Scurry v. Jones , 4 Wash. 468 ( 1892 )

The opinion of the court was delivered by

Hoyt, J. —

This was an action in the nature of ejectment. The plaintiffs’ evidence showed that they held under the patentee from the United States. Their testimony also showed that, although the lands sought to be recovered were within the calls of the patent under which they held, they were situated between the line of ordinary high and low tide, in Elliott Bay. Upon this appearing, the court below rendered a judgment of non-suit against the plaintiffs.

The only question presented for our consideration is as to the nature of the title to lands so situated, which the United States have, in form at least, conveyed by patent. It is contended on the part of appellants, that, by virtue of the patent, and of the action of the State of "Washington in the adoption of its constitution, their title to the lands in question became perfect. On the other hand, it is contended that the action of the United States authorities in assuming to patent land so situated was absolutely null and void. And that the disclaimer in the state constitution could, therefore, have no effect in favor of the patentees, or those holding under them. If the position of respondents in relation to the effect of patents upon lands situated below the line of ordinary high tide be conceded, it does not follow that the disclaimer, on the part of the state in its constitution, could have no effect. The language of § 2 of art. 17 is 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,” and fairly construed, we think it must be held to have, in effect, confirmed the patents which covered such lands. For, while it is true that the language used is not in form confirmatory, yet, when we take into consideration the situation of affairs, and the object to be accomplished by such disclaimer, we do not see how this object can be given force without construing the language used as substantially a grant to the patentees of the interest of the state in the land so situated. Under the law, as conceded by both parties, the lands had passed absolutely to the state, subject only to such clouds thereon as were caused by the same having been assumed to have been granted to private individuals by the United States. Under such circumstances, if the state disclaims all of its title to such lands, where the patents had been obtained without fraud, it certainly was for the benefit of someone, and it clearly could not have been for the benefit of the United States. And as the state, in the section immediately preceding this, had asserted its title to all such lands, whether occupied or unoccupied, which had not been thus patented, it seems clear to us that the evident intent of the disclaimer was to ratify the action of the United States in the issuance of such patents. In our opinion, the interest of the state passed as fully to the grantees in such patents, or to those holding under them, as it would have done had there been express words of grant used in the constitution. Any other interpretation of the language used would deprive it of any beneficial force whatever.

The judgment of the court below must be reversed, and the cause remanded for further proceedings in accordance with this opinion.

Anders, O. J., and Scott, Stiles and Dunbar, JJ., concur.