State Supreme Court Upholds Lake Washington Canal Contract, Clearing the Way for Tide-Land Transformation

The text of the decision of the supreme court in the case of Frederick S. [appellant] versus the commissioner of public lands and the Lake Washington Waterway Company has been received here, and shows that the court has fully sustained the constitutionality of the law under which the defendant company is to fill in tide lands and excavate the waterway. Its position is supported by a judicial confirmation of the law under which it is to operate; the waterway company can now carry out its contract without fear of further litigation.

The decision begins by reciting the provisions of the law, the letting of the contracts, and the adoption by the commissioner of public lands of a form of certificate to be issued to the waterway company on the completion of the whole or any part of the work, with the terms of payment. It then proceeds:

"This action was brought to enjoin and restrain the defendant company from performing the work commenced and contemplated upon the tide lands described, as passing over the same, and to restrain the commissioner of public lands from issuing any certificates under the contracts above mentioned, and for a decree discharging and freeing said lands from the cloud caused by the execution and recording of said contracts. The superior court denied the relief prayed for in whole and in part, and gave judgment in favor of the defendants, from which the plaintiff appeals.

"None of the facts alleged in the complaint were denied in the answer, and it is contended that if conclusions of law deduced therefrom by the trial court are correct the judgment and decree must be affirmed. In addition to the facts already stated, it appears from the complaint, as well as from the findings of fact, that the plaintiff is entitled under the law to a preference right of purchase, and that he has duly and legally applied to purchase from the state the tide lands described in his complaint, and has filed such application with the commissioner of public lands. It also appears that the defendant has entered upon those lands and has commenced work, under and by virtue of the said contract, with the intention and for the purpose of filling in said lands and raising them above high tide and claiming a lien thereon for the cost of filling the same, as provided for in said contracts. And it further appears that the commissioner of public lands will, unless restrained by the court, upon application therefor by the defendant corporation, issue his certificate for the cost of filling said lands and raising them above high tide under and by virtue of said contracts; and that the said defendant will file such certificate in the office of the auditor of King county, Washington, and claim a lien upon the lands so filled in and raised; and that the said defendant will issue said certificate in the form and at the times set forth in the complaint.

"The only question to be determined on this appeal is whether the contracts and the certificate proposed to be issued thereunder are in accordance with the provisions of the statute. The learned counsel for appellant claim that the contracts in question are ineffectual and void because (1) they contain a provision which is contrary to the rule laid down by the law with reference to the manner of apportioning liens among the several owners of land covered by a certificate issued under the contracts and the law; (2) because the first contract entered into contains a provision for the excavation of a waterway through the highlands between the head of Elliott bay and Lake Washington; and (3) because the last contract provides for the excavation of material from the same waterway described in the first.

"The provision of the contracts which it is claimed invalidates them is as follows:

"'In apportioning the cost of such work to any lot or parcel of land to which any person or corporation has a pre-emption right of purchase, the cost of the bulkhead shall be apportioned to the several lots included within and protected by such bulkhead in such proportion as the area of such lot or parcel bears to the entire area included within a bulkhead. But the charge against any lot or parcel for filling in shall be in such proportion to the entire cost of the work of filling in as the number of cubic yards required to fill in such lot bears to the entire area included within any bulkhead.'

"The rule of apportionment prescribed by the aforesaid act reads as follows:

"'Liens shall not be in solido, and upon the sale by the state to any person, or by any owner claiming under the state to any other person, of any of the tide and shore lands specified in such certificate, the lien herein granted may be discharged as hereinbelow provided, as to any separate part of said lands separately granted or owned, upon the payment of such part of the amount for which the lien upon the lands was given in the first instance as shall bear the same proportion to said whole amount which the area of such separate part of said lands bears to the area of the whole thereof.'

"It will be seen that this provision of the contracts is at variance with the law; and this being so, the question is, what is the effect upon the contracts, if any, of such provision.

