Mercer Island Beach Club v. Pugh

53 Wn.2d 450 (1959)

334 P.2d 534

MERCER ISLAND BEACH CLUB, Respondent, v. LLOYD F. PUGH et al., Appellants.[1]

No. 34594.

The Supreme Court of Washington, Department Two.

January 22, 1959.

Leo W. Stewart, for appellants.

Skeel, McKelvy, Henke, Evenson & Uhlmann and MacDonald, Hoague & Bayless, for respondent.

Lenihan & Ivers and Fred W. Catlett, amici curiae.

WEAVER, C.J.

Defendants appeal from a decree and mandatory injunction that (a) quiets title of certain property in plaintiff; (b) orders defendants to remove, within sixty days "all portions of the wharf, pier, dock, and any other structure constructed or maintained by said defendants lying under, upon or over said property of the plaintiff"; (c) restrains and enjoins defendants from building any *451 structure over plaintiff's property; and (d) dismisses defendants' cross-complaint and affirmative defenses with prejudice.

The property involved is on the southeastern shore of Mercer Island, in Lake Washington, a short distance north of the south tip of the island. The line of ordinary high water, or shore line, extends from southwest to northeast. The government meander line, which is some one hundred fifty feet below, or lakeward, approximately parallels the shore line.

Defendants' property is north of plaintiff's. The common boundary line between them, which extends from west to east, is described as follows:

"Beginning at the northwest corner of said Government Lot 2 [Section 31, Township 24 North, Range 5 East, W.M.]; thence east along the north line of said lot and said line produced, 1565 feet, more or less, to the meander line of Lake Washington; ..." (Italics ours.)

Since the shore line extends from southwest to northeast, and the common boundary line extends from west to east across the shore line to the meander line, it is apparent that the shore line and the boundary line form an acute angle on the north side of the common boundary line.

Defendants built a dock just north of the apex of the acute angle formed by the intersection of the shore line and the common boundary line. The dock is "T" shaped, with the stem perpendicular to the shore line. The southwest end of the top of the "T", which extends from the southwest to the northeast, projects across the common boundary line approximately ten feet into the property claimed by plaintiff. The dock is between the shore line and the government meander line.

The parties to this action deraign title to their respective properties from a common grantor, the Northern Pacific Railway Company and its affiliate, Northwestern Improvement Company. July 2, 1864, Congress granted certain land to the railroad to aid in the construction of a railroad from the East to Puget Sound, by the northern route. 13 Stat. 365 et seq. March 26, 1884, the railroad filed, in the office of *452 the Commissioner of the General Land Office, a map showing the definite location of its railroad from "New Tacoma to South Prairie in Washington Terry." May 10, 1895, the United States issued a patent to the railroad. (A certified photostatic copy of the map and patent are in evidence and contain Section 31, Township 24 North, Range 5 East, W.M., in which the land involved is located.) In 1921, the state of Washington deeded the second-class shoreland (land between the line of ordinary high water and the line of navigability. RCW 79.04.080) to the common grantor of the parties.

There is substantial evidence in the record to support the trial court's finding that defendants "have no rights by adverse possession or prescriptive user, by occupation, payment of taxes, or otherwise, of any portion of the property of plaintiff"; that the properties are not on a cove; and that the property lines of plaintiff and defendants are not confused. We cannot disturb these findings of fact.

Basically, defendants' thirty-three assignments of error, which are argued together, present only one issue: Does plaintiff own the property over which defendants' dock extends?

In support of their thesis, defendants urge (a) that plaintiff owns only to the line of ordinary high water; and (b) that plaintiff fails to prove the line of navigability that fixes the outer line of the shorelands conveyed by the state.

Article XVII, § 1, of the Washington constitution, provides:

"The state of Washington asserts its ownership to the beds and shores of all navigable waters in the state ... up to and including the line of ordinary high water within the banks of all navigable rivers and lakes: Provided, that this section shall not be construed so as to debar any person from asserting his claim to vested rights in the courts of the state."

[1] This court has held consistently that patents issued by the United States prior to the adoption of the Washington constitution, to land bordering bodies of water in which the government meander line is below the line of *453 ordinary high water, operate to carry title to the meander line. Brace & Hegert Mill Co. v. State, 49 Wash. 326, 95 Pac. 278 (1908), and cases cited; King County v. Hagen, 30 Wn. (2d) 847, 849, 194 P. (2d) 357 (1948). This rule applies, even though the patent was actually issued after statehood, if the right to the patent accrued prior to the adoption of the state constitution. Kneeland v. Korter, 40 Wash. 359, 82 Pac. 608, L.R.A. (N.S.) 745 (1905); Wilson v. Prickett, 79 Wash. 89, 92, 139 Pac. 754 (1914); Narrows Realty Co. v. State, 52 Wn. (2d) 843, 329 P. (2d) 836 (1958), and cases cited.

[2] Plaintiff's title meets all of the requirements of this rule; therefore, under the facts of the instant case, the trial court did not err when it quieted plaintiff's title to the meander line. It is undisputed that a portion of defendants' dock, which is between the shore line and the government meander line, extends onto plaintiff's property; it follows, that it was not error to order defendants to remove the dock therefrom.

We do not consider defendants' second argument that plaintiff failed to prove the line of navigability that fixes the outer line of the shorelands conveyed by the state for plaintiff deraigns title through the patent to which its predecessor in interest became entitled prior to statehood, not through the state's grant of second-class shorelands. In the circumstances of the instant case, defendants' maintenance of the dock is not navigation; therefore, we need not consider whether the line of navigability may be established (by decree of court or otherwise) between the shore line and the government meander line; or what effect, if any, it would have on plaintiff's ownership should the line of navigability be established outside the government meander line. See Laws of 1927, chapter 255, § 106, p. 521; Rem. Rev. Stat., § 7797-106 [cf. RCW 43.65.050]; RCW (Sup. 1957) 43.30.150 (4).

The judgment is affirmed.

HILL, DONWORTH, ROSELLINI, and OTT, JJ., concur.

[1] Reported in 334 P. (2d) 534.