Sullivan v. Callvert

• Decision Date: 12 March 1902
• Citation: 27 Wash. 600,68 P. 363
• Court: Washington Supreme Court
• Parties: SULLIVAN v. CALLVERT, Public Land Com'r.

68 P. 363

27 Wash. 600

SULLIVAN v. CALLVERT, Public Land Com'r.

Supreme Court of Washington

March 12, 1902

Appeal from superior court, Skagit county; Geo. A. Joiner, Judge.

Injunction by Daniel Sullivan against S. A. Callvert, as commissioner of public lands. Judgment for defendant, and complainant appeals. Reversed.

Million & Houser, for appellant.

W. B Stratton and Henry McBride, for respondent.

WHITE J.

This action was brought for the purpose of enjoining respondent as commissioner of public lands, from issuing to one J. B McMillan, or the Union Boom Company, a contract for certain tide lands of the second class, lying at and adjacent to the mouth of the Samish river, in Skagit county. The sale had been made by the county auditor of said county, and was pending approval by the state land commissioner when appellant instituted this action to enjoin the issuance of a contract under the sale. A temporary restraining order was issued at the time of the commencement of the action, without notice, and a date fixed by the court for the hearing of an application for a temporary injunction. On the day set for the hearing of the application for a temporary injunction, respondent appeared and filed a general demurrer to the appellant's complaint, which was sustained by the court; and, appellant electing to stand on his complaint, judgment of dismissal was entered in favor of respondent, from which action of the trial court appellant appeals to this court, and assigns as error the action of the lower court in sustaining the demurrer to the complaint, and the dismissal of the action.

The complaint was drawn on the theory that the property of appellant in the warehouses mentioned therein was being taken through the alleged sale of tide lands, and the contemplated action of respondent in issuing the contract to others based thereon in violation of the rights of respondent under the law in relation thereto. The complaint was filed April 15, 1901, and, omitting formal averments, in substance it alleged that the appellant is the owner and in possession of lots 8, 9, and 10, section 5, township 36 N., range 3 E., W. M.; that this land had a water frontage on the waters of Puget Sound; that tide lands abut upon and lie in front of the same; that the appellant prior to the year 1890 improved the tide lands in front of his land by erecting two warehouses thereon, of the aggregate value of $1,100, and ever since has maintained and used these warehouses in the shipping of grain and produce; that on the 13th of April, 1901, the auditor of Skagit county, by virtue of an order issued by the board of land commissioners, offered for sale and sold to one J. B. McMillan, or the Union Boom Company, the said tide lands; that a return has been made of such sale to the board of land commissioners for confirmation, and to have a contract for the same issued to the said purchaser under the law in regard to the sale of tide lands of the second class. It is alleged that the law for the sale of the tide land was not complied with, in this: that the improvements of the appellant on said tide lands were never appraised prior to the sale or at all; that said tide lands were not offered for sale in tracts not exceeding 160 acres, but were offered for sale in an entire body, without division into tracts; that the said tide lands were advertised to be sold in an entire body, by designating the same according to the number of chains on the meander line; that on the day of sale the appellant appeared at the place of sale and protested against the sale, and demanded that the lands be properly appraised and offered for sale and advertised, and that the improvements thereon be appraised before such sale; that the auditor, under the instructions and direction of the respondent, ignored said protest and demand. The appellant alleges that he has suffered irreparable damages by rerason of the pretended sale of said tide lands in the illegal manner in which they were sold; that he desired to, and was willing to, become a purchaser of all of said tide lands lying in front of his said lands, had he been permitted to bid on the same in separate tracts or parcels, and was damaged in not having his improvements appraised before said sale; that he will be prevented from obtaining the value of his improvements if effect is given to such sale by the issuance of a contract based thereon. Appellant further alleges that the action is brought for injunctive relief for the reason that he has no adequate remedy at law; that he has no appeal from the action of the respondent in making sale, or any steps leading up to or preceding the same; that the act entitled 'An act providing for appeals from the board of state land commissioners in matters pertaining to the sale of tide lands,' approved March 8, 1901 (Sess. Laws 1901, p. 98), will not go into effect until the 12th day of June, 1901, and by said act the right of appeal in pending proceedings does not accrue until the act goes into effect; that, if the court should decide that the right of appeal exists under said act, the appellant will perfect an appeal, but, in case the court should decide that no appeal would lie under said act, then the appellant claims relief as prayed for, for the reason that he has no adequate remedy at law or by appeal.

We say in a recent case ( Washougal & L. Transp. Co. v. The Dalles, P. & A. Nav. Co., 68 P. 74, filed March 5, 1902) that 'the title to all tide and shore lands passed to the state at the time of its admission into the Union. From thenceforward the state had the sole and absolute right and power of disposition over such lands, and it could, either in its fundamental law, or by statutory enactment, provide for their disposition.' It is not contended that the land covered by the improvements mentioned in the complaint was patented by the United States to the appellant or his grantors prior to the admission of the state. With the exception of such patented lands, all lands covered by the ebb and flow of the tide below the line of ordinary high tide are tide lands, the title of which is in the state. The erection of buildings on such land did not vest in the owner of the building any title or interest in the land covered by the buildings. In erecting the buildings he was trespassing upon the property of the state, or on property held in trust for the state, if the buildings were erected before the admission of the state into the Union. The state had the right to treat him as a trespasser, or to give him a preference right to purchase the land improved, and it might also provide for paying him for such improvements. The state has seen fit to treat improvers of the tide land, actually using the same for commerce, trade, or business, not as trespassers, but as having equities in the improvements, and rights prior to other citizens in acquiring title from the state to tide lands covered by such improvements. These acts of grace on the part of the state do not, however, vest in the improver any estate in the land; and, if he desires to avail himself of the benefits bestowed, he must do so under the law bestowing such benefits. Eisenbach v. Hatfield, 2 Wash. 236, 26 P. 538, 12 L R. A. 632; Harbor Line Com'rs v. State, 2 Wash. 530, 27 P. 550; Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331. The act approved March 26, 1890, relative to appraising and disposing of tide and shore lands, divides tide lands into three classes, and defines tide lands of the second class as '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.' Under that act such lands could only be surveyed and appraised upon application of the owner of said improvements. When appraised, improvements were excluded from the valuation, and after the filing of the final appraisal the owner of the improvements had the exclusive right to purchase for the period of 60 days. The owners of lands abutting on tide lands, and the grantees of such abutting owners, were also given a preference right, within a limited time, to purchase such...