Northern P. Ry. Co. v. S.E. Slade Lumber Co.

• Decision Date: 12 December 1910
• Parties: NORTHERN PAC. RY. CO. v. S. E. SLADE LUMBER CO.
• Court: Washington Supreme Court

112 P. 240

61 Wash. 195

NORTHERN PAC. RY. CO. v. S. E. SLADE LUMBER CO.

Supreme Court of Washington, En Banc.

December 12, 1910

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Action by the Northern Pacific Railway Company to enjoin the S.E Slade Lumber Company from interfering with the opening and closing of a drawbridge. Judgment for defendant, and plaintiff appeals. Affirmed.

George T. Reid, J. W. Quick, and John C. Hogan, for appellant.

Bridges & Bruener, for respondent.

CROW J.

This action was commenced by the Northern Pacific Railway Company against the S.E. Slade Lumber Company to enjoin the defendant from interfering with the opening and closing of a drawbridge. From an order of dismissal, the plaintiff has appealed.

The material facts are undisputed. The Wishkah river, tributary to Grays Harbor and subject to tidal flow, is navigable for seagoing vessels to and above the city of Aberdeen. The appellant corporation, a common carrier, engaged in interstate commerce, owns and operates a line of railroad extending from Grays Harbor to Centralia and Tacoma, where it makes connections extending through Washington and other states. Shortly after October, 1897, under a permit from the Secretary of War, appellant constructed a drawbridge across the river in the city of Aberdeen, and maintained and used the same until January, 1908. On April 20, 1907, the Secretary of War issued to appellant a permit for the erection of a permanent steel bridge, and permission to place a temporary wooden bridge on the stream for use during its construction, which was commenced in January, 1908. The swinging arms of the temporary bridge and the new steel bridge are each 31 feet and 10 inches longer than the arm of the old bridge. Respondent lumber company owns certain upland and tract 13 of Aberdeen tide land immediately in front thereof, on the bank of the river. Its tide land extends from its upland to the deep waterway, and both tracts lie immediately north of appellant's railroad. Respondent and its predecessors were owners of the upland for many years prior to July 10, 1907, when it procured from the state title to the tide land by exercising its preference right to purchase immediately after a plat of the Aberdeen tide lands had been filed in the office of the State Land Commissioner. On the east side of the river, immediately north of and contiguous to appellant's railroad respondent built a wharf partly upon its upland and partly upon its tide land. The outer or west line of this wharf is identical with the inner or east line of deep water, there being no established harbor area. For many years respondent has owned and operated a sawmill on its upland, and has used its wharf for loading and unloading seagoing vessels. By reason of the length of the arms of the temporary wooden bridge and the steel bridge, appellant could not open or close the same while a vessel was lying in the stream alongside of respondent's wharf, immediately north of and contiguous to the railroad, although the shorter arm of the old bridge could always be opened and closed at such times. Prior to the commencement of this action the respondent frequently placed and permitted vessels to remain, for loading and unloading at its wharf, immediately north of appellant's right of way, thereby preventing appellant's opening and closing its bridge and moving its trains. Appellant thereupon commenced this action to restrain the respondent from thus interfering with its bridge and trains. A temporary restraining order was granted, and the steel bridge was completed. On final trial a permanent injunction was denied, the action was dismissed, but the trial court permitted the appellant to file a supersedeas bond and continue the temporary restraining order during the pendency of this appeal.

The sole question before us is whether the appellant having constructed its bridge under the authority of section 8670, Rem. & Bal. Code, and the permit of the Secretary of War, is entitled to interfere with respondent's use of its wharf, without compensating it for resulting damages. Appellant, citing Eisenbach v. Hatfield, 2 Wash. St. 236, 26 P. 539, 12 L. R. A. 632, Harbor Line Com'rs v. State, 2 Wash. St. 530, 27 P. 550, Muir v. Johnson, 49 Wash. 66, 94 P. 899, Brace-Hergert Mill Co. v. State, 49 Wash. 326, 95 P. 278, Grays Harbor Boom Co. v. Lownsdale, 54 Wash. 83, 102 P. 1041, 104 P. 267, Lownsdale v. Grays Harbor Boom Co., 54 Wash. 542, 103 P. 833, and other cases from this court, contends that, if the state be the absolute owner and proprietor of the beds and shores of all its navigable waters, subject only to the right of Congress to regulate interstate commerce, no owner of any bordering land can have a right of access to deep water; that the respondent having no such right is not entitled to recover damages for appellant's obstruction of the stream, under the authority of the state and the war department, and that any such impairment of respondent's access to its wharf over the stream is damnum absque injuria.

Under the conceded facts, we think this contention cannot be sustained. Respondent owns and holds not only the absolute fee-simple title to the upland, but also a fee-simple title to the tide land, formerly owned by the state, upon which the wharf is now constructed. The outer line of the tide land and wharf, its private property, is coincident with the inner line of the waterway, and there is no harbor area. Its wharf therefore abuts upon deep water, and is accessible to seagoing vessels. Although the state established and platted the tide lands, it refused to establish any harbor area. Having thus established and platted tide lands which extend to and border upon the waterway, it has sold to respondent every right it held in and to such lands, and now holds no right to any intervening harbor area. By virtue of the improvement and location of the tide land and respondent's ownership thereof, it (the respondent) has acquired a right of access to its wharf over the navigable waters, which interferes with no intervening right of the state. The cases cited by appellant are not pertinent. In the Eisenbach Case, which the others follow, it was held that an upland owner had no right of access to navigable waters, for the reason that the tide land or shore land lying between such upland and the deep water belonged to the state, that the recognition of any such right of access in the upland owner would impair the state's title, and interfere with its absolute ownership over, and control of its tide or shore lands. In this action respondent has acquired the tide land which extends to the deep waterway, and owns the same in fee simple. There is no intervening land or harbor area between it and deep water. In the absence of facts and conditions upon which the Eisenbach Case was predicated, its doctrine ceases to be applicable, and on the facts now before us, respondent should be held to have a right of access to its wharf located on its own land and contiguous to the deep water, and that the same is a valuable property right. In Muir v. Johnson, supra, we said: 'As early as the case of Eisenbach v. Hatfield, 2 Wash. St. 236 [26 P. 539, 12 L. R. A. 632], this court held that the owner of uplands bordering on navigable waters as such had no riparian or littoral rights in such...