154 PACIFIC REPORTER (Wash. eral election, and until their successors are elect- is sufficient to authorize the appointment. ed and qualified." It is apparent that this section does not control in this case, because at the time of the appointment by the Governor, the offices of all three of the commissioners of Yakima county were vacant on account of the election of October 6, 1915. There is no other provision of the Constitution directly referring to the manner in which the office of county commissioners may be filled when all of such offices become vacant at one time. In the case of State ex rel. Pendergast v. Fulton, 37 Wash. 271, 79 Pac. 779, where one vacancy had occurred, and the Legislature had passed an act authorizing the judge of the superior court to act with the remaining members of the board of county commissioners, it was held that the act was in violation of the provisions of the Constitution above quoted, and that it was the duty of the remaining commissioners to fill the vacancy. We discussion as to the proper construction of 24 Wash. 549, 64 Pac. 717, this court held In the case of Farquharson v. Yeargin, county, might authorize the Governor to apthat the Legislature, in the creation of a new point commissioners for the new county, and that such authorization was not in contravention of the Constitution. It follows from that decision that, if all the commissioners of a county are recalled, or for some reason all three of the commissioners' offices should become vacant upon the happening of some contingency, the Legislature would clearly have a right by legislative act to authorize the Governor to fill such offices by appoint The Constitution, at section 5 of article 3, ment on account of the emergency. provides as follows: "The Governor may require information in writing from the officers of the state upon any subject relating to the duties of their respective offices, and shall see that the laws are faithfully executed." Section 13 of that article provides: "When, during a recess of the Legislature, a vacancy shall happen in any office the appointment to which is vested in the Legislature, or when at any time a vacancy shall have occurred in any other state office for the filling of which vacancy no provision is made elsewhere in this Constitution, the Governor shall fill such vacancy by appointment, which shall expire when a successor shall have been elected and qualified." The Legislature of 1890 passed an act relating to the general powers and duties of the Governor (Rem. & Bal. Code, 8988), which provides: "In addition to those prescribed by the Constitution, the Governor has the power and may perform the duties prescribed in this and the following sections: * offices are filled, and the duties thereof perform(2) To see that all ed, or in default thereof, apply such remedy as the law allows; and if the remedy is imperfect, acquaint the Legislature therewith at its next session." It is contended by the respondent that the provision in section 5 of article 3 of the Constitution, above quoted, that the Governor "shall see that the laws are faithfully executed," is sufficient to authorize the appointment of county commissioners under the circumstances in this case, and that section 13, to the effect that, when during a recess of the Legislature a vacancy shall happen in any office the appointment to which is vested in the Legislature, the Governor shall fill such vacancy by appointment, the business agents of the county, and the The county commissioners of a county are ordinary business of a county cannot be conducted without their authorization. It follows that, when all the offices of county commissioners in a county become vacant, government, and there must be some power there is necessarily a cessation of county lodged somewhere to prevent such hiatus. This has been done by the Legislature. The act of 1890 above referred to provides that, in addition to the powers prescribed by the Constitution, the Governor has power "to see that all offices are filled, and the duties thereof performed." this act, and that, where there is no proviWe think it is plain that the Legislature had the right to pass sion in the Constitution for the appointment majority of the offices of the board of county of commissioners of a county, and where a commissioners become vacant, then it is within the power of the Governor to fill such clear that it is not necessary to further invacancy by appointment. This seems quire into the subject, or discuss decisions have no doubt that, under the statute of 1890, from other states upon the question. We the Governor was authorized to make the appointments which he did make, and that qualified county commissioners of Yakima these officers are de jure officers, and are county. SO affirmed. FULLERTON, PARKER, HOLCOMB, and STATE V. SCOTT et al. (No. 12526.) (Supreme Court of Washington. Jan. 5, 1916.) 1. NAVIGABLE WATERS 37-"TIDELANDS" -DEEDS-LANDS CONVEYED. lands," to extend the boundary of the state's tidelands out to the line separating land so continuously covered with water that it might be leased for deep-sea oyster culture. [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 180-200; Dec. Dig. 36.] 