Appendix — Hughes v. Washington

Supreme Court brief1967

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. STATE OF WASHINGTON,

"APPENDIX TO PETITION 1 FOR WRIT

OF CERTIORARI TO SUPREME COURT

e _ OF THE STATE OF WASHINGTON:

Re we

Attorneys for Petitioner

fe Sa

ee IN THE . |

Supreme Court of the United States

“October Term, 1965

STELLA HUGHES,

' Petitioner,

VS. :

STATE OF WASHINGTON,

Respondent.

APPENDIX TO PETITION FOR WRIT

OF CERTIORARI TO SUPREME COURT

_ OF THE STATE OF WASHINGTON

CHARLES B. WELSH

1112 Robert Bush Drive

South Bend, Washington

JOHN GAVIN ’

410 Miller Building

Yakima, Washington ©

ERNEST M. INGRAM

216 Becker Building

__ Aberdeen, Washington

~ Attorneys for Petitioner

APPENDIX TO PETITION FGR WRIT -

OF CERTIORARI TO SUPREME COURT

OF THE STATE OF WASHINGTON

APPENDIX IN DEX

oie APPENDIX A -Summons. and Complaint. kx ee

APPENDIX B Answer and Cross Complaint .. 10 |

APPENDIX CO Reply .........50¢cceecepe 6

APPENDIX D_ Findings of Fact and

; -- Conelusions of Law ......... 16

APPENDIX E Judgment—Superior Court ... 19

Ke APPENDI X F Statement of Facts ...... ; ao» oe

APPENDIX @ Appellant’s Brief ceca 38

‘APPENDIX H Respondent’s Brief’......... 50

APPENDIX I Appellant’s Reply Brief ..... 54

APPEN DIX ; Supreme Court: Decision ia <a a

APPENDIX K. Order Denying Petition for .

| Rehearing Edd eR Ke Ck ees 93

APPENDIX L_Remittitur ........... oo eees 94

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APPENDIX “A”

INTHE | |

Supreme Court of the United States

| October ‘Term, 1965 |

STELLA HUGHES,

Petitioner,

VS. ; ;

STATE OF WASHINGTON,

ar Respondent.

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT

OF THE STATE OF WASHINGTON -

_ SUMMONS AND COMPLAINT

IN THE SUPERIOR COURT OF THE STATE OF |

WASHINGTON FOR PACIFIC COUNTY

STELLA HUGHES, .

Plaintiff} wo. 14548

4 Sear 5 vs.

- STATE OF WASHINGTON COMPLAINT

7 Defendant

3 Comes now plaintiff and for cause of action

alleges: a

That plaintiff individually is the owner in fee

simple title and in possession of the following de-

scribed ‘real property, to-wit: 3

_ Beginning at a point 1353 feet north from the line

_ between Sections 4-and 9, Township 11 N. R..11

West W.M. and 437.3: feet west from the west

line‘of State Highway No. 12-A, thence north

226.6 feet, thence west; 300 feet more-or less to

the line of ordinary high tide of the Pacific

Ocean, thence South 226.6 feet, thence East ses

feet more or less to beginning.

That title to the ‘above described real property

was originally obtained from the United Staltes

government prior to 1889 and the westerly boundary

line of said property is a line corresponding to the

' line of mean high tide of ithe Pacific Ocean, and that °

defendant State’ of ‘Washington’ claims some right,

, title or interest easterly of said west boundary line’

but any such claim on the part of the State of Wash-

ington is inferior to the right of plaintiff herein.

- That plaintiff and her predecessors in. interest

have been in the -actual, open and notorious posses-

7 . P °

. Z

sion of the’ above described real: property for more,

than ten years immediately last past, under the claim.

and color of title thereto, made in good faith, and

during said time have paid all real estate taxes legallv

* . assessed thereon, and during said time no other party

or parties have claimed or asserted any right, title

* or interest i in and to said property. 3

WHEREFORE plaintiff prays that the court —

-enter judgment - herein establishing the westerly

boundary, line of plaintiff’s property to the line of

mean high tide of the Pacific Ocean and as against any

right, title, claim, or interest of -the defendant, State

of Washington.

CHARLES -B. WELSH

- Attorney. for plaintiff

STATE OF WASHINGTON . |

COUNTY OF PACIFIC

I, Charles B. Welsh being first duly. sworn, de-

pose and say that I am attorney for plaintiff in: the

SS.

above entitled action and proceedings, that I have

read the foregoing complaint know the contents there-

. of, and that.the same and the whole thereof is true,

as I verily believe That I make this verification for

the reason that plaintiff is without. the State of

Washington.

CHARLES B. WELSH

Barinse tual ai y

isi oa tittose Rar MR ge Oh ue

SE ise TED NA tea RRR DIED tee AREER ae: g

of September, 1963.

STELLA ‘HUGHES,

STATE OF WASHINGTON

ATS AE RGR Ry RAP GR REE ENTE A egy ne

8 P

Subscribed and sworn to before me this 19 day |

z ean Holbrook

Notary Public for the State of Washington, residing

at South Bend, Bik eciamcdcsics

IN THE SUPERIOR COURT OF .THE STATE OF

‘WASHINGTON IN AND FOR THE COUNTY OF

“PACIFIC:

Aes |

VS. - SUMMONS

Defendant

THE STATE OF WASHINGTON, to ‘tthe said

STATE OF WASHINGTON, Defendant. nt

You are hereby summoned to appear within

twenty days after the service of this summons upon

you, exclusive of the day. of service, if served in the

State of Washington, and within sixty days exclu-

sive of the day of service if served without the State

of Washington, and defend the above entitled action

in ‘the court aforesaid; and answer to. the complaint”

of the Plaintiff and serve a copy of your answer

upon the undersigned. attorney for the said Plaintiff

- at their office below stated, and in case of your fail- _

ure so to do, judgment will bg rendered against you

according to the demands of the complaint which

will be filed with the clerk of said Court, and a. true

bd of which is heréwith served upon .

oe e “CHARLES BY WELSH

oe creas Attorney for plaintiff

Post Office and Office Address: 111g W. Water St.,

South Bend, Washington

KE RSAGREOT AAPM ad oS I

ot AG Rt pth nit 2 es 5 bin A, ti 9 05%

| APPENDIX, “Be

_ ANSWER AND CROSS. CLAIM

' IN THE SUPERIOR COURT OF THE-STATE OF

| WASHINGTON FOR PACIFIC COUNTY

STELLA .HUGHES, |

. LANSWER: AND

— OF spaiccoutaicicis CROSS-

COMPLAINT

For answer » to the complaint this defendant: .

7 Diselaims. all ‘interest. in the real estate de-

scribed i in paragraphs 1 and 2 of the complaint vot

easterly of a line described as follows:

Beginning at.a point whose Y coordinate is

_ 436,139.17 and whose X coordinate is 1,104.683.64,

‘referred to the Washington Coordinate System,

South Zone, and running ‘thence on an azimuth of

1° 14’ 05” 3412.79 feet to a point whose Y co-

-ordinate is 432,727.18 and whose X coordinate is

a 104 ,610.10, referred. to. said coordinate system. -

2. Admits that it claims an intewent in the lands

lying westerly of the line described in paragraph 1 ia

of this answer, and as to the lands it claims an interest .

in, the defendant denies all further allegations of

paragraph 1, 2, and 3 of the complaint.”

By way. of cross-complaint, the lefendant alleges:

1. It-is one of the soveyeign states of the United

States of America, admitted to the Union on Novemm-

ber 11, “1889,

wes sata 0 ik gn ec ARRAN MSs Ne lr te Go Rand

11 ee:

2. The property described. in paragraph 1 of the <

complaint borders upon the Pacific Ocean. Acerétions '

‘Have formed to the shore and beach of the Pacific

Ocean in front of that property both before and after

November 11, 1889.

3. Repeated court decisions, administrative con-

‘struction, and legislative action have created a rule

of property under ‘state law whereby:

(a) All accretions formed prior ‘to November “

11, 1889, belong to the adjoining upland owner;

(b) “All ‘accretions formed after Noveniber. 11,

1889, belong to the State ‘of Washington, subject: to a

the legislative dedication that they constitute a high-

way to remain forever open to the use of the public,

as set forth in Laws of 1901, chapter 110; and

(ec) The dividing line between accretions form-

ed before November 11, 1889, and' those formed there-

after is the line of ordinary high tide as it existed on

_’ that date, is the line which the water impressed upon

the soil by covering it for sufficient periods to deprive

‘the soil of vegetation as of that date, and is that line

which is set forth in paragraph 1 of the above answer.

Wherefore, the defendant’ prays that the line ‘of.

ordinary high tide of November 11, 1889, as described

: in paragraph 3 (ce) of this .cross-complaint and as set.

; forth in paragraph 1 of its answ er be established

eres) ee

P : < N * 2

P23 ae LN Seg ar a sims a, Stn ab da 2D

7 >.

euctiiny askin bes

Olympia, Washington ~

te | 12 3

and decreed ‘to be the fixed boundary between the °

property . of the plaintiff and the property of the

defendant, ‘and that title to all property westerly of

: such line be quieted in tthe defendant State of Wash- x

ington as s against ‘any and all oan of the paninite,

JOHN J: O‘CONNELL

Attorney General |

‘ By HAROLD T. HARTINGER ~

Assistant Attorney General

| Attorneys for Defendant |

Office and P. O° Address

Temple of Justice

COUNTY OFT THURSTON

STATE OF WASHINGTON one

._DON LEE FRASER, bikiai first ‘uly Sworn on

oath deposes and says that: : He is the duly appointed

and acting Deputy Supervisor for the Department of

* Natural Resources of the State of Washington, and

is authorized to make this verification for and on be- .

half of the defendant; he has read the foregoing .

Answer and Cross- -complaint, knows its contents, and

believes the same to be true.

DON LEE FRASER

Loh sesh a tard Ba ic nasa ei ana eS tan hae a Bn RA

> “ ° .

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a .

, .

<u ea ae

Subscribed and sworn to tia me. _— 26th day

of November, 1962. } 2 | %

©. MARJORIE B. STONE *

‘ Notary Public in. and for 'the

State of te cicgesa ieee residing |

at Olympia . ’

ame

LE PY Te

2. N oe. . 1 .

oer) PTAC ens te ne ehhh aM en IC le Nal nes RS

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ne ee eee ees

. ee y

“. 142. hoe?

| APPENDIX. *0"

-» REPLY

IN THE SUPERIOR COURT OF THE STATE OF

WASHIN GTON FOR PACIFIC COUNTY

STELLA HUGHES, No. 14546

aC : Plaintiff REPLY AND

vs. >ANSWER TO

STATE OF WASHINGTON, CROSS- |

: _ Defendant, | COMPLAINT

answer and answering defendant’s isisaalibiat

admits, denies and alleges as follows:

% = : 1. ; a |

Admits paragraphs 1 and 2 of the cross-complaint ies

8 ‘ . Pa ——— Bs a aon ict ——_ =

esha paragraph 3 of the cross-complaint.

ae “WHEREFORE plaintiff prays that. defendant’ s i if

cross-complaint be dismissed and that she regover

- according to the prayer of her complaint.

CHARLES B. WELSH

| Attorney for plaintiff

STATE OF WASHINGTON if

County | of Pacific am oe

I, Charles B. Welsh, being first duly. sworn say:

that I am attorney for the plaintiff in the above en:

titled action; that I have read the foregoing reply

and answer, know, the contents thereof and the same

is true as I verily believe. That I make this verification |

on behalf of plaintiff for the reason that she is without *

the. state of Washington.

_ CHARLES B. WELSH

| ‘Subscribed and sworn to beforé me- this 27th aay of

November, 1962.

JEAN saeiaiiin

; Notary Public in and for. the state of Washington

residing: at South Bend.

on es

a. Cee eee Fin Ne

€

16 |

_ APPENDIX “pr

‘FINDINGS of FACT and CONCLUSIONS of LAW

IN THE SUPERIOR COURT OF THE STATE OF

' WASHINGTON FOR PACIFIC COUNTY |

STELLA HUGHES, . No. 14546

| Ws Plaintiff) NDINGS OF

bi yr FACT AND

STATE ‘OF WASHINGTON CONCLUSIONS _.

‘ Defendant | OF LAW

The above entitled matter having come on for

"trial before the Court on January 23, 1964 and a |

the record made and the arguments of counse

» gourt finds the it facts to be true:

‘That plaintiff individually is the owner in -fee

simple title and in possession of the following de-

scribed real property, to-wit:

- . Beginning at a point 1353 feet north of the line

between Sections 4 and 9, Township 11 N.R. 11

West W.M. and 437.3 feet west from the west

line of State Highway ‘No. 12-A, thence north

_ 226.6 feet, thence west 300 feet more or less to

the line of mean high tide of the Pacific Ocean,

~ thence South 226.6 feet, thence East 300 feet more

or less to. beginning. | tafe

| i vas

° That title io the above désvribed real saacncatiy

"was originally obtained from the United ° States

government prior to-1889 and the Westerly boundary

line of said ciebtdl is a line corresponding Ap the

8 .

—,

~~ €

iine of mean high tide of the Pacific Ocean. That

mean high tide of the Pacifie Ocean is Wefined as

_ the average’elevation of all high tides as observed at a

oe “f _ location through a complete tidal eyele of 18.6 years,

\_ and the actual western boundary line of plaintiff’s

property is where that elevation meets the shore as it

‘exists at any particular time. 7 ca ee

That since theporiginal survey and establishment ;

of the meander line by the United States” government

in 1859 imperceptible accretions have formed in front

_ of the property as hereinabove described, both before

and after November 11, 1889, anid all of said accretions,

belong to plaintiff as the upland . owner.

sa : 4,

| That the State of Washington has no right, title,

claim or interest in and to. sajd accreted lands or in

any - part of plaintiff’s: property lying east of the

- line of mean high tide as defined nerean.

