Wiegardt v. State, 29866.

• Decision Date: 09 January 1947
• Docket Number: 29866.
• Parties: WIEGARDT v. STATE et al.
• Court: Washington Supreme Court

175 P.2d 969

27 Wn.2d 1

WIEGARDT v. STATE et al.

No. 29866.

Supreme Court of Washington, En Banc.

January 9, 1947

Action by John L. Wiegardt and Lillie Wiegardt, husband and wife and others, against the State of Washington and Milo Moore Director of Fisheries of the State of Washington, to enjoin the defendants from selling or otherwise disposing of oysters planted by plaintiffs by inadvertence on the state reserve. From an order dismissing complaint, the plaintiffs appeal.

Affirmed.

Appeal from Superior Court, Thurston County; John M. Wilson, judge.

Fred M Bond, of South Bend, and W. H. Abel, of Montesano, for appellants.

Smith Troy and Lady Willis Forbus, both of Olympia, for respondents.

ROBINSON Justice.

In this cause, the trial court sustained a demurrer to an amended complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and, the plaintiffs thereupon electing to stand on the complaint without further pleading, entered an order of dismissal. From that order, plaintiffs appeal.

The complaint alleges that the plaintiff martial communities have, as copartners during the times therein mentioned, been engaged in the business of propagating, cultivating, raising, developing, and marketing oysters in Pacific county, and have owned, and still own, a large and substantial oyster bed abutting upon tide lands of the state of Washington, known as the Long Island Oyster Reserve. It is further alleged that, during the past twelve years, the plaintiffs, at a time when the boundary monuments between their oyster beds and the abutting state land were not distinguishable, by inadvertence planted oysters on the state reserve which at the time did not contain any bed of natural oysters, and had never been used by the state to propagate oysters. For reasons hereinafter shown, they claim that these oysters are their personal property, and in this action sought to enjoin the state and its director of fisheries from selling or otherwise disposing of them.

As the single question involved is the sufficiency of the complaint, we quote the major portion thereof:

'6. That said plaintiffs in good faith planted oysters upon said State tide lands and which were waste lands and inside of the reserve hereinafter described and mentioned without knowing they were in said reserve and without knowing that said plaintiffs did not own said lands and premises and believing they were planting the same upon lands and premises owned by the plaintiffs. Plaintiffs have cultivated said oysters at all times and have been in the sole, exclusive and actual possession thereof and still are in the actual possession of said lands and premises and that the same constitutes an artificial bed of oysters and not a natural bed.

'7. That said plaintiffs' oyster lands are contiguous lands and adjacent to said tide lands upon which they planted said oysters by inadvertence and without the knowledge of the true boundary and which said tide lands are within the confines of what is known now as the Long Island Oyster Reserve.

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'9. That Milo Moore as Director of Fisheries purporting to act under the session laws of the State of Washington for the year 1945 and being Chapter 199 has advertized for sale upon September 21, 1945 the oysters upon the oyster reserves of the State of Washington and which include those planted and propagated by the plaintiffs in good faith and unless enjoined and restrained by the court the Director of Fisheries will on said date proceed to sell and will sell the plaintiffs' oysters upon said State Oyster Reserve without hearing or determination of the good faith of said plaintiffs in planting, propagating and owning said oysters. That such sale or any sale by the Director of Fisheries will work irreparable injury and damage to said plaintiffs and that they will be without remedy in law or in equity if such sale takes place.

'10. That said lands and the oysters thereon and which oysters are owned by said plaintiffs, are the same ones that are described and mentioned in the sale advertized by the Director of Fisheries to take place on the 21st day of September 1945 and in the description and offering of said oysters for sale by said Director of Fisheries it is designated as the Long Island Reserve and the parts of the same on which said plaintiffs own the oysters are described in said notice of sale in numbers fixed by the Director of Fisheries as follows: Numbers 2, 3, 4, 5, 6 and 7 of Long Island Reserve and that all the oysters upon each and all of said numbers five to seven inclusive so described and being offered for sale by said Department of Fisheries are the same lands and has reference to the same oysters as above mentioned in this complaint and which are now owned by the plaintiffs.

