Yesler v. Board of Harbor Line Commisioners
Petition by Henry L. Yesler in a state court of Washington for a writ of prohibition to restrain the state board of harbor line commissioners, composed of W. F. Prosser, Eugene Semple, H. F. Garretson, Frank Richards, and D. C. Guernsey, from locating harbor lines so as to include petitioner's wharf. The writ was granted by the trial court, but, on appeal to the supreme court of the state, the judgment was reversed. 27 Pac. Rep. 550. Petitioner appeals. Dismissed.

Statement by Mr. Chief Justice FULLER:

On October 28, 1890, the affidavit of J. D. Lowman, the attorney in fact of H. L. Yesler, was filed in the superior court of King county, state of Washington, stating:

'That said H. L. Yesler has lived in the city of Seattle upwards of thirty years; that he is now, and has been for thirty years last past, the owner of the following described property, to wit, the property commonly known as 'Yesler's Wharf and Dock' and the upland abutting on the shore upon which said wharf and dock were constructed; that said property abuts upon the shores of Elliott bay; that more than thirty years ago said Yesler, in aid of commerce and navigation, caused to be constructed in front of and to the westward of said premises, and extending into Elliott bay, a wharf and dock, at large expense, to wit, at the expense of one hundred thousand dollars; that said Yesler, at large expense, for many years prior to June 6, 1889, maintained and kept up said wharf and docks in aid of commerce and navigation; that the fire which occurred on the 6th day of June, 1889, and which destroyed the city of Seattle, destroyed said wharves and docks; that immediately thereafter said Yesler caused said wharves and docks to be rebuilt, at large expense, to wit, at the expense of fifty-six thousand dollars, and has ever since maintained said wharves and docks, and now maintains the same; that said wharves and docks are necessary aids to commerce and navigation, and are largely used and have been largely used in building up and promoting the commerce of the city of Seattle and of the state of Washington.

'That under and by virtue of the act of the legislature of the state of Washington approved March 26, 1890, and entitled 'An act for the appraising and disposing of the tide and shore lands belonging to the state of Washington,' affiant is entitled, as affiant believes, to the privilege of purchasing the space upon which the improvements were made by him as aforesaid upon the shore in front of the upland. Affiant further says that under and by virtue of the act of the legislature of the state of Washington approved March 28, 1890, entitled 'An act to create a board of harbor line commissioners,' prescribing their duties and compensation, the governor of the state appointed as such commissioners W. F. Prosser, Eugene Semple, H. F. Garretson, Frank Richards, and D. C. Guernsey; that the members of said harbor line commission have duly qualified as such and entered upon the discharge of their duties as such commission, and are about to take final action in the location and establishing of the harbor lines within the limits of the city of Seattle; that, as affiant is informed and believes, said commission propose and are about to locate and establish such harbor lines in such a way as to include within such harbor lines a large part of the improvements of affiant hereinbefore mentioned; that the extension of the harbor lines over said improvements is an attempt on the part of the said harbor line commission to exercise unauthorized power and to do an act which is not within the jurisdiction of the said harbor line commission; that said harbor line commission has not authority or jurisdiction under the laws of the state of Washington, as affiant is advised and believes, to embrace or include within the harbor lines to be located and established in front of the city of Seattle the wharves, docks, or other improvements made therein; that after the fire of June 6, 1889, the said Yesler rebuilt, at large expense, as aforesaid, the wharves and docks above mentioned, and did so upon the faith of protection afforded to said Yesler by the act of legislature approved March 26, 1890, above mentioned; that, if the harbor line commission aforesaid are not prevented by a writ of prohibition from this honorable court from extending the so-called 'harbor lines' over the wharves and docks of said Yesler, the said commission will so extend said lines, and thus deprive said Yesler of the use and benefit of his said wharves and docks, without compensation or due process of law, and cloud his title to the same in such a manner as greatly to embarrass and hinder the plaintiff in the legitimate use of his said property.'