_} FROM THE FOREGOING ‘FINDINGS OF .

FACT the court makes the following CONCLUSIONS

_ «= 'OF LAW: That plaintiff is entitled to judgment |

{ quieting title in her against any claim of the ‘Staite

« .of Washington in and. to her property as heréinabove .

° describéd lying east of - the line of ‘mean high tide «.

of 'the. Pacific Oceatras it now or hereafter may exist.

‘ e ;

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. . ad

-* ®

is - . ; ;

° . . ’

is. | |

Si DONE IN OPEN~ COURT ‘this 10th day of

February, 1964. as Sones eine aN

ae j /s/, WARNER: POYHONEN

a tc ye . . Judge -

PRESENTED BY’ peas

- CHARLES B. WELSH’ .2

Attorney f for plaintiff Ts BS and tis

APPROVED FOR. ENTRY AND i Se

' PRESENTATION WAIVE

i. T. HARTIN GER

"Assistant Attorney General

‘

- A

pas

a f

a F .

: _ aes

—_ “mh”

| JUDGMENT.

IN THE: SUPERIOR COURT OF THE STATE. OFr

WASHIN GTON. FOR PACIFIC’ ‘COUNTY | -

“STELLA EF HUGHES, Bien i a

’ Plaintiff No. 14546

ce vs. ‘ ae

snare OF WASHINGTON |‘ JUDGMENT

Defendant

.. The above entitled action having come on for

trial before the Court and. the court having. entered

: | Findings of Fact anid Conclusions of Law:

‘NOW, THEREFORE, ‘IT IS HEREBY ORDER.

ED, ADJUDGED AND DECREED that plaintiff in

dividually is the owner in fee siniple title and in —

possession of the following described real. property, -

_to- wit: } | | |

‘Beginning at a ‘point 1353 feet north from ‘the

line between Sections 4 anid 9, Township 11 N.R.

11 West W.M. and 437. 3 feet west froni the west

line of State Highway No. 12-A, {thence north

226.6 feet, thence west *.300. feet: more. or less to |

the line of mean high tide of the ‘Pacific Ocean,

thence. South 226.6 feet, thence East 300 feet more

or, less to beginning. :

—_

The ‘Western boundary of which is the line of mean. |

; high tide ‘of the Pacific Oceay as it, now or hereafter

may exist, which line is the avera ‘levation of all

high tides as observ ed. Le cation) through a Pg

”

s ~ oJ

Xi plete tidal cycle of 18.6 years, free and clear of any

right, title, claim or interest of the State of Wash-

_ ington to any lands accreted. to the original donation

land ¢laim either prior or Teepe recy to- November

DONE. IN OPEN COURT. this 10th day of

Epbetary, 1964, 2 iw |

aie ne ht WARNER POYHONEN

k Ht ke : 7 Judge

PRESENTED BY: m7 |

CHARLES B. WELSH

Attorney for plaintiff

_ APPROVED FOR ENTRY AND PRESENTATION

_ WAIVED: ’ : i

HAROLD. T. HARTIN GER

' Assistant. Attorney ‘General

ee ee *

- APPENDIX -“F”

STATEMENT OF FACTS

__IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON FOR PACIFIC COUNTY

STELLA HUGHES,

eae ; Plaintiff | ‘No. 14546

VS. >

STATE OF WASHINGTON, ‘STATEMENT

Defendant.

Before the Honorable Warner Poyhonen, Judge:

of the. Superior Court, Grays Harbor County, sitting

as Visiting Judge at.South Bend, Pacific County.

‘Washington, January a8, 1964. .

- APPEARAN CE: ;

For plaintiff, Charles B. Welsh,

Attorney at Law, South Bend,

+ . Washington. | :

| For defendant, Harold T. Hartinger,.

Assistant Attorney General, Olympia,

= Washington.

: As Amicus. Curiae, Ted Zelasko and

‘Ernest Ingram, Attorneys at law

Aberdeen, Washington.

WHEREUPON. the _— proceedings . were

had and se to-wit:

INDEX

‘EXHIBITS |

rie PAGE |

Defendant IDENTIFED ADMITTED

‘1 through 7 | a

COURT’S DECISION ‘Page 6

COURT’S CERTIFICATE | Page 13

COURT: Hughes vs. State of Washington. I

want to inquire of counsel if they are ready now or

_ do they want me to defer it until 1:30. Whatever

they wish. I.will do it any way you like. I doubt: if

you can finish this morning but. if you want to start

in and plaintiff would like to make his record this

morning.” | |

MR. HARTIN GER. We have a completely. |

agreed statement of facts and I think we can easily

- put this in 20 minutes or so and perhaps come back

after lunch and defer the argument until 1:30.

COURT: That’ would be fine.

MR. HARTINGER: | Mr. Zelasko and Mr. i

| gram are appearing as Amicus: (Curiae. .

COURT: Mr. Welsh, are rere any others that - |

are appearing or desire to appear? Have sina Heard

of: any?

MR. WELSH: Not te my amen. Do you

want to proceed—I take it— :

MR. HARTINGER: I guess I have the labor-. '

ing oar all the way through: Just by way of prelimin-

ary statement. ‘Mrs. Hughes, the plaintiff, owns prop-

erty along the Pacific Ocean and, she has set forth in

her complaint a description of this property as it re-

lates to the area above or landward and it is not in

dispute. She claims,-in addition, ownership of ac-

ereted lands, that is, the land in front of the property

she described out to the mean high tide line on the

Pacifie Ocean. The State has disclaimed any interest

in the property that the plaintiff claims lies above— ;

what we will call—the fixed boundary of the 1889

‘boundary of the tidelands.’ This case, as I explained

to Your Honor the other day in another court, is one |

- @ase which is being’ tried of several. .I counted the

similar cases and T think we have seven. Mr. Welsh

can probably’ verify, they have seven other cases that

have ‘the same problem that is raised by the Stalte’s

cross complaint here. In these seyen cases we have

stipulated as to this issue. 'The Court”s determination.

here will detérmine the issue in those seven cases.

There are three other cases—the ‘one in Grays Harbor

County and two more in this county which have the

same issue. We don’t have a formal stipulation. Then,

of course, several other cases have the same problem,

They are not filed yet, but still are on some counsel’s

_ desk one w ay or another. As to the State’s—

MR. WELSH: Excuse me counsel. I think we |

should further define the admitted facts. This is a

representative case among many. Each of these cases,

as well as the one at present—the original title was

: acquired by plaintiff or predecessors in interest prior

to 1889 from the U ated. States Government.

COURT: Prior és statehood?

MR, WELSH: Line to statehood.

COURT: As a sabend from Untied | States

" Government? se | 3 ae.

MR. WELSH: Yes. So that our actual confliet

is whether or not the 1889 mean high tide line governs

in-thig case or the mean high tide’ at any time where-

.ever it may be. We contend it is the latter and the

State contends the former. A little bit of. clarification :

here. There. are really two problems in this case—

one, the accretion problem. The other is the rule for

defining. the boundary.. Whether it is the 1889 bound-

ary or whether it is the present, day boundary.

_ Technically, . the boundary that the Federal Court

used and the one plaintiffs usé, is called the line

of mean high tide. And when we use that term, we.

are talking about the: technical definition. The State

argues the line of vegetation which is a sort of mark

on tlie ground. Those are the two issues actually

involved i in the ‘thing. The F abi rule does not fake

® .

cognizance of the vegetation line’ title-wise. As far

as my reading has progressed, this is. a theory used

by the engineers of the State of Washington exclusive-

ly. It i is used customarily by engineers—

COURT. Are you — to the line of — |

tation—

a vnashitiens line, iid. is a meaningless thing as

_ I understand it. from the:Federal ‘Rule.

- COURT: All right.

MR. HARTINGER: Well, again we are trying

this case obviously because we tried this issue in the

Federal Court. and where the Federal Government

was owner of these ocean lands as a trustee for some.

Indians. In the Federal Court we were attacked on

both grounds. The Federal people denied our claim

to the larid that is formed by accretion since state-

hood. They likewise argue: that this mean high tide

‘line, as used by the U.S. Coast and Geodetic Survey,

_ was the boundary of the tideland. They insisted that

the rule that the State has been. using—the line of

vegetation—is a rule that can be used only for rivers.

and lakes. Now, as to the factual . basis behind the

_ line of vegetation. The State in disposing of its tide-

lands has used ‘the line of vegetation, but the facts

‘are also that everybody else in the state has been using

— een ae ee

. ee

. Le ee ee ee eee

a og coaleeiaelied

ae: 26

it. The Supreme Court has defined it as the boundary 3

line. Our problem on this issue is the accretions. The \ ae

Court of Appeals has ‘decided the state law must ‘be *

disregarded and that Fedéral law, as developed by |

the Federal Court, must be applied. . Basically this

is our issue. ¥

COURT: Are you vitily to start putting in some

evidence, . : ie

MR..HARTINGER: What I would like 'to do—_

T have talked to counsel about it and he has ‘tio objer-

- tions. We prepared the record by Starting with re-

quests for admission of facts. T would like to take

these requests, havé them marked ‘as an exhibit and

then introduce them in this fashion go that counsel and’

ae _* everybody else will have some order to their. files,

It would save reading to the reporter quite a number

- of things. ae

COURT: There are no objections to that?

_. MR. WELSH: No objections to the procedure |

if it’ could he noted that plaintiffs prefer not to make _

a specific objection to each butt simply ‘to the. rele-

vaney in toto, ~~ ' ca |

COURT: These will be defendant’s exhibits? _

MR. HARTINGER: Yes. What we have labeled

Zequests for Admission No. 1 i is marked Defendant’s

Exhibit. No. 1 for Identification. Request for Ad-

missions of Facts No. 2 has been marked Defendant’s

Exhibit No. 2 for Identification. Request for Ad- ’

mission of Facts No. 3 has been marked Defenidant’s

Exhibit No. 3 for Identification. Request. for Ad-

mission of Facts. No. 4 has been marked as 4 for Ident-

ification. Defendant’s 5 for Identification is Request.

for admission of Facts No. 5. Now, we have one map,

which is labeled‘‘Typical Beach Section, Pacific Ocean

~Beach.’”? Mr. Welsh has agreed ‘that this could come

in subject to the same objection to the other. This ©

will be Defendant’s 6. Be

COURT: All right. ‘These may be, admitted one

through six subject to the objection as to their rele-

-vaney. at far

MR. WELSH:. Yes.

MR. HARTINGER:, «I have one more item. and.

that is the government publication entitled, ‘Tidal

Datum. Planes.”? And. the Clerk has marked that

Identification, 7.

COURT: It may he admitted.

MR. HARTINGER: Then we just have one

- more fact we. wish to orally stipulate to and that jis

the government survey of the upland adjoining this

area was made in 1859. |

f 28 |

“MR. WELSH: Agreed, _ ree

see COURT: “You want to secure an oral stipulation Ng

by counsel ‘that the government survey— | (

ee SEO eee YR. HARTINGER: Of tthe area in question—

We j : ; m . “aly

COURT: Of the area im question was made in

ay eee ea

; Pe tae -

~~ MR. HARTINGER: ; Yes, Your Honor.

COURT: Phat stipulation may - show. for the

. record. HC neta Syag

MR. HARTINGER: All our exhibits ake in,

; + COURT: All that. you have offered—there are

* < seven of them. | |

ata And! PTE Hg Ie ode Mee avy

“MR. HARTINGER: That is the record, 1 would ° -

q = _ like to hand to Your Honor a trial memorandum. It

ce is quilte lengthy and then after the Court has had an

opportunity to read it, I would like to explain what |

the case is about--what our contention is about. Why |

we make 'them and argue the matter.

_ COURT: -We may adjourn at this time and give

5 Ce “me a. little time to read this. Say two o‘clock? —

MR. HARTINGER: | That will be fing.

‘COURT: . For oral argument. :

|. MR. WELSH: That id satisfactory, —

’

° *

s 4

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o oe te, : * ss heater narra pe otto edt enninintr doe CitiaSi nw aaceacicnse ell ae miehbeda 6d,

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eee So Me ee ee

oa COURT: We will be at recess until two. ‘O

| | ‘(Court\recessed until. 2:00 p.m. and HoconVenion with

all parties present.) :

+ COURT: Court’ sis session. | - ae ee

(Counsel. 1 then proceeded to argue itheir” case after

— the Court made” his oral decision as follows:) |

COURT: I think I would be innate as gather

, naive if I failed to appreciate that we are involved

in‘a question in all probability is not going to end

here with a decision of the Superior @ourt of Pacific

County. Frankly we are in an. area—I don’t know as

to the circumstances of the: parties involvéd of this —

particular. litigation; an area/ i n which there should

be sone day at least a final adjudication. as to the

rights f-the people so that we will know where we

are for sure anid what we own and we don’t own:

who owns what and who doesn’t. With that in view,

I expect that about ajyi I am probably doing today is

‘deciding who has to take the. initiative of an appeal.