'11. That the value of the plaintiffs' oysters thus planted and propagated in good faith as above described is alleged to be worth approximately $10,000.00 and that said plaintiffs will be damaged in that amount if said sale is not restrained and the defendants prohibited in carrying out the same.

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'13. That all of said oysters above described are personal property and are not real property and property that belong to said plaintiffs and not the property of the State of Washington.

'14. That said plaintiffs are the owners of all of said oysters so planted in good faith as above described and mentioned and are entitled to remove the same therefrom and that this action is brought for the purpose of establishing plaintiffs' right to said oysters and to remove them from said lands and premises. That said plaintiffs are able and willing to compensate the State of Washington for whatever actual use and value said state's lands are worth and will pay the same promptly upon the same being determined and settled by the court.

'15. That said plaintiffs do not have any plain, speedy or adequate remedy at law or any remedy whatever except the one sought in this proceeding.' (Italics ours.)

Plaintiffs were granted a temporary injunction which has been continued in force by the furnishing of an additional bond, as directed by the order appealed from.

It will be noted that the demurrer admits, in addition to the general allegations, the following: (1) That the oysters claimed by the plaintiffs as their personal property were planted, and are situated, on a state oyster reserve; (2) that there was, and is, no natural oyster bed on the reserve; (3) that it was not otherwise occupied for purposes of trade or commerce; and (4) that the planting was done in good faith.

Plaintiffs admittedly rely upon § 109 of chapter 31, Laws of 1915, p. 113, Rem.Rev.Stat. § 5763, which reads as follows:

'When any person has, acting in good faith, planted oysters on tide or shore lands not containing any bed of natural oysters belonging to the state of Washington, and not otherwise occupied for purposes of trade or commerce, such oysters shall, pending the sale, lease or reservation of such lands by the state, be considered as personal property, and the unauthorized taking of the same shall subject the offender to civil and criminal prosecution, as in any similar case of violation of property rights: Provided, that the grounds holding the oysters have been kept suitably marked by stakes or other landmarks; but such stakes or other landmarks having been removed by accident or design shall not excuse any person from wrongfully taking the oysters thereby marked, if he knew the ground to have been planted with oysters.' (Italics ours.)

The above section was lifted bodily, and without change, from chapter 29, p. 46, Laws of 1895, being section 1 of that act. It appears in Ballinger's Annotated Codes and Statutes of Washington as § 3366, and is found in all succeeding codes. It has, therefore, been in effect for more than fifty years. We have found no case in which its language has been construed, and counsel have cited none.

In our opinion, this case turns wholly upon the words we have italicized in quoting the section upon which the plaintiffs rely:

'* * * Such oysters shall, pending the sale, lease or reservation of such lands by the state, be considered as personal property, * * *.'

What are 'such lands'? The state says that they are plainly the 'tide and shore lands,' as designated in the second line of the section, and not oyster reserves. The conflict between the parties on this point is well set out in appellants' brief in the following language:

'The argument below for respondents was: That the statute did not apply for that the term 'tide and shore lands' did not include an oyster reserve, and that the statute did not protect the planter when the bed of oysters planted by him was not suitably marked by stakes or other landmarks.

"Tide or shore lands' is a generic term and includes all lands from ordinary high tide line to the low tide line. Oyster reservations set up by the state under sec. 102, ch. 31, Laws 1915, are tide lands devoted to a special purpose viz: the raising of seed oysters, and do not cease to be tide lands because of such use.'

The appellants' answer to the state's contention appears at first sight to be plausible, and perhaps adequate. Upon mature consideration, however, we are of the opinion that the position taken by the state is correct, for the following reasons: The pivotal word in the language under construction is 'pending.' 'Pending,' in certain situations, depending upon the context, means 'during'; in others, it means 'until' or 'while awaiting,' and this is its more modern usage. Webster's New International Dictionary, 2d Ed., 1945. Did the legislature mean 'such oysters shall,' during 'the sale, lease or reservation of such lands by the state,' be...