State of Washington v. United States

• Decision Date: 18 December 1936
• Docket Number: No. 8014,8055.,8028,8014
• Parties: STATE OF WASHINGTON v. UNITED STATES et al. STATE OF OREGON v. SAME. COLUMBIA RIVER PACKERS ASS'N et al. v. SAME.
• Court: U.S. Court of Appeals — Ninth Circuit

87 F.2d 421 (1936)

STATE OF WASHINGTON v. UNITED STATES et al.^*

STATE OF OREGON v. SAME.

COLUMBIA RIVER PACKERS ASS'N et al. v. SAME.

Nos. 8014, 8028, 8055.

Circuit Court of Appeals, Ninth Circuit.

December 18, 1936.

COPYRIGHT MATERIAL OMITTED

G. W. Hamilton, Atty. Gen., of Washington, and R. G. Sharpe, Asst. Atty. Gen., for appellant State of Washington.

I. H. Van Winkle, Atty. Gen., of Oregon, and Willis S. Moore and Francis T. Wade, Asst. Attys. Gen., for appellant State of Oregon.

Alfred E. Clark, Malcolm H. Clark, Jay Bowerman, and R. R. Bullivant, all of Portland, Or., for appellants Columbia River Packers Ass'n and others.

Carl C. Donaugh, U. S. Atty., and Edwin D. Hicks, Asst. U. S. Atty., both of Portland, Or.

Before WILBUR, MATHEWS, and HANEY, Circuit Judges.

HANEY, Circuit Judge.

Columbia River Packers Association, Baker's Bay Fish Company, and H. J. Barbey, hereinafter referred to as appellants, have appealed from a decree adjudicating that the United States, hereinafter referred to as appellee, is the owner and entitled to the immediate and exclusive possession of the sands and tide flats in question and enjoining appellants from occupying or attempting to occupy the property in question. After the suit was commenced by appellee against appellants, the State of Washington filed a motion asking leave to intervene, which motion was granted by order, which was thereafter set aside and the motion denied. The State of Oregon also asked leave to intervene by motion, which was thereafter denied. These States have taken separate appeals from the order denying the motions.

The dates of admission of Oregon and Washington as States, together with the material legislation regarding the boundary between them may be found in Washington v. Oregon, 211 U.S. 127, 29 S.Ct. 47, 53 L.Ed. 118.

On October 21, 1864, the Oregon Legislature passed an act, a part of which is as follows: "There is hereby granted to the United States, all right and interest of the State of Oregon, in and to * * * Sand Island, situate at the mouth of the Columbia River in this state; the said island being subject to overflow between high and low tide." (Sp.Laws 1864, p. 72.)

In the bill appellee alleged that it had been in possession of Sand Island as a military reservation since the passage of the above act, and that it "is now the exclusive owner thereof and entitled to the immediate and exclusive possession thereof"; that said island was within Clatsop county, Or., and within the jurisdiction of the court. It is also alleged that "Sand Island" is located and described upon a 1933 War Department map and chart, which is incorporated in the bill. The material portion of that map and chart is as follows:

The sands and tide flats in question are situated to the west and southwest of Sand Island in the estuary of the Columbia river, and are dotted on the map. At the upper end, the sands and tide flats are attached to Sand Island.

It is further alleged that the beach or spit on the west and southwest end of the island is peculiarly adapted to the drawing of seines and floating fishing gear, and that the said waters are immensely valuable for the purpose of seining for salmon; that on or about May 1, 1930, appellant Barbey and appellant Columbia River Packers Association, a corporation, hereinafter referred to as the association, leased from appellee for a period of five years, for seining purposes, the land on the south side of Sand Island, described as Sites No. 1, 2, 3, 4, and 5 in said lease, which sites are described and mapped in Strandholm v. Barbey, 145 Or. 427, 26 P.(2d) 46, which is incorporated in the bill; that defendants, after occupying Sand Island for the years 1930 and 1931, secured a cancellation of the lease and abandoned the premises.

It is also alleged that appellants used the properties described in the years 1932, 1933, and 1934, without paying rental therefor; that they "have threatened and do now threaten to enter upon said Island and appropriate said premises" for fishing purposes during the year 1935.