This may seem—I am aware of: the importance of the cob

problems involved here. 'Phis may seem somewhat

of a hasty decision in such an importarit case. I could.

postpone it by taking thé matter under advisement

and to delay a month or two or by writing a memor- :

andum opinion on it; I would take. the matter under

advisement and write a ‘memorandum ‘opihion if I.

felt ‘there was waa vgs purpose being | serv red i in 7, ar

- ieee a ee

ine . Par lininitt at eit an. nS aes Die ARR Tet cate > B

a. z eel oe

2 oa Yd

‘go. I have had some experience with these’ problems. —

"I néver tried one as a lawyer. I represented private

clients on two or three occasions with the State of -

Washington on the other ‘side, ‘The State backed up

a ‘lititle and agreed to sell on rather reasonable terms

or give my clients a '99-year lease for a dollar or some ~

such thing that made the lawsuit unnecessary andI-

never did get to court on the two or three matters

which J represented’ ‘private ¢lients-in™ my Jawyer :

days. As,a State legislator irl 1947 and 1949, T gave .

the. problem considerable thought, In those days I

was quite concerned by reason of the fact some of my.

constituents out in the Oyehut and Ocean Shores way |

were quite concerned in getting something accom-—

plished. T gave the matter’ considerable study. I have

had a number of conversatigns with representatives .

in the Land Department of the State. One ofcthe

. Superior’ Court cases in the exhibit j is one of mine out.

of Grays Harbor County in ’58. That i is 'the Sunshine —

Mining Co. vs. Union Gas Development. I don’t. know '

5 if it is particular i in point. I think’all I had to do was

. decide ‘where the line. of - vegetation had’ been on a

. certain. date. Dbeeguke under state law, title rested on

_ the state permit and it was & factual question and

: neither party in that litigation wags questioning the

; | ‘state’s. aight or title or could they by reason of what-

- ever righits they had, rested on those permits. I watch-

eee

ed with considerable ‘interest the Ocean Shores. de-

_ velopment. The lawsuit in Minard quiet title action

involved several miles of ocean front.- That didn’t

~ come before me. It was settled «Of course,. that Su-_

/ perior Court decision established ownership in the

State of Washington. I,have never felt it was truly ;

- an adversary proceedings. What Minard did — he

~ brought a lawsuit. I think part of the proceedings 1

there was an effort to shut out some squatters ‘out

there, who. probably had good title by adverse posses-

_sion if Minard was owner of: the property and prob-

abl¥ had no rights if the land belonged to the State

during all of those vears. I don’t want {to go into the.

merits: except this comment, if Minard owned the

property actually, probably it wasn’t a bad deal for

him. Litigation through the Supreme Court of the

United States might have cost. him‘a lot of money.

ies ‘If there wasn’t’ any question about the state’s owner-

ship then, then it was state property beyond all ques-

tion and the propriety of a sale of several miles of

beach for $40,000 might be open to question. I will

say I have given the matter some little study. I have |

thought about it from time to time during probably

a third of my lifetime. Not continuously but have been

aware of it: With that explanation, I hope thatthe .

Aecision won't be regarded as being a hasty one. It

igs -a rather interesting circumstance ‘to me that this ©

trie The tale

AED POR as RNA Aha hel.v bey Boarieor 1g

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. 82

- being 1964, it is about 75 years since statehood. and

_ that our Stalte Supreme. Court would not have. been

called upon specifically and directly to décide the

questions involved’ here and particularly that ques-

_» tion. of moving line. It is not in*the record—is pure

- speculation on my part—I have a feeling that what

has happened many times and what actually did in- .

4 two or three of my clients that the State vas inclined

* to back away and so the problem has never been set-

tled by our State Supreme Court. - With the result

- that we have had 74 years of development of a body

of: State law based- on. departmental decisions, ad-

‘ ministrative determination, attorney general’s opin-

' ions, opinions and decisions: of Superior Courts for

. the most part and a few by our State Supreme Court

‘to kind of get rather close to the question involved

here, but doesn’t ‘decide it squarely, We have had,

as Mr. Hartinger said, a Wevelopment of a: body ef;

of State law or local rule — TI guess we can call

it a change or modification in common law. They

all mean the same’ thing. We are met with the argu-

ment that.now we ought not to change that because

of the upsetting effect a different decision would have.

. I don’t’ believe that there is any question that a state

may develop its own body of law to change ithe com-

i mon law. I think that could be conceded. I don’t

think. anyone would argue very seriously. to the ¢on-

trary. Common law can and does: change. The prob- *

lem here is whether—the problem here is a question

_ of jurisdiction. Whether ‘the state law does apply

or whether Federal law should be applied. I just

_ don’t see any escape from the decision in the Borax

; Consolidated VS. Los Angeles case in 296 U.S. 10.

That is a 1935 case where 28 years ago the opinion

was written by Chief Justice Charles Evans Hughes

and the Ninth Cireuit Court of Appeals decision in-

United Stattes: vs, the State of Washington in 1961,

26 years later; where the decision was written by

Justice Hamley, yho was formerly a member of the —

_ . Supreme Court o the State of Washington, that is,

the 294 F. (2d) 830 case. I think those cases decide

specifically the question that is involved here: The

Borax case, now 28 -years.old, fiasn’t been: departed

‘from thait I ean find. And the Sampson Johns’ case,

‘the Ninth Circuit Court case in ’61, was a Federal |

Case. He was a resident of. the state. The State had

__a lawyer, who for many years felt ithat the Washing-

ton rule—the local law—should be applied. The Cir- _.

cuit Court reversed him and specifically held against

the position of the State on both phases of ithe ques-

| : tion. In the Borax case Justice Hughes said—this

was quoted in the Sampson John’s case—‘‘Petitioners |

claim under a federal patent which, according to the

plat, purported to convey land bordering on the Pa-

;

’

Sec ges essing? isis ikea See

SRA WA BAe We HE NSA | te Sima lS. SiO GEE MINE de ae eM er ts huss 9S |

_ cifie Ocean. There is no question that the United

_ States was free to convey the upland, and the patent

affords no ground for holding that it did not convey

all the title that the United States had i in the premises.

‘The question as to the extent of this federal grant,

that is, as to the limit of the land conveyed, or 'the

boundary between the upland and the tideland, is

necessarily a federal question. It is a question which

_ concerns the validity and effect of an“act done by the

United States; it involves the ascertainment of the

essential basis of a right asserted under federal

law.’?. A number of cases. are cited in support of.

that doctrine. And in that case, of course, the Court

in the opinion was the enunciation of the Federal

- Tule—the boundary betiveen titlelands and uplands

is the mean high tide line. Such to be determined

by the average of 18.6 years. That is the holding of

the Supreme Court of the United States which: the

Circuit Court quoted in the Sampson J ohns’ case.

They went on to follow ‘the holding in the Borax case

to the effect that the line is the line of mean high ‘tide

.of the average elevation as observed at a Jocation |

through a tidal eycle of 18.6 years. I was ‘personally

7 disappointed that the Supreme Court of the United ©

States denied the certiorari in the Sampson J ohns’

ease. I was hoping they would take jurisdiction and

7 I am aware that no particular inference ought to be

ee en ee Te a > Dating Scns og te Paes

' drawn from the fact that they denied certiorari ex-

cept possibly that if the Circuit Court of Appeals

-haid_ departed from the rule announced in Borax and

had held in favor of. the State of Washington rather

than in favor of the Federal Government, I just can’t

help but feel the Supreme Court of this nation would

have wasted no time in granting the certiorari and ;

- taking another: look at the problem. Now, whether °

_ these decisions are right, whether the court was right

in the Borax Case and again in the Sampson Jolins’

Case, that’s what it did and is something that I |

can’t be concerned with. All I’m saying is-it seems

ie to me 'they did say it. I feel I am bound by it. I

ean’t do very much more about it. There are people

understandably who would not be happy with the rule. '

- I think the opinion of Judge Chambers in the ‘Cireuit

Court case is worth reading. It is a short paragraph —

and may express the feelings of a great many of us:

Judge Chambers said, ‘‘As a District. Court thought,

I think that the question of ‘the line of title ought —

to be decided by state law, but as I read Borax Con-

- solidated Ltd. vs. Los Angeles, 296 U.S. 10, I think

the road sign points to the line being treated as a.

Federal question, as I -concur.”” He is bowing to the

- Inevitable. That ‘is. Just the feelimg I have. [, know

"that nobody has ever worked harder on:this case or

cases involving. this question than Mr. Hartinger.

Denies Re alee fettttiench ond ai 2 eae a BE Ge ts an oe Sat gh as eS rg eet eet LC IR Ea

He has put a great part of his lifetime into it and it-

looks like he is going to spend some more. If he can

persuade the Federal Court and tthe Supreme Court

of the United States to'take another look at it, more

power to him. I am going to grant the plaintiff’s |

judgment on both issues—as to the title to the ac-_

‘eretion and as to the line. |

-. MR.HARTINGER: I idon'*t propose to call Your

| Honor back. It is just as easy to go over to Monte-

, sano and I would like to stipulate that the judgment

'may be signed by Your: Honor in Monttesano.

MR. WELSH: Certainly.

COURT: I have that right anyway.

STATE OF WASHINGTON | ite

County of Pacific

* WARNER POYHONEN, one. of the. J ilies

of the Superior Court of the State of Washington

and tthe Judge before whom the above-entitled. cause

was tried, do hereby certify:

That the matters and proceedings embodied in °

. the foregoing Statement. of Facts are matiters and

proceedings occurring at the trial of said cause, and

is hereby made a part of the record herein.

I do further certify that the same contains ‘all

en een at eee

the material facts, matters and proceedings hereto-

fore appearing in said cause and not already a part

of the record herein.

I do further certify that 7 exhibits, marked De-

_ fendant’s Exhibits 1 through 7, hereto attached, are

allcthe exhibits admitted in ear ca “re the trial of.

said cause.

DONE IN OPEN COURT this 10th day of April

~~ 1964.

/3/ WARN ER . POYHONEN

JUDGE :

APPENDIX “@??”

APPELLANT’S BRIEF

In the Supreme Court

of the State of Washington

STEiA HUGHES,

‘Respondent,

vs. . No. 37583

STATE OF WASHINGTON

; ' Appellant,

APPEAL FROM THE SUPERIOR COURT

. OF PACIFIC COUNTY

Honorable. Warner Poyhonen, Judge -

’ BRIEF OF APPELLANT

J OHN J. O’CONNELL,

Attorney General

. HAROLD T. HARTINGER,

Assistant Attorney General

.LAUREL L. TILLER,

_ Assistant Attorney General

ATTORNEYS FOR APPELLANT

Office & Post Office Address: Temple-of J ustice, Olympia, Wn.

ere {

. =

Ow oe eb et oe ee es

-. 89

- PLEADINGS AND PROCEEDINGS

Mrs. Hughes’ complaint" sets forth her claim —

against the state as one to establish and quiet title

to real property. She described the outer boundary

.of her property as the present line of ‘‘mean high

tide” of tlie Pacific Ocean.”

The state served and filed an answer and cross-

| complaint. * The state alleged that at the location in = _

question Wecretions had formed to the shore and beach -

of the Pacific Ocean both before and after the date.

of, statehood (November 11, 1889). The state dis--

- claimed any interest in the accreted lands formed.

prior to statehood, but contended that all lands there-

after formed constituted a portion of the public high-

way dedicated and reserved for the people by the

legislature. The inner boundary of the public beach.

and shore, according to: the state’s theory, was the

— line of ordinary high sea of November 11, 1889, de-

fined as |

' the line which the water ae on the soil |

by covering it for sufficient periods to deprive

‘the soil of vegetation as of that date.

“The state specifically alleged that its claimed

11 Tr, 1-2,

12 See the prayer of the complaint which amplifies the

description of the. —s set forth in the complaint’s first

paragraph. ° ee tie

13 Tr, 4-6, i

: location of the inner boundary of the public beach |

4 ‘area was based upon a state rule of property that had

| = ee origin in state court decisions, legislative action,

: and administrative construction of legislative action.;

Mrs. Hughes’ reply and answer to eross-c6m-

plaint™ disputed only the state’ S\ eéntention that a

local rule of property had been ‘established, hex posi-

- tion at all times being that any state law was im-

. material because federal judge-made law was -con-

a hab

._-, “

| At the time of trial: there were ‘no ‘disputed qués-

tions of fact for the court: ‘to- decide. - All evidence,

by agreement, was submitted in documentary form.

Seven items of written materials were introduced*as

’ exhibits. ras.

After peGing arguinent of counsel, the trial judge ae

made his oral ruling.” The .judge preferred state

law'® but nevertheless felt- compelled by the federal

| court decisions in Borax, Ltd. v. Los. Angeles® and .

« United States v. Washington” to establish the dis-.

$4Tr, 7.

15 St. 3, 5.

16 St. 5-6..

=U St. 6-12. °

18St. 11.

19296 U.S. 10 (1935).

20294 F. 2d 830 (9th Cir. 1961)

- 41 P : ,

"gill bye solely as a nee of joderal dudge- |

\ made law.”

. _ Findings of fact, conclusions of law.” and : judg- |

- ment2* were entered in accordance with the court’s

\oral decision. The state thereafter gave timely notice ©

of appeal” to bring the so ning oo this court .

for review.. iid

TITLE TO ACCRETED LANDS

Agua uisition of . Private Title to Accreted ‘Tidelands

Is a Matter of State Law

= # ars

_ Under common law, when publicly owned tide-

‘lands are slowly and imperceptibly built up by a de-

| posit of ocgan sands, the public is divested of title to

the tidelands and title is acquired by the private rip-

parian owner. By our first assignment of error we |

assert that ‘the State of Washington can and did

mal ; chan this common law rile. We maintain that state

*- Jaw can-modify the common law so that the gradual

build-up of tidelands works no change in ownership,

9 and we contend that the 1901 enactments did just ©

. this to those portions of the ocean shore and beach

in Pacific and Grays Harbor counties which were

dedicated to the perpetual use of the —

21 St. 11-2. ; 7 ;

2 Tr. 8-9. -

23 Tr, 10-1. .

247Ty, 12..

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rs. Hughes challenges the power of the state

to make a change in the common law accretion rule.

‘She holds that change, if it be made, must come from

the federal government. (She does not suggest, of

course, that the common law rule is unchangeable.): —

‘This challenge to the efficacy of state law over

state tidelands is the first matter we here explore.

Under our federal system of government, sover-.

; eignty is divided between state and nation*®, At an

early date it was decided that ow nership of lands

underlying navigable. waters was an incident of that

-. sovereignty which belonged to the original thirteen

states rather than to the national government.’ Thus

‘ ownership of tidelands was an incident -of the origin-

al states’ on sovereignty.

