The Wharf King’s Victory: Yesler Wins Millions in Land Battle

Judge Lichtenberg Rules for the Wharf Owners.

THEY MUST BE PAID DAMAGES. Has not Provided for Compensation.

If Confiscation of Property by the Harbor Line Commission Is Still Prohibited, the Writ Heretofore Issued Remaining in Force—Opinion in Full.

The famous harbor line case was decided in favor of the wharf owners and against the harbor line commission by Judge Lichtenberg in the equity department of the superior court yesterday.

The case was brought by Henry L. Yesler against the commission, and was heard last month on the motion of Attorney-General Jones to quash the plaintiff's writ of prohibition.

The matter had been under advisement for some time, and Judge Lichtenberg prepared his opinion in writing, and read it in presence of members of the harbor line commission, attorneys in the various suits against the commission and others yesterday morning, the delivery occupying nearly three hours.

The case is probably the most important ever brought before an equity court in Washington, as the interests involved amount to several million dollars.

Mr. John Wiley, one of the attorneys on the other side, excepted to the opinion and gave notice of a motion for a new trial.

Following is the full text of Judge Lichtenberg's opinion:

In the superior court of King county, state of Washington—H. L. Yesler vs. Board of Harbor Line Commission et al., No. 9,406; motion to quash alternative writ of prohibition. Columbia & Puget Sound Railway Company vs. Harbor Line commission -No. 9,407; motion to quash alternative writ of prohibition. Stimson Mill Company vs. Board of Harbor Line Commission et al No. 9,408; motion to quash alternative writ of prohibition.

LICHTENBERG, J. On the 28th day of October, 1890, alternative writs of prohibition issued in those cases against the defendants, upon petition and affidavit. The Yesler case, plaintiff setting forth that for more than thirty years he was the owner of certain upland abutting on the shores of Elliot bay, and a wharf which extended from his upland into said bay; that the wharf and structures thereon had been erected and maintained at large cost and expense, to wit: Fifty thousand dollars; that the wharf and structures were in aid of commerce and navigation; that by virtue of an act of the legislature, approved March 28, 1890, "An act to create a board of harbor line commission" the defendants "are about to take final action in the location and establishing of the harbor lines in said Elliot bay, and if not prevented by the court, the lines located and established will deprive the plaintiff of the use and benefit of his said wharves and docks" and cloud his title in such a manner as to greatly damage the plaintiff in the legitimate use of his property, and that no compensation has first been made or provided for the damage.

To Columbia Puget Sound railroad, the petition sets forth that the plaintiff corporation, duly organized under the laws of the territory of Washington, was the owner of certain upland bordering on Elliot bay, also the littoral rights of access to deep water and the rights of wharfing and landings, etc. That in the year 1871 the plaintiff constructed, built and maintained wharves and structures thereon, for the accommodation of commerce and navigation at a cost and expense of $300,000; that the same being destroyed by the great fire, on the 1st day of September the wharves and structures were re-erected and maintained at a cost and expense of $300,000, and the same facts are set forth as in the Yesler case as to defendant's acts and damage and no compensation.

In the Stimson Mill Company case the facts are practically similar, except as to location, size and nature of structures existing on wharves. On the return day of the alternative writ, the defendants, by the attorney-general of the state, moved to quash the respective writs, first, because the court had no jurisdiction; second, "That the petitions filed herein do not state facts authorizing the issuance of said writ."

It was agreed that the motion to quash should be considered as a demurrer, and the decision of the court thereon as final judgment. It was also agreed that these three cases and another in which the Seattle, Lake Shore & Eastern Railway Company was plaintiff should be treated as disposed of as one, but we now only decide upon the three above mentioned, as the Seattle, Lake Shore & Eastern Railroad Company's case presents other questions, among them the validity of Railroad avenue. That question being before us in another case we will pass upon both at the same time.

