Morse v. O'Connell

• Decision Date: 04 August 1893
• Citation: 34 P. 426,7 Wash. 117
• Court: Washington Supreme Court
• Parties: MORSE v. O'CONNELL.

34 P. 426

7 Wash. 117

MORSE v. O'CONNELL.

Supreme Court of Washington

August 4, 1893

Appeal from superior court, Clallam county; James G. McClinton Judge.

Suit by Davis W. Morse against E. O'Connell for an injunction. The injunction was granted, and defendant appeals. Reversed.

Benton Embree, for appellant.

Geo. C Hatch and Allen Weir, for respondent.

ANDERS J.

The respondent, prior to the 26th day of March, 1890, made valuable improvements, which were at that date, and now are in actual use for trade and business, upon the tide lands lying in front of the city of Port Angeles, in the harbor of Port Angeles, and claims a right to purchase the land so improved, under the act of the legislature of said date commonly known as the "Tide-Land Act." No harbor line has ever been established in said harbor. The north side of Front street, in said city, is on the line of ordinary high tide. Respondent's improvements cover an area fronting 50 feet upon the north side of said Front street, and extend north, along the east side of Laurel street towards deep water, a distance of 140 feet, or more. There is a wharf upon said Laurel street, lying alongside of and extending beyond the respondent's improvements, to deep water, which was erected and is owned by the respondent, but is under the control of his lessee. On September 6, 1891, the appellant commenced driving piles upon the tide land immediately north of respondent's improvements, preparatory to erecting a building thereon. The respondent, claiming that the erection of the improvements contemplated by the appellant would deprive him of his right of access from his own improvements to navigable water, and would interfere with his right to purchase the lands about to be improved by appellant, instituted this action to restrain the appellant from further prosecuting said work, and to compel him to remove the piling already placed upon the premises in question. The court below granted the relief prayed for, and the defendant appealed.

It is conceded that the land upon which the improvements of the respondent are located is tide land, the ownership of which is in the state, and that the respondent has no right therein or thereto other than a preference right (for 60 days) to purchase the same as an "improver," under the act of the legislature of March 26, 1890. Not being the owner of the upland bordering upon the shore of the bay, the respondent is not in any sense a riparian or littoral proprietor, ( Webber v. Commissioners, 18 Wall. 57;) and therefore the question as to the rights of such proprietors is not applicable to the case at bar, and will be dismissed without further comment.

The state, by virtue of her sovereignty, is the owner of the tide lands within her territorial limits, and her power to control and dispose of them is supreme, subject only to the paramount authority of congress to regulate navigation and commerce; Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 838; Manchester v. Massachusetts, 139 U.S. 240, 11 S.Ct 559; Bowlby v. Shively, (Or.) 30 P. 154; Eisenbach v. Hatfield, 2 Wash. St. 236, 26 P. 539; Board of Harbor Line Com'rs v. State, 2 Wash. St. 530, 27 P. 550; Stevens v. Railroad Co., 34 N. J. Law, 533. And it therefore follows that the respondent would himself be a mere trespasser upon the tide land occupied by him were it not for the provisions of the tide-land act. By that act it is provided (Laws 1889-90, p. 435) "that if valuable improvements in actual use for commerce, trade or business have been made upon said tide lands by any person, association or corporation, the owner or owners of such improvements shall have the exclusive right to purchase the land so improved for the period aforesaid, [60 days:] provided that nothing in this act shall be so construed to apply to any improvements made after the passage of this act." It is...