Strand v. State

• Decision Date: 06 January 1943
• Docket Number: 28828.
• Citation: 132 P.2d 1011,16 Wn.2d 107
• Parties: STRAND et al. v. STATE et al.
• Court: Washington Supreme Court

132 P.2d 1011

16 Wn.2d 107

STRAND et al. v. STATE et al.

No. 28828.

Supreme Court of Washington

January 6, 1943

Department 2.

Quiet title suit by Arvid Strand and others against the State of Washington and others. Decree for plaintiffs, and defendants appeal.

Affirmed.

Appeal from Superior Court, Skagit County; Hobart S. Dawson, judge.

Smith Troy, of Olympia, and Lloyd W. Shorett, of Seattle, for appellants.

Croson Johnson & Wheelon, of Seattle, for respondents.

SIMPSON Justice.

This suit was brought for the purpose of quieting title to tidelands located near the mouth of the north fork of the Skagit river.

Plaintiffs in their complaint, alleged title in the property described as follows: 'All tide lands of the second class to the line of extreme low tide lying in front of Lots 5 and 6 Section 7, Township 33 North, Range 3 E. W. M., with a frontage of 61.40 lineal chains, more or less, measured along the Government meander line; also tide lands of the second class to the line of mean low tide measured along the Government meander line commencing at the Northwest corner of Lot 1, Section 18 in said Township and Range and running to a point which is two (2) chains westerly measured along said meander line from the Southeast corner of said lot 1.'

The defendants answered by way of general denial except that the state claimed an interest in the lands and intended to classify the property as public shooting grounds under authority of chapter 165, Laws of 1941.

Defendants then set out two affirmative defenses. The first one will not be considered because no evidence was introduced to support it.

In the second affirmative defense, defendants claimed that the land sold did not include 'islands' lying in a northerly direction and down stream from the lots described in the complaint for the reason that the islands were detached tidelands, the title of which was in the State of Washington by virtue of the provisions of the state constitution and have from time to time been leased as detached tidelands which were beyond the line of extreme low tide, and that no proper survey was made prior to the state's deed to plaintiff Einarsen.

Plaintiffs demurred to the defense and, in the alternative, set forth a general denial of the allegations contained in defendants' answer except to admit that the state's title was derived from the state constitution. They alleged further that plaintiff Einarsen did apply to purchase the property as attached tidelands; that the facts upon which he based his right to purchase were properly submitted to the state land commissioner Before the sale was made; that he sold an interest to his co-plaintiffs who thereupon improved the property; that the state confirmed this title by a subsequent survey and by denying an application of third parties to purchase as detached tidelands in 1935; and that the defendants were estopped to make any claim to the property.

The case was tried to the court and a decree entered in favor of plaintiffs' quieting their title to the specific portion claimed by the state designated in the decree as certain 'islands or hummocks' lying in front of lots five and six, and leaving it to the parties to determine the description by mates and bounds by mutual agreement or by further proceedings, if necessary. Defendants have appealed from the decree assigning error in granting plaintiffs a decree quieting title.

Inasmuch as the individual defendants, members of the state game commission and the land commissioner, are named in their official capacity only, we will refer to the state of Washington as the sole appellant.

At the trial, title to certain small areas of the tidelands was involved which were referred to by the parties as 'hummocks.'

The evidence, for the most part, pertained to, and the controversy mainly hinged on, the title and the character of one of these 'hummocks' and it is apparently conceded that the title to this 'hummock' will determine the title to all property involved in this controversy.

'The hummock' is rectangular in shape, about forty acres in area, bounded on the northerly side by the Skagit river and on the easterly and westerly sides by sloughs which flow from the river in a southwesterly direction. It is disputed whether the fourth side is open to the tide flats beyond. Without diking, the whole area would be under water at high tide. The most southerly slough is called 'Ben Slough,' it being the one nearest the uplands. Northwest of Ben Slough is the other known as 'Big Slough.'

It is admitted by appellant that respondents' title depends upon the deed Einarsen secured from the state in 1928, and that the deed on its face gave title to all attached tidelands in front of lots five and six.