4. NAVIGABLE WATERS 37-TIDELANDSLOCATION OF EXTREME LOW TIDE. Under Laws 1897, p. 230, § 4 (Rem. & Bal. Code, § 6641), defining "tidelands" as all lands over which the tide ebbs and flows from the line of ordinary high tide to the line of mean low tide, and excepting oyster lands, a Where, in a controversy between the state deed issued March 18, 1911, pursuant to a pur- and the grantee in a deed from the state, relachase from the state on July 7, 1900, conveying tive to the ownership of a portion of the bed of "all the tidelands not disposed of by the state Puget Sound, there is extreme doubt whether situate in front of, adjacent to, and abutting on the land in controversy lies below or above the lot 3, * **" and a deed issued June 18, "extreme low tide" fixed by Laws 1911, p. 130, 1901, conveying "all that portion of the tide-8 1, subd. 2, as the outer boundary of tidelands, lands of the second class owned by the state the doubt should be resolved in favor of the *situate in front of, adjacent to, and abutting on lot 4, carried title only to the lands above the line of mean low tide, and excepting oyster lands theretofore conveyed under the Callow Act (Rem. & Bal. Code, §§ 6806, 6807). [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 201-226, 285; Dec. Dig. ~37. For other definitions, see Words and Phrases, First and Second Series, Tideland.] 2. NAVIGABLE WATERS 37-"TIDELANDS" -DEEDS-LANDS CONVEYED "IN FRONT OF" -"SOLD OR CONVEYED." * * * Laws 1911, p. 130, § 1, subd. 2 (3 Rem. & Bal. Code, 6641), defines "tidelands" as "all lands over which the tide ebbs and flows from the line of ordinary high tide to the line of extreme low tide, * * excepting oyster reserves." Laws 1911, p. 130, § 2 (3 Rem. & Bal. Code, § 6641-1), provides: "That the preference right to purchase all tidelands of the second class lying between the line of mean low tide and the line of extreme low tide in front of all tidelands of the second class heretofore sold or conveyed by the state * is hereby granted for *** ninety days * * to the purchasers, their grantees or successors in interest, of any tidelands of the second class heretofore sold or conveyed by the state * * *"" A deed dated June 6, 1911, recited that it conveyed "all tidelands of the second class owned by the state * lying between the line of mean low tide and the line of extreme low tide and in front of lots 1, 2, 3 and 4, *** excepting such portions of said tidelands as are included in said oyster reserves and subject to such rights * * * as may have been acquired by the purchaser of any part of said lands as tidelands suitable for the cultivation of oysters." Held to convey not only the tidelands between such lots and oyster lands theretofore deeded to others under the Callow Act, but also any tidelands, if there be any, in front of the lots beyond such intervening oyster lands to the line of extreme low tide; the words "in front of," as used in the statute, giving a preference right to purchase, having reference to lands other than those adjoining lands theretofore sold or conveyed, and the Callow Act claimants, since they did not hold fee-simple title, not being owners of tidelands "theretofore sold or conveyed" within the meaning of such statute so as to be entitled to the preference right to purchase tidelands in front of their claims. [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. 88 201-226, 285; Dec. Dig. 37. For other definitions, see Words and Phrases, 3. NAVIGABLE WATERS 36-TIDELANDS state. [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 201-226, 285; Dec. Dig. 37.] 5. NAVIGABLE WATERS 36 "MEAN LOw TIDE"-"MEAN LOWER LOW TIDE"-"HARMONIC PLANE." The term "mean low tide," as applied to Puget Sound, signifies the mean or average level of the low tides, including both the long and short daily runout. "Mean lower low tide" signifies the mean level of the daily extreme low tides. "Harmonic plane" is the zero adopted by the United States Coast and Geodetic Survey of the Department of Commerce upon which its tidal tables, charts, and maps are based. It is an arbitrary plane, and is the lowest plane of the tide in the Sound recognized by that department, being approximately two feet lower than mean lower low tide, and approximately four feet lower than mean low tide. [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 180-200; Dec. Dig. 36.] 6. NAVIGABLE WATERS 37 -- -TIDELANDS SUFFICIENCY OF EVIDENCE. Evidence in an action by the state to quiet title to a portion of the bed of Puget Sound held to show that the land in controversy lies below the plane of extreme low tide save insignificant portions around the border, and that hence a deed conveying from the state to defendants nothing below the plane of extreme low tide did not convey such land, but left the title thereto in the state. Persons claiming title to the bed of Puget Sound beyond the plane of extreme low tide under a deed conveying title to them only to the extreme low tide were without color of title, and therefore could not obtain title thereto by adverse possession aided by improvements and payment of taxes. [Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 387-393; Dec. Dig. 68.1 8. ADVERSE POSSESSION 7-PRESCRIPTIVE TITLE-ACQUISITION AGAINST STATE. Under the express provisions of Rem. & Bal. Code, § 167, adverse possession cannot be made the basis of title as against the state to a portion of the bed of Puget Sound. