rendering certain the line dividing shore above the harbor lines established by the lands which may be disposed of and vested Commissioner of Public Lands and the Harin absolute private ownership from the lands bor Line Commission, except extensions of within harbor areas which cannot be law-existing streets running transversely to the fully so disposed of. Now it is no longer an shore line, presently to be noticed, are atopen question in this state as to the nature tempted reservations and dedications to pubof the title vested in the grantees of second-lic use of portions of the plaintiffs' shore class tide and shore lands by deeds from lands to which they have absolute fee-simple the state absolute in form, as these deeds are title, and are therefore void as against the upon which are rested the titles of the plain-rights of the plaintiffs. tiffs. The decisions of this court lead to no [4, 5] Had the state established harbor other conclusion than that the state authori- lines in front of these shore lands before ties have the power to, and when conveying they were conveyed by the state to plaintiffs lands of this nature by deeds absolute in and their predecessors in interest, it is plain form do, vest in the grantees an absolute that the grantees of such conveyances would fee-simple title to such lands. Eisenbach v. have acquired title only to the lands above Hatfield, 2 Wash. 236, 26 Pac. 539, 12 L. the harbor lines so established. It seems R. A. 632; Allen v. Forrest, 8 Wash. 700, 36 equally plain to us that the conveyance of Pac. 971, 24 L. R. A. 606; Palmer v. Peter- shore lands by the state before the establishson, 56 Wash. 74, 105 Pac. 179; State Ving of harbor lines in front thereof does Sturtevant, 76 Wash. 158, 135 Pac. 1035, not prevent the state from thereafter estab138 Pac. 650; Anderson Steamboat Co. v. King County, 84 Wash. 375, 146 Pac. 855. lishing harbor lines in front of such shore lands, and that the grantees of such shore It has also become the settled law of the lands take subject to the power of the state state by our decision in State v. Sturtevant, to thereafter establish harbor lines in front supra, as we have already noticed, that the thereof. This is foreign to the question of grantees of these second-class shore lands, whether a grantee's title to shore lands so the outer boundary of which remained unde- acquired is absolute or qualified. It has to fined by the descriptions in the state's deeds do only with the question of the outer boundexcept as the law defined such outer boundaries of the granted shore lands, and that ary as the line of navigability, acquired title Sturtevant, 76 Wash. 158, 135 Pac. 1035, 138 What out to that line as it then existed or as it boundary being by the terms of the grants might be moved farther out by any act of made before the harbor lines were establishthe state. Concluding an exhaustive reviewed, undefined except as the law may define of this question involving one of the same outer boundaries of the shore land subject to them, we conclude leaves the matter of the deeds from the state upon which some of the plaintiffs' titles are rested, Justice Chad- the establishment of harbor lines by the propwick, speaking for the court at page 173 of er state authorities. Our decision in State v. 76 Wash., at page 1040 of 135 Pac., said: "We conclude, therefore, on the principal is- Pac. 650, leads to this conclusion. sue, that the Rainier Beach Improvement. Com- the remedy of the owner of the shore lands. pany acquired the title to the shore lands con- might be in case of the establishment of harveyed by the state, and that it and its grantees bor areas in front of such shore lands in arare entitled to follow the line of navigability as it may be finally fixed by or through or in conse- bitrary and fraudulent disregard of the line quence of the act of its grantor, the state." of navigability is not involved in this conWe conclude then that the plaintiffs ac-troversy. We do not want to be understood quired absolute fee-simple title to these add- as holding that there would be no remedy in ed shore lands as they did to the shore lands such a case. existing at the time of the execution of the deeds therefor by the state. [6] Some contention is made in the plaintiffs' behalf that there is no power in the [3] Now, this being the nature of the Commissioner of Public Lands or the Harbor plaintiffs' titles, it is elementary constitution- Line Commission to establish the harbor al law that such titles cannot be impaired by lines here involved. The argument seems to any act of the state after making the deeds be that the Commissioner of Public Lands upon which they rest. This brings us to the has no such power because article 15 of the question of the outer boundary of the shore Constitution contemplates the establishment lands to which plaintiffs have thus acquired of such lines by "a commission," and that the title, which we regard as the controlling Harbor Line Commission has no power to esquestion in this controversy and as quite a tablish these harbor lines because they are different question from that of the nature of not within or in front of the