_ The State of Washington, w when it was ; admitted

to the Union, was admitted on an equal footing with -

the original thirteen states! Neither the federal

government nor the then existing states had the

power to deny to. this state full rights of sovereignty : :

3ULS. Const., Tenth Amendment.

* Pollard’s Lessee v. Hagan, 3 How. (44 US.) 212, 230

_ (1845); United States: v.. Louisiana, 363 U.S. 1, 16 (1960).

5 State v. McCoy, 63 Wash. Dec. 2d 423, 439, 387 P. »

942 (1963).

because the power to admit new states to. the Union*

meant.” , )

'- a union of haben, equal in power, dignity and

authority, each competent to exert that residuum

of sovereignty not delegated to-the United States _

by the Constitution itself. .

The State of Washington, by its constitution,

asserted its full rights to lands underlying navigable

_waters.* The state therefore has the same rights as

the original thirteen states in controlling the rights

and incidents in these lands.’ When a riparian owner

acquires title by imperceptible accretions to the sov-

ereign’s lands, it therefore follows that it is acquisi-

tion of title under state law, not federal law.’ Like-

wise, state law determines whether the riparian own-

er will acquire title to additional land created by a

6U. S. Const., Art. 4, § 3

7 Coyle v. Oklahoma, 221 US. 559, 567 (1911).

® Wash. Const., Art. XVII, §.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 naviga-

ble rivers and lakes: * * * —

9 Kisenbach v. Hatfield, 2 Wash. 236, 26 Pac. 539 (1891) ;

Barney v. Keokuk, 94 U.S. 324, 338 (1876) ; Shively v. Bow]-

by, 152 U.S. 1, 40 (1894) ; Hardin Vv. Jordan, 140 U.S. 371,

. 882 (1891); Port of Seattle v. Oregon & Washington R. Co.,

255 U.S. 56, .63 (1921); McGilvra v. Ross, 215 U.S. 70, 79

rth Mann v.: Tacoma Land Co., 153 U.S. 278, 283-4

10 Joy v. St. Louis, 201 U.S. 339, 342 (1906); St. Louis

Vv. Rutz, 138 US. 226, 250 (1891). ;

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sudden deposit of soil" or by the. deposit’ of soil

caused by-an act..of man.” 7 .

It is a rare occurrence, -of course, when a state

denies a riparian owner title to tidelands !that have

become fast lands by slow and imperceptible accre-

se tion, but at least two other’ states have done SO.

Louisiana, for example, chose to retain title to acere-

tions formed on the sea or-an arm ‘of the sea" in ac- |

cordance..with prior Spanish law." -But California,

-another. example, expressly modified its common law

‘moving boundary “rule by: statute. The validity of © |

' «the statute was upheld bythe federal court of appeals

- -inan opinion which ‘well. expresses our position here: * y

(T)he decision in Shively v. Bowlby, 152

‘U.S. 1, 14 Sup. Ct: 548, 38 -L. Ed. 331, sustains

the power of a state to cut off, without com-

pensation, the right. of a riparian proprietor to

future accretion. We know of: no -decision in

which this doctrine has been questioned. If. it .is

within the. power of the state to thus appropriate

_ and improve*tide-land or submerged land’ in front

wi | of a riparian proprietor, and thus deprive him

of ‘the right of future. aceretion, what tenable |

11 Barney v. Keokuk, 94 U.S. 324, 337. (1876). )

12 Barney v. Keokuk, supra; Annotation: Glenn, “Rights

to.land created at water’s edge by filling- or dredging,” 91

- A.L.R, 2d 857-88 -(1963).

13 Zeller v. Yacht Club, 34 La. Ann. 837 (1882) (only

proprietors on rivers and streams could acquire title by accre-. .

tion). . tr ae

_ 14 Ker v. Couden, 223 U.S. 268, 278: (1911). ie

15 Western Pac. Ry. '‘v. Southern Pac. Co., 151 Fed. 376,

399-400 (9th Cir. 1907). - ¢

: : -

ground is there for saying that ‘he state may not

by statute accomplish the same result, and for

holding that the state of California by its statute

of 1872 could not lawfully make provision, as it

_ did, that the limits of lands owned by riparian

proprietors of bays and arms -of the sea could

not be extended over the lands then held in

‘trust for the public by virtue of any accretion

that might thereafter be deposited thereon?"

: i 8

~The federal court of appeals, ‘in United States

_v. Washington,” conceded that all we have said above

‘is true, provided only that title to the uplands abiut-

ting the state’s tidelands is. not in the United States

nor derived from it. We do not reach tthe first issuc

(abutting title in the United States) in this case be-

cause the government: parted with its title by a pre-

statehood patent.* he

We do reach the second issue (abutiting title de-

rived from the United States) because Washington

is a public lands state, i.e., one wherein all land titles |

originate from ‘the U nited States. ees :

In our view, the court of appeals misread the

% opinions of the United States supreme court, There

16151 Fed. at 400. 7

17294 F..2d 830 (9th Cir. 1961). | ‘

_ 18Needléss to say, we do not agree with the court. of

appeals on this issue. The government’s rights over its. own

property, whatever they may be, should not be permitted to

override sovereign rights of the state over its property.

Pliage i te Ketan hs i 7 BE nes Panne % Netto LN ar et TR Pe erties» aa BS SH

Be BCR heey = Hera NE ae ally Bet ietiet Paes,

6's

sale ted hey ad o4

«46

is absolutely no basis. to limit a state’s right to modify

the common law solely on, the ‘ground that private

title had its inception from the United States rather

than seme other sovereign. When the government.

issues its patent there is no principle of federal law

that raises the common law incidents of real property

ownership to the status- of immutable attributes. of

the title acquired, forever freed from the possibility

of change by the state. It is = not so.

Two ‘illustrations ree come to nina to

demonstrate our point. Prior to 1961 and Initiative

Measure No. 208," this state did not recognize joint

tenancies in real: property. Even now the incidents .

‘of joint tenancy are not necessarily the same as the.

common law incidents.” Similarly, this state has never -

- pecognized the common law incidents of real property

ownership. by husband and wife. This state, instead,

adopted the community property concept from the

Spanish law.”!

It cannot be seriously argued that these laws,

being changes.in the common law, are not operative —

simply because all real estate in Washington was

once owned by the federal government. They, like

19 Laws of 1961, chapter 2; inesier 64.28 RCW.

20 See, e.g.., Griffith, Joint Tenancy and Community Prop-

'. erty, .37 Wash. L.. Rev. 30-43 (1962).

*1 Chapter 26.16 RCW.

ond *

fe te es Se ee ET eee SE

any number of.other changes in the common law of

real property, are nothing more than an exercisé by

‘the state of its inherent power to. enact law.

To move closer to the issue at hand, we can say

that this state’s right to modify the common Jaw

incidents, of riparian ownership cannot be doubted -

either, even though the real property comes originally

from :the government and borders navigable water

‘or concerns rights closely connected with navigation.

We can:see this clearly when we look at the matter

- of riparian rights generally.

From the earliest days of statehood, Washington

has expressly denied the existence of all riparian

‘rights on navigable waters.*. Mr. Justice Brandeis

even noted this fact for the United States ‘supreme

court. -This fact was also acknowledged by an early

commentator on riparian rights in the west coast

states.* As this commentator ‘predicted,® it is now a

rule of property in this state that land adjoining navi- —

gable water has no riparian rights.” °

_22 Kisenbach v. Hatfield, 2 Wash. 236, 26 Pac. 539 gg

23 Port of Seattle v. Oregon & Washington R. Co., 255

US. 56, 64 et seq. (1921).

24 Black’s Pomeroy on. Water Rights 534 (1893).

2 Id. at 540. .

26 Only recently this court denied the existence of ripar-

ian rights. Grill v. Meydenbauer Bay Yacht Club, 61 Wn. 2d

432, 435, 378 : 2d 423 (1963). Prior cases so holding are

numerous. E. State v. Sturtevant,- 76 Wash. 158, 163, _

185 Pac. 1035 571913), and cases cited ; Brace & Hergert

‘ Mill Co. v. State, 49° Wash. 326, 331, 95 Pac. 278 (1908).

and cases cited.

Cad esuces, &. ee ae de atte: eater tone: ar Amr ts Nees AAA 0 a ee rte eo

saemiaatenions et et

hai AGES Os acon

In denying the existence of riparian rights, this

court was well aware that title to all land within the

state was once in the United States, for it specifically

denied that this fact was an infirmity in the state

doctrine.”” The federal cases” cited by the court would,

indeed, be inexplicable if the principles announced in

the cases were to be disregarded simply because

Washington isa public lands state. Of course this is

. not what the United States supreme court meant.

In a later case it specifically rejected this argument,

saying: sya, Das

It does not impair the efficacy of the grant or the

use and enjoyment of the property by the grantee

to hold that riparian, rights are to be decided by

the state courts, inasmuch as the grant, if by .

the Federal Government, has been held in the-

cases alréady cited, not to include title over navi-

' gable waters within or bounded by the States.

iil

Contrary to the assumption of the court of ap-:

peals, Borax, Ltd., v. Los Angeles” does not prohibit

_ State modification of the common law aecretion rules

7 Brace & Hergert Mill Co. v. State, 49 Wash. 326, 333,

95 Pac. 278 (1908). . :

*Barney v. Keokuk, 94 U.S. 324 .(1876);° Packer v..

_- Bird, 187 U.S. 661 (1891) ; St. Louis Vv. Rutz, 138 U:S. 226

- (1891) ; Hardin v. Jordan, 140 U.S. 371 (1891) ; Shively

v. Bowlby, 152 U.S. 1 (1894).

29St. Anthony Falls Water Power Co. v. Water Com-

m’rs, 168 U.S. 349, 363 (1897).

309296 U.S. 10 (1935).

bi SS ne il nn aa a ten TE A CERT OTA er nett MD ww tea)

- 49

where adjoining upland title is derived from the

‘- United States. Borax was not an accretion case (it

involved no accreted lands) nor did it decide any

matter of riparian rights generally.

In Borax: the court intended to define ‘the ter-

_Yitorial limits of the tidelands which a state might

elaim as an incident of its sovereignty. However,

onee a state’s claim: had fastened upon particular

lands, the court had no intention of limiting state *

jurisdiction over the property rights and interests

in the lands. Specifically, the court did not imply

. that a state must surrender its tidelands to an upland

owner under the common law accretion doctrine. On

’ the contrary, the court left the matter of surrender

entirely to the state. It said:* , |

Rights and inibebegte in the tidelands, which is

subject to the sovereignty of the State, are ||

matters of local law. Barney v. Keokuk, 94 U.S.

' 324, 338; Shively v. Bowlby, (152 U.S. 1), p. 40;

Hardin v. J ordan, 140 U. S. 371, 382; Port of

Seattle’ v. Oregon & bins at R. Co., 255 U.S.

-56, 63.

31.296 US. at 22.

se = 2 i ia ictal Wo aa ight hcg MB a te eB a Rg ar a AL OS

3 Se Or ten eae At eae ehh Mimsy ais ARP nd =

pedi cla LAD alin, cts 8m Cine Mins | gece a een dS ORS

“APPENDIX “H”

Tn the Supreme Court

of the State of Washington as

wie HUGHES, le

: Respondent, |

ae 7 No. 37583

STATE OF WASHINGTON, |

Appellant. -

Ripual't from the Sivertoy 6 Court

of Pacific County

Honorable —— Poyhonen, J wage

BRIEF OF RESPONDENT ts

CHARLES B. WELSH

_ Office and Postoffice Address

1112 Robert Bush Drive

South Bend, Washington.

misc for Respondent. —

| ine

ARGUMENT IN SUPPORT OF JUDGMENT

The lower court was impelled to follow the de- -

cisions in onsolidated Ltd. vs. Los Angeles, |

96 U.S. 10 (1935) and the U. S. vs. State of Wash-

ington, 294 Fed. 2d 830, (9th Circuit 1961) Certiorari

denied. (St. 9, 10). The opinion in this latter case

was written by Judge Hamley, a former member of

this state’s supreme court who on page 2 of his opin-

ion said:

“Declining to be bound in its determination by the

_ definition of the term “‘ordinary high water mark’’

~ under California law, the Court said: — ES

“The question as to the extent of this federal ©

grant, 'that is, as to the limit of the land con-

veyed, or the boundary between’the upland and

the tideland. is necessarily a federal question.

Tt is a question which concerns the validity and

effect of an act done by the United -States; it

involves the ascertainment of the essential basis

of a righi, asserted. under federal law. Packer

vs. Bird, 137 U:S. 661, 669, 670; Brewer-Elliott

Oil Co. v. United States, 260 U.S. 77, 87; United

States v. Holt Bank, 270 U.S. 49, 55, 56; United

States v. Utah, 283 U.S. 64, 75. Rights and in- .

terests in the tideland, which is subject to the

sovereignty of the State, are matters of. local

law. Barney v. Keokuk, 94 U.S. 324, 338; Shively

v. Bowlby, supra (152 U.S. 1). p. 40; Hardin v.

Jordan, 140 U.S. 371, 382; Port of. Seattle v. -

Oregon & Washington R. Co., 255 U.S. 56, 63”’,,

(296 U.S. at 22’’. |

. 7 : : . . . ¢

The court went on to state that while no questior

of accretions was involved in the Borax case:

“The principle there announced is equally. applic-

able where -the problem is one of determining

whether imperceptible accretions | go with the up-

land. If the upland owner is entitled to the imper-

ceptible accretions it is because this 4s an attribute

wi emda silat cong i hl i 5 ek ait

wee

Government. Thus the determination of the at-

tributes of. an un rlving federal title, quite as

. the land reserved or acquired under such title

; | ‘‘tnvolves the ascertainment of the’ essential basfs

ao _ of a right asserted under federal law.”’ » ae

ee eee ee

page 5: i"

BE betel WE tae, Re

*“The common law is the source of tideland title

" which the United States. held and ‘which passed

to the State of Washington when it was admitted

law in determining the measure of the title to lands

retained by the United States. The Supreme Coum

. has implicitly so recognized. § : ‘:

‘pare -At ,common law’ the person whose land is bounded

: by sea, lake or river owns: any additions theretd

4 resulting from imperceptible accretion.” |

4 e. ‘Shively v. Bowlby, .sypra 5,’ 152 U.S. at 35; J ef-

: fris v. East Omalta Land Co., supra, 134 US.