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 24-42; Dec. Dig. 7.] Department 1. Appeal from Superior Court, Thurston County; C. E. Claypool, Judge. The term "extreme low tide" is used in Laws 1911, p. 130, § 1, subd. 2, redefining "tide- Action by the State against J. H. Scott and others. From judgment for (Wash. defendants, reserves, and subject to such right, title, or Reversed and remanded, interest as may have been acquired by the purchaser of any part of said lands as tidelands suitable for the cultivation of oysters under any deed or contract heretofore issued W. V. Tanner, R. B. Campbell, and Lindsay ents. ELLIS, J. This is an action by the state of Washington to recover possession of and quiet title to a portion of the bed of Puget Sound, commonly known and referred to in the record as the "pothole," and to enjoin the defendants from trespassing thereon. The defendants admit that the state upon its admission into the Union acquired title to the pothole by virtue of section 1, art. 17, of the state Constitution, whereby the state asserted title to the beds and shores of all navi Much testimony was introduced of experts from observations taken at the pothole and as to general tide conditions on Puget Sound with the pothole as to whether it has ever and testimony of witnesses long acquainted been entirely uncovered at the lowest tides, all with the view of determining whether, in fact, the pothole lies below the plane of extreme low tide. of the land as we have outlined it, and that The court found, in substance, the situation the defendants had at all times since July, 1900, been in open, notorious, exclusive, and all taxes thereon since that time; that the peaceable possession of the pothole, paying land described as the pothole lies above the line of extreme low tide; that the state of Washington does not now, and did not when this action was commenced, own the pothole or any portion thereof; and that it had failed to establish the material allegations of its priate conclusions of law the court entered a complaint. Upon these findings and approdecree denying to the plaintiff the relief prayfor and dismissing the action. The plaintiff appeals. The appellant contends: (1) That the deeds title to the pothole, in that the pothole is not upon which the respondents rely conveyed no tidelands of the second class owned by the in front of and adjoining the upland or any defendants in front of and adjoining the upland; (2) that the defendants acquired no title to the pothole by any of these deeds, because the evidence shows that the pothole is below the line or plane of extreme low tide. The first of these contentions presents a question of law; the second a question of fact. gable waters within its boundaries. They contend, however, that the state conveyed the pothole to them by certain deeds of secondclass tidelands which are pleaded in their answer. The state admits the issuance of the deeds, but denies that they conveyed the pothole or any part of it. The evidence shows beyond question that the pothole and the channel leading out of it to deep water lie below the line of mean low tide. Between the pot hole and the strip of tidelands lying in fronted of and contiguous to government lots 3 and 4 are situate certain tideland tracts or oyster claims forming a continuous chain, deeded to Jim Simmons, J. A. Gale, and J. H. Tobin for oystering purposes. were deeded under the provisions of chapter These oyster claims 25, Laws of 1895 (Rem. & Bal. Code, §§ 6806, 6807), commonly known as the Callow Act. We shall hereinafter refer to them as the Callow Claims. The deeds upon which the defendants rely as conveying to them the pothole are: First, a deed from the state dated March 18, 1911, conveying to the defendant J. H. Scott "all of the tidelands undisposed of by the state situate in front of, adjacent to, and abutting upon lot 3, section 22, township 19 north, range 3 west"; second, a deed from the state dated June 18, 1901, conveying to the defendant J. H. Scott "all that portion of the tidelands of the second class owned by the state of Washington, situate in front of, adjacent to and abutting upon lot 4, section 22, township 19 north, range 3 west"; third, a deed from the state dated June 6, 1911, to both defendants, conveying "all tidelands of the second class owned by the state of Washington lying between the line of mean low tide and the line of extreme low tide and in front of lots 1, 2, 3, and 4, section 22, township 19 north, range 3 west, W. M., with a total frontage of 81.81 lineal chains, more or less, measured along the meander line, according to a certified copy of the government field notes of the survey thereof on file in the office of the commissioner of public lands at Olympia, Wash., excepting such portions of said tidelands as are included in state oyster were initiated by purchase of the tidelands [1] 1. At the time that the first two deeds therein described, tidelands were defined by statute as follows: * * and ebbs and flows from the line of ordinary high 1911, was made in pursuance of a purchase carried title only to the line of mean low tide. The second deed of June 18, 1901, likewise It was made in pursuance of a purchase long antedating, and itself long antedated, the extension act of 1911. These two deeds are limited by the express terms of the statute defining tidelands then in force to lands above the line of mean low tide, and excepting oyster lands. Pearl Oyster Co. v. Heuston, supra. They did not convey any of the lands theretofore deeded under the Callow Act. This court specifically so held in Scott V. Olympia Oyster Co., 63 Wash. 364, 115 Pac. 737. [2] At the time the third deed above referred to was issued the outer line of the state's tidelands had been extended. "Tidelands" were then defined by statute as fol lows: "Tide Lands.