The final allegations are that appellants have no right, title, or interest in the premises and should be restrained from fishing and occupying the premises.

In their answer, appellants admit occupancy of certain premises, but allege that the premises so occupied are a part of land commonly known as "Peacock Spit," belonging to the State of Washington, and that they occupied said premises by virtue of a lease executed by that State to appellant Baker's Bay Fish Company, a corporation, which lease described the premises in controversy. Appellants also allege: "* * * that the shallow channel cutting across Peacock Spit in a southwesterly and northeasterly direction southerly of Cape Disappointment is not and never was a natural channel. It was caused in this manner: four or five years ago the `North Bend,' a large sailing vessel, went ashore on Peacock Spit at about where the southwesterly terminus of said channel is now located. It did not break up but, through the action of the winds, waves and tides, was slowly driven, during a period of a year or more, across Peacock Spit into the channel then existing between it and Sand Island and through the channel so cut water has continued to run with the ebb and flow of the tides since that time." In short, the appellants claim that the sands and tide flats, claimed by the United States, are not a part of Sand Island, but are a part of Peacock Spit.

Appellants Columbia River Packers Association and Baker's Bay Fish Company, by their answer raised, among others, three defenses: (1) That the suit involved the determination of the boundary line between the States of Oregon and Washington, and that therefore such states were indispensable parties; (2) that the suit involved the determination of title to land which the State of Washington claimed to own, and therefore it was an indispensable party; (3) that the premises involved were not located within the State of Oregon but were located within the State of Washington, and were therefore beyond the jurisdiction of the court.

The motion to intervene filed by the State of Washington was based upon the grounds that it was the owner of the land in controversy, and that it had an interest in the controversy.

The motion to intervene filed by the State of Oregon was based upon the grounds that it was the owner of the lands in controversy, stating that such lands were formed by accretions to the bed of the Columbia river at a point south of the boundary line between the States of Oregon and Washington, and that such lands were separated "from Sand Island by a continuous channel of navigable water, and from Peacock Spit by a continuous channel of navigable water." In short, that the land in question is a submerged island, and not a part of the tide lands of either Peacock Spit or Sand Island.

We thus find that the United States claims the land as a part of Sand Island; the State of Washington claims the land as a part of Peacock Spit; and the State of Oregon claims that the land is neither a part of Sand Island, nor a part of Peacock Spit, but is an accretion to a part of the river bed which is owned by it.

Classification of Parties.

In Shields v. Barrow, 58 U.S. (17 How.) 130, 139, 15 L.Ed. 158, it is said: "The court here points out three classes of parties to a bill in equity. They are: 1. Formal parties. 2. Persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. These persons are commonly termed necessary parties; but if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties. 3. Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience."

This language has also been quoted in State of California v. Southern Pacific Co., 157 U.S. 229, 249, 15 S.Ct. 591, 39 L. Ed. 683, and although not quoted, the identical language is contained in Minnesota v. Northern Securities Co., 184 U.S. 199, 235, 22 S.Ct. 308, 46 L.Ed. 499.

In Barney v. Baltimore, 73 U.S. (6 Wall.) 280, 284, 18 L.Ed. 825, it is said: "There is a class of persons having such relations to the matter in controversy, merely formal or otherwise, that while they may be called proper parties, the court will take no account of the omission to make them parties. There is another class of persons whose relations to the suit are such, that if their interest and their absence are formally brought to the attention of the court, it will require them to be made parties if within its jurisdiction, before deciding the case. But if this cannot be done, it will proceed to administer such relief as may be in its power, between the parties before it. And there is a third class, whose interests in the subject-matter of the suit, and in the relief sought, are so bound up with that of the other parties, that their legal presence as parties to the proceeding is an absolute necessity, without which the court cannot proceed. In such cases the court refuses to entertain the suit, when these parties cannot be subjected to the jurisdiction."

In Williams v. Bankhead, 86 U.S. (19 Wall.) 563, 571, 22 L.Ed. 184, it is said: "The true distinction appears to be as follows: First. Where a person will be directly affected by a decree, he is an indispensable party, unless the parties are too numerous to be brought before the court, when the case is...