State v. Sturtevant

Citation135 P. 1035,76 Wash. 158
PartiesSTATE v. STURTEVANT et al.
Decision Date25 October 1913
CourtUnited States State Supreme Court of Washington

Appeal from Superior Court, King County; King Dykeman, Judge.

Action by the State of Washington against C. K. Sturtevant and others. Judgment for the defendants, and plaintiff appeals. Reversed and remanded, with instructions.

W. V Tanner and R. E. Campbell, both of Olympia and Farrell, Kane & Stratton, G. E. Steiner, and James B Bruen, all of Seattle, for the State.

Wm. C. Keith and Donworth & Todd, all of Seattle, for respondents.

Benton Embree, of Seattle, amicus curiae.

CHADWICK J.

This action was brought by the state of Washington to recover possession of and to quiet title to certain submerged lands bordering the shores of Lake Washington. Other cases involving the same questions of law or affecting the property of the parties to the principal action have been consolidated with it. The purpose of the Attorney General in bringing this action is to obtain a decision of this court which will settle all conflicting claims of title to such lands as may come within the lawful definition of shore lands when the waters of the lake are turned into the government waterways between Lake Washington and Lake Union, and between Lake Union and Salmon Bay. The canal now in course of construction will, when completed, lower the waters of Lake Washington several feet. This will not only uncover land now submerged, but will bring within the heretofore accepted limits of shore lands land now covered by navigable water and clearly without the boundaries of present shore lands. Whether this added area is the property of the state, to be sold or granted by it under existing or prospective laws, or whether it belongs to those who have heretofore bought the shore lands, is the question to be decided.

The respondents who contest the right of the state to assert ownership to the added area claim title through the Ranier Beach Improvement Company. On the 23d day of May, 1904, that company purchased certain shore lands of the state of Washington, the lands conveyed being described as follows: 'All shore lands of the second class owned by the state of Washington, situate in front of, adjacent to or upon that portion of the United States government meander line lying in front of the following described upland, to wit: Lots 4 and 5, section 35, township 24 north, range 4 east of the Williamette Meridian, being 45.49 lineal chains, more or less, measured along said meander line.' When the conveyance was made shore lands were defined by a statute to be 'lands bordering on the shores of navigable lakes and rivers below the line of ordinary high water and not subject to tidal flow.' Laws of 1897, § 4, p. 230. Shore lands of the second class are defined to be all shore lands not included in the definition of shore lands of the first class. These and first-class tide lands were defined in the same statute as follows: 'Tide and shore lands of the first class, which shall comprise all tide and shore lands within or in front of the limits of any incorporated city or town, or within two miles thereof on either side, including submerged lands lying between the line of mean low tide and the inner harbor line, wherever harbor lines have been established or shall be established.' Laws of 1897, § 39, p. 248.

It is the contention of the state that the legal effect of the deed from the state to the Ranier Beach Improvement Company was a present grant of only so much land as there might be then existent and lying between the line of ordinary high water and mean low water. The trial judge held against this contention, and the state has appealed.

Much of the Attorney General's brief goes to a discussion of the meaning of the term 'shore lands.' Many authorities are cited to sustain the premise from which his reasoning flows that shore lands are lands lying between 'the lines of high and low water mark.' Maynard v. Puget Sound National Bank, 24 Wash. 455, 64 P. 754; Trustees of East Hampton v. Kirk, 68 N.Y. 459-463; Doane v. Willcutt, 5 Gray (Mass.) 328-335, 66 Am. Dec. 369; Andrus v. Knott, 12 Or. 501-503, 8 P. 763; Dunton v. Parker, 97 Me. 461-467, 54 A. 1115. In the absence of any qualifying statute, and as between parties asserting private rights, this definition would ordinarily be accepted. Reference to the cases relied on will show that all of them were boundary line cases between individuals, and the judges, quite naturally, could not extend by construction the boundary line of a deed beyond the line of mean low water. But this court is not now, and has never been, put to the stress of defining the term 'shore lands' as applied to state grants. The Constitution and the statutes have clearly distinguished the term as there employed from the common-law definition as applied to boundaries in deeds executed by individuals.