"An examination of the law and the contracts discloses that all of the conditions and provisions which the statute requires are contained in the contracts, exclusive of the provision referred to, and the trial court held that such provision is without any force or effect whatever, and that it should be treated as mere surplusage. The learned counsel for respondents insists that the conclusion of the court was right, and we are inclined to agree with him. The law itself provides the manner in which the liens shall be apportioned, and how they may be paid and discharged, and these matters are therefore not the subject of contract. The amount and character of the work to be performed, the manner and time of doing it, and the price to be paid are all subjects of stipulation between the parties to the contract; but the manner in which the resulting liens are to be apportioned or discharged being fixed by law, is incorporated into the contracts and becomes a part thereof whether or not expressed. It is not claimed by appellant that these contracts contain all that the law requires them to contain. Irrespective of the objectionable provision, and that being true, we perceive no foundation for his contention that they are illegal and void by reason of such provision.

"As to the second point made by appellant, that the law does not contemplate the letting of contracts for excavating waterways through any lands other than tide lands, we are led to the conclusion, by a careful examination of the act under which the contracts were executed, that appellant's position is not tenable. Section 1 of that act provides that:

"'The commissioner of public lands of the state of Washington may, when in his judgment the interests of commerce would be subserved thereby, enter into contract with any person or persons, or incorporated company or companies of the state of Washington, for the excavation of any waterway or waterways through any lands belonging to the state of Washington, or to any citizen or corporation of said state,' etc.

"Said act further provides, in section 2:

"'That when harbor lines and waterways have been established by the harbor line commission of the state, other waterways shall not be established or maintained on the same except with the consent and approval of such harbor line commission; and where no harbor lines and waterways have been established, then the plan mentioned in said contracts, before being adopted by the commissioner, shall be submitted to and approved by the harbor line commission.'

"And this further provision is found in section [??] of said act:

"'All waterways excavated through any lands under the provisions of this act, so far as they run through said tide or shore lands, are hereby declared to be public waterways, free to all citizens upon equal terms, and subject to the jurisdiction of the proper authorities, as provided by law.'

"From these provisions it seems clear that it was the intention of the legislature to authorize contracts for excavating waterways through lands not owned by the state, to be entered into by the commissioner of public lands, with the consent and approval of the harbor line commission. The record shows that this consent and approval have been obtained, and we, therefore, think that the contracts under consideration properly include that portion of the waterways therein mentioned which extends through the high lands between Elliott bay and Lake Washington. We are not prepared to say, in opposition to the opinion of the commissioner of public lands, that such a waterway would not subserve the interests of commerce, and if it will it is certainly such as is contemplated by law.

"Nor do we think that the fact that both of these contracts embrace the same waterways invalidates either. They are both between the same parties, refer to the same subject matter and relate to the same public improvement, and the latter merely enlarged the scope of the former, without otherwise affecting it. In effect they both constitute but one contract.

"It is next objected that the form of the certificate which has been adopted by the commissioner of public lands to be issued to the contracting parties upon proof of their having complied with the requirements of the contract and the law, does not conform to the requirements of the act in question. All we need say upon this proposition is, that an examination of the certificates set forth in the record convinces us that it is in all respects in conformity with the law under which it was prepared.

"It is insisted that the plan adopted by the commissioner for issuing his certificates is not warranted by law. It appears that the waterway company proposes to excavate the waterways described in the contracts by excavating material from the deep water and also from the end next to the upland, and when it has filled in a portion or portions of the tide lands described in the contracts. It will then apply to the commissioner of public lands for a certificate or certificates in the form adopted by him, embracing the whole or a part of the lands so filled, and the commissioner will then issue certificate or certificates covering the whole, or any part, of the tide lands so filled. The law provides that the commissioner, upon completion of the work provided for by the contracts, or any part thereof, capable of separate use for the purposes of commerce, shall issue his certificate to the contracting parties or their assigns. This would clearly seem to contemplate that such contracting parties may ask for and receive certificates for the cost of such part of the work as may have been performed in accordance with their contracts, provided that such part is capable of separate use for the purposes of commerce, without waiting for the completion of the whole work.

"The law vests the commissioner with the duty and discretion of determining when he shall issue his certificates. We do not see anything in the plan proposed which authorizes us to say that it is not within his discretion. We cannot presume that he will either violate the law or abuse the discretionary power vested in him. Before the waterway company can rightfully claim a certificate under the law and its contract, it must create the waterway therein mentioned, or a portion thereof, capable of use as such; and until at least a portion of the lands included in the contract are filled there is nothing to which the lien which is provided for by the statute can attach. But, as we have intimated already, it is the province of the commissioner of public lands to determine, in the first instance, when a certificate has been earned.

"The judgment is affirmed."