A Judge Halts the Sale of the Elliott Bay Tide Flats

Judge Langley yesterday morning granted a perpetual injunction restraining the tide-land appraisers and the state land commissioners from filing the plats and offering the lands for sale.

During the three days' hearing of the case the attorneys for Brawley, Kinnear and the Ladds made a strong showing. The property is of the kind described as tide-marsh, but the evidence demonstrated that the soil itself was above the fee line of ordinary high tide and was covered with a heavy growth of trees and shrubbery, and that the banks of the Duwamish river were clearly defined.

The government field notes describe the land as prairie. One of the witnesses, A. A. Denny, swore that the lands had been used as pasturage for cattle and that the herds fed in perfect security without interference by the tides. The rise of the water by reason of the tides was not such that a horse or even a plank would float over it.

The case hinges substantially on two points: first, the validity of the patents from the United States government, and second, the right of the state, if any, by reason of its sovereignty. The patents were issued many years before Washington became a state, and it was contended that the disclaimer in the constitution, whereby the state renounced all claims to tide, swamp and overflowed lands belonging theretofore to the United States, operated to defeat the state's title.

E. F. Blaine, of counsel for the Ladd estate, says that the points presented are the same as in the celebrated case of Baer v. Moran Bros., recently decided by the supreme court of the United States, which affirmed the decision of the Washington supreme court.

While the injunction granted yesterday covers only lands in Elliott bay, the decision affects a vast area in the state. In addition to this vicinity there are tracts of reclaimed marsh and tide lands along the various streams flowing into the lower Sound from below Tacoma to the mouth of the Skagit. There is a strip about eight miles long and from a mile to two miles in breadth, and there is another strip running from the Sound towards Mount Vernon. The entire Skagit delta, which has been reclaimed and comprises some of the most valuable and fertile lands in the state, is of the same character as the Elliott bay lands.

It is expected that the former, before reclamation, were subject to a greater overflow than the latter. The commissioners have not yet given notice of appeal, but it is understood that the case will be carried to the supreme court.