Seattle’s Tide-Flats Canal Clears the Court

The supreme court has decided the test case brought to secure a judicial interpretation of some points in the law under which the Seattle Lake Washington Waterway Company has contracted to fill in the tide flats and excavate waterways and the South canal. The securing of this decision fulfills another of the conditions laid down by the St. Louis capitalists for furnishing the capital for the work. The only condition now remaining to be fulfilled is the subscription of the subsidy of $500,000 to the company, and actual work will then begin within twenty days.

The following telegram tells of the decision:

Olympia, April 19.—Special.—A decision has been rendered by the supreme court in the case of Frederick Schlopp, appellant, versus W. T. Forrest, commissioner of public lands, and the Seattle & Lake Washington Waterway Company, respondents. The plaintiff applied to the superior court of King county for a restraining order to prevent the company from performing the work upon the tide lands from trespassing thereon, and to restrain the commissioner of public lands from issuing certificates under the contracts mentioned, and for a decree freeing said lands from the alleged cloud cast by the execution and recording of the contracts. The restraining order was refused by the superior court of King county and the plaintiff then appealed, the suit being a test case to secure a decision on some points of law.

On October 7, 1895, the state, by its authorized agent, the commissioner of public lands, with the approval of the governor, entered into a contract with Eugene Semple, in pursuance of an act of the legislature of 1895, which prescribed the manner in which waterways for uses of navigation may be excavated by private contracts, and providing for liens on the tide and shore lands belonging to the state, granting rights-of-way across such lands for the excavation of a waterway from the deep waters of Elliott bay to Lake Washington, the material taken therefrom to fill and raise above extreme high tide the tide lands lying in front of Seattle.

On February 23, 1898, the state entered into an additional contract with the defendant company providing for the excavation of material from the waterways mentioned in the first contract, and filling in with this material other tide lands not embraced in the first contract. All requirements of law necessary to authorize the execution of the contracts were complied with prior to the execution thereof and the recording of the bonds. These contracts were recorded in the office of the King county auditor. Under the contracts, the waterway company claims a lien upon the tide lands. The commissioner of public lands has adopted a form of certificate which he is to deliver to the defendant upon completion of the whole or part of the work. This certificate has been approved by the attorney general. These certificates, when filed in the county auditor's office, will constitute a lien on the lands in favor of the holder for the amount therein specified, and 5 per cent additional, with interest at 7 per cent per annum.

This action was brought to restrain the company. On the facts already stated, the plaintiff is entitled, under the law, to a preference right of purchase, and he has legally applied to purchase from the state the tide lands described in his complaint. The defendant corporation has commenced work on these lands and will fill them above high tide, but claims a lien thereon. The commissioner, unless restrained by law, will issue certificates for the cost of filling these lands. The claim is made that the contract is invalid, owing to the manner in which the cost of bulkhead necessary is apportioned to the several lots protected. But the supreme court holds that the plaintiff's objection on this point is not tenable, as also one in which the claim is made that the form of certificate to be issued by the commissioner does not comply with the requirements of the contract and the law. And the commissioner has the power to issue these certificates upon completion of any part of the work, provided that such part is capable of separate use for the purpose of commerce, without waiting for the completion of the whole work. The law vests the commissioner with the discretion of determining when he shall issue certificates, and it is presumed he will not violate the law or abuse his power. Judgment is affirmed.