~ _ at 189; Barney v. Keokuk, supra, 94 U.S. at 337;

_ County of’ St. Clair v..Lovingston, supra, 90 U.S.

(23 Wall.) ‘at 68; Jones v. J ohnston, 59 US. (18

~ How.) 150, 156; New Orleans y. United ‘States;

(8) US. (10 Pet.) 662, Nil?

— 296 US. at 22-23; Jefferis v. Rast Omaha Land“Co. 134

of St. Clair v.. Lovingston, 90 U.S: (23 Wall.) 46, 68-69.

‘~-«#

» .

- ys —

m~ : 4°

. . , ~

> F * .

> :

of title nent Th obtained by grant from the |

much as the determination of the boundaries of ~

having. thus concluded the court further stated on:

to the Union. Federal law follows. the.common ~

*See Borax Consolidated, Ltd. v. Los Angeles,. supra, -

U.S. 178, 189, 194-97; Barney v. Keokuk, 94 U.S. 324; County —

Further on page 6 the court said: —

‘‘In case of tidal waters such as are involved

here, the high water mark means the line of -high

- water as determined by the course of the tides,

- not-as determined by the physical markings made

' ‘upon the ground by the water.——the definition

of mean-high tide is the average elevation of all

high tides as_ observed, at a ‘location through a

- complete tidal cycle of 18.6 years.”’ (Borax case

supra. ) ra aro

“This is an-unchanging elévation and the line

ai of mean high tide is where that. unchanging ele-

vation mects the shore as it exists at any par-

ticular time. ad

Finally, this decision settled, and we think per--

manently, the title to and extent of a patentee’s title:

. and the method of determining * Kea water, boundary

thereof, >

Sinee the w. s. Coast and Geodaite iisives’ has ,

made a determination of all of these tidal. cycles or

. . datum planes, it is a simple matter { to determine the.

line of mean high tide not only at any place but at

any time, both presently and ip the past; and as the’ —

upland changes in height the upland owner loses or

_ gains. The lower court well stated it has taken

seventy-five years - to arrive at a definitive. conelu-— .

sion but: that time has now arrived. Ls 9)

SFE aa nnendiow”

Cae wei eee tenia Une

‘es

‘ Beat ebay ireetines wowtidie ahaa

see seenae ‘ ‘ eh inns lin nits «Aorta Meaty aye

APPENDIX “1”

In the Supreme Court

of the. state, of << ihee

STELLA HUGHES, .

Respondent, ~ |

/. V8. Recs

STATE OF WASHINGTON

) No. 37583

Appellant

APPEAL. FROM THE SUPERIOR COURT

OF PACIFIC-COUNTY .

HONORABLE WARNER POYHONEN, JU —

| Reply Brief of. Appellant

J OHN i O’CONNELL,

Attorney General,

HAROLD T. HARTINGER,

. Assistant Attorney General, |

LAUREL L. TILLER,

Assistant ‘Attorney General,

Attorneys for Appellant.

Office & Post Office Address: Temple of Justice, Olympia, Wn.

| ad

~&-Z

ay)

IIT -

~, =

BORAX, LTD. V. LOS ANGELES AND

UNITED STATES V. WASHINGTON

‘DO NOT NULLIFY STATE REAL

PROPERTY LAW

: ‘Mrs. Hughes contends that this court is com-

pelled to affirm the judgment of the court below on

authority of Borax, Ltd. v. Los Angeles’ and United

States v. Washington® without regard to state law;

be it statute or judicial decision.’

The state disputes this contention.

First, as to the common law rule of accretions, .

neither éase-precludes state;change of the rule which

—— title to accreted land formed after: the United ;

States has parted with title to the adjoining uplands. a

Borax, on the one hand, did not involve accreted‘

lands and it did not involve any change in the com-

‘mon law. United States v. Washington, on the other

hand, tid involve these issues, but holds only that

a change i in state law may not be applied against the,

federal government and its property.

There is absolutely no basis under our federal

system for limiting a state’s right to modify the .

common law solely on the ground that it pertains

7296 U.S. 10’ (1935). » ; ° :

8294 F. 2d. 830 (9th Cir. 1961).

® “Argument in Support of J vesaracnan ‘i Brief of Respond-

ent, pp. 10-13.

: P ,

, J : Liew inbeaciliate oma in Mii atid ANS Ok itn Saka nse HNe ASRS MIN RA: Baie Yi

ac hibAD Sse caaia Ne Wee a Maaco goa amen ode a tian ad ieee aestomes ohana 5

‘ - ;

4 .

to real property, title.to which can be traced to the

oe United States rather than to some other sovereign.

? This state, for example, may abolish joint tenancies —

or it may adopt community property laws. c ‘Both are

changes i in the* common law, yet both are valid changes

even ‘though they affect title to real estate once owned

; by the United States. We believe | the changes in com- AK

"on law ripprian rights, including the rights to accre-

‘tions are equally within the competence of. the

state," . ‘

icant: as to the definition of “ordinary high

tide” neither Borax nor United States V: Washington

invalidates. this court’s decision in Harkins v. Del:

= Pozzi"! upon which we rely. . | |

_United States Y. Washington involved property

. of the United States, not property to which «the

| government had parted title prior to Washington

statehood, as is the case here.

In ‘Borax the California legislature had granted

to the City of Los Angeles; by. statute, certain .tide-

lands “‘below the line of mean high tide of the Pacific

4 Ocean. 12 The: Borax Company, as adjoining upland

owner, sought to limit the tidelands to. the line of .

Aenean

“Brief of f' Appellant, pp. 33-43. .

150 Wn. 2d 237, 310 P. 2d_ 582 (1957).

12296 U.S. at 12. -

ee deetsw nace oF tae

the dines tides.” whieh it deemed the equivalent"

sy FG ees alae

(as the court did a also)” of the physical markings on

the ground. The court ruled that-the city could claim

beyond the line of the neap tide (‘the physical mark-

ings on the eround) to the line of mean high tide,

as provided by the California statute. The court did

not say that a state’s tideland ended before the line

of vegetation, is reached.

There’ is every: reason to uphold the validity

of the line of vegetation rule of Harkins v. Del Pozzi:

(1). it is an inter pretation of a provision of our state

constitution” (2) which adopts the same rule for

dividing tidelarids from “uplands as has been an-

‘nounced ‘in the past for dividing’ lake bed™ and river

bed’ from uplands; (3) it continued as state law the

federal rules on this’ subject as they ‘existed at the

time Washington became a state.” Insofar as there

may be a federal interest in the matter,” Congress |

13 296 US. at 15, 22.. -

14 See summary of its briéf, 80 L. Ed. at 10.

15 See Court’s comments, 296 U.S. at 22.

’ 16 Art. .17, § 1.

17 Austin v. Bellingham, 69 Wash. . 677, 680-81, 126. Pac.

59 (1912).

18 Washougal Transp. Co. v. Dalles, Etc., Nav. Co., 27

Wash. 490, 497, 68 Pac. 74 (1902).

19 San Francisco v. LeRoy, 188 U.S. 656, 671-72 (1891) ; :

Shively v. Bowlby, 192 U.S. 1 (1894).

20 See, Miskin, The Variousness of “Federal Law :” Com-

petence and Discretion in the Choice of National and State

Rules for Decision, 105 U. Pa. L. Rev. 797 (1957).

has spoken,” and ‘this court’s -determination of the |

conmon law is controlling.”

IV .

COMMON LAW ON TITLE TO ACCRETIONS:

MAY BE CHANGED BY STATE LAW

Mrs. Hughes makes only one answer™ to the ~ i

state’s argument™ that the common law rule on title

to accretions may be changed by state law. Her an-

swer is that the court of appeals, in the United States

v.. Washington,” refused to permit state changes to.

affect uplands owned by the United States. But Mrs.

Hughes’ property has not been government owned

at any time since statehood and that case hardly

helps her position here. . |

. Not one of the remaining cases” cited by Mrs.

Hughes sypports a power in Congress (or in the fed-

eral courts) to change the common law rule. These

eases uphold state. jurisdiction. | }

-21Rules of Decision Act, 28 U.S.C. § 1652 (1958):

The laws of the several states, except where the Con-

sticution or treaties of the United States or Acts of

- Congress otherwise require and provide, shall .be re-

- garded’ as rules of decision in civil actions in courts

of the United States, in cases where they apply.

22 Brie R.R. v. Tompkins, 304 U.S. 64 (1938).

'. 2Brief of Respondent, pp. 14-18.

. ! % Brief of Appellant, pp. 32-43. .

25 294 F2d 830 (9th Cir. 1961) © i

26 Barney v. Keokuk, 94 U.S..324 (1876); Shively v.

_ Bowlby, 152. U.S. 1 (1894); Hardin v. Jordan, 140 U.S. 371

(1891); Port of Seattle v.-Oregon & Washington R.R., 255

U.S. 56 (1921); McGilvra v. Ross, 215 U.S. 70 (1909) ;

Mann v. Tacoma Land Co., 153 U.S. 273 (1894) ; Eisenbach

v.c Hatfield; 2 Wash. 236, 26 Pac. 539 (1891).

APPENDIX “J”

_ SUPREME COURT DECISION.

IN THE SUPREME COURT OF THE

STATE OF WASHINGTON *

STELLA HUGHES, |

~ Respondent,

Vv." 7

STATE OF WASHINGTON,

| Appellant.

No. 37583

EN BANC

Filed January

20,1966 |

WEAVER, J —The question of law generated

by this appeal spring from Article 17 of the state

constitution, its historical background, and it iterpre-

» tation, legislative, administrative, and judicial.

— Artiele XVII—TIDE LANDS

§{ DECLARATION OF STATE OWNER-

SHIP. The state of Washington asserts its owner-

ship to the beds and shores’ of all navigable —

waters in the state up to and inicluding the line of

ordinary high tide, in waters where the tide ebbs

_ and flows, and up to and including the line of ordi-

nary 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.

‘$2 DISCLAIMER. OF CERTAIN LANDS.

The state of Washington disclaims all title in

. and claim to all tide, swamp and overflowed lands,

patented by the United States: - Provided, the

game is not impeached: for fraud. ay

Plaintiff, Stella Hughes, is. the. owner of an

upland tract of land on the Long Beach Peninsula

near Ocean Park, Pacific County, Washington. Title |

is deraigned from a patent issued prior to statehood.

In this action to quiet title plaintiff alleges’. that the

west boundary of the tract is described as ©

the line of ordinary high tide of the Pacific Ocean. .

She prays that the .court establish the westerly

boundary of her property to be ‘“‘the line of mean.

high tide of the Pacific Ocean.’’ No time for the

determination is indicated.

The trial court found that since the original

survey and establishment of the meander line by

the United States government in 1859, imperceptible |

accretions. have formed in front of plaintiff’s prop- "

_erty, both before and after November Uy, 1889, and

that all the accretion belongs to plaintiff as upland

owner. The state does not claim the accretion prior

to 1889, the date of its admission to the union. It —

contends,. however, that the present western boundary |

1 Plaintiff alleges ownership of the following described ©

property: Beginning at.a point 1353 feet north from the line

between Sections 4 and 9, Township 11 N. R. 11 West W.M. -

- and 487.3 feet’ west from the west line of State Highway

No. 12-A, thence north 226.6 feet, thence west 300 feet more

or less to the line of ordinary high tide of the Pacific Ocean,

thence South 226.6 feet, thence East 300 feet more or less

to beginning. | An td PU

its MBI ses soe ens “a

of plaintiff’s land and the present eastern boundary

of. the stiate’s tidelands is the line of “ordinary high

tide’’ as it existed November 11, 1889. In its answer

and eross-complaint, the state alleges that this line

on November 11, 1889 was described as follows: —

_ Beginning at a point whose Y coordinate ‘is.

436,139.17 and whose X coordinate is 1,104,683.64,

referred to the Washington Coordinate System,

South Zone, and running thence on an azimuth

- of 1°14'05” 3412.79 feet'to a point whose Y co-

ordinate is. 432,727.18 and whose X coordinate

is 1,104,610.10, referred to said coordinate system.

The state appeals from a judgment dated Feb-

ruary 10, 1964, which determines:

that the western boundary of the foregoing prop-

erty [of plaintiff] is the line of mean high tide

of the Pacific Ocean as it now or hereafter may

exist, which line is the average ‘elevation of all

high tides as observed at a location in front of

‘the property through a complete. tidal evcle of

‘18.6 vears. 7 o

We point to the possible difference between

‘ordinary high tide,” as ‘set forth in the constitution,

and ‘“‘mean high tide as it now (February 10, 1964) or

hereafter may exist,’’ as determined by the trial court.

We also point out that the superior court determined

_ a possible changing or shifting western. boundary

‘for plaintiff’s property.

This appeal brings into sharp focus the following

“

‘the issue of the instant case.

en ae ike “e — . = “ —— p . 7

ene ley ee” Se : 4 inna nee desis tabla bi NAA ei Sd Rae iin it a Pre hiss ta oR a «memos 2 ee inom

62. <e

questions: (a) When did title to the tidelands vest

in the State of Washington? (b) What is the nature

of the State’s ownership? (c) What is the extent

of the State’s ownership? i.e., what is the dividing

line between the upland property and the stalte-owned ©

tideland? (We are not concerned with the seaward line |

in the instant case. See the Submerged Lands Act of °

1953, 43 U.S.C. $$ 1301-1315 (1958 ed:). (d) Is the

dividing line a fixed line or. is it a changing line de-

pending upon accretion or reliction? (e) If a fixed

line, as of what date shouldit be established? The trial

court said in its oral opinit 7 | 7

It is rather interesting circumstance to me

that this being 1964, it is about 75 years since

statehood and that our State Supreme Court

- would not have been called upon specifically and

directly to decide the questions involved here

and particularly that question of moving line.”’