The right to control navigation is admittedly in the United States, but the people of the state of Washington have asserted '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 and lakes.' Constitution, art. 17, § 1. This declaration destroyed all riparian right in tide and shore lands, and affirmed the right of the state to absolutely control and dispose of these lands in any way or to whomsoever the Legislature might ordain.

This court has, with the exception of the case of Burrows v. Grays Harbor Boom Co., 44 Wash. 630, 87 P. 937, uniformly held that there is no riparian right in the owner of lands bordering on the navigable waters of the state. Eisenbach v. Hatfield, 2 Wash. 236, 26 P. 539, 12 L. R. A. 632; Brace & Hergert Mill Co. v. State, 49 Wash. 331, 95 P. 278; where previous cases are collected. See, also, Grays Harbor Boom Co. v. Lownsdale, 54 Wash. 83, 102 P. 1041, 104 P. 267; Hulet v. Wishkah Boom Co., 54 Wash. 510, 103 P. 814, 132 Am. St. Rep. 1127; Lownsdale v. Grays Harbor Boom Co., 54 Wash. 542, 103 P. 833; Gifford v. Horton, 54 Wash. 595, 103 P. 988; Palmer v. Peterson, 56 Wash. 74, 105 P. 179; Northern Pacific Ry. Co. v. Slade Lbr. Co., 61 Wash. 195, 112 P. 240, 34 L. R. A. (N. S.) 423; Bilger v. State, 63 Wash. 457, 116 P. 19; Austin v. Bellingham, 69 Wash. 677, 126 P. 59; State ex rel. Ham v. Superior Court, 70 Wash. 442, 126 P. 945. Either through the seeming inequity of thus depriving the owner of the upland of his riparian right, or prompted by the selfish interests of the parties claiming such right in the shore lands of navigable waters, depending upon the viewpoint of the individual, the First Legislature undertook to compensate in some degree the owner for the loss of the riparian right. A law was accordingly enacted, giving a preference right of purchase, first, to the improver, and, second, to the upland owner. In other words, the upland owner was given the first right to purchase the right of access to deep water which the state had personally cut off; that is, the riparian right in the shore. Rem. & Bal. Code, §§ 6750, 6756, 6772.

That littoral and riparian rights attaches to shore lands is recognized in Bilger v. State, 63 Wash. 457, 116 Pac, 19, where, after holding that the purchaser of shore lands took title free from any claim of the upland owner as to riparian and littoral rights, the court said: 'It follows, therefore, that such littoral and riparian rights as the respondents have in the waters of Lake Washington were acquired by them in virtue of the purchase of the shore lands made by them from the state of Washington.' Bilger v. State, 63 Wash. 457, 116 P. 19. See, also, Muir v. Johnson, 49 Wash. 66, 94 P. 899.

'As early as the case of Eisenbach v. Hatfield, 2 Wash. 236, 26 P. 539, 12 L. R. A. 632, this court held that the owner of uplands bordering on navigable waters as such had no riparian or littoral rights in such waters as would enable him to maintain an injunction from interference therewith. This holding was based on the ground that between the boundary of the upland and the navigable waters proper there were shore lands which belonged to the state, and to which all riparian and littoral rights attached. * * *' Muir v. Johnson, supra.

Our Constitution provides for the establishment of harbor lines in front of incorporated cities and one mile on each side thereof. Constitution, art. 15, § 1. This limit was extended by the Legislature to two miles. Laws 1895, p. 549; Rem. & Bal. Code, §§ 6744-6769, et seq.

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 tide and shore lands of the first class up to the line of navigability, or up to the inner harbor line. This opinion was made the subject of a confirmatory statute. Laws 1895, p. 549, § 52. The law provides that shore lands of the second class shall be sold, not by tracts or lots and blocks, but by the lineal chain (Rem. & Bal. Code, § 6761) subject, however, to the right of the state to thereafter fix harbor lines and harbor areas.

Since the formation of the state the right of an owner of second-class shore land to extend his proprietorship up to the line of navigation has not been questioned. It has been taken for granted as a right substituted for the lost, or rather denied, right of riparian proprietorship. The only right which the state has ever undertaken to maintain in trust for the whole people is the right of navigation. Dawson v. McMillan...

