BAER v. MORAN BROS. CO., 2 Wash. 608; 27 P. 470 (1891).

No. 188.


August 1, 1891, Decided
Appeal from Superior Court, King County.
Action in ejectment by Milton L. Baer against the Moran
Brothers Company, a corporation, for a tract of tide land
included within a larger tract selected and located by
plaintiff with Valentine scrip. A demurrer to the complaint
was sustained, and from the judgment dismissing the action
plaintiff appeals.

Court: Judgment affirmed.

A tract of land, shown by the public surveys to be a portion
of the bottom of Elliott Bay, an arm of the sea, and which
is covered and uncovered by the flow and ebb of the tide, is
not "land," but "water," to which none of the public or
special and private land laws of the United States,
including the Valentine scrip act, have any application.
As the rule is a fixed one that high water mark is the limit
of government grants, the fact that a portion of tide flat
is uncovered at low tide, and, in consequence, not covered
by navigable water, will not render such tide flat subject
to entry under the act of congress (17 St. at Large, p. 649)
known as the Valentine scrip act.

Counsel: Beriah Brown, Jr., for appellant.
J. C. Haines, for appellee.

Judge(s) STILES, J. ANDERS, C. J., and SCOTT, DUNBAR, and
HOYT, JJ., concur.

Opinion By: STILES
The opinion of the court was delivered by
STILES, J.--The appellant brought ejectment for the
following described real estate in King county, viz.:
"Beginning at a point 688 feet south and 660 feet west of
the east one-quarter post of section six, township
twenty-four north, range four east, W. M.; thence west one
hundred and fifty feet; thence south two hundred and ten
feet; thence east one hundred and fifty feet; thence north
two hundred and ten feet, to place of beginning--being the
premises covered by Moran Brothers Company's foundry and
machine shop."
The complaint showed the plaintiff's ownership of
Valentine scrip E, No. 199, for forty acres, and that on the
23d day of September, 1889, "he duly selected the following
described tract of unsurveyed land for location thereunder,
to wit: Beginning at a point one hundred and sixty rods
south of the northeast corner of section six, township
twenty-four north, range four east, W. M.; thence west
eighty rods; thence south eighty rods; thence east eighty
rods; thence north eighty rods, to the place of
beginning--containing 40 acres--which said tract of land,
when surveyed, will conform to the general system of the
United States land surveys, and will be known and designated
as the 'northeast quarter of southeast quarter of section
six, township twenty-four north, range four east, W. M.'"
The complaint then proceeds:
"12. That this plaintiff selected the said tract of land
in the manner following, to wit: On the said 23d day of
September, 1889, this plaintiff filed with the register and
receiver of the United States land office at Seattle,
Washington, a notification that in pursuance of the act of
congress approved April 5, 1872, the said plaintiff had
selected the said tract of land $(describing it$), together
with an affidavit of this plaintiff to the effect that the
said tract of land was not mineral in character, and at the
said time and place the said plaintiff filed with the said
register and receiver of said United States land office the
said piece of scrip, numbered E, No. 199, for cancellation,
and tendered to said receiver the sum of two dollars, being
the amount of fees allowed by law to the register and
receiver of United States land offices in the Territory of
Washington, on the entry of forty acres of land with
Valentine scrip.
"13. That the said tract of land so selected by said
plaintiff was, at the time of its selection by said
plaintiff, unoccupied and unappropriated public land of the
United States, not mineral, in this: That the said tract of
land was situated in the Territory of Washington, was a
portion of the tide flats, was covered and uncovered by the
flow and ebb of the tide--uncovered at ordinary low tide,
and was covered with water at ordinary high tide--and had
never been set apart by the United States for any particular
use; that the said tract, or any portion thereof, was not in
the possession of any person claiming or intending to claim
any title thereto under or in pursuance of any statute or
treaty of the United States, and the said tracts were not
chiefly or at all valuable for mineral, and that the Indian
right of occupancy thereto had been extinguished."
A general demurrer to the complaint was sustained in the
court below, and, on the plaintiff's refusal to plead
further, judgment was rendered for the defendant, dismissing
the action. The appellant contends: (1) That the "Act for
the relief of Thomas B. Valentine" was a grant upon
conditions which have been strictly performed, whereby the
title vested, citing Rutherford v. Greene's Heirs, 2 Wheat.
196, 4 L. Ed. 218, and other cases involving the
construction of congressional donations of public lands. For
the purposes of this decision, the proposition may be
accepted without discussion. (2) That on the 23d day of
September, 1889, the tract in question was public land of
the United States (Washington then being a territory), and