corporate limthe plaintiffs' titles. That is, the fact that its of any city or within two miles thereof. the titles so acquired are absolute in fee sim- It is true that article 15 of the Constitution, ple does not determine the question of where, read in connection with section 6744, Rem. & upon the ground, are the outer boundaries Bal. Code, extending first-class shore lands of the shore lands so acquired by the plain-two miles beyond city corporate limits, seems tiffs. When that question is determined, it to make it the duty of the Legislature to will follow that all of the reservations to cause harbor lines within such limits to be public use designated upon the state's plats established by "a commission." However, and extended transversely across the added shore lands are substantially at right angles to comparatively straight shore lines, we are not here concerned with the question of converging or diverging side lines of shore lands as might be involved when such lands abut upon a curved shore line. whatever may be the duty and power of streets running transversely to the shore the Legislature touching the establishment lines which have been dedicated as such by of harbor lines in front of cities in the light the owners across their shore lands to the of article 15 of our Constitution, we are of added shore lands, limiting such extensions the opinion that the duty and power therein to the width of the dedicated roads and prescribed does not constitute a limitation of streets where they abut upon the added shore power upon the Legislature touching the es- lands. It seems to us that the principle tablishing of harbor lines in front of second- which entitles the plaintiffs as owners of the class shore lands; that is, lands beyond the shore lands to claim the added shore lands limits mentioned in article 15 of the Consti- because they became a part of the original tution, as these lands are. Section 6769, shore lands also entitles the defendants, as Rem. & Bal. Code, confers power upon the representing the public, to claim the added Harbor Line Commission "to lengthen or to shore land which is in front of and abutting extend any such [harbor] areas now exist- upon the end of the existing streets running ing or which may hereafter be existing in transversely to the shore line. In other front of any city or town," and section 2 of words, the public's right to extend its ownerthe act of 1913, above quoted, authorizes the ship over the added shore lands is at least Commissioner of Public Lands to select and as great as that of the private owners of plat harbor areas in front of the second- the original shore lands. Since apparently class shore lands of Lake Washington, in- the roads and streets which are here involved cluding the very lands here involved. That section further provides that "the title to all harbor area so selected shall remain in the state." It might well be argued that the action of the Commissioner of Public Lands alone, in pursuance of this power, would constitute a lawful establishing of these harbor areas. We are, however, quite convinced [8] We note that upon the state's plats, that, when the Harbor Line Commission copies of which are here in evidence, there joined with the Commissioner of Public is designated sites for slips and wharves, Lands in the making of these plats and en- some of which appear above the established tered its formal order establishing the har- harbor areas and above the designated pierbor lines designated thereon, such joint ac- head lines where there are no designated tion of the Commissioner of Public Lands harbor areas, and some of which appear to and the Harbor Line Commission constituted be within the established harbor areas. We a lawful establishing thereof. It seems to construe the decree as meaning that the tius quite clear that this was within the power tles of the plaintiffs are quieted as against of the Legislature to provide for, even though the claims of the defendants only in those the Constitution has made special provision sites for slips and wharves and portions for the establishing of harbor lines in front thereof designated upon the state's plats of cities. We conclude therefore that these above the designated harbor areas and pierharbor lines and harbor areas were lawfully head lines, and not those designated sites established. It is true that the Constitution for slips and wharves and portions thereof does not in terms prohibit the sale into abso- which are within the designated harbor lute private ownership of harbor areas oth-areas. The decree being in general terms, er than such areas as are to be established rather than by specific descriptions of each "within or in front of the corporate limits tract as to which title is adjudged to be in of any city or within one mile thereof"; plaintiffs or defendants, induces us to here but plainly a grant of second-class shore note our construction of its meaning touchlands was never intended to convey landing the title of the respective parties in these beyond the line of navigability, which line we designated sites for slips and wharves, to must assume in this case was properly deter- the end