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Davidson v. the

January 10, 1991


En Banc. Dolliver, J. Callow, C.j., Utter, Brachtenbach, Andersen, Smith, and Guy, JJ., and Cunningham and Wieland, JJ. Pro Tem., concur. Dore and Durham, JJ., did not participate in the disposition of this case.

Author: Dolliver

Plaintiffs Clifford, Dorothy, and Edwin Davidson seek direct review of the trial court's decision rejecting their challenge to the location of the inner harbor line defining the waterward boundary of their shorelands. Plaintiffs assert the inner harbor line was improperly drawn in 1913 so as to deprive them of access to navigable water. Defendant State of Washington cross-appeals the trial court's declaration of a navigational easement across the State-owned harbor area in favor of plaintiffs. We hold for the State.

Plaintiffs own and operate a marina in the Kenmore area of Lake Washington. When plaintiffs purchased their property in 1961, they believed they were purchasing all of the uplands (dry land bordering the lake) and abutting shorelands (submerged land out to the State-owned harbor area) encompassing the marina improvements. However, in the mid-1960's, the Port of Seattle informed plaintiffs their docks extended beyond the inner harbor line into the State-owned harbor area and that consequently a lease from the State was required. Plaintiffs challenged the location of the inner harbor line and refused to enter a lease. In 1982, the Port of Seattle announced its intention to lease the disputed harbor area to the neighboring marina. In February 1983, plaintiffs commenced this quiet title action.

In the Washington State Constitution, adopted in 1889, the State claimed ownership over all submerged lands in navigable waters up to and including the line of ordinary high water. Const. art. 17, § 1. The declaration of State ownership divested upland owners of all riparian rights, including the right of access to deep water. Eisenbach v. Hatfield, 2 Wash. 236, 26 P. 539 (1891). The constitution did not, however, prohibit the State from subsequently selling such submerged lands and rights. The first Legislature authorized the sale of tideland and shoreland and provided a purchase preference to the abutting upland owners. Laws of 1889-90, ch. 14, p. 431.

Under the constitutional scheme, three distinct zones were to be created in navigable waters. Article 15 directed the Legislature to appoint a Harbor Line Commission which would, at its discretion, establish two harbor lines in navigable waters. The Commission was empowered to establish an "outer harbor line" beyond which the State would be forever prohibited from granting private rights. Within the outer harbor line the Commission was to designate an "inner harbor line". The area between these two lines was designated as the "harbor area" and was originally required to be between 50 and 600 feet in width. Ownership of the harbor area was also reserved for the State and "forever reserved for landings, wharves, streets, and other conveniences of navigation and commerce." Const. art. 15, § 1. Although prohibited from permanently granting rights in the harbor area, the State was empowered to lease the harbor area to private persons for periods up to 30 years. Finally, the area inside the inner harbor line was designated as either shorelands (water not subject to tidal flow) or tidelands (water subject to tidal flow) and was the area subject to sale to private parties. Shorelands and tidelands are designated as first or second class with first class properties originally being those located within the corporate limits of any city or 1 mile thereof. See Const. arts. 15, 17; RCW 79.90.030-.050; RCW 79.90.090; Johnson & Cooney, Harbor Lines and the Public Trust Doctrine in

Washington Navigable Waters, 54 Wash. L. Rev. 275, 290 (1979).

In 1905, the State sold the shorelands here in question to plaintiffs' remote predecessor in interest. The deed described the conveyed property simply as "[a]ll shore lands of the second class . . . in front of, [or] adjacent to" lots 1 and 2 of section 11. As with most second class shorelands sold during that time, the deed left the waterward boundary of the shorelands undefined.

In 1911, construction began on a set of locks (the Chittenden Locks) and a canal to connect Puget Sound to Lake Washington. As a result, the water level in Lake Washington was to be lowered approximately 8 feet. Before the lake was lowered, the State brought suit to determine ownership of the new shorelands to be created. State v. Sturtevant, 76 Wash. 158, 135 P. 1035 (1913). After trial, but before the appeal was decided by the Supreme Court, the Legislature passed a statute establishing the waterward boundary for previously sold second class shorelands in Lake Washington at the line of navigability "as the same shall be found in such waters after such lowering". However, the act was expressly inapplicable to portions of second class shorelands subsequently selected by the Commissioner of Public Lands for harbor areas, docks, wharves, or other public purposes. Laws of 1913, ch. 183, § 1, p. 667.