that Congress could at all times up to that date dispose of
it as it saw fit; citing Insurance Co. v. Canter, 1 Peters
542; Goodtitle v. Kibbe, 9 How. 471, 13 L. Ed. 220; Case v.
Toftus, 39 F. 730. This point, also, may be admitted for the
sake of the argument. (3) That said tract, not having been
reserved by competent authority, or not occupied in good
faith by intending claimants under the United States land
laws, was subject to selection by Valentine or his assigns
in satisfaction of his grant. Upon this proposition the
issue in the case is made, and upon its determination the
appeal will succeed or fail.
The act of April 5, 1872 (17 St. at Large, 649), commonly
known as the "Valentine scrip act," authorized Thomas B.
Valentine, or his legal representatives, in lieu of lands
claimed by him in the Rancho Arroyo de San Antonio, in the
county of Sonoma, California, to select and have patents for
an equal quantity of the unoccupied and unappropriated
public lands of the United States, not mineral, and in
tracts not less than the subdivisions provided for in the
United States land laws, and if unsurveyed when taken, to
conform when surveyed to the general system of United States
land surveys. The complaint, as above quoted, contains
allegations which negative any claim that this tract was
occupied or appropriated in pursuance of any statute or
treaty of the United States, or was mineral in character, or
had been reserved, or was subject to an Indian title. These
allegations, and the pro forma admissions under the first
and second points, strip the case of every defense except
that the tract in question was not "public lands," within
the meaning of the act of 1872. In our view it was not such
land, and for the following reasons:
1. The complaint shows that it is a portion of the tide
flats, is covered and uncovered by the flow and ebb of the
tide, being uncovered at ordinary low tide, and covered at
ordinary high tide; and by reference to the public surveys
we find that it is a portion of the bottom of Elliott Bay,
an arm of the sea, in front of the city of Seattle.
2. Within the meaning of the acts of congress, and the
policy thereby clearly established from the earliest times,
the decisions of courts, and the general understanding, this
is not "land," but "water," to which none of the public or
special and private land laws, including the Valentine scrip
act, have any application. It may be conceded that congress,
by clear and explicit enactment, could have granted the
bottom of navigable waters to any person it saw fit before
the admission of the state, but it will not be contended
that the language of the Valentine scrip act is to receive
any construction other than that awarded to the hundreds of
other acts which relate to the "public lands" subject to Mr.
Valentine's selection, or that the lands therein meant are
any lands different from those subject to entry under the
pre-emption, homestead, and other laws. Therefore it is but
proper that, in construing this act, reference should be had
in this manner to the hitherto universally sustained rule
that "public land" means upland, and not soil beneath
navigable waters. The supreme court of the United States, in
the case of Hardin v. Jordan, 140 U.S. 371 (11 S. Ct. 808,
35 L. Ed. 428), uses the following pointed language:
"It has been the practice of the government from its
origin, in disposing of the public lands, to measure the
price to be paid for them by the quantity of upland granted;
no charge being made for the lands under the bed of the
stream, or other body of water. The meander lines run along
or near the margin of said waters are run for the purpose of
ascertaining the exact quantity of the upland to be charged
for, and not for the purpose of limiting the title of the
grantee to such meander lines. It has frequently been held,
both by the federal and state courts, that such meander
lines are intended for the purpose of bounding and abutting
the lands granted upon the waters whose margins are thus
meandered, and that the waters themselves constitute the
real boundary. Railroad Co. v. Schurmeir, 7 Wall. 272, 19 L.
Ed. 74, and other cases. . . . It has never been held that
the lands under water in front of such grants are reserved
to the United States, or that they can be afterwards granted
out to other persons, to the injury of the original
grantees. The attempt to make such grants is calculated to
render titles uncertain, and to derogate from the value of
natural boundaries, like streams and bodies of waters. With
regard to grants of the government for lands bordering on
tide water, it has been distinctly settled that they only
extend to high water mark, and that the title to the shore
and lands under water in front of lands so granted inures to
the state within which they are situated, if a state has
been organized and established there. Such title to the
shore and lands under water is regarded as incidental to the
sovereignty of the state--a portion of the royalties
belonging thereto, and held in trust for the public purposes
of navigation and fishery, and cannot be retained or granted
out to individuals by the United States."
In view of such authoritative language, in every event, it
would require the most explicit and unmistakable words in an
