State v. Forrest

Citation11 Wash. 227,39 P. 684
PartiesSTATE EX REL. MCKENZIE ET AL. v. FORREST, COMMISSIONER OF PUBLIC LANDS.
Decision Date19 February 1895
CourtUnited States State Supreme Court of Washington

Petition by Angus McKenzie and Timothy Glinn for a writ of mandate to compel W. T. Forrest, commissioner of public lands, to issue deeds to tide lands. Granted.

Newman & Howard, for petitioners.

James A. Haight, Asst. Atty. Gen., for respondent.

SCOTT J.

This is an application for a writ of mandate against the respondent as commissioner of public lands, to compel him to issue a deed to the relators of lots 57 and 58 in front of the city of Fairhaven, under the act relating to the sale of tide lands. The case is submitted upon an agreed statement of facts, whereby it appears that the relators have proven every essential fact by them to be proved, and have performed every condition precedent, including a tender of the purchase price of said lots, to entitle them to purchase under their application, but that the respondent refuses to issue a deed to said lots on the ground that the same are not tide lands and that the relators are not entitled to purchase them under the act aforesaid.

It is conceded that said lots lie between the line of ordinary low tide and the inner harbor line in front of said city, and that they are bounded upon the easterly side by the line of ordinary low tide in the waters of Bellingham Bay, in front of said incorporated city of Fairhaven, and upon the westerly side by the inner harbor line in front of said city. It is further agreed that the Whatcom county tide land appraisers' map of tide lands lying in front of said city of Fairhaven, and also such appraisers' map of tide lands lying in front of the cities of New Whatcom and Blaine in said county, and the appraisers' map of the tide lands lying in front of the several cities of other counties in this state, include, return, and appraise as tide lands the area lying between the patent line or line of ordinary high tide and the inner harbor line, irrespective of the location of the line of ordinary low tide; and that the area lying below the low-tide line and out to the inner harbor line where such low-tide line lies between such inner harbor line and the high-tide line, is included in said return and appraisement; and that, pursuant to the orders of the state board of equalization and appeal, the respondent, as such commissioner, has issued certificates of purchase for portions of said last-mentioned area, and many deeds have been issued by the state covering such last-mentioned area; this being especially true in Whatcom county. It is also agreed that said map also shows streets crossing said last-mentioned area, both at right angles to and parallel to the inner harbor line. The act in question (1 Hill's Code, § 2162) provides that the tide and shore lands in the state of Washington shall be appraised, and those which are not reserved from sale by the constitution and laws of the state shall be disposed of by the commissioner. The act (section 2165) also provides: "For the purpose of survey and appraisal the tide lands of the state of Washington are hereby divided into three classes. The first class shall embrace all tide lands situated within or in front of the corporate limits of any city, or within two miles thereof upon either side. The second class shall embrace all tide lands situated at a greater distance than two miles from either side of an incorporated city or town, and upon which are located valuable improvements. The third class shall embrace all other tide lands." The controversy here is as to the meaning of the term "tide and shore lands," used in said act, as applied to tide lands of the first class. The relators claim that the act authorizes the sale by the state of the beds of all such waters as lie between the line of ordinary high tide (or the patent line, where the same is below such high-tide line) and the inner harbor line, irrespective of the location of the line of ordinary low tide. The decisions upon this subject are few in number, and the relators cite no case where it has been held that the term "tide lands" covers any land below ordinary low tide. Respondent insists that said act only provides for the sale by the state of such portion of the beds of such navigable waters as lies between the lines of ordinary low and high tide, and does not authorize the sale of any portion of the beds of such navigable waters as lie below the line of ordinary low tide, as the same are not included within the term "tide and shore lands." The contention of the respondent is supported by the case of People v. Davidson, 30 Cal. 379, and several cases from other states following that decision. The respondent also claims that the legislature has construed the term "tide lands" to mean lands over which the tide ebbs and flows, and which are bare at low tide. Section 6 of an act found on page 731 of the Session Laws of 1890 does contain such definition, but it is limited to the term as used in said act. It further appears that in that act, notwithstanding the definition aforesaid, the term "tide lands" is used in a broader sense than is warranted by such definition. The title of said act and section 1 thereof clearly set forth that the purpose and object of the act is to establish water ways across the tide flats, and nowhere else. Section 2 provides that "the public ways provided for in section one of this act shall not be less than fifty nor more than one thousand feet wide, and shall commence at the outer or deeper water end, in not less than twenty feet of water at low tide, and shall extend inland across the state's tide lands." It seems that the only purpose of the definition contained in said act was to make it clear that the water way should extend up to the line of ordinary high tide. It is not very material in this controversy, however, what the meaning of the term "tide lands" in the act referred to is, nor what is the common-law meaning of such term. The point to be determined is in what sense the legislature used said term in the tide-land act when applied to tide lands of the first class. In construing statutes, the particular inquiry is not what is the abstract force of words or terms used, or what they may comprehend, but is in what sense they were intended to be used. Suth. St. Const. §§ 245, 246.