Undoubtedly there are other questions that might

arise, but we deem the foregoing sufficient to present

For the sake of clarity and in order to illustrate

the facts we set forth the following sketch, prepared

by the court from exhibits in the record. It is not

drawn to scale 7

(MAP) (See next page).

-°

ee Oh >) i Bos

i 386'——— 5 Se >}

Present USC & G Survey-Mean zrxt Tide

* . ; o

“. .

,Line actually peated, by water “when ocean

1 jat Mean High Tide 4.

p20" : >

1963. Line of Vonpeacion

(Ordinary High Tide)

1889 Line of Vegetation.

| (Ordinary High Tide)

1 . | ay .1859 Govt. Survey

_ | (Meander Line)

1 KR ee ewe Smeneme —

ye ‘ # YS : ~ SS SUA . y Be

~ pads SBS ‘S\| Plaintifé's -

utes Area ;

2Spu

Ocean iS "A. ASS SS NA >

. ete ~~ > ~

Weave ~S NSA Se

Property

| . 64

History of Constitutional Provision -

The questions presented by the instant case are

not new. As early as 1854 the territorial legislature

granted owncrs of property abutting navigable waters

the right to build wharves, under certain conditions,

and to ‘‘extend them so far into’said waters or water

- courses as the convenience of shipping may require,”’

and- to maintain them for not thore than 20 years.’

; . ¢ . . .* 7 ni

On numerous oceasions the territorial legislature

memorialized Congress to grant tidelands to the terri- —

tory so that they might be sold and the funds used

for internal improvements,? or to grant them to cer- |

tain towns and cities ‘to aid in their development.’

In 1873 the territorial legislature passed an act con- —

firming the title of the Seattle and Walla Walla Rail-

road and Transportation Company to ‘the tidelands

south of King Street in Seattle and around Elliot

Bay ‘‘from extreme high to exiyeme low tide, and

‘to deep water .. . derived by deed from the eity of.

Seattle to the said company dated August. 19, 1873,”

‘ provided the first: section of 15 miles of railroad

be constructed within three years. The territory pur-

ported to convey such title ‘as wauld otherwise be- .

2 Laws of Washington Territory 1854, p. S17

3 Laws of .Washintgon Territory 1869, p. 527 -

4 Laws of Washington Territory 1859; p. 500 (Olympia)

Laws of Washington Territory 1871, p. 220 (Olympia)

Laws of Washington - ee 18% 1, p. 213 _— attle)

long to and vest in ‘the state, upon the admission of

- Washington Territory into the Federal Union as a

. gtate.’” — “o | a,

One cannot wea the nee of the proceedings

of the state constitutional convention’ and: the news-.

paper and editorial comment published during the

convention (Yelle vy. Bishop, 55 Wn.2d 286, 292, 347

P.2d 1081 (1959)), between July 4 and August 22, ;

1889. without, concluding, as do the historians of that,

. period,’ that the most vexing and politically sensitive

_ problem confronting the convention was that of har-

bors, and the control, use, ownership, and dispel of

the tidelands of the site state to be. No other prob- .

lem w as of more vital concern to the economic de-

velopment of the state, for the tidelands in front of

Seattle and other cities on ‘Puget Sound and the oceall

were of tremendous value.

During the convention suggested constitutional

proposals ‘ranged from a declaration of inalienable

_ gtate ownership. of tidelands with limited leasing priv-

ileges, to no declaration at all, thus leaving all ques-

tions of tideland qwnerehip and use to the whim of

5Laws of Washington Térritory 1873, p. 577 :

6The Journal of the Washington State Constitutional,

Convention, 1889, p 809 et.seq. (Book Publishing Co. 1962).

7See Nesbit, ite Built Seattle’ p: 308 et seq. (Uni- ~ |

-yersity of Washington ‘Press, 1961). This is a biography .

_ of Thomas Burke, Chief Justice of the Territorial Supreme

~ Court, 1888-89. '

— ” — ae :

Bin intwns ian, Lg ee TC a ands iat aac Bet ek and eee Ba ates ‘ .

;

PS een ayt ee

ee ad PE PSS OL Re he EE FEL rw Wa aR Art ae LAS LE Bt EE iS RRR CIN OG Veh FS

.e A cy

- future legislatures. - The major source of difference °

~ arose from whether the state, the cities, or private

individuals and corporations should control the water: —

front. Generally, five groups brought predsuré to bear

upon the 75 members of the convention: (1). the own-.

ers of upland property; (2) the occupiers or pre-

emptors of tidelands who had placed improvements

thereon; (3) land speculators; (4) cities and’ towns;

and (5) the railroads. The conflict of interests was

‘sharp and the debates reported were acrimonious.

It was not until August- 22,°1889, the final day. -

of the. convention, that Article® 17 (quoted supra)

_was. adopted.* The article is, in truth, a Janus-like

“compromise of the contentions of the various schools -

of thought in the constitutional ‘convention. Although

it asserts state ownership of tidelands and dis-

claims all right to tidelands therétofore patented hy

the United States, it makes no declaration of policy

to govern the use or disposition of such lands. The

~ convention left the use and sale of state-owned tide-

lands to the politics of future legislatures. and to

- the interpretation to be given Article 17 by the Su-*

sé

- - preme Court.. , Pe

8Austin Mires (a ae wen of the constitutional’ conven-

tion), “Remarks on: the Constitution of the State ‘of Wash- .

. ington,” The Washington Historical Quarterly, Vol. ad _

4, Oct 1931, p. 276.

‘ hs

—

e. . ’ Before discussing our decisional law, it is neces- °

“sary to review briefly the tideland statutes subse-"

~ -quent to statehood, thé definition of “‘the.line of

ordinary eh tide,’’ ‘and the administrative and» su- |

+: perior court ‘interpretations “of the statutes.

Tideland Statutes Subsequent to “Btatehibod in 1889

Since Anticle 17 was a compromise (Of, the var-—

2 ious interests represented, in the constitutional con- .

"vention, it is not surprising to, fing, t tideland polities

earried forward into ‘subsequent legislative sessions.

The early statutes provide for the surv ey, class-

ification, and appraisal of state - owned tidelands’ $2

and set forth-the method and manner of or lease

“ thereof. Oyster beds were “wit drawn ‘and reseryed

' from sale or lease for the purp se of. establishing -a

natural oyster bed reserve.’ A railroad was grant

ed the right to maintain tracks and wharves on tide-

lands.” Although abutting property owners were.

Ogiv ena preferential right. to purchase tidelands, one =

having placed improv ‘ements-thereon prior to March’

26, 1890 had the exclusive right to purchase if used —

_ for “commerce, trade, residence @, or business.’””. _ Laws

‘Laws of ' 1889-90; p. 431 731; ‘Laws. of 1891, p. 403;

Laws of 1893, ch. 17, p. 26; ch. 49, p. 241. .

‘lLaws of 18 7,’ ch. 88, p. 208," ee

Laws” of 1897, ch. 89, 8 45, p. 250. .

? . : nf

“of 1899, ch. 83, $1, p. 132" was the first legislative

recognition of accretion to. tidelands. The statute

provided: ae Wn ee

That 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, ie "

1) The statute treats with ancietién to tidelands

‘nmeritone sold or that’ may hereafter be sold’? by =

the state. The accretion belongs to the state. The

Statute does not purport: to determine ownership of

accretion when: the tidelands have not been sold.-.

See Strand v. State, 16 Wn.2d. 107, 129,132 P.2d 1011

(1943). We do not construe the statute in any sense

to be a waiver by the state of its interest in tidelands. |

_ It is more logical to conclude that this i is a legislative |

recognition. of the ‘state’ s claim to all accretion after

1889 whether the tidelands be sold or not. The statute.

is at least indicative of the legislative intent, to

‘claim accretion for the state under the limited cir-

yp cumstances identified. |

It was not until Laws of 1901, shnasine 105, p.

217, and ch. 110, p. a5, that the public’s interest in :

yan of 1899,. a. 83, $1, amending Laws of 1897,

"ch. 89, § 51; reenacted by Laws of 1927, ch. 255, § 123;

* now codified as RCW 79.01.492. The° reenactment ‘made a

few minor changes in the 1899 wording. See Ghione v.. State,

| . 26 Wn.2d 635, 650, 175 P.2d 955 dais’ for the changes.

- ground for the use of-the public... ..

tide and ‘shoreland received ‘legislative recognition.

Sections 1 and 2, chapter 110 (RCW 79.16.170, 171) ° .

‘provide: | ie

That the shore and beach of the Pacific

Ocean, ineluding the area or‘space lying, abutting

_.or fronting on said ocean and between ordinary

high tide and extreme low tide (as such shore

and’. beach’ now are or hereafter may be) from

the Columbia river or Cape ‘Disappointment on -

the south to'a point three hundred feet southerly:

from the south line of the government jetty\on | |

“Peterson’s Point, State of Washington on the

north, be and the same are ‘hereby declared’ a

public highway forever, and as. such highway

shall remain forever open to the use of the

. publie. e, |

No part of said shore or ‘beach shall ever —

_- be sold, conveyed, leased or otherwise disposed of.

The statute declares. certain shore-and tidelands

‘a ‘‘public highway forever.’ It does not purport

to reserve all state-owned tideland in the vicinity

as a public highway. We.point out ‘that the public

highway is not described as abutting upland prop-

erty; it is‘ defined as ‘fabutting or fronting on said

* W4The highway created is: not a road intended for auto-

mobile traffic. It is a recreational area. As Judge Fullerton

explained in Williams Fishing Co. v.. Savidge, 152. Wash. 165,

181, 277 Pac. 459, 464 (1929) : ;

« Prior to the year 1901, when the legislature de-

clared the tidelands to be a public highway, the beach had

berome a favored resort for the people of the state who

were seeking rest and recreation, and, as I gather from the

surroundings and the current history of the times, the pur-.

pose of the legislature was, not so much to establish a

‘ thoroughfare, as it was to preserve the beach as a recreational

”

ocean.” Its seaward, boundary is “extreme low tide”;

its inland boundary is the line of “ordinary Nigh

as tide. . . as such shore and beach now are [1901] or

hereafter may be.’? Assuming that there had been

ee | accretion between 1889 and 1901, it does not follow’

a2 that.-this statute disclaims state ownership. therein.

| | : State- owned land may still remain between ‘the in-

~ . land boundary .of the “public. highway’’. (ordinary

high tide as such shore and beach‘ now.are) and the

1889 line of ordinary high” tide. It might, of course,

" be subject to sale to the abutting upland owner or .

others as. the statutes provide. -True, the boundaries

of the reserved public highway may shift seaward

because of accretion’ (a question we do not deci e),

but such move would in nowise affect. the inland

boundary of state-owned.’ lands. It would simply

3 pean the prime portion of the beach for the public.

Our interpretation of Laws of 1901 (RCW 79.16.

170 quoted supra) is fortified by Laws of 1929, chap- |

' ter 78, which provides:

The ‘commissioner, of public hinds is he ines

- authorized to offer for sale and sell in the man-

. her hereinafter provided, all, or any portion of,

the Sonowing described lands: ia

[described]

lying above and on the land das. of the inner

- boundary of the highway reservations made. by

chapter CV [105] and chapter CX [110], lame

; eae eee ee

mW Eee aetna ae

’ of 1901, same Aiana a line of ordinary high tide

_ as the same is now located or as it may hefeafter

exist,

Thus, the legislature. recognized an: “inner bound- | |

> ary of the highway reservation” and authorized the

sale of lands lying inland of this inner boundary of

the highway reservation. wil

A ‘fundamental error of the trial court in the

instant case is the application of the 1901 and 1929

statutory language to “a line. of ordinary high tide

—_————

as the same now is or as it may y hereafter exist’’ to-

a factual situation to which it has no application.

‘The Nature of Tides

Tides are the -regult of. gravitational attraction of

* the moon and sun upon the waters of* the earth.

Their heights vary with the changing positions. of

the moon, sun and earth in relation to each other.

Changes in winds, barometric pressures, and the fresh-

ets or droughts of- rivers, together with the geo-

graphy of the locale, will cause ‘tides to be higher or

. <

= -_

1sLaws of 1968, chapter 212, p. 1058 provides that

f that portion of the public highway established by Laws of -

1901, chapters 105 and 110 “lying between the line of veget-

ation and the line of mean high tide, as such lines now are?

or may hereafter be, is hereby *declared a public recreatidn

area and is hereby set aside and forever reserved for the oe

use of the public.” We believe this is the first legislative

use of the terms “line of vegetation” and “mean: high tide” R

as | distinguished from “ordinary high tide.”

. ?

sa. ko

lower than pregicted by the United States Coast

and Geodetic Supvey. -.There are usually two high

and two low waters or tides a day. They may be desig- :

_ nated, lower low water, low water, high water and

higher high water. The datum (plane of reference)

——

————

_ from which the heights of tides are caleulated on the’

_ Pacific Coast (with the exception of Balboa,. Pana-

~ma) is the mean or average of the lower. of the two

low waters of each day.'*- - | |

In Marmer, Tidal’ Datum Planes, p. 86 (US.

- Dept. of Commerce, Coast anid Geodetic Survey, Spe-

cial Pub. No. 135, rev. ed. 1951), it is stated:

a view of the variations to which the height

‘of high water is subject, mean high water [tide]

_ at any place may be defined simply-as-the aver~

age height of tthe high: waters at that -place over

_ a period of 19 years. - eal

— In:ts findings of fact, the trial court stated: |

mean high tide of the Pacific Ocean is defined

as the average elevation of all. high tides as ob-

served ata location through a complete tidal

cycle of 18.6 years, and the actual western bound-

—

ary line of plaintiff’s property is where that ele-.