The court found that it was the intention of the parties to include 'the hummock' as attached tidelands at the time the deed was executed.

It is the contention of the state that this 'hummock' was in fact detached tidelands and as such could only be sold after a proper survey and upon an acreage basis rather than by lineal frontage as with attached tidelands.

The state further contends that if the property was in fact conveyed as attached tidelands, it did not pass to the grantee, irrespective of its actual character at the time, for the reason that it had been leased previously as detached tidelands and could not be sold without a survey as required by law.

The state's claim is based on Rem.Rev.Stat. § 7797-123, which reads as follows: 'Any accretions that may be added to any tract or tracts of tide or shore lands heretofore sold or that may hereafter be sold, by the state, shall belong to the state and shall not be sold or offered for sale until such accretions shall have been first surveyed under the direction of the commissioner of public lands, and the owner of the adjacent tide or shore lands shall have the preference right to purchase said lands produced by accretion for thirty days after the owner of the adjacent tide or shore lands shall be notified by registered mail of his preference right to purchase such accreted lands.'

October 24, 1927, Einarsen purchased the tidelands in front of lots five and six from Skagit county. In the deed from the county they are described as follows: 'Tide lands of the second class described as follows: Beginning on the meander line at the Northeast corner of Lot 5 of Section 7, Twp. 33, N.R. 3 E.W.M. thence renning westerly and southerly along the meander line to a point on said line, which is two chains westerly, measured along the meander line, from the Southeast corner of Lot 1, Section 18, Twp. 33 N.R. 3 E.W.M.'

In the month of May, 1928, Einarsen filed an application with the commissioner of public lands to purchase the second class tidelands in front of lots five and six lying between mean low tide and extreme low tide. His purpose evidently was to be certain that he would get a good title to 'the hummock.'

Second class tidelands are described as follows: 'Whenever used in this act the term 'second class tidelands' shall mean public lands belonging to the state over which the tide ebbs and flows outside of and more than two miles from the corporate limits of any city, from the line of ordinary high tide to the line of extreme low tide.' Rem.Rev.Stat. § 7797-6.

This statute was applicable in 1928 when Einarsen obtained his title.

Detached tidelands are defined in Rem.Rev.Stat. § 7797-122: 'Tide or shore lands of the second class which are separated from the upland by navigable waters, shall be sold at not less than five dollars per acre; an applicant to purchase such tide or shore lands shall, at his own expense, survey and cause to be filed with his application a plat of the surveys of the land applied for, which surveys shall be connected with, and the plat shall show, two or more connections with the United States survey of the uplands, and the applicant shall also file the field-notes of the survey of said land with his application. The commissioner of public lands shall examine and test said plat and field-notes of survey, and if found incorrect or indefinite, he shall cause the same to be corrected or may reject the same and cause a new survey to be made.'

Einarsen testified that when he inquired at the land commissioner's office concerning the procedure to purchase the tidelands he desired to buy, he was told that he must secure an engineer's report and a survey showing the original meander line.

Accordingly, he filed an application which was accompanied by an affidavit signed by the county engineer of Skagit county, together with a survey showing the original meander lines of lots five and six. The affidavit stated that no sough existed on the property; that the 'old slough' had 'entirely filled up and no longer existed.' This, it seems to be admitted, is not an accurate statement as Einarsen testified there always had been some water in the sloughs although he refers to them as 'pot holes.'

The chief engineer of the land commissioner's office thereafter made a report based, apparently to a certain extent, on the information furnished by Einarsen and the records in the office which disclosed the history of the property pertaining to previous leases, of part of the property, as detached tidelands.

Thereafter the proper statutory steps were taken, the sale consummated to Einarsen and a deed executed by the proper state officials conveying to him all the second class tidelands 'owned by the state of Washington between the line of mean low tide to the line of extreme low tide and in front of lots five and six.'

The grantee paid the sum of $307 to the state for this property which was the appraised value placed thereon by the state based on a per lineal...