State v. Prosser

• Decision Date: 08 July 1891
• Citation: 2 Wash. 530,27 P. 550
• Parties: STATE EX REL. YESLER v. PROSSER ET AL.
• Court: Washington Supreme Court

27 P. 550

2 Wash. 530

STATE EX REL. YESLER v. PROSSER ET AL.

Supreme Court of Washington

July 8, 1891

Appeal from superior court, King county; I. J. LICHTENBERG, Judge.

Petition for writ of prohibition by state of Washington ex rel. H. L. Yesler against the Board of Harbor Line Commission, W. F. Prosser, Eugene Semple, Frank H. Richards H. F. Garrettson, and D. C. Guernsey. Writ granted. Defendants appeal. Reversed.

W. C. Jones, Atty. Gen., for appellants.

Thomas Burke and J. C. Haines, ( Burke Shepard & Woods, of counsel,) for respondent.

HOYT J.

The most important questions in this case are the same as those discussed and covered by the opinion in the case of Eisenbach v. Hatfield, 26 P. 539, (decided at the last session of this court.) Yet in view of the immense interests involved in the principles therein announced we have again gladly listened to the able arguments of counsel made before us, and have carefully examined the exhaustive briefs filed, and again reviewed all of the questions decided in the case above cited; and it is only necessary for me to say that the opinion of the court has not been changed by such re-examination. The court is still of the opinion that as against the state, a littoral owner, simply as such owner, can assert no valuable rights below the line of ordinary high tide. The somewhat careful examination which I have given this case has confirmed my opinion that at common law the sovereign power (resting in England in parliament) could take such lands without compensation, and absolutely exclude the littoral proprietors from any rights thereto. In fact such is conceded to be the power of parliament by nearly all of the courts. Even those which have taken the strongest ground against the doctrine of the case above cited have admitted such to be the rule. Note the argument of Chancellor ZABRISKIE in his dissenting opinion, Stevens v. Railroad Co., 34 N. J. Law, 554. While conceding this, they say parliament has this power because it is all-powerful, and can legislate as it pleases. This is true, but why is it true? Simply because in it is embodied the sovereign power. In my opinion, the same power vested in parliament and king in England is here vested in the people, who are fully as much sovereign here as parliament and king there. Here the people of a state are absolutely sovereign, except as controlled by the constitution of the United States; and I do not think that it can be successfully contended that the powers of the people of the states have been thus controlled as to the questions here involved. I am unable to find any clause of the constitution of the United States looking to such control, and, as I read the decisions of the United States supreme court, it has expressly decided that the states are in no wise controlled in this matter. Acting within their sovereign power, as above recognized, the people of this state, in forming a constitution, saw fit to assert the title of the state to the lands in question, and, having done so, they are the only power that can interfere with such title. But it is said that, while such assertion of title is made in the constitution, ^[1] it is so made subject to vested rights of the riparian owner to be asserted in the courts. I am of the opinion that this vested right cannot be held to be such as is incident to the riparian owner simply as such, but must be held to apply only to some special right held by such owner by way of improvements made under express or implied license from the representative of the sovereign power. To hold that the former was intended, would practically destroy the title of the state, and would, therefore, be inconsistent with the assertion of such title; while the latter construction will give force to every word, and make the provision in its entirety a consistent one. When the people say that they assert the state's title it must be held to mean the entire and exclusive title. Of course the rights of the state, as above stated, are subject to the paramount right of the United States to regulate commerce and navigation, as to which I shall say a word later on.

The doctrine of the case of Eisenbach v. Hatfield, above cited must obtain, and under it the rights of the parties hereto must be determined. It will thus be seen...