547; Lyon v. Fishmongers' Co., 1 App. Cas. 662; Shirley v. Bishop, 67 Cal. 543, 8 P. 82; San Francisco Savings Union v. P.G.R. petroleum, etc., Co., 144 Cal. 134, 77 P. 823, 66 L.R.A. 242, 103 Am.St.Rep. 72.

But we do not find that the appellee is in fact a littoral owner and possessed of an individual right, as distinguished from the public right, of access to the navigable waters in front of its land. On March 6, 1881, M. W. Murray located a tract of land 600 feet square, in which is included blocks O, P, and Q, as now marked and designated on the plat of Juneau. The location was partly upon upland and partly upon tide lands, with its waterward boundary at low-water mark on Gastineaux Channel. There was then no civil government in Alaska, and Murray's location was protected and recognized solely by the common consent of the miners of the mining district in which it was made. In the year 1881, Murray built a wharf on the tide lands in front of his location, southerly from the point occupied by the appellant, and from that time until 1896 the wharf was continuously used as the only public dock. During that period, all vessels which carried merchandise and passengers to and from the town of Juneau landed at that dock. During all that period, and up to the present time, the tide land from the dock northward into the town of Juneau and in front of the appellee's land has been continuously used as an open public thoroughfare, and at the same time a strip of five feet in width along the bank above high-water mark in front of blocks O, P, and Q has been in continuous public use as a sidewalk. On September 13, 1893, entry was made of the townsite of Juneau under the provisions of section 2387 of the Revised Statutes (U.S. Comp. St. 1901, p. 1457), and the trustee of the townsite caused a survey of the same to be made in order to fix the exterior boundaries and subdivide the town into lots, blocks, and streets and alleys according to the rules and regulations of the Interior Department. The map so made was forwarded to the Interior Department, and was duly approved and adopted as the official plat of the townsite, and later a patent was issued to the trustee. In the map the strip of land five feet wide was marked and designated as a sidewalk along the entire water front of the town of Juneau. On March 21, 1898, Thomas R. Lyons, who had become the successor of the original townsite trustee, as such trustee, executed a deed to the appellee's grantors, in which, after describing and designating as the conveyed property lots in blocks O, P, and Q, the grantor proceeded to convey by metes and bounds the whole tract 600 feet square, originally located by Murray. By virtue of that deed, the appellee claims title, not only to the land covered by the sidewalk above the high-tide line, but to the tide land in front of blocks O, P, and Q as far as low-water mark. But it is obvious that the grantees could take thereby nothing below the high-tide line, for the government had not parted with its title to the tide lands.

Notwithstanding this deed, there was no interruption or interference on the part of the appellee or any one with the public use of the sidewalk above high-tide line on the water front of Juneau, and the public use of a plank roadway 20 feet in width immediately below the high-tide line. But on April 3, 1905, the appellee, in consideration of the sum of $374, quitclaimed to the city of Juneau, then a municipal corporation, 'a right of way for the maintenance of a public street as now located and occupied on, over, and across the following described strip of land,' the description being of a strip 20 feet wide below high-tide line along the entire front of blocks O, P, and Q, and the deed provided for reversion to the grantor of the easement so granted whenever the city should cease to maintain the street.

The appellee denies the power of the trustee, by the map which he filed with the town-site entry, to dedicate to public use the five-foot strip along the front of its blocks, and it is to be conceded that the trustee had no such power. An entry of a town site, under the provisions of section 2387, is made for the several use and benefit of the occupants thereof. On the trustee is imposed a double trust, one for the individual occupants of the town, the other for the occupants collectively as a community. City of Denver v. Kent, 1 Colo. 336; Martin v. Hoff, 7 Ariz. 247, 64 P. 443 448. The legal title is vested in the trustee in his official and public capacity, and, simultaneously with the entry, there is vested in the beneficiaries an absolute right in the trust. Winfield Town Co. v. Maris, 11 Kan. 128, 151; Pascoe v. Green, 18 Colo. 326, 32 P. 824. The streets contemplated by the act, and as to which a public right attaches, are those which in fact existed at the time of the entry, either by actual use or by dedication, and the trustee cannot, by any act of his own, dedicate a street. Bingham v. City of Walla Walla, 3 Wash.T. 68, 13 P. 408; Alemany v. City of Petaluma, 38 Cal. 553; Pueblo v. Budd, 19 Colo. 579, 36 P. 599; Village of Buffalo v. Harling, 50 Minn. 551, 52 N.W. 931. But, at the time when the entry of the town site of Juneau was made, the sidewalk above high-tide line, and the roadway below the same had been in continuous public use for more than 12 years, and over them had passed all traffic and travel to and from...