‘vation meets the shore as it exists at any partic-

ular time. -

ie a

\6Bowditch, American Practical Navigator, p: 252; U.S.

Navy Dept. Hydrographic Office, No. 9. (1943) ; 1965 Tide .

. Tables, p. 7, U.S. Dept. of Commerce, Coast and . Geodetic

‘Survey; See United States v. California, 381- U.S. 139,

‘14 L. ED. 2d 296, 85 Sup. Ct. ‘1401 (May 17, 1965), in

. which ‘the court equated the “line of ordinary low water”

‘With “mean lower low water.” Shalowitz, 2 Shore’and Sea

_ Boundaries 255 (U.S. Dept. of Commerce’ 1964)..

-_ Since the line of ‘‘mean high tide”’ is an average

: over a period of years’ of the two daily high tides,’

one being higher than the other, it is apparent that.

the higher high tide will wash inland from the line

of ‘“‘mean high.tide.”’ This is illustrated by an ex- |

hibit showing the observed high tide on January 23,

1963 at a point a few feet south of plaintiff’s prop- a

erty to have been 130 feet inland from the line of

predicted ‘‘mean high tide.’’ The difference in ele-

vation was 3 feet. In the instant. case, in front of

plaintiff’s property the distance between the line of.

“ordinary high tide” in 1889, as defined by the state,

and “‘mean high tide,’’ as presently determined by’

_the United States Coast and Geodetic Survey and

‘adopted by the trial court, is 561 it the difference

in elevation. is 14.25 feet.

The problem presented is pinpointed ‘by one

author as follows |

oniititbon isionnined by the course of the

tides involve two engineering aspects: a vertical

one, predicated on the height reached by the tide

during its vertical rise and fall, and constituting

a tidal plane or datum, such as mean high water,

mean low water, ete.; and a horizontal one, re-

lated to the line where the ‘tidal plane intersects - |

the shore to form the. tidal boundary’ desired,

for example, mean high-water mark. mean low- | >..\

water mark. . The first is derived from: tidal -

observations ‘alone, and, once’ derived (on the

basis of long-term observations), is for ali prac-.

tical purposes a. permanent one. Bihiboettie 1

Shore and Sea Boundaries 89 (United seein De-

: partment of Commerce 1962).

“Mean high tide’’ is measurable and determinable.

[3] On the other hand, ‘‘the line of ordinary high |

tide”? as used ‘in Article 17 of the constitution is not: -

_ a term of technical, exactness. It-is indefinite at best

and an over-simplifi ation of a phenomenon inherent-

ly complex and variable. In the absence of any, in-—

_ dicatien to the contrary, we deem the word ‘‘ordin-

ary”? tobe used in its everyday context. The ‘dine

of ordinary high tide’’ is not to ‘be fixed by singular,

uncommon, or exceptionally high tides, but by the

regular, normal, customary, average, and usual

high tides. One cannot sit and watch the tide reach

its-stand at different elevations on each turn as it

'. ebbs and floods without realizing that a line to be

fixed by it must be, based upon an average. Thus

the line of “ordinary high tide” is the on of

_ all high tides during: the tidal eyele. i

3 Administrative and : ‘Superior Court nares

| The reeord before us supports. the conclusion

that, the cofnmissioner of public lands. lias established _

__ the ‘common boundary between upland property and

| state-owned land to ‘be'the line of obdinary high

tide where it existed November 11, 1889. Over the,

years, 73 lawsuits: dffecting 322 private ownerships -

™s

t .

Wa Ries AA

oe ae

_ have been instituted against the state to establish

this/ boundary. The juugments of the. superior court

ard before us as exhibits in the instant case” None |

was ealed. The state accurately described these

Jndymente when it said in its opening brief: Ge

In every one of these cases the court has divided

the accreted lands.on the same formula: -those

' acereted lands formed; prior to statehood are the

_ + property of the private upland owner; those ac-

- ereted lands formed. since statehood are public

beach and shore.. )

The language of these judgments varies in minor

‘respects. In some the 1889 line of ordinary high tide

is related to a surveyed corner and described. by

. “metes and bounds; in others it is desgribed as being a

stated number of feet above the ‘‘line of mean lower

low water,”’ thus a standard set by the United States

- Coast and Geodetic Survey is recognized; in still oth- he

ers the 1889 line is described with particularity by ref-

erence: to, the Washington Coordinate System, South

Zone, : as. claimed by. the. state in the instant case.

"In n practically all of the judgments the 1889 line as

surveyed and ‘described therein is judicially deter-. '

“mined to be the line of “ordinary high tide where it-

existed’ on the 11th day of November, 1889, estab-

“lished by the commissioner of public lands.’? ‘Thus

— jnrisdiction established a fale of sigssieied ‘.

which has bedn relied upon and applied on many

- oceasions when the state has sold Hidelands pursuant

to statutory authority. — Ree

Following the , decision of this ‘eoust in “Harkins

v. _Del Pozzi, 50 Wn.2d" 237, 810 P.2d . 532 (1957),

‘the: superior. court judgment, eon fur.

ther described the 1889 line: as tle 4jmmne which the

water impressed on: the soil _by covering it for suf-—

ficient periods to deprive - the: soil of vegetation. 4g

| This added nothing to the line tyhjch had already

7 been surveyed and ‘established. In Shelton: Logging

Co. v: Gosser, 26 Wash. 126. 66 Pac. 151 (1901), this

_-eourt had already considered the, line of vegetation _

and -the line of mean high tide to be the same. Fur-

ther, ‘in Harkins,’ supra, there was an unchallenged

finding of: fact equating “the line of ordinary. high

water”’ with the-“‘line of mean high ae. ”? "No: fur-

ther description - -was ‘ecessary. =:

Court Decisions -

¢ ae

— Pwo years after its adoption, the landmark case

of Eisenbach v. Hatfield, 2 Wash. 236,26 Pac. 539

al 891); brought Article. 17 of the constitution to

the Supreme Court. for construction and interpreta-.

tion. The five-man court!” was ‘umisually well- quali- |

fied to consider it. ee dae

Plaintiff, th owner of aplinid pally “ abut-

| ee the high-water mark of Puget Sound, claiming

L>)

'- he was entitled: to certain. littoral rights, sought to

enjoin defendants from maintaining and using cer-

_ tain improvements: upon tidelands in front of the

property... The improvements had been erected prior Xf

to’ March 26, 1890, ‘were in actual use. for commerce,

fendants ander Laws of 1889-90, $ 11, ?P. 435. Bee ;

supra. sz

_ [47 At the outset, we emphasize, as Soin the Eis-

enbach opinion, that ‘riparian rights in the several

states are settled by the respective states for them- |

. -selves. ” The decision, was made when the constitu- —

tion was adopted” in 1889 and confirmed by the ad-- .

‘mission of the state into the federal union upon an

equal basis with other states.

The state of _Washington asserts its + ownership .

11See Cheondlogical History of the . Siupielie Court. “of

the State of Washington, 61° Wn.2d 792,{1963).

Judge John P. Hoyt-had been president of the consti-

tutional convention; Judge Ralph O. Dunbar. n chair-

man of ‘the committee to draft the itutiona] ‘provisions

for state, school, and pa lands, whi encon tide-'

lands; and J udge T. L: Stiles, who ‘wrote the t; actively |

opposed: constitutional regulation of tidelands on the ground

the doctrine , was | pesine sound public policy. .

ir)

. * ‘ 78 | . R . 2

tothe beds ‘and shores of all navigable waters

In the state up to and including the line of ordin-

ary high tide, in waters where the tide.ebbs and - |

flows eote Art. 17, § 1, State Const:

clear and. unambiguous. As Judge Anders said in

“his well-considered opinion, “it is scarcely necessary

_ to look beyond: our own constitution and Jaws for

“authority to guide as to a conclusion.”’

In the Eisenbach case, plaintiff: contendéd that

* whatever may be the title of the state to the soil

_ under tide water, he, by virtue of his contiguity to

the water, had certain rights’ in. the shore peculiar

- to himself. He claimed a vested property right. (a)

3 _ to wharf out opposite ‘his upland ‘and have unob-

structed access to the navigable water in front of his

property ‘and’ (b) to acquire by accretion land that e

| might thereafter be formed. . aa

| After a ‘meticulous analysis of the authorities, \ |

. this court said: .

»»

The constitutional. assertion «of state ownership is |

or. ‘The. foregoing decisions of the ; highest

judicial tribunal of the United States; without -

other or further authority, would seem to settle,

beyond controversy, the question of title to the

‘tide lands of this. state, and to leave no doubt

whatever -that they belong to the state in actual

_ propriety, and that the state has: full power to

dispose of the same, subject to no restrictions

Save those imposed upon the legislature by the

constitution of the state and the constitution of

SG Wiouats . 79

the United. States; ani, if this be true, it neces-

sarily follows that no individual ‘ean have any

~ legal’ right whatever to claim any easement in,

_ or to impose any servitude upon, the tide waters

- within the limits of the state, without the consent

of the legislature.

The court concluded:

We think the authorities iiiaineaiins show

_. that a ‘riparian proprietor :on the shore of, the

"sea, or its arms, has no rights as against: ‘the

_ - state or its grantees to extend wharves in front

_ of his land below high water mark.

The court did not completely resolve plaintiff’s

“second contention in the Kisenbach case—his claimed :

vested right, to future accretion. The court said:

' we are unable to see how one can have a ew

vested right to that which does not exist, and

which may never have an existence.

| The court did, however, point out that the author-

ities to the contrary were, “based either upon statutes

‘or local ont Ss are therefore not peenennaye ;

binding upodn us.’ |

[5,6] That ‘waiahs did not exist-when Eisenbach

was decided — accretions seaward of upland property °

— now exists. We conclude that its ownership jis re-

solved by the rationale of Eisenbach and that. acerétion

formed since November 11, 1889 is an addition to

state-owned property, not to’ upland property. As

the court said: | |

80 |

‘The result of our investigation of the au-

_ thorities leads us to the conclusion ‘that riparian

ey agree on the shore of the navigable waters

f the state have no special or peculiar rights

therein as an incident to their estate. To hold

otherwise would be to deny the power of the

State to déal-with its own property as it may .

deem best for the public good.

Our conclusion is not startling. It is simply a

reaffirmance of a rule of property established by

many prior superior court decisions heretofore dis-

cussed, and of the rule relied upon over the years in a

. myriad of land transactions between individuals and

| At the next session of the Supreme Court the

. questions diseussed in Eisenbach were again submit-

~ ted to and re-examined by the court in Harbor Line |

Commissioners v. State, ex rel. Yesler, 2 Wash. 530,

27 Pac. 550 (1891). The court said:

The court is still of the opinion that, as

against the state, a littoral owner, simply as such

owner, can.assert no valuable rights below the

line of ordinary high tide. «= —. .

; The somewhat careful examination which I -

have given this case has confirmed my opinion

that at common law the sovereign. power (rest-

ing in England in parliament) could take such .

lands without compensation, and absolutely ex- --

mH the littoral proprietors from. any rights

thereto. °

The state’s constitutional assertion of ownership

in 1889 terminated any rights the upland owner may.

“have had to future accretion. Thereafter, the possible

rights of an upland, owner are those that might be

established by the legislature. - |

; This.conclusion is fortified, by the court’s opin-

jon in Washougal & LaCamas Transp. . Co. v. Dalles a

P. & A. Nav. Co., 27 Wash. 490,.68 Pac.. 74 (1902),

wherein the state’s grantee -of shorelands sought to

claim shorelands created in: part by erosion (the op-

posite of accretion) and by debris caught and held by

pilings. The court held:

erosion of the banks of a stream within the

boundaries of a private claim inure 'to the benefit

of the state; nor can the state claim, as shore

lands, fills in a river caused by artificial means.

In the instant. case plaintiff’s (respondent’s)

argument in support of the judgment of the trial

court orbits around three decisions: Borax Consoli-

dated, Ltd. v. Los Angeles, 296 U.S. 10, 80 L.Ed. 9,

56 Sup. Ct. 23 (1935), Ghione v. State, 26 Wn,2d 635,

175 P.24 955 (1946), and U.S. v. State of Washington, _

294 F.2d’ 830 9th Cir. (1961). It was apparently the

We do not find the three cases apposite. Borax,

supra, establishes the rule that mean. high tide (the

average height of all high waters through a com-

. : |

pec nae

plete tidal cycle) is the criterion for “ordinary high

water.’”* The case does not involve the question of

accretion.

Some of the language in Ghione, supra, read with-

* out reference to the particular facts before the court,

seems to lend weight to respondent’s argument in

support of\the judgment. This case, however, in-

volves the wnership of the bed of. two rivers, first

surveyed in 1865. River courses had changed gradu-

‘ally over the. years; one was changed _ artificially in -

1913. Finally one river ceased to flow when the level

_ of the water of Lake Washington was .lowered in

1915. The cdse does not involve tidelands. We have

no quarrel with the decision as applied to the facts;

we do not, however, deem it- controlling of the instant

"Gage.

[7] In United States v. State of Washington, 294

F.2d 830 (1961), certain lots in Grays Harbor abutting

| - on the Pacific Ocean belonged to the federal. govern-

ment subject to a trust patent issued in 1916 to Sam-

son Johns, a Quinault Indian. The lots were at all

times part of the public domain until patented. The —

court applied federal law and’determined that ac-

"We. are aware of the footnote. reference in Narrows

Realty Co. v. State, 52 Wn.2d 843, 329 P.2d 836 (1958),

equating “the line of ordinary +high- tide” with “neap tides,”

but the reference is not necessary to the decision and is, there-

- fore, dictum. fe

cretion belonged to the uplands owned by it subject

to the trust patent. We do not question the federal

government’s right over its own .property, but the

rules applied by the United States Court of Appeals

do ‘not override the established rules of property of

the sovereign state .in a controversy between it and

oii . 3 Lee

- . one.of its citizens. ~ Bey ele

ees

~— - :

ownership of tidelands in actual propriety November

11, 1889. The property line. is the line of ordinary high

‘tide, which we equate to mean high - tide on that —

date. Littoral rights of upland owners. were termin-

ated. Upland owners have only those rights subse-.

quently. recognized by legislative. enactment. All

aceretion subsequent’ to Novémber 11, 1889 is owned

by the state and may be sold or reserved as a public

highway or public recreation area .as: the legislature

Shall determine.