Deponent therefore prayed for a writ of prohibition, directed to the said harbor line commissioners, to prohibit and restrain them, and each of them, 'from extending, locating, or establishing the harbor lines in front of the city of Seattle or in the harbor of the city of Seattle over the wharves and docks of the said H. L. Yesler, or any part thereof, and from filing the plat thereof in the office of the secretary of state, or the duplicate thereof in the office of the clerk of the city of Seattle.'

An alternative writ having been issued, defendants appeared and moved to quash. The cause was heard upon the motion, the motion denied, and judgment rendered that the writ be made absolute, 'and that this court does hereby command said respondents, and each of them, absolutely and finally, that they, and each of them, desist and refrain from any future proceedings in locating, establishing, and extending the harbor lines mentioned and referred to in the affidavit of J. D. Lowman, made and filed herein on October 28, 1890, and in said alternative writ issued thereon, over, across, and in front of the premises of said relator herein, H. L Yesler, mentioned in said alternative writ, to wit, the premises commonly known as 'Yesler's Wharf and Dock' and the upland abutting on the shore of Elliott bay upon which said wharf and dock were constructed, and through the buildings thereon upon the shore of Elliott bay and in the harbor of the city of Seattle, in said King county, or in such a manner as to embrace and include said premises and improvements, or any part thereof, within the harbor lines of said city of Seattle, until compensation shall be ascertained and paid as required by law to said relator, H. L. Yesler, for the taking or damaging of his said property and improvements thereby.'

An appeal was prosecuted to the supreme court of the state of Washington, the judgment reversed, and the petition dismissed. The court held that, as against the state, a littoral owner, simply as such owner, could assert no valuable rights below the line of ordinary high tide, (Eisenbach v. Hatifield, 26 Pac. Rep. 539;) that Yesler had no right to the land in controversy, and, at the most, the only vested right he had was in the wharf constructed thereon; that, even though he had a right to be compensated for his improvements, that would not enable him to prevent the establishment of harbor lines; that it could not be said that simply including the land under the wharf within the harbor lines was such a taking or damaging of the wharf as would entitle its owner to compensation; and that it did not follow from such including within the harbor lines that the state had interfered or ever would interfere with his ownership or possession of the wharf. The court was also of opinion that Yesler's title was not of a nature to be clouded, and, even if it were, that the proceedings complained of could constitute no cloud thereon; and, further, that, as to the legislation of congress upon the subject of navigation and harbor lines, the state legislation was not opposed thereto; and, besides, that the United States was the only party that could interfere in such case. It was also held that the writ of prohibition should only be granted in a clear case, and when no other remedy was available, and that it was not satisfled that the ordinary proceedings in law or equity would not completely protect petitioner's rights. State v. Prosser, 27 Pac. Rep. 550.

A writ of error from this court was thereupon allowed.

The state of Washington was admitted into the Union November 11, 1889, having a constitution containing the following provisions:

'Article 15. Harbors and Tide Waters. Section 1. The legislature shall provide for the appointment of a commission whose duty it shall be to locate and establish harbor lines in the navigable waters of all harbors, estuaries, bays, and inlets of this state, wherever such navigable waters lie within or in front of the corporate limits of any city, or within one mile thereof upon either side. The state shall never give, sell, or lease to any private person, corporation, or association any rights whatever in the waters beyond such harbor lines, nor shall any of the area lying between any harbor line and the line of ordinary high tide, and within not less than fifty feet nor more than six hundred feet of such harbor line, (as the commission shall determine,) be sold or granted by the state, nor its rights to control the same relinquished, but such area shall be forever reserved for landings, wharves, streets, and other conveniences of navigation and commerce. Sec. 2. The legislature shall provide general laws for the leasing of the right to build and maintain wharves, docks, and other structures, upon the areas mentioned in section 1 of this article, but no lease shall be made for any term longer than thirty years, or the legislature may provide by general laws for the building and maintaining upon such area wharves, docks, and other structures. Sec. 3. Municipal corporation shall have the right to extend their streets over intervening tide lands to and across the area reserved as herein provided.'

