Court Opens Salmon Bay to Harbor-Line Rules

Stimson Mill Company, respondent, vs. Board of Harbor Line Commissioners, appellants. No. 339.

The more important questions presented by this record are the same as those decided by this court in the case of Harbor Line Commissioners vs. State, 2 Wash. 530. They are of such importance to the welfare of the state that notwithstanding that fact we should be willing to re-examine them had not said case been appealed to the supreme court of the United States, where a speedy and final determination thereof will be had; but as such is the case, a further discussion of said questions here would be of little value. We shall, therefore, content ourselves with an examination of the questions presented by this record which are different from those decided in that case.

One of these is purely a question of fact. It is claimed by the respondent that the affidavit, which was the foundation of the proceeding, showed that the appellants were about to include, within the harbor lines to be established by them, portions of its upland property, and that for that reason, if for no other, the court below rightfully granted the writ. There are some expressions in said affidavit which tend to support this contention, but when we take it altogether and construe it as we think we ought, most strongly against the party presenting it, it fails to sustain this contention of respondent. And even if there were some statements therein which might be construed as thus contended, we do not think they should control the decision of this case in the face of the statement by appellants that they concede that they have no power to include said property within such harbor lines. Besides, under the decision in the case above cited, the attempt to include even portions of the upland within the harbor line could not be prevented by the writ of prohibition.

The next question is one of mixed fact and law. The facts, however, are not made to appear from the affidavit, or other portions of the record, and if before this court at all are here by agreement of counsel upon the argument, or by the judicial notice which this court must take of Salmon Bay. If we consider them properly before us, it appears that said bay has only a narrow mouth, or outlet, which goes dry or nearly dry at low water, at which time the water in the bay covers only a limited portion thereof in the shape of an enclosed lake in the center. At high water, however, said bay and such outlet are navigable to boats of the class which do nearly all the transportation of freight and passengers on the entire Puget Sound.

Under these circumstances we think a fair construction of the constitutional and legislative provisions upon the subject authorizes the harbor line commissioners to extend their jurisdiction over the waters in said bay. If we were to hold that because said bay was not navigable at low water it did not come within the definition of "navigable waters" as defined by the constitution and legislation relative to the duties of the harbor line commissioners, the usefulness of that body would be very much interfered with. If it is not navigable for the reasons stated it would follow that the navigable portion of any of the waters of the Sound extended only to low water. Such, at least, seems to us the necessary result of such a holding, and if we were to hold this latter proposition to be true, the board of harbor line commissioners had better be dissolved at once.

[Concluded tomorrow.]