Denny v. Northern Pacific Railway Co.

The opinion of the court was delivered by Gordon, J. This appeal is from a decree of the superior court of King county rendered in a cause appealed to that court from the decision of the board of state land commissioners, and involves the right to purchase certain tide lands lying in front of the city of Seattle. Each of the parties to this controversy claims the right to purchase because of ownership of abutting upland and of improvements existing on the tide lands in question on and prior to March 26, 1890. In 1853, H. L. Tesler initiated a claim under the donation land act of the United States to certain land lying on the shore of Elliott bay, which was patented to him in 1816. The area so patented embraced land lying below the line of ordinary high tide, the meander line being located at half tide. In 1866, Tesler by deed of general warranty containing full covenants conveyed a strip 50 feet in width and 256 in length, being parts of [300] lots 2, 3, 6 and 7 of block 1 of Maynard & Yesler’s plat, to tbe respondents. Between tbe premises tbns conveyed and the meander line is a strip ten feet in width known, and referred to by all tbe parties to tbis proceeding, as the “ gore ” strip. Tbe line of ordinary high tide crossed tbe premises so conveyed at a point distant some two hundred feet above tbe meander line thus established, so that tbe greater portion of tbe premises actually described in tbe deed from Yesler to tbe respondents was in- fact tide lands. The respondents entered into possession under their deed and thereafter proceeded to improve tbe granted premises and also tbe tide lands in front thereof and extending out into tbe deeper waters of tbe bay. In tbe summer of 1889, while respondents were engaged in wharfing and improving a portion of tbe premises here in controversy, Yesler instituted an action in tbe territorial district court for King county to restrain and enjoin tbe making of such improvement, and procured a temporary injunction. In August, 1890, Yesler, certain other parties joining with him, conveyed to A. S. Dunham an area of tide lands in front of tbe land so patented to him, tbe conveyance also including tbe strip known, and heretofore referred to, as tbe “ gore ” strip. Thereafter Dunham conveyed tbe whole of said premises to tbe appellant. Tbe superior court, reversing tbe decision of tbe board of state land commissioners, .awarded tbe preference right to purchase tide lands involved in tbis controversy to tbe respondents. Tbe findings of tbe court are very voluminous and respondents’ right to purchase is sustained upon several distinct grounds. Tbe suit instituted against tbe respondents by Yesler in 1889, terminated in a judgment made by tbe superior court of King county (which latter court succeeded tbe territorial district court upon tbe adoption of tbe constitution), and tbe record thereof was introduced in evidence on tbe trial [301] of this cause. From the pleadings it appears that Tesler (plaintiff therein) claimed ownership in fee of the gore strip, and consequently the right to the tide lands abutting thereon and lying westward thereof, and the respondents here (defendants therein) also claimed ownership of the same strip by reason of having occupied the same uninterruptedly from the date of the execution of the deed' to them by Tesler in 1866, and because the period of limitation to recover possession of the gore strip had run in their favor prior to the institution of that action. The cause terminated in August, 1890, by entry of the following order: “ This cause coming on to be heard on final hearing in open court on the 14th day of July, 1890, the parties and their attorneys being present, after all the proofs introduced and submitted by the plaintiff, and plaintiff having rested his case, defendants move the court for judgment dismissing the action upon the pleadings and the proofs submitted, counsel for the plaintiff and defendant having been fully heard, said motion being granted; “ Wherefore it is considered, adjudged and decreed by the court that upon said proofs of the plaintiff and the said pleadings, that the temporary injunction and restraining order heretofore issued by the court in this action be and the same is hereby dissolved and that this action be dismissed and the defendants herein have and recover of and from the said plaintiff their costs and disbursements in this action taxed at dollars, and that execution issue therefor.” We think the disposition so made of that cause constituted an adjudication of the title to the gore strip, and operates as a bar and an estoppel not only as to Tesler, but the appellant claiming through him. The ultimate question in that case as in this one was and is, who owns the upland upon which these tide lands abut? We think the decision of that question in the former case concluded both [302] Yesler and the appellant. But to the introduction of the record of the former suit the appellant objected and here urges that it is inadmissible because not pleaded. Counsel cite Bruce v. Foley, 18 Wash. 96 (50 Pac. 935), decided by us November 4, 1897, in support of this contention. But the rule contended for by appellant and followed by us in that case is not, we think, applicable to the present controversy. The statute governing the trial of contests before the board of state land commissioners between adverse claimants of the right to purchase tide land does not require nor contemplate the filing of formal pleadings. Laws 1895, ch. 178, § 61, p. 554. And § 82 of the same chapter, Laws 1895, p. 562, governing appeals to the superior court from the decision of the state board provides that “ The hearing and trial of said appeal in said court shall take place de novo before the court without a jury, upon the pleadings so certified. The court or judge, for cause deemed satisfactory, may order the pleadings to be amended.” Aside from this, we think that the deed from Yesler which conveyed the upland, passed to respondents littoral rights to the abutting tide or shore lands included in the gore strip, and, in connection with their possession and the disclaimer contained in § 2, art. 17 of the constitution, constitute a perfect title. And again, the preference right of purchase is by the statute conferred upon “the owner or owners of lands abutting or fronting upon or bounded by the shore of the Pacific ocean or any bay, harbor, sound,” etc.; in other words, the upland owner. As already stated, the gore strip is not upland. It does not front upon the shore and were we to conclude that the appellant owned the gore strip it would not follow that it is entitled to the preference right to purchase these tide lands. As already [303] shown, Tesler conveyed the upland to these respondents, and in its natural condition the gore strip was merely tide or shore land over and across which the tide ebbed and flowed. To possible construction of the statute would admit of the right of the owner of a piece of tide land to be preferred as a purchaser of abutting tide land. The final contention of the appellant is that, owing to the conformation of the shore line in front of the premises, the tide land, which is the bone of contention in the present case, in fact abuts upon other portions of the Tesler donation claim, and is not appurtenant to the premises owned by the respondents. We think that appellant cannot be heard to urge this contention. For upwards of twenty-five years the existing lines have been recognized both by contract and the conduct of the co-terminus proprietors. The authorities — presumably in conformity therewith— adopted these lines in laying out and platting the premises, and the lines so laid out were also adopted by all the parties to this controversy in presenting their respective applications to purchase. In any point of view, we think the superior court reached a correct conclusion, and its judgment and decree is affirmed. Scott, O. J., and Keavis, Andebs, and Dotbab, JJ., concur.