-All lands over which the tide ebbs and flows from the line of ordinary high tide to the line of extreme low tide, except in front of cities where harbor lines have been established or may hereafter be established, where such tide lands shall be those lying between the line of ordinary high tide and the inner harbor line and excepting oyster reserves." Chapter 36, § 1, subd. 2, p. 130, Laws 1911; 3 Rem. & Bal. Code, § 6641. Construed in relation to its facts, the Lehman Case does not sustain the appellant's contention. That case merely holds that lands "in front of" the limits of an incorporated city or town included only such lands as were adjoining and in front of such city or town on the same side of the channel of navigable, water, and that the term was not used in the absolute or geographical sense which would include all tidelands lying between the side lines of the city extended to infinity so as to embrace tidelands on the other side of the channel. Though it defines the words "in front of" as meaning "immediately in front of, that is, adjoining," this definition is plainly intended as a conclusion from what precedes it. So read, it is clearly meant to apply to the whole body of tidelands on the given side of the channel, without regard to segregated ownership, that is, all lands in front of and adjoining in the sense of lying on that side of the channel. We cannot adopt the view of the Attorney General that the Callow Act claimants are owners of tidelands "theretofore sold and conveyed" within the meaning of the act of 1911 so as to be entitled to the preference right to purchase the tidelands in front of those claims lying between the lines of mean low tide and extreme low tide under that act. Though they had such a right as prevented their claims from passing by the state's tideland deed, and such, in fact, that the state could not convey their land at all without first declaring a forfeiture of their claims for cause, they did not hold the fee-simple title. Scott v. Olympia Oyster Co., supra. On principle it would seem that nothing short of a fee-simple title could be a sufficient basis for the preference right to purchase in fee simple the frontal tidelands between mean low and extreme low tide. The case of Bleakley v. Lake Washington Mill Co., 65 Wash. 215, 118 Pac. 5, cited by appellant in this connection, goes no further than to hold that lands located below the line of high water and above the meander line on the shore of Lake Washington, and hence subject to overflow, when patented by the government prior to statehood, and thereafter owned as private property, is not "shore land," within the meaning of the statute, but is to be regarded as upland by force of the government's survey and patent in fee, the ownership of which carries the preference right to purchase unpatented "From a geometrical point of view in front shore lands belonging to the state and frontof might include everything between the prescribed line and infinity; but, as applied practi-ing or abutting upon the patented land. The cally to measurements on the surface of the earth, we believe it can only mean immediately in front of, that is, adjoining." It is obvious that but for the exception of lands theretofore deeded the description in the third deed would have carried title to the line of extreme low tide, wherever that may be. It is equally obvious, as it seems to us, that with the exception it carries title to all of the tidelands to the line of extreme low tide, save those excepted. The appellant contends, however, that this deed, when construed in accordance with the law of 1911 pursuant to which it was made, conveyed nothing beyond the intervening Callow grants. The purchase was under the preference right accorded by section 2 of the act of 1911, which provides: "That the prior and preference right to purchase all tide lands of the second class lying between the line of mean low tide and the line of extreme low tide in front of all tide lands of the second class heretofore sold or conveyed by the state of Washington is hereby granted for the period of ninety days from the date this act goes into effect to the purchasers, their grantees or successors in interest of any tide lands of the second class heretofore sold or conveyed by the state of Washington. * Chapter 36, 2, p. 130, Laws 1911; 3 Rem. & Bal. Code, 6641-1. * Appellant insists that the words "in front of," contained in this section, mean "adjoining," quoting in support of that claim from State ex rel. Lehman v. Bridges, 24 Wash. 363, 64 Pac. 518, where it is said: patented land, though actually overflow land, being by legal convention upland, carried as an incident the preference right of purchase to its owner in fee simple. It is argued that, under that decision, the third deed above mentioned did not convey We fail to see wherein the case of State to the respondents any lands outside of the v. Sturtevant, 76 Wash. 158, 135 Pac. 1035, Callow claims, in that lands outside of those 138 Pac. 650, also cited by appellant, when claims lay in front of, that is, adjoining the confined to its facts, has any bearing on the Callow claims, and not in front of or adjoin- question before us. That case involved acing the tidelands of the respondents lying be- cretions or relictions resulting from the low uring to the abutting owner with an undefined water boundary. As indicated in that case, there is a marked difference in the definition of shore lands and tidelands found in Rem. & Bal. Code, § 6641, as to their outer boundaries, the outer boundary of shore lands being left undefined, while