From an examination of the constitution and legislation of the state it will be seen that the term "tide lands" has frequently been used in a broader sense than its literal meaning, which must be conceded to be those lands over which the tide ebbs and flows, and which are bare at low tide, and that such term has been used to embrace and include the beds of navigable salt waters lying below the line of ordinary low tide. Sess. Laws 1890, p. 428, contains an act entitled, "An act granting to the United States, for public purposes, the use of certain tide lands belonging to the state of Washington." This act proceeds to grant to the United States tide lands so long as the United States continues to own the land adjoining such tide lands, but provides that "this grant shall not extend to or include any lands covered by more than four fathoms of water at ordinary low tide," and, further, that "whenever the government of the United States shall cease to hold for public purposes any such tract, piece or parcel of land, the use of the tide lands bordering thereon shall revert to the state of Washington." The only things designated as granted by this act are tide lands, but it is provided that the same may include lands covered by not...

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6 cases
  • State v. Sturtevant
    • United States
    • United States State Supreme Court of Washington
    • 25. Oktober 1913
    ......Laws 1895, p. 549; Rem. &. Bal. Code, §§ 6744-6769, et seq. . . [76. Wash. 165] Whether the state grant extended beyond the line. of mean low water where harbor lines were established, was. raised in State ex rel. McKenzie v. Forrest, 11. Wash. 227, 39 P. 684, and it was there held that the. preferred purchaser took to the inner harbor line. This case. proceeded upon the theory that the Constitution and then. existing statutes made it plain that it was the policy of the. state to dispose of its ......
  • Smith Tug & Barge Co. v. Columbia-Pacific Towing Corp., COLUMBIA-PACIFIC
    • United States
    • United States State Supreme Court of Washington
    • 11. März 1971
    ...State ex rel. Battersby v. Board of Tide Land Appraisers of Whatcom County, 5 Wash. 425, 32 P. 97 (1892); State ex rel. McKenzie v. Forrest, 11 Wash. 227, 39 P. 684 (1895); Anderson v. Olson, 77 Wash.Dec.2d 241, 461 P.2d 343 (1969).4 Brace & Hergert Mill Co. v. State, 49 Wash. 326, 95 P. 27......
  • Chlopeck Fish Co. v. City of Seattle
    • United States
    • United States State Supreme Court of Washington
    • 26. Juli 1911
    ......317] Scott Calhoun and H. D. Hughes, for respondents. . . ELLIS,. J. . . The. state's first plat of the Seattle tidelands and water. front was filed in February, 1895. It extended every. alternate street of the city ...S. R. R., 6 Wash. 379, 33 P. 1048;. Ilwaco v. Ilwaco Ry. & Nav. Co., 17 Wash. 652, 50 P. 572; State ex rel. McKenzie v. Forrest, 11 Wash. 227, 39 P. 684; Tacoma v. Titlow, 53 Wash. 217, 101. P. 827. While it is true that in each of those cases. expressions ......
  • City of Tacoma v. Titlow
    • United States
    • United States State Supreme Court of Washington
    • 18. Mai 1909
    ...379, 33 P. 1048; Seattle & Montana Ry. Co. v. State, 7 Wash. 150, 34 P. 557, 22 L. R. A. 217, 38 Am. St. Rep. 866; State ex rel. v. Forrest, 11 Wash. 227, 39 P. 684; State ex rel. v. Forrest, 12 Wash. 483, 41 P. Ilwaco v. Ilwaco Ry. & Nav. Co., 17 Wash. 652, 50 P. 572. Some question is rais......
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