The 1913 statute directed the Commissioner of Public Lands to survey Lake Washington and designate suitable areas for harbor areas, slips, wharves, warehouses, and other public purposes. Laws of 1913, ch. 183, § 2, p. 668. In 1914, the Harbor Line Commission approved the harbor areas and harbor lines selected by the Commissioner. The 1914 plat established only a "pier head line" in front of plaintiffs' property. However, the 1914 plat was immediately challenged, and this court voided all reservations within previously sold shorelands as an impermissible intrusion into the owners' fee simple title and voided all pierhead lines as being without authority. Puget Mill Co. v.

State, 93 Wash. 128, 160 P. 310 (1916). See also Puget Mill Co. v. State, supra at 141-42 (Chadwick, J., concurring).

The Legislature responded in 1917 by directing the Commissioner of Public Lands to prepare two new plats of Lake Washington. The first plat was to establish harbor lines in front of such previously sold second class shorelands as deemed necessary for the use of the public as harbor areas. Laws of 1917, ch. 150, § 1, p. 612. The harbor lines in question here were established pursuant to section 1 of the 1917 statute and adopted by the Public Lands Commission in 1921.

Kenmore is located at the extreme northeast end of Lake Washington on a generally shallow portion of the lake. Plaintiffs' property is located adjacent to the mouth of the Sammamish River. The inner harbor line segment bordering this section of the lake ranges from a depth of 10 feet at its western edge and 6 feet at its eastern edge to a minimum of 2 1/2 feet near a bulge in the shoreline. Where the line fronts plaintiffs' property, the depth ranges from approximately 4 to 6 feet. As drawn, the harbor lines help preserve access to the mouth of the Sammamish River.

Following initiation of this quiet title action, both parties sought partial summary judgment. The State's motion was granted. The court held plaintiffs' predecessor in interest took subject to the power of the State to set harbor lines in front of their shorelands. The court further held that the State is not required to establish the inner harbor line coincident with the line of navigability, and the standard of review for Harbor Line Commission action is arbitrary or fraudulent. At trial, the court determined that the Harbor Line Commission had not acted arbitrarily or fraudulently in establishing the inner harbor line. The trial court further held that plaintiffs' challenge was barred by the doctrine of laches. Finally, the trial court declared a navigational easement benefiting plaintiffs for access to deep water across the State-owned harbor area. This appeal followed.

The primary issue before us is whether the Harbor Line Commission was required to establish the inner harbor line coincident with an objectively defined line of navigability. Plaintiffs characterize the case as one of contractual intent. They contend the overwhelming evidence shows the parties intended the shorelands' waterward boundary to be the line of navigability, which would be determined objectively based on the depth practicably necessary to reach deep water. The State responds by arguing the controlling legislative intent was to convey shorelands with a presently undefined boundary subject to the State's power subsequently to establish an inner harbor line as the boundary.

Plaintiffs' interpretation of contractual intent relies primarily on excerpts from this court's decision in State v. Sturtevant, 76 Wash. 158, 135 P. 1035 (1913). In quieting title to shorelands created by the lowering of Lake Washington, the court found "[t]he value of shore lands in most instances lies in the fact that ownership gives access to deep or navigable water. The state has sold, and the purchaser has bought, believing this to be true." Sturtevant, 76 Wash. at 165. Accordingly, the court confirmed the existing shoreland owners' title to the uncovered shorelands as well as their right to improve and build docks up to the line of navigation as it would exist in the lowered lake. Although the court recognized shorelands were subject, under the 1913 statute, to the right of the State to establish a harbor line fixing the waterward boundary, the court viewed the shoreland owners' rights as remaining relatively unaffected. The court explained,

Now, theoretically, that [boundary] line is already fixed. It is the line of navigability. Although not surveyed and put on paper, the officers of the state are presumed to find that line and define it when establishing the inner harbor line.

Sturtevant, 76 Wash. at 166. Plaintiffs interpret the court's language in Sturtevant to establish a mutual intent recognizing an objectively determinable waterward boundary providing access to deep water.

[1] Unfortunately, plaintiffs' interpretation of contractual intent relies on only a few isolated excerpts from the Sturtevant opinion. It fails to take into account the Sturtevant opinion as a whole, subsequent cases, and the statutes. Furthermore, ordinary rules of contract interpretation do not apply here. Where a deed or grant from the State fails to define or limit the boundary of the grant, the boundary will be interpreted most strongly ...

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