Realizing the importance of the question for consideration before us and the responsibility, together with the fact that we have no light from our supreme court to aid us, we shall invoke the aid of the highest tribunals of sister States, when applicable quote at length the language of their judges, and also of eminent writers. The authorities we shall cite, though few of the vast number on the subject and examined, yet with but one or two exceptions, are cases discussing the principles involved, and an examination of them will demonstrate a majority of the other authorities.

In providing to give judgment in the present case the court are deeply impressed with the importance of principles which it involves and the massive magnitude and extent of the great public interests and the importance and value of the private property directly or indirectly to be affected by it. "It concerns the relative rights of the public and of individual proprietors." [Commonwealth vs. Alger, 7 Mass., 53.]

As befitted the great state of Washington and the importance of the question, the learned attorney general discussed the question on a broad basis, free from technicalities, narrow or minor points, and irrespective of whether or not every essential fact was in the petition. He contended for the maintenance of fundamental proposition, namely: That a littoral owner has no rights in the water frontage, no right of property in such water; incidental to that, another, namely: the writ of prohibition did not lie.

In treating and discussing the question in this manner, he desired on our part the same earnest, the same "broad gauge basis." It is necessary to give our attention to the constitution as bearing upon the problem before us. In that instrument is found, first, the rights of the state; the powers of the legislature or commissioners, the duties of the government: second, the rights of the plaintiff which he seeks to gather the meaning of the constitution—from the four corners of the instrument, to ascertain its meaning, its intent, "the policy of the state" on what is commonly called the "tide land question," and clauses bearing thereon. What are "tide lands" defined in Hudson vs. people, Cal. must be governed by certain well-settled principles. Among others are "to declare law as written." The meaning of the constitution when it is adopted, and it is different to any subsequent time, when a new generation passes it... This intent must be found in the instrument itself; the entire instrument should be examined, and "effect is to be given, if possible, to the whole of the instrument, and every word, phrase, and clause if different parts or sections do not conflict, the court must harmonize them, if practicable, and must lean in favor of construction which will render every word operative, rather than one which may make some words idle and nugatory. If, after all the legitimate lights," the court is in doubt of the meaning, it should lean to act, when in his judgment proposed acts would be of doubtful validity... The doubt should fall on whoever derives power from that constitution: to perform any public duty; a dereliction to that instrument and derelict to duty if he does that which he cannot satisfy the constitution implies. No power be legislative, executive or judicial is there a manifest disregard of constitutional and moral obligation by one who swears the oath to observe that in all things an action which he can say to be no violation of its provisions... With these principles in view, we examine first, clauses of constitution relating to the "tide lands"; second, that no provision or control or have a tendency so as to give effect to the instrument.

III. Navigable waters, whether fresh or salt, rivers or streams, the ownership extends to the middle thread of the stream... Upon either bank any person, natural or artificial... The legislature is to "provide by general laws for the right to build wharves and piers in said strip." [Art. 11, Sec. 3] Between the outer line of the harbor strip and the high water mark there remains a strip, known technically as "the shore," that "shore" can be absolutely sold or disposed of. Within the boundaries of this inner strip new land can be made by the purchasers thereof up and to the inner rim of the harbor strip, provided, however, first, that no person shall be deprived "from asserting his claim to vested rights in the courts of the state," (Art. 10, Sec. 1] if he has any, either in the bed, or shore, or in the waters covering the same; second, that just compensation shall first be made if any private property is taken or damaged; third, that rights existing at the time the constitution was adopted should not be affected.

The legislature passed "An act to create a board of harbor commissioners..." This act is to conform to the constitutional directions... now here, however, is any provision made for compensation to the citizen, if any private property of his is taken or damaged.

On March 1890 was approved "An act for the appraisal and disposing of the tide and shore lands belonging to the state of Washington." ... With the first class we are now dealing. They "shall be surveyed and appraised as rapidly as practicable"... section 11, "the owner of any lands abutting or fronting upon, or bounded by the shore of any bay, harbor shall have the right for sixty days following the filing of the final appraisal of the tide land, to purchase all or any part of the tide lands in front of the lands so owned..."