Smith Tug & Barge Co. v. Columbia-Pacific Towing Corp.

• Decision Date: 11 March 1971
• Docket Number: COLUMBIA-PACIFIC,No. 41225,41225
• Court: Washington Supreme Court
• Parties: , 1971 A.M.C. 1963 SMITH TUG & BARGE CO., a corporation, and J. B. Lanpher, Big Creek & Telocaset Co., an Oregon corporation, and Maribeth W. Collins, Elmer R. Goudy and Alton L. Collins, personal representatives of the estate of Truman W. Collins, Respondents, v.TOWING CORPORATION, a corporation, Appellant, Bert L. Cole, as Commissioner of Public Lands of the State of Washington, Appellant. Maribeth W. COLLINS, Elmer R. Goudy and Alton L. Collins, as personal representatives of the estate of Truman W. Collins, Respondents, v. RAINIER MANUFACTURING CO., a corporation, Appellant, Bert L. Cole, as Commissioner of Public Lands of the State of Washington, Appellant.

Page 975

78 Wn.2d 975

482 P.2d 769, 1971 A.M.C. 1963

SMITH TUG & BARGE CO., a corporation, and J. B. Lanpher, Big

Creek & Telocaset Co., an Oregon corporation, and Maribeth

W. Collins, Elmer R. Goudy and Alton L. Collins, personal

representatives of the estate of Truman W. Collins, Respondents, v. COLUMBIA-PACIFIC TOWING CORPORATION, a corporation, Appellant, Bert L. Cole, as Commissioner of Public Lands of the State

of Washington, Appellant.

Maribeth W. COLLINS, Elmer R. Goudy and Alton L. Collins, as

personal representatives of the estate of Truman

W. Collins, Respondents, v. RAINIER MANUFACTURING CO., a corporation, Appellant, Bert L. Cole, as Commissioner of Public Lands of the State

of Washington, Appellant.

No. 41225.

Supreme Court of Washington, En Banc.

March 11, 1971.

Slade Gorton, Atty. Gen., Theodore O. Torve, Asst. Atty. Gen., olympia, for appellants.

Klingberg, Houston, Reitsch, Cross & Frey, Judson T. Klingberg Gerry A. Reitsch, Longview, for respondents.

STAFFORD, Associate Justice.

The predecessors of respondent upland owners acquired their interest in the realty here in question from the United States government. The property as originally patented and meandered abutted the navigable waters of the Columbia and Cowlitz rivers, at or near their confluence.

The government meander line, established by surveys in 1857 and 1863, substantially conformed to the line of ordinary high water as it existed on those dates. However, the location of the line of ordinary high water at the time of statehood is unknown.

During the intervening years accretions have occurred along both navigable rivers causing the line of ordinary high water to shift riverward so that the meander line is now situated a considerable distance landward of the line of ordinary high water. On the other hand, a reverse action has occurred at other points where the flow of the two navigable rivers has gradually eroded their banks. As a result, the line of ordinary high water, once coextensive with the meander line, has shifted inland thereof leaving the meander line several hundred feet out in the navigable stream in many areas. In the latter areas the lands lying between the meander line and the present line of ordinary high water are now submerged and have become a part of the bed of the navigable rivers. The last mentioned land is the subject of dispute in this case.

Respondent upland owners conveyed to respondent lessees the right to erect, on the submerged land (I.e., the riverbed) in front of their uplands, certain piling, dolphins, booms and other appliances for the purpose of booming, rafting and sorting logs. The appellant Commissioner of Public Lands, acting for the State of Washington, leased the same part of the riverbed to appellant lessees.

Respondents initiated this action for a declaratory judgment seeking to quiet title of the upland owners to the disputed riverbed and to have the rights of their lessees declared superior. Appellants counterclaimed asking that the state be declared the lawful owner of the riverbed and that the leases issued under its claim of ownership be declared valid.

The trial court quieted respondents' title to the riverbed lying between the meander line, as it is now situated out in the navigable river, and the present line of ordinary high water. The trial court also held that all accretions which occurred riverward of the meander line belong to the respondents.

Appellants have not challenged the trial court's judgment pertaining to the accreted lands. However, they have assigned error to that portion of the judgment which quiets respondents' title to those submerged lands which comprise a part of the navigable riverbed.

Before examining the basis for the conflicting claims, we shall first advert to the general rules which control in the cases of navigable rivers. It is well recognized that when federal patents border on a navigable river and the course of the river is changed by accretion or gradual erosion, the owner's water boundary shifts with the natural and gradual moving of the course of the river. Ghione v. State, 26 Wash.2d 635, 175 P.2d 955 (1946); Jefferis v. East Omaha Land Co., 134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872 (1890); Arkansas v. Tennessee, 246 U.S. 158, 38 S.Ct. 301, 62 L.Ed. 638 (1918); 4 H. Tiffany, The Law of Real Property, §§ 1219--20 (3d ed. 1939, Supp.1970). In short, every patentee whose land is bounded by a navigable river is subject to loss of his realty by gradual erosion and addition to his land by accretion. New Orleans v. United States, 35 U.S. (10 Pet.) 660, 716, 9 L.Ed. 573 (1836). As indicated in Jefferis v. East Omaha Land Co., Supra, 134 U.S. at 195, 10 S.Ct. 518, the rule is as much applicable to the government as it is to private individuals.