'Article 17. Tide Lands. Section 1. The state of Washington asserts its ownership to the beds and shores of all navigable waters in the state up to and including the line of ordinary high tide in waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes: provided, that this section shall not be construed so as to debar any person from asserting his claim to vested rights in the courts of the state. Sec. 2. The state of Washington disclaims all title in and claim to all tide, swamp, and overflowed lands patented by the United States: provided, the same is not impeached for fraud.'

'Article 27. Schedule. In order that no inconvenience may arise by reason of a change from a territorial to a state government, it is hereby declared and ordained as follows: Section 1. No existing rights, * * * contracts, or claims shall be affected by a change in the form of government, but all shall continue as if no such change had taken place. * * * Sec. 2. All laws now in force in the territory of Washington, which are not repugnant to this constitution, shall remain in force until they expire by their own limitation, or are altered or repealed by the legislature: provided, that this section shall not be so construed as to validate any act of the legislature of Washington territory granting shore or tide lands to any person, company, or any municipal or private corporation.'

By a territorial law (Laws Wash. T. 1854, p. 357) it was provided that any person owning land adjoining any navigable waters or water course within or bordering upon the territory might erect upon his own land any wharf or wharves, and might extend them so far into said waters or water courses as the convenience of shipping might require; and that whenever any person should be desirous of erecting upon his own land any wharf at the terminus of any highway, or at any accustomed landing place, he might apply to the county commissioners of the proper county, who, if they should be satisfied that the public convenience required the wharf, might authorize the same to be erected and kept up for any length of time, not exceeding 20 years.

On March 26, 1890, an act of the legislature of the state for the appraising and disposal of the tide and shore lands belonging to the state was approved, the eleventh section of which provided: 'The owner or owners of any lands abutting or fronting upon or bounded by the shore of the Pacific ocean, or of any bay, harbor, sound, inlet, lake, or water course, shall have the right for sixty days following the filing of the final appraisal of the tide lands to purchase all or any part of the tide lands in front of the lands so owned: provided, that if valuable improvements in actual use for commerce, trade, or business have been made upon said tide lands by any person, association, or corporation, the owner or owners of such improvements shall have the exclusive right to purchase the land so improved for the period aforesaid.' 1 Hill, St. 758.

On March 28, 1890, an act was passed by the legislature of Washington, entitled. 'An act to create a board of harbor line commissioners, prescribing their duties and compensation.' By the first section the board of harbor line commissioners was created, to consist of five disinterested persons, to be appointed by the governor, and the third section is as follows:

'Sec. 3. The duties of the said harbor line commissioners shall be to locate and establish harbor lines in the navigable waters of all harbors, estuaries, bays, and inlets of this state, wherever such navigable waters lie within or in front of the corporate limits of any city or within one mile thereof upon either side, and to perform all other duties provided and prescribed in article fifteen of the constitution of the state of Washington, and all such other duties as the law may prescribe; and wherever and whenever said board of harbor line commissioners shall have established the lines as herein provided, in any of the navigable waters of the harbors, estuaries, bays, and inlets of this state, they shall file the plat thereof in the office of the secretary of state, and a duplicate thereof in the office of the clerk of the city or town where harbor lines shall have been located; and from and after the filing of said plat, the harbor lines established as therein and thereon designated and displayed shall be, and the same are declared to be, the harbor line of that portion of the navigable waters of this state.' 1 Hill, St. 736.

The defendants in error were duly appointed harbor line commissioners under this act, and qualified and entered upon the discharge of their duties as such. They caused a survey to be made of the harbor of the city of Seattle, and located a harbor line along the entire harbor front and in front of the area occupied by Yesler with his wharf, and caused a plat to be made of the harbor front of the city, upon which was plainly marked the harbor line so located by them, together with the location of all improvements. It is stated by counsel that they also determined the width of the strip which the constitution reserved from sale, and caused a line to be marked on the plat indicating the inner line of this area.

Thos. R. Shepard and A. H. Garland, for plaintiff in error.

W. C. Jones, for defendants in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court. 

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