The judgment is reversed and the catise remand-

ed for entry of. judgment not inconsistent with the -

views herein expressed.

It is so ordered.

DONWORTH, J. OTT, J. HALE, J.

concur.

HILL, J. es find myself lost in ate

miration at the scholarship and erudition manifested

in the majority opinion. However, all the legal sign-

posts that I can read and understand point in. the

; opposite direction, so I am compelled to dissent.

We must Sots: ecole the ican (seaward) |

boundary of Stella Hughes’ property is the present

mean high tide line, or whether it is the line of ordin-

ary high ‘tide as‘the. state of Washington computes |

- ° it to have been.on November 11, 1889. It is really. as -

simple as that.

Signpost 1: Location of plaintiff's Weetiily (sea- .

weer? boundary is a federal =

" The plaintife traces her title to a federal patent.

issued. before Washington became a state.. This

court recognized a long time ago the right of federal

courts to ascertain the limit of federal grants. See

Washougal and LaCamas ‘Transporation Co. v. Dalles,

' Portland and Astoria Navigation. Co., 27 Wash. 490,

496, 68 Pac. 74 (1902). In Borax Consolidated, Ltd.

v. Los Angeles, 296 U.S. 10. 80 L.Ed. 9, 56S. Ct. 23.

(1935), it was stated that when a federal patent is

involved, the boundary between upland and tideland

is necessarily a federal. question. True, no accretions

were involved, but it seems unlikely that this would

asl

ek uaee 85 .

a ae

nme °

have made any differencé as to whether federal law

should be applied. -

Signpost 2:. Federal law being applicable, the

‘shifting boundary theory’’ applies.

Tf federal law is applicable, then United States

_y. State of Washington.” 294 F.2d 830 (9th Cir. 1961), °

cert. den. 369 U.S. 817 (1962), is decisive. That case”

holds that imperceptible accretions go with the up-

lands whenever title to the uplands is derived from

thé United States. The western or seaward bound-

-ary to the property involved” in that case was, ds |

here the line between uplands and tidelands. ~The

present line-of ‘‘mean high tide,’ which ‘was defined |

as the average elevation of all high tides at a given .

- location through a complete tidal cycle of 18.6 years,

. ; 4 e )

201t is interesting to note that in the cited case the state

of Washington made all of the arguments it makes here for ~

. ° its fixed boundary of November 11, 1889, but found the Circuit

Court of Appeals a forum less friendly to its idea of rewriting

‘the law relative to accretions. |

- 21The property ‘involved: “Lots 3 and 4 of section 15 in

township 18 north of range 12 west of the Willamette Meridian,

adjacent to the Pacific Ocean in Grays Harbor ‘County, Wash-

ington,” belonged to the United States, subject to a trust

patent issued in 1916 to Samson Johns, a Quinault Indian who

died in 1930. In 1858, these lands were surveyed by the Gen- .

eral Land Office, which established a meander line along and , |

the high-water mark seaward were held to belong to the United

States subject to the heirs of Samson Johns, and not to the

_ state of Washington. er

“was held to be that boundary. This definition was’ ,

‘formulated by the United States Coast. and Geodetic

| Survey and i# part of what has been called. the

‘

“shifting boundary theory. ade Shalowjtz, Shore ant

Bea Boundaries, 503 note 34,

A a

wre

fae.

This is the wesktis or seaward line fixed by’

_ the trial court in this case, arid it should be affirmed,

If this seems a ridiculously short and ‘simple

- solution of ‘the apparently complex problem with

which. the fhajority opinion deals, I can only say that

it, is*the result dictated by. common law,” and {as

- we have seen) by ‘the federal law. It is a plain and

well-traveled legal path. To arrive at the result the

state desires (and the majority approves), a. new,

circuitous and rather devious route, rarely explored,

must be followed. This is conceded in the state’s

brief when it says: : -

It is a rare oecurrence, of course, when ‘a

state: denies a riparian owner title to {idelands*

that have become fast lands by slow and imper-

cqptible accretion, but. at least, two other states

have done so... . 3 tee |

3 ° is «

me BP or river owns any additions thereto resulting from

by se, la accretion.” United States xWVashington, supra

8 rr 834) #Shively v. Bowlby, 152 U.S. 1, at page 35, 38 L. Ed.

331, 14 Sup. Ct. 548 (1894). —

23] would interpolate “former” before “tidelarids. +i

4 ,

4) at common law the person S ichs land | is bounded .

ee ae

240, 310° P.2d 532 (1957) states:

poses.

I would i xtend my. discussion to point out four

interesting. circumstances that ‘have been lost ‘sight

. of, or at least have been obscured, to date:

1.. We have. not. previously defined the. exact

meaning of the phrase ‘line of ordinary high tide,”’ |

as used in Art. 17, § 1 of our state constitution.

The case of arkinn v. Del Pozzi, 50 Wn.2nd 237,

‘

The line of ordinary high tide ‘is that line. whieh

the water impresses on the soil by covering, it

for suffisient periods to deprive the soil of veget- .

ation and destroy its value for Agricultural pur-

However, the authority cited for this. proposition

is an Idaho case ‘which: was actually concerned with

the ordinary high. watermark on Lake Pend Oreille.

The Circuit Court of Appeals rejected such a defini-

tron in United States v. State of. . Washington, supra,

| saying:

/,‘“ In-the ease of tidal waters such as are in-

volved here, the high-water mark means the line ,

of high water as determined by the course of

the tides, not as determined by physical mark-

: ings maide upon the ground by the water. The

latter method of making this determination,

which was followed by the district court, is ap-

propriate only in the case of streams and ‘other

non-tidal waters which have no absolitte _ aScer-

~ tainable level because of variations of ‘flow from

a mulititude of causes. (p. 834)

ie : fi 88

There is also dictum in Narrows Realty. Co. Inc.

v. State of Washington, 52 Wn.2d 843; 844, n3 329 P. 2

836 oe which defines the phrase as:

line of ‘ordinary high tide,’ that is, “the

wad or ordinary high-waten*mark, the. limit

reached ‘by the ‘neap tides,’ those tides which

happen between the full anid change of the moon -

_ twice in every 24 estan .”” 30 — & Phrases

253. (Perm. ed.) .

_ Neither of these eases involved. imperceptible

$ accretions or ‘were concerned with we. problem of

~ possible shifting. boundaries.

The question of whether the “‘line of ordinary

high tide’’ is a shifting line ‘is squarely presented

here, and I believe the definition of of this constitutional

phrase should (and perhaps must) | be identical with,

the definition of ‘‘mean high tide’’ heretofore quoted _

and adopted by the federal courts.

2..The state’s pwnership of .

2 ‘the beds and shores of all navigable waters in

‘the state up to and including the line of ordinary.

. “high he in waters where the tide ebbs .and

flows ... (Const. art. 17, § 1 :

is not questioned.. Any rights of riparian. or littoral

‘owners in such ‘beds and shores’? have properly

been held to present a’ question of local Jaw. Such

a case was Eisenbach v. Hatfield, 2 Wash. 236, 26

Pac. 539 (1891), on which the state and the majority |

tog i ")

‘

? e .

3 ns .

‘ ,

° ” .

- ? P y J

. * F ;

—

nna UR eae TASS a ee ree!

Mi great reliance. The ease dealt solely with the

lative rights of the state and the upland owner in

the tidelands, the court holding that the upland —

owner had * no right. to extend ‘a wharf beyond the

| high-water mark. The court *pecifically declined: to

decide whether plaintiff would, be entitled to future -

accretions to his land.

No question, as to the ‘sachs sonal of the

‘state over “beds and. shores’’ of all navigable waters _

‘is: raisedw Hence,, the Fisenbach case has, it seems—

3 to - no ee:

The. state had, on November 4 1889, ae the’

state has today and has. had at all intervening times,

title to the beds and shores of all navigable waters -.

of the state lying seaward of the line of ordinary

_ high tide (properly equated to mean “‘the line of mean

high tide,” as defined herein). ’ The state loses no

tidelands by the shifting boundary, because the ac-

creted land has become “fast land’’ and it always

has had title to the shore and beach between ordinary

high tide (mean high tide) and extreme low tide..

But, by the fixed-boundary rule, which’ Washington ,

and “‘at least two other states” have invented, the

upland owner loses the ‘‘fast land,’’ which has been

added to his upland by slow and imperceptible acere-

. tion, and-his contact. with the line of mean high tide

= .

ee ae rm = \ ee ee no *.. ‘Said ate Rsk ae eet. ee

. . " &

eis . ee .

Ww hich, in many: instances, may have been the 1 reason |

for the acquisition of the property. . an i j

It is apparent on that the purpose of the ain |

“Ig. not primarily to make a ‘greater area available’

for publie use, but to dispose of such accreted lands

to private individuals and put a new upland owner

between the grantées of the original upland. owner

and. the line of mean high tide. That the state does

‘-not consider aceretion as shore or beach, is evidenced

_ by its sale ‘thereof, for ‘the state certainly would not

3 disregard the statutory declaration that

[Slhore and beach of the Pacifie Ocean, . . - ‘be-

tween ordinary high tide [mean high tide] and ° |

extreme low tide... shall remain forever open:

to the use of the public, [RCW 79.16.170].

and that no part thereof‘ ‘shall ever be sold; con-

veyed, leased or otherwise oe of. rst Saale

-79.16:171)

ah * 3. The. really pertinent decision in Washington

_is: not the Eisenbach case, which has nothing to do

with imperceptible accretions, but the case of Ghione

v. State, 26, Wn. 2d 635, 175 P.2d 955. (1946). The

5; state asserted there, as it does here, that it was

_ entitled to all lands covered by navigable waters in

* 4889-. The state also contended that it was entitled

to all lands submerged by navigable waters subse- 7

quent to 1889. -

Nn ee Dn ET VAT, OLN eh GROEN A OO ET A DR BT

_——

ee ea apes 5 es

The court discussed a . number of cases—includ- |

ing Eisenbach and an 1899 statute on accretions (cited :

here by the majority—before adopting a shifting

: boundary theory which vested title to imperceptible

~ aceretions in. the. upland owner. The majority seeks .

to distinguish the Ghione case because it- involved

a river, but the court: there believed that the shifting

boundary theory applied “to both tidewaters and,

fresh waters,’’? and there is no apparent reason for -

distinguishing between them. |

. 4. No ecinalddration wo given to the effect

of the’ fixed* boundary theory -where there has been

an erosion instead of an accretion. We can only spec-

ulate as to how the majority opinion would read if

this were- an erosion case. At ceftain places, the

‘1889 line of ordinary high tide -or mean high tide

is now a long. way out in the Pacific Ocean, in con-

sequence of erosion, and the upland owner has seen

his upland become tideland to which ‘he has hereto-

fore thought he had no title. Under the majority

rule, the upland owner would’ continue to have title

to. the 1889 line, and the public, seemingly, would have

to swim to enjoy its “highway”? and beach rights.

_Only under the shifting boundary rule will the rights

‘of the public always be preserved in the property

, In the beds and shores of all navigable waters in the

an”

, state, up to and inchadine the line of ordinary high |

tide—4in waters where the tide ebbs and flows.’’

I ouahe ‘follow the federal cases, adhere: to the

shifting boundary rule, and affirm the trial court. -

HUNTER, J. concurs with HILL, J.

sevntleeth ts, cht Set alee ei a ae

- .* gg.

APPENDIX “‘K”

ORDER DENYING PETITION as REHEARING

IN THE SUPREME COURT

OF THE STATE OF WASHINGTON |

STELLA HUGHES, eae

Respondent. ORDER |

= Sane DENYING

CP hia PETITION

THE STATE OF WASHINGTON, mo...

e ; Appellant. | REHEARING

The Court having considered the respondents

petition for a rehearing herein together with the ap- .

pellant’s answer thereto, and a majority of the Judges

being of the opinion that it should be denied,

IT Is ORDERED that the petition be and it

is hereby denied.

Dated this 14th day of April, 1966.

By the Court: |

= HUGH J. ROSSELLINI

Chief Justice

Wwe NF ‘

CE ee ee eT es a ere =

APPENDIX “L”

IN THE SUPREME COURT OF THE -

Es STATE OF WASHINGTON .

STELLA HUGHES, } eat:

- Respondent, REMITTITUR

bie _ \No. 37583

THE STATE OF pata Newegs |

WASHINGTON, Pacifie County No. 14546

This is to certify that the: opinion of the Su-

_ preme Court of the State of Washington filed ‘on .

January 20, 1966, became the final judgment of this

court in the above entitled case on April 14, 1966... —

‘This cause is remitted ‘to the superior court from

which the appeal was taken for. further proceedings

in accordance with the attached certified copy of the

opinion. :

Pursuant to Rule 55 on Appeal, cost are taxed

as follows: . ~

Three Hundred Eighteen’ and 61/100 ($318.61)

Dollars in favor of appellant and against respondent.

The Petition for Rehearing was Denied by an

Order filed April 14, 1966. - | eae

ec: Court Reporter |

Hon. John J. O‘Connell

Mr. Harold T. Hartinger

‘Mr, Laurel L. Tiller

Mr. Charles B. Welsh

IN TESTIMONY WHEREOF, I have

' hereunto set my hand and affixed the

seal of said Court at Olympia, this

14th day of April, A.D. 1966. |

Wi LLIAM M. LOWRY

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.