State v. Sturtevant

• Decision Date: 13 February 1914
• Citation: 138 P. 650,78 Wash. 158
• Parties: STATE v. STURTEVANT et al.
• Court: Washington Supreme Court

138 P. 650

78 Wash. 158

STATE v. STURTEVANT et al.

Supreme Court of Washington

February 13, 1914

On petition for rehearing. Denied.

For former opinion, see 135 P. 1035.

CHADWICK J.

A petition for rehearing has been filed by the Attorney General, by the city of Seattle, the park board of the city of Seattle, the county of King, the town of Renton, the town of Bothell, the Commercial Waterway District No. 2, municipal corporations, and by the defendants Schertzers.

The Attorney General complains that we have foreclosed the right of the state to fix an inner harbor line and create a harbor area having reference to present conditions, and to thereafter lower the waters of Lake Washington. It seems to be his contention that if this were done, the uncovered land would belong to the state and its grantee would have no remedy. It is insisted that this question was not before the court. It was our judgment when the opinion was written, and is now, that it was in fact of the very essence of the case and that it was incumbent upon us to determine the legal effect of the deed made by the state to the Ranier Beach Improvement Company in the light of present legislation and the present plan of the state to lower the waters of Lake Washington. If that were not the real question before the court, there is no excuse for this proceeding. The state might have fixed its inner harbor line before the waters were lowered, and left it to the shore owners to bring an action to determine its right so to do.

In his original brief the Attorney General says: 'This is an action by the state of Washington * * * to recover possession of, and quiet title to, certain submerged lands of Lake Washington.' He says: 'The lower court held that by that deed the state of Washington * * * conveyed all the lands lying between the line of ordinary high water and the line of ordinary navigability, and that therefore the respondents had title to the lands in question as against the appellant.' And, also, 'the only question * * * that is presented by the appeal of the state is, What lands were conveyed by deed of second class shore lands, executed and delivered by the state in 1904, or what is the water or outer boundary of such grant?' Clearly our opinion is within the bounds fixed by the state in its first brief, and well within the issues as they were found to be and decided by the trial judge.

The Attorney General is also of the opinion that we have held that the shore owner is entitled to carry his title to the line of 'practical commercial navigability'; that the line of navigable water is necessarily to be located in water of sufficient depth to accommodate all shipping. The Attorney General assumes that the line of navigability is the outer harbor line or government pier head line. We have undertaken to make it plain all the way through the opinion that the line of navigability as there used is the inner harbor line. We say: 'The area lying between high water and the line of navigability as fixed by the inner harbor line, being whether submerged or not, theoretically nonnavigable, is treated as land and not water, and is wholly within the keeping of the state. * * * The owner of the shore land takes subject to the right of the state to fix a harbor line in the event that the land finally comes within the limits of a city. If this be done the boundary of the shore land, under the statute and repeated decisions of this court, would be the inner harbor line. Now, theoretically that line is already fixed. It is the line of navigability. Although not surveyed and put upon paper, the officers of the state are presumed to find that line and define it when establishing the inner harbor line. * * * Inasmuch as the harbor line stands for and includes both the line of ordinary low water and the line of navigability, it would seem...