that our decision and the decree may mined in so far as the harbor lines here in- not be construed as awarding to the plainvolved are concerned. tiffs any title to the harbor areas. [7] It is contended in plaintiffs' behalf The decree seems by its terms to quiet that the reservations made upon the state's title in the plaintiffs to all sites for slips, plats of the extensions of existing trans- wharves, etc., designated upon the state's verse streets over the added shore lands is plats, unqualifiedly, except such as are desigas much an invasion of their rights as the nated within harbor areas. This would seem reservations upon the state's plats of streets, to include such designated sites and tracts as boulevards, and parkways running longitudi- abut upon designated "pierhead lines" where nally over the added shore lands above the there are no harbor lines or harbor areas and harbor and pierhead lines. As we read the be an adjudication against the state touchdecree of the superior court, it only quietsing its power to establish inner harbor lines title to the defendants state and municipal which might fix the outer boundary of the corporations as representatives of the public shore land inside the designated pierhead other shore lands in front of which no harbor lines are established, are held subject to the power of the state to establish harbor lines in front thereof, and that the decree should be modified accordingly. The designation of a "pierhead line" alone, upon the state's plats, is not, as we view the law, the establishing of harbor lines or harbor areas. These words may suggest the outer limits of piers, but we think they should in no event be construed as fixing the inner harbor line, which when established becomes the outer shore land boundary. Counsel for the defendants have learnedly discussed at great length and reviewed many authorities touching the doctrine of jus publicum as applied to the state's ownership and dominion over shore lands and lands under navigable waters bordering thereon, with a view of demonstrating want of power in the state, or rather its constituted authorities, to vest in absolute private ownership these added shore lands. As we view the problem here presented, however, it is not so much a question of the power of the state to vest in private ownership the lands or harbor areas here involved, but it is a question of where upon the ground is the line between shore lands which the state has the power to vest in private ownership and harbor areas and other lands under navigable water which cannot be so disposed of. Our holding here is, and we need go no farther, that the state has the power to determine where the line dividing these two classes of lands shall be located upon the ground and has lawfully done so in so far as it has established the harbor areas designated upon the state's plats made by, its Commissioner of Public Lands and Harbor Line Commission. We have proceeded upon the assumption, as already stated, that all of the attempted reservations to public use of tracts and areas designated upon the state's plats are from lands outside the shore lands as they existed at the time of the execution of the state's deeds upon which the plaintiffs' rights are rested. If we are wrong in this assumption of fact, it is of no material consequence in this controversy, since, from what we have said, we think it is rendered plain that the rights of the plaintiffs in the shore lands as those lands existed at the time of the execution of the state's deeds are no less than their rights to the added shore lands, and that both the original and added shore lands are held by the state's grantees subject to the power of the state to establish harbor lines and thereby define the outer boundaries of the shore lands. We conclude that the decree of the superior court should be modified in its terms only so far as to render certain that it will not constitute an adjudication estopping the state from exercising its power to establish harbor lines and harbor areas in front of the plaintiffs' shore lands where no harbor lines or harbor areas are now established, and thus define the outer boundaries of such shore lands; and that in all other respects the decree should be affirmed. It is so ordered, and the superior court is directed to modify and make certain the decree accordingly. None of the parties will recover costs in this court. MORRIS, C. J., and HOLCOMB, ELLIS, FULLERTON, MOUNT, and MAIN, JJ., cur. con CHADWICK, J. (concurring). The use of the words "pierhead line" on the plat prepared by the state, and in the decree, is an unfortunate misuse of terms. The words mean nothing under our Constitution and statutes. In some of the eastern states, we understand that pierhead lines are defined; but the Constitution makers in this state were careful to avoid the confusion that may result from the drawing of an arbitrary line beyond which piers and docks should not be erected, by providing for an inner and an outer harbor line with an intervening area subject to state ownership and control. It may be that the Commissioner of Public Lands and the Harbor Line Commission intended the