the outer boundary of tidelands was defined first as extended to mean low tide, and subsequently by the act of 1911 to extreme low tide. 2. Impelled, as we are, both by the terms of the third deed and by the statute under which it was made, to hold that it conveyed all tidelands between the lines of mean low tide and extreme low tide in front of those conveyed by the two prior deeds to the respondents, the issue is reduced to the evidential question: Is the pothole below the line or plane of extreme low tide? If it is, the third deed not convey it to the respondents, and the title still remains in the state. If it is not, that deed did convey it to the respond ents. policy of the state to encourage oyster culture, evidenced by the act of 1899, furnishes an impelling reason, where the question whether a given tract lies below or above that line is one of extreme doubt, for resolving the doubt in favor of the state. This view accords also with the rule that grants by a sovereign state are to be construed most strongly against the grantee, which rule is as applicable to tideland grants as to any other. Pearl Oyster Co. v. Heuston, supra. Indeed, it would seem that this rule should be especially applicable where, as here, its observance tends to subserve a settled policy of the state. A detailed review of the evidence is incompatible with the reasonable compass of an opinion. It is largely technical. We shall attempt no more than to indicate its nature and tendency. [5, 6] The state sought to show that the pothole lies below the lowest recognized plane of extreme low tide. On Puget Sound there [3, 4] Preliminary to a determination of are two high and two low tides occurring in that question a brief resumé of the state's approximately each 24 hours. The alternate pertinent tideland legislation will be illumi- high and low tides are unequal. There is an nating as to what was intended by the use extreme daily low tide and an extreme daily of the term "extreme low tide" in the statute high tide. The term "mean low tide" signifies (chapter 36, Laws 1911). The first act re- the mean or average level of the low tides, lating to the disposition of tidelands (Laws including both the long and the short daily 1889-90, p. 431) prescribed no outer bound- runout. "Mean lower low tide" signifies the ary for the state's tidelands. They were sold mean level of the daily extreme low tides. by metes and bounds fixed by surveys made The "harmonic plane" is the zero adopted by by the applicant in each case. The resulting the United States Coast and Geodetic Surirregularity of privately owned tracts led to vey of the Department of Commerce upon the passage of the act of 1895 (2 Rem. & Bal. which its tidal tables, charts, and maps are Code, § 6641) supra, defining tidelands and based. It is an arbitary plane, and is the adopting the line of mean low tide as their lowest plane of the tide in Puget Sound recogouter boundary. Thereafter this court, in nized by that department. It is approximatePearl Oyster Co. v. Heuston, supra, held that ly two feet lower than mean lower low tide, state deeds of tidelands conveyed nothing and approximately four feet lower than mean between the lines of mean low tide and ex- low tide. The plane of extreme low tide as treme low tide. This in turn led to the pas- established by the United States army engisage of the act of 1911, amending the defi- neers through some 20 years of observation nition of tidelands by extending the outer at Seattle is approximately two feet lower line to the line of extreme low tide. The than the harmonic plane. The state sought original definition of 1895 and as re-enacted to show that the pothole lies below this plane in 1897 excepted "oyster lands," and the as fixed by the army engineers. amended definition of 1911 excepted "oyster reserves." By an act of 1899 (section 6808 to 6818, inclusive, Rem. & Bal. Code) passed for the encouragement and protection of deepwater oyster culture, provision had already been made for the leasing of lands lying below the line of extreme low tide for deep-sea oyster planting. With this act and the prior definition before it, we must assume that the Legislature, in using the term "extreme low tide" in redefining tidelands in the act of 1911, meant to extend the boundary of its tidelands out to the line separating land so continuously covered with water that it might be leased for deep-sea oyster culture from the tidelands of the state. This, as it seems to us furnishes a practical definition of the term "extreme low tide" as a boundary, and, in view of the exception of oyster lands in both definitions of tidelands and of the settled Edward Dohm, the field engineer of the state's land department, took soundings at the pothole in order to determine its relation to the plane of extreme low tide. The following method was pursued: In July, 1913, he set a gauge on a pile near the mouth and at the east end of the pothole, and another at the west end, and took a series of readings covering 2 days in July and 10 days in the following January. From these readings and from others taken at the same time at Seattle by the United States Coast and Geodetic Survey he determined the difference in elevation between his gauge at the pothole and those at Seattle, and, taking the average of these differences, adjusted his gauges to the same level as that at Seattle. He found that his gauges at the pothole were set .05 too low. In taking the soundings in the pothole, and in the preparation of the map of |