Williams Fishing Co. v. Savidge

On Rehearing. Main, J. This action was brought by the plaintiff to restrain the defendant, the state commissioner of public lands, from leasing certain tide lands owned by the state and situated at or near the mouth of the Columbia river. The cause was tried to the court without a jury and resulted in a judgment dismissing the complaint, from which the plaintiff appeals. The facts will be found fully stated in the Departmental opinion, 152 Wash. 165, 277 Pac. 459, and need not be here repeated. After the Departmental opinion was filed, a petition for rehearing was presented and granted, and the cause was heard En Bane. Sections 1 and 2 of the Laws of 1901, ch. 110, p. 225, are as follows : “Section 1. That the shore and beach of the Pacific ocean, including 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 public. “Sec. 2. No part of said shore or beach shall ever be sold, conveyed, leased or otherwise disposed of.” It will be noticed that the southern terminus of the public highway therein provided for shall be at the Columbia river or Cape Disappointment. This cape is at the southwest point of the state of Washington *445 and is a body of land of some size. Its length from north to south is approximately four miles, and from east to west the extreme width is something like a mile and a half. The west shore of the cape is washed by the waters of the Pacific ocean. Against the east shore the waters of the Columbia river flow. The pivotal point in the case is the southern terminus of the highway at the present time. The statute, as indicated, mentions, “from the Columbia river or Cape Disappointment on the south.” In ascertaining this terminus, effect should be given to all the language in the act, if possible. Had the act only stated Cape Disappointment, it would have been difficult to have determined at just what point on that cape the legislature intended that the highway should begin. Having said the Columbia river or Cape Disappointment, the legislative intent is made reasonably plain. Prom the language used, it would seem that the southern terminus of the highway would be at a point at the southern end of the cape where the waters of the river flowing to the west would meet the shore and beach of the Pacific ocean. In the Departmental opinion, with reference to the construction of the act, it was said: “It will be observed that the act quoted makes the southern terminus of the highway ‘the Columbia river or Cape Disappointment.’ Of course Cape Disappointment is a considerable body of land, and if the act named the cape only as the initial or starting point of the highway, there might be considerable difference of opinion as to where it would begin, but the words of the act, ‘from the Columbia river or Cape Disappointment on the south,’ would seem to indicate clearly the intention that the highway should begin at the extreme southerly point of Cape Disappointment where it is laved by the waters of the Columbia river, so that the traveler may, on leaving the waters of the Columbia, enter immediately upon the highway. No *446 other construction, we think, will give full effect to the language used.” To that construction we adhere. The question then arises, whether the southern terminus of the highway at the present time would be where the waters of the Columbia river met the shore and beach of the ocean in 1901, when the act became effective, or where they so meet at this time. It may be that, during the years that have elapsed since the passage of the act, Cape Disappointment has been added to by accretion and thus extended farther to the south, or it may be that it has been washed away by the action of the tide and the current of the river and thus shortened. There is no evidence in the case from which it can be determined where the waters of the Columbia river reach the shore and beach of the Pacific ocean at the present time. If, during the years that have elapsed, Cape Disappointment has been added to by accretion, the southern terminus of the highway would be extended to.the point where the waters of the Columbia river now meet the shore and beach of the ocean. In Hathaway v. Milwaukee, 132 Wis. 249, 111 N. W. 570, 112 N. W. 455, 122 Am. St. 975, 9 L. R. A. (N. S.) 778, it was held that an easement granted to a city over land abutting on a navigable lake for a public street which terminated on the lake attached to accretions apportioned to the land. It was there said: “It is also recognized that, where such shore land is subject to such an easement, it will attach to the accretion apportioned thereto. Prom this it must follow that such street of the city extends to the land apportioned to the strip covered by the deed, namely, the land included in the area designated on the plat as F, H, U, V; 2 Dillon on Municipal Corporations, § 634; Banks v. Ogden, 2 Wall. (U. S.) 57, 17 L. ed. 818.” In 1 R. C. L., p. 243, it is said: *447 “As a consequence of this principle it follows that a public easement for a highway, extending to a navigable body of water, will continue to the water’s edge across accretion formed along the end of the highway whether made by natural causes or the voluntary act of the owner.” As above stated, from the evidence in this case, the controlling fact of where the waters of the Columbia river at the present time meet the shore and beach of the Pacific ocean cannot be ascertained. All parties appear to agree that if the lands in question are on the shore and beach of the Pacific ocean they cannot be leased, but that if they are not on the shore and beach of the ocean they may be leased. The respondent attempted to prove that the lands in question were not shore and beach of the Pacific ocean by drawing a line following the general trend of the north shore of the Columbia river to the west, and then drawing a line following the general trend of the Pacific ocean and extending this line to the south until it met the line of the north shore of the Columbia river extended, and then bisecting the angle formed by these two lines. It may be admitted that, under a proper state of facts, this is a correct way to apportion tide land, but the evidence does not reach the controlling question here. The fact of where the waters of the Columbia river meet the shore and beach of the Pacific ocean, like any other fact, may be proven by any competent, relevant and material evidence, but the evidence offered by the respondent would not necessarily establish that fact. The appellant’s case in the superior court was tried on the theory that the mouth of the Columbia river was the controlling question, but the evidence offered by it does not fix the point on the north side of the river where the waters of the river meet the shore and beach of the ocean. The case upon the present record then *448 lacks evidence for the purpose of determining the controlling fact. We are aware that, in the cases of State ex rel. Smith v. Forrest, 8 Wash. 610, 36 Pac. 686, 1120, and State ex rel. Megler v. Forrest, 13 Wash. 268, 43 Pac. 51, it was held that a question of fact determined by the state land commissioner was not within the province of the court to review. To that rule we adhere. It was also recognized in those cases that, if the land commissioner should make an erroneous application of the law to the facts, judicial interference would be proper. In the present case, the state land commissioner, in order to determine whether the lands in question were shore and beach of the Pacific ocean, proceeded on an incorrect view of the law. Hence the right to review by the court is available. Since neither of the parties proceeded upon a correct view of the law and both failed to offer evidence to establish the pivotal fact in the case, it seems only just that the cause should be retried in order that that fact may be determined. The judgment will be reversed and the cause remanded with direction to the superior court to grant a new trial. Mitchell, C. J., Beals, and Millard, JJ., concur.