line so designated to be the outer harbor line, subject, of course, to the approval of the War Department, for, under our law, piers or wharves could be built in the harbor area between the inner and the outer harbor line, and in that sense, if there be no further limitation, the outer harbor line is a pierhead line. But I agree that we should not assume anything against the future right of the state to define, in terms, that which it has reserved-the right to fix an inner and an outer harbor line. Treating the words "pierhead line" as without legal meaning under our statutes, the conclusion follows as indicated by Judge PARKER. I deem it my duty to suggest that the Commissioner of Public Lands should, without delay, file an amended plat, fixing the harbor lines in Lake Washington in front of the city of Seattle. Until this is done, there will be a confusion of interests, with no way of determining legal rights. I do not want to be understood as holding that the Legislature could not provide for the drawing of a pierhead line between the inner harbor line and the outer harbor line, either through the instrumentality of the Harbor Line Commission, the Commissioner of Public Lands, a harbor commissioner or port warden, or by an independent board. What I do hold is that it cannot be done, in any event, until the harbor lines are established. (98 Kan. 812) "to lay in the streets of the city of Scammon gas CITY OF SCAMMON ▾. AMERICAN GAS pipes and connections, erect therein lamp posts CO. et al. (No. 20978.) (Supreme Court of Kansas. Oct. 19, 1916.) (Syllabus by the Court.) and lamps and maintain in said streets and oth- MANDAMUS 3(8)-NATURE OF REMEDY-Ex-condition by said lighting company." A gas company supplying several cities had for years, under a franchise with the city of Scammon, supplied gas to a street lighting company; the latter paying for all the service pipes leading from the gas company's mains to the lighting company's posts in excess of 50 feet from such mains. Such service pipes becoming leaky and dangerous the gas company turned off the supply from 13 of the 65 posts. The city, by ordinance, directed the gas company to repair and maintain such service pipes and to restore the supply of gas, and upon refusal sought by mandamus to compel obedience. Held, that such controversy should be submitted to the Public Utilities Commission under section 20 of chapter 238 of Laws 1911, and is not a proper one to be controlled by mandamus in the first instance. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 20, 23, 27; Dec. Dig. 3(8).] Appeal from District Court, Cherokee County. Application by the City of Scammon for mandamus to the American Gas Company and another. From a judgment granting the writ, the American Gas Company appeals. Reversed. Edward E. Sapp, of Galena, for appellant. L. M. Resler, of Scammon, for appellees. WEST, J. The American Gas Company appeals from a judgment in mandamus requiring it to furnish gas for the street lights in the city of Scammon, and to lay and maintain in good condition and repair service pipes to such lamps. From the pleadings, evidence, and admissions, it appears that in 1905 the city enacted an ordinance giving to certain persons and their successors authority to * * * "construct, acquire, operate and maintain gas nances, 本 The lights were to be fixed at such points as should be designated by the city, provided that none should be required to be placed at a point more than 175 feet distant from any domestic gas main of the American Gas Company. It was admitted that in pursuance of this ordinance the Welsbach Company did lay or cause to be laid mains to its posts; also that under a contract made in 1906 between the two companies the Welsbach Company paid for all the service pipes extending more than 50 feet from the mains of the American Gas Company for lamps installed by the former company, and that up until the passage of ordinance No. 89 the Welsbach Company paid the cost of repairs upon these service pipes. The contract referred to bound the street lights erected or to be erected by the gas company to furnish natural gas for the Welsbach Company, and provided, among other things, that all the lamp posts, fixtures, lanterns, and lamps furnished by the lighting company should remain its property, and that the gas company should "make the necessary taps in the gas mains for the said service connections, and to furnish and lay at its own expense the necessary 50 feet for each service, it being understood and agreed that any service pipe in excess of 50 feet for any one service is to be provided for by said second party" (the Welsbach Company). It was alleged in the answer of the lighting company that the gas company failed to keep its mains and service pipes in repair, and that the lighting company refused to renew the contract of 1906 except upon condition that the city furnish and deliver the gas to the lamps, which was agreed to by the lighting company and the city, and the Welsbach Company prayed that the gas company be required to lay, maintain in good order, all necessary service pipes from its mains to the lamps, and to furnish the necessary gas. In