§ 18.4 - Early Development of the Public Trust Doctrine in Washington State, 1890-1930s

• Jurisdiction: Washington

§18.4 Early Development of the Public Trust Doctrine in Washington State, 1890-1930s

Disputes over ownership, control, and use of tidelands arose immediately after statehood. Parties to such disputes included waterfront upland owners, tidelands owners or claimants, log booming companies, shellfish growers, fishers, and others. Early litigation typically involved competing claims between two private entities, both seeking to make commercial use of aquatic lands. In these contexts, the courts often acknowledged and favored a policy of development and improvement of aquatic lands, yet such decisions also acknowledged the basic principles of the Public Trust Doctrine. Only a few of the early cases directly touched on public rights existing over aquatic lands.

(1) Whispers of the Public Trust Doctrine in the Equal Footing Doctrine

Just as early federal case law segued from an Equal Footing Doctrine analysis into an analysis and application of public trust principles announced in Illinois Central Rail Co. v. Illinois, 146 U.S. 387, 13 S. Ct. 110, 36 L. Ed. 1018 (1892), so too did the early law develop in Washington state. One of the first state cases hinting at the existence of the Public Trust Doctrine did not involve the question of the rights of the public across navigable waters; rather, the dispute centered around a waterfront upland owner's claimed riparian right to wharf out as against another private party who had already built improvements on the tidelands. In Eisenbach v. Hatfield, 2 Wash. 236, 26 P. 539 (1891), the court cited without question the English rule underlying the Public Trust Doctrine: "The ownership of the soil was regarded as a jus privatum, and could be conveyed to individuals, subject only to the public right of navigation and fishing, which public right was under the absolute control of parliament." Id. at 240-41. After upholding the state's sovereign interest in its navigable waters, the court determined that this sovereign interest precluded an upland waterfront owner's claim to an inherent right to wharf out across the tidelands. Id. at 245. An upland property owner's right to wharf out could be created only by the legislature, and the court found no such right under the Washington Constitution or the early state laws.

Months after deciding Eisenbach, the court again relied upon the Equal Footing Doctrine to invalidate a pre-statehood conveyance of tidelands from the United States to a private person. See Baer v. Moran Bros. Co., 2 Wash. 608, 27 P. 470 (1891). Milton Baer claimed ownership of certain tidelands in Elliott Bay under a federal