act of congress to cause a court to construe any grant upon
tide water to extend beyond high water mark, even though its
date were within territorial times, and there were no
argument to be made upon the theory of a trust imposed upon
the general government for the benefit of the future state.
Whatever the theory may be, the fact is that the government
never intended to have any grant under its public or private
land laws construed to include the soil beneath the waters,
and all of its grants are fully and justly satisfied by
making them apply to the land, and not to the water.
3. We are urged to consider that this tract is not covered
by water navigable in fact, because it is uncovered at low
tide, though it is conceded that the ordinary high tide does
cover it, and that the ordinary high water mark is between
it and the upland. But the rule is a fixed one that high
water mark is the limit of government grants; therefore it
can make no difference whether at low tide the area exposed
is great or little, or whether the fluctuation of the waters
is as great as in the Bay of Fundy, or as slight as at St.
Augustine. The high tide is the boundary beyond which there
is no land to be granted.
4. Another suggestion is that at various points, some of
them within this state, the patents of the government do
purport to cover tracts below high water mark; showing the
action of the land department in that particular. It may be
that there are such patents. The convenience of surveyors
may have led them to show meander lines on their plats which
do not exactly accord with the sinuosities of the shore; but
they are probably errors coming within the maxim de minimis
non curat lex. If they are more, the answer is that the
practice of the land officers in a few cases does not make
the law. Such cases are mere mistakes on the part of the
government's agents.
5. It is contended that in San Francisco Savings Union v.
Irwin, 11 Sawy. 667 (28 F. 708), it was held that the title
of the State of California to submerged tide flats capable
of reclamation by embankments was not based upon her
sovereignty, but solely upon the act of 1850 (9 St. at
Large, 519), granting swamp and overflowed lands within
their borders to the states. But, although the brief asserts
that the land in the case of Savings Union v. Irwin and that
in the case at bar were identical in character, we do not so
understand the fact to be. In the former case the
controversy was over the possession of "overflowed" lands
lying in front of Mare Island, which were sometimes called
"tule" or "marsh" lands. They were lands over which the high
monthly tides flowed, but not the ordinary daily tides, and
between the island and portions of them there were navigable
sloughs. They were more or less covered with vegetation, and
were in no sense the bottom of the sea or river. Moreover,
the real controversy there was whether a Mexican grant,
followed by a United States patent, for "Mare Island,
bounded by the water's edge," authorized a subsequent
grantee to convey the island, "including all the tule or low
and marsh land belonging to the same, or which has ever been
reputed or claimed to belong to the same," which the court
settled in the negative, citing United States v. Pacheco, 2
Wall. 587, 17 L. Ed. 865. It is currently reported that
there are thousands of acres of lands in this state of the
general character of the lands in the Mare Island case, much
of which has been patented by the United States, and is now
under a high state of cultivation. But they are not such
lands as the daily tides of Elliott Bay cover. They are
tide-marsh or prairie lands, composed of alluvial soil,
where the interference of the extreme tides or high water
caused by wind currents does not prevent a natural growth of
6. Lastly, the constitution of this state is appealed to,
to show that there is no objection from that source to the
appellant's claim. Sec. 2, art. 17 of the constitution
declares that "the State of Washington disclaims all title
in and claim to all tide, swamp and overflowed lands
patented by the United States: Provided, The same is not
impeached for fraud." There was no occasion for mentioning
swamp and overflowed lands, since they were expressly
withheld from the state by the enabling act, 17. Whether
the section amounts to a recognition or confirmation of such
patents or not, as claimed by appellant, need not be
determined. The language is, "disclaims all title." The
state merely asserts nothing. But appellant claims that his
attempted location of scrip a few days before the
constitution went into effect entitles him to share in the
disclaimer, since he may get a patent which will relate to
the date of his location. This position in some cases might
require a decision of what is meant by "patented" in the
section quoted, but it is not necessary here. We have seen
from the highest judicial authority that the United States
never would, if it could, patent this tract or recognize
appellant's claim to it, unless through the mistake of its
officers; and no such impossible case was contemplated by
the constitution.
The judgment of the superior court is affirmed.
ANDERS, C. J., and SCOTT, DUNBAR, and HOYT, JJ., concur.