September, 1915, the city enacted Ordinance No. 89, declaring it necessary and ordering that the gas company furnish and deliver natural gas to 65 street lamps and such additional ones as might thereafter be ordered; also directing the company to lay and maintain in good condition and repair the service pipes to such lamps. The gas company, which supplies several cities, challenging the jurisdiction of the court and invoking that of the Public Utilities Commission, answered that it was under no contract with the city to furnish gas to light its streets, and that it was the duty of the lighting company to keep the service pipes in safe condition and repair, and as this was not done and the pipes became leaky and dangerous the supply from 13 of the lamps was shut off. Complaint was made that by Ordinance No. 89 the city cut in two the price formerly received for the gas furnished for the street lights, but the abstract contains the following: "Admitted: At that time and in this case the question was not before the court as to the price to be paid by the city of Scammon for gas. That the subject is a matter either of contract or under the control of the Board of Public Utilities." This matter being eliminated, the only question for consideration is whether or not the judgment requiring the gas company to furnish gas and to repair and maintain the service pipes was proper. (61 Okl. 61) BRADEN v. PANTHER CREEK OIL CO. (No. 7496.) (Supreme Court of Oklahoma. Oct. 3, 1916.) (Syllabus by the Court.) 773(5)—BriefS-EF APPEAL AND ERROR [Ed. Note.-For other cases, see Appeal and Commissioners' Opinion, Division No. 3. Error from Superior Court, Tulsa County; M. A. Breckinridge, Judge. Action by the Panther Creek Oil Company against G. T. Braden. Judgment for plaintiff, and defendant brings error. with directions to dismiss case. Reversed, While section 40 of the Public Utilities Act (chapter 238, Laws of 1911) makes the remedies provided in the act cumulative and not exclusive, still section 20 fits the situation so precisely that upon the authority of State ex rel. v. Postal Telegraph Co., 96 Kan, 298, 150 Pac. 544, we hold that the commission and not the court should determine the Haskell B. Talley, of Tulsa, for plaintiff in controversy. That section expressly prohib-error. Rice & Lyons, of Tulsa, for defendant its a public utility from making any change in error. in any "rule [or] regulation or practice pertaining to the service or rates," without the consent of the commission. For many years the gas company supplied gas for the lamps, and to turn off this supply from 13 of the 65 is clearly to make a change in its practice pertaining to the service. The repair and maintenance of service pipes, especially those In a case where, as here, the brief of the portions thereof from points 50 feet from the plaintiff in error appears reasonably to susgas company's mains to the Welsbach Com-tain the assignments of error it is not the pany's posts, while involving certain legal questions, are practically administrative matters very proper for determination by the commission, and the furnishing of the gas is still more clearly of such administrative character. In the Postal Telegraph Company Case, 96 Kan. 307, 150 Pac. 548, mandamus was sought by the attorney for the commission to compel a restoration of service which had been discontinued without permission of that body, and this court declined to act until the defendant company should have an opportunity to file its application with the commission for formal leave to discontinue its station. It was said: "But we insist that the first official tribunal to have consideration of such matters is the Public Utilities Commission." In this case the city instead of invoking the judicial process of mandamus should have applied for relief to the tribunal expressly provided by law for the settlement of such controversies, and it was error under the circumstances to grant the writ. The judgment is therefore reversed. the Justices concurring. BLEAKMORE, C. This is an appeal from the superior court of Tulsa county. Plaintiff in error has served and filed his brief conformably to the rules of this court; but defendant in error has not filed its brief or offered excuse for failure so to do. duty of this court to search the record in order to find some theory upon which the judgment of the trial court may be suscordance with the prayer of the petition in tained; but it may reverse the same in acerror. The defendant in error has also ig nored the order of this court of April 11, 1916, requiring it to execute an increased or additional bond. The brief of the plaintiff in error herein appears reasonably to sustain the assignments of error. The judgment should therefore be reversed, with directions to the trial court to dismiss the cause. PER CURIAM. Adopted in whole. (Syllabus by the Court.) CHATTEL MORTGAGES 245-RELEASE-STATUTORY PROVISION. Section 4408, Comp. Laws 1909, providing a forfeiture of $100 for the failure to release a All mortgage which has been satisfied, deals exclusively with recorded mortgages, and does not ap For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |