Palmer v. Peterson

• Decision Date: 24 November 1909
• Citation: 105 P. 179,56 Wash. 74
• Parties: PALMER et ux. v. PETERSON.
• Court: Washington Supreme Court

105 P. 179

56 Wash. 74

PALMER et ux. v. PETERSON.

Supreme Court of Washington

November 24, 1909

Department 2. Appeal from Superior Court, Kitsap County; John B. Yakey Judge.

Action by E. B. Palmer and wife against A. Peterson. From a judgment for plaintiffs, defendant appeals. Affirmed.

Revelle, Revelle & Revelle, for appellant.

E. B Palmer, for respondents.

RUDKIN C.J.

The plaintiffs are the owners of certain tide lands of the second class in Kitsap county which form an arm of Puget Sound, and are covered and uncovered by the flow and ebb of the tide. The lands are suitable for the cultivation of oysters, and were conveyed by the state to the predecessor in interest of the plaintiffs, under the provisions of the acts relating to the purchase and sale of oyster lands. Laws 1895, pp. 36-39 c. 24. The state deed is absolute in form, aside from a provision for a reversion in case the lands are abandoned or used for any purpose other than the cultivation of oysters. The present action was instituted to restrain the defendant his agents, servants, and employés from entering upon or passing over the tide lands in question, either upon foot or by boat, or other watercraft, and for damages. From a judgment in favor of the plaintiffs according to the prayer of their complaint, this appeal is prosecuted.

The first error assigned is the denial of a trial by jury. The action was of equitable cognizance, and was properly triable by the court. Ballinger's Ann. Codes & St. §§ 4966-4967; Sequim Bay Canning Co. v. Bugge, 49 Wash. 127, 94 P. 922. The admission of the state deed in evidence without proof of compliance with the provisions of the statute pursuant to which the deed was given is next assigned as error. There was no error in this ruling. Welsh v. Callvert, 34 Wash. 250, 75 P. 871, and cases cited.

It is lastly contended that, inasmuch as the tide lands in controversy are covered by water to a depth of seven or eight feet at high tide, such waters are navigable and the appellant has a lawful right to pass over the same, notwithstanding the title of the respondents. This contention cannot be sustained. The state deed is absolute in form, and carries with it the right to the exclusive possession and enjoyment of the lands granted, if such a grant was within the competency of the state; and that such grant was within the competency of the state cannot at this late day be controverted. The nature of the state's title to tide lands has so often been considered by this court, and by the Supreme Court of the United States, that the question should be considered at rest. In Illinois Central Ry. Co. v. Illinois, 146 U.S. 388, 13 S.Ct. 111 (36 L.Ed. 1018) the court said: 'It is the settled law of this country that...