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23 cases
  • State v. McCollum
    • United States
    • Washington Supreme Court
    • September 27, 1943
    ... ... Moore v. Brownfield, 7 Wash. 23, 34 P. 199, and ... Johnson v. Conner, 48 Wash. 431, 93 P. 914, which ... [17 Wn.2d 137] were overruled by McNaught-Collins Imp ... Co. v. May, 52 Wash. 632, 101 P. 237, and State v ... Sturtevant, 76 Wash. 158, 135 P. 1035, 138 P. 650, ... questioned by Skansi v. Novak, 84 Wash. 39, 46, 146 ... P. 160, in which we held that an entry on and possession of ... land, under the mistaken belief that it is public land, will ... not have the effect of disseizing the true ... ...
  • United States v. Taylor
    • United States
    • U.S. District Court — Western District of Washington
    • June 28, 1929
    ...Co. v. Lownsdale, 54 Wash. 83, 102 P. 1041, 104 P. 267; Lownsdale v. Grays Harbor Boom Co., 54 Wash. 542, 103 P. 833; State v. Sturtevant, 76 Wash. 158, 135 P. 1035, 138 P. 650; article 17 Constitution of the State of Washington; Executive Order of February 19, 1889; Act Feb. 22, 1889 (Wash......
  • Chelan Basin Conservancy v. GBI Holding Co.
    • United States
    • Washington Supreme Court
    • March 15, 2018
    ...encouraged with little consideration given to the effect these developments would have on public trust rights. See State v. Sturtevant, 76 Wash. 158, 171, 135 P. 1035 (1913). By 1969, thousands of acres of Washington's tidelands and shorelands had been reclaimed and developed with significa......
  • Beck v. Tacoma City Light, No. 30329-9-II (WA 4/12/2005)
    • United States
    • Washington Supreme Court
    • April 12, 2005
    ...from asserting his claim to vested rights in the courts of the state,' but that provision is not in issue here. 59. State v. Sturtevant, 76 Wash. 158, 163, 135 P. 1035 (1913); see also Davidson v. State, 116 Wn.2d 13, 20, 802 P.2d 1374 (1991); Hill v. Newell, 86 Wash. 227, 230, 149 P. 951 6......
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4 books & journal articles
  • Oil and the Public Trust Doctrine in Washington
    • United States
    • Seattle University School of Law Seattle University Law Review No. 14-03, March 1991
    • Invalid date
    ...a portion is cut off and no longer useful for navigation, that portion can be alienated from the trust. Id. at 232, 149 P. at 953. 107. 76 Wash. 158, 135 P. 1035 108. Id. at 165, 135 P. at 1037. In Commercial Waterway Dist. v. Permanente, 61 Wash. 2d 509, 513, 379 P.2d 178, 180 (1963), the ......
  • Leading a Judge to Water: in Search of a More Fully Formed Washington Public Trust Doctrine
    • United States
    • University of Whashington School of Law University of Washington Law Review No. 85-2, December 2015
    • Invalid date
    ...Library. Cheryl Nyberg, Ralph Johnson: 1923-1999 (2001), http://lib.law.washington.edu/ref/raljohnson.html. 75. See State v. Sturtevant, 76 Wash. 158, 171, 135 P. 1035, 1040 (1913) ("The state has invited investment in [public trust] lands upon the theory that, in private ownership, all lan......
  • The Public Trust Doctrine in Washington
    • United States
    • Seattle University School of Law Seattle University Law Review No. 10-03, March 1987
    • Invalid date
    ...would circumscribe a valuable public right-the right of public access! Id. at 267 (Stiles, J., dissenting). 63. State v. Sturtevant, 76 Wash. 158, 135 P. 1035 64. Id. at 180. 65. "Second-class shorelands" were defined at the time to include "lands bordering on the shores of navigable rivers......
  • The Right to Float on By: Why the Washington Legislature Should Expand Recreational Access to Washington's Rivers and Streams
    • United States
    • Seattle University School of Law Seattle University Law Review No. 28-04, June 2005
    • Invalid date
    ...676 (2003). 65. Wash. Const, art. XVII, § 1. 66. Id. 67. Muir v. Johnson, 49 Wash. 66, 68, 94 P. 899, 900 (1908). 68. State v. Sturtevant, 76 Wash. 158, 165, 135 P. 1035, 1037 69. Meandered streams are defined as streams that are affected by the ebb and flow of tides. This Comment does not ......

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