Respondents do not question the general principle just stated, but they argue that it is only partially applicable here. They readily accept the Shifting boundary concept insofar as it grants them accretions to patented lands bounded by navigable rivers. However, they reject it insofar as it causes them to lose patented land by gradual erosion of the river's bank. They assert that this anomaly results from the constitutional disclaimer contained in article 17, section 2 of the Washington State Constitution. ¹

Respondents acknowledge that the state claims ownership 'to the beds and shores of all navigable waters in the state * * * up to and including the line of ordinary high water within the banks of all navigable rivers * * *' Const. art. 17, § 1. They argue, however, that insofar as erosion is concerned, the constitutional 'disclaimer' Permanently fixed the boundaries of federal patents, abutting navigable waters, at the line of ordinary high water or at the meander line, whichever was the farthest waterward. Essentially their argument is based on a combination of three cases and their legal progeny: Scurry v. Jones, 4 Wash. 468, 30 P. 726 (1892); Cogswell v. Forrest, 14 Wash. 1, 43 P. 1098 (1896); and Washougal & LaCamas Transp. Co. v. Dalles, Portland & Astoria Nav. Co., 27 Wash. 490, 68 P. 74 (1902).

Scurry was the first case to provide that all lands within the calls of a federal patent, lying waterward of the line of ordinary high tide, belong to the patentee if the patent was issued prior to statehood. Despite Const. art. 17, § 1, which establishes the state's claim to ownership of the beds and shores of all navigable waters up to and including the line of ordinary high tide in waters where the tide ebbs and flows, it was held that the 'disclaimer' clause of Const. art. 17, § 2 prevails when the calls of a patent extend waterward of the line of ordinary high tide.

It must be noted, however, that Scurry did not discuss the second portion of Const. art. 17, § 1 in which the state claims ownership of 'the beds * * * of all navigable waters * * * up to and including the line of ordinary high water Within the banks of all navigable rivers * * *' (Italics ours.) The case dealt solely with patented lands located on a Bay. The importance of the distinction is evident. With the exception of Washougal, the application of Scurry has been limited to cases which have involved boundaries to patented lands bordering the Puget Sound, ² bays, ³ lakes, ⁴ or waters treated as a bay ⁵.

Cogswell v. Forrest, Supra, was the first case to crystalize respondents' theory. Cogswell extended the Scurry decision by holding that if lands patented prior to statehood border navigable waters, a meander line located waterward of the line of ordinary high water is a Fixed boundary. The land in Cogswell was located at the mouth of the Puyallup River virtually on the Bay. The sole authority for the court's holding was Scurry, itself a 'bay' case.

With the exception of Washougal, we have limited the holding of Cogswell to patented lands which border meandered navigable waters of Puget Sound, ⁶ or of lakes. ⁷ In light of respondents' theory, the historical limitation of Cogswell's authority assumes an importance similar to our limited use of Scurry.

Washougal, the last of the triad, is presented by respondents as an extension of Scurry and Cogswell. Respondents suggest the decision in Washougal supports their contention that lands patented prior to statehood, which border on navigable meandered Rivers, have water boundaries that are Fixed against Erosion of the patentee's boundary. Washougal is the only case in which we have discussed the 'disclaimer clause' ⁸ in relation to the boundaries of patented lands bordering on meandered Navigable rivers. ⁹

In Washougal the patented lands were bounded by a navigable river. The meander line was Above the line of ordinary high water. We held that the line of ordinary high water, rather than the meander line, was the boundary. In so doing, we explained that our adherence to the general rule was not necessarily inconsistent with either Scurry or Cogswell. Each was distinguished because the meander line lay Below the line of ordinary high water thus bringing into play the 'disclaimer clause' and a different result.

It is important to note, however, that Washougal did not apply the 'disclaimer clause' to the facts at hand. It did not even suggest that the rule of Scurry and Cogswell should be extended to deprive the state of its claim to ownership in the beds of Navigable rivers. At best, it cited Const. art. 17, § 2 to clarify and distinguish Scurry and Cogswell.

The Washougal case is seriously circumscribed by its own peculiar fact pattern. The lines of ordinary high and low water were practically coincident, differing only with the rise and fall of the river on a vertical bank. Thus, no shoreland existed other than that which was created in part by natural erosion of the riverbank landward of the original line of ordinary high water and in part by accretions artificially created by debris caught and held by piling driven into the riverbed during construction of a wharf,...