Statement of the Case.

the premises of said relator herein, H. L. Yesler, mentioned in said alternative writ, to wit, the premises commonly known as Yesler's wharf and dock and the upland abutting on the shore of Elliott Bay, upon which said wharf and dock were constructed, and through the buildings thereon upon the shore of Elliott Bay and in the harbor of the city of Seattle, in said King County, or in such a manner as to embrace and include said premises and improvements, or any part thereof, within the harbor lines of said city of Seattle, until compensation shall be ascertained and paid as required by law to said relator, H. L. Yesler, for the taking or damaging of his said property and improvements thereby."

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

Statement of the Case.

not completely protect petitioner's rights. State ex rel. Yesler v. Prosser, 27 Pac. Rep. 550.

A writ of error from this court was thereupon allowed.

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

"ARTICLE XV. HARBORS AND TIDE WATERS. § 1. The legislature shall provide for the appointment of a commission whose duty it shall be to locate and establish harbor lines in the navigable waters of all harbors, estuaries, bays and inlets of this State, wherever such navigable waters lie within or in front of the corporate limits of any city, or within one mile thereof upon either side. The State shall never give, sell or lease to any private person, corporation or association any rights whatever in the waters beyond such harbor lines, nor shall any of the area lying between any harbor line and the line of ordinary high tide, and within not less than fifty feet nor more than six hundred feet of such harbor line (as the commission shall determine) be sold or granted by the State, nor its rights to control the same relinquished, but such area shall be forever reserved for landings, wharves, streets and other conveniences of navigation and commerce.

"§ 2. The legislature shall provide general laws for the leasing of the right to build and maintain wharves, docks and other structures, upon the areas mentioned in section one of this article, but no lease shall be made for any term longer than thirty years, or the legislature may provide by general laws for the building and maintaining upon such area wharves, docks and other structures.

"§ 3. Municipal corporations shall have the right to extend their streets over intervening tide lands to and across the area reserved as herein provided."

"ARTICLE XVII. TIDE LANDS. § 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

Statement of the Case.

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. The State of Washington disclaims all title in and claim to all tide, swamp and overflowed lands patented by the United States: Provided, The same is not impeached for fraud."

"ARTICLE XXVII. SCHedule. In order that no inconvenience may arise by reason of a change from a territorial to a state government, it is hereby declared and ordained as follows:

66

"§ 1. No existing rights,

contracts or claims shall be affected by a change in the form of government, but all shall continue as if no such change had taken place;

"2. All laws now in force in the Territory of Washington, which are not repugnant to this constitution, shall remain in force until they expire by their own limitation, or are altered or repealed by the legislature: Provided, That this section. shall not be so construed as to validate any act of the legislature of Washington Territory granting shore or tide lands to any person, company or any municipal or private corporation."

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

On March 26, 1890, an act of the legislature of the State for the appraising and disposal of the tide and shore lands

Statement of the Case.

belonging to the State was approved, the 11th section of which provided: "The owner or owners of any lands abutting or fronting upon or bounded by the shore of the Pacific Ocean, or of any bay, harbor, sound, inlet, lake or watercourse, shall have the right for sixty days following the filing of the final appraisal of the tide lands to purchase all or any part of the tide lands in front of the lands so owned: Provided, That if valuable improvements in actual use for commerce, trade or business have been made upon said tide lands by any person, association or corporation, the owner or owners of such improvements shall have the exclusive right to purchase the land so improved for the period aforesaid." 1 Hill's Stat. 758.

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

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

Opinion of the Court.

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

Mr. Thomas R. Shepard and Mr. A. H. Garland for plaintiff in error. Mr. Andrew F. Burleigh and Mr. Charles E. Shepard were on Mr. Shepard's brief.

Mr. W. C. Jones, Attorney General of the State of Washington, for defendants in error.

Mr. John H. Mitchell and Mr. Beriah Brown, Jr., filed a brief for Baer, intervenor.

Mr. T. N. McPherson and Mr. Edwin B. Smith, counsel for plaintiff in error in No. 639, filed a brief, by leave of court.

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

The averment in relator's petition is that "he is now and has been for thirty years last past the owner of the followingdescribed property, to wit, the property commonly known as Yesler's wharf and dock and the upland abutting on the shore upon which said wharf and dock were constructed." It is said in argument that he is an original patentee of the United States, under the "Donation Act" of September 27, 1850, (9 Stat. 496, c. 76,) of a tract of about one hundred and sixty acres of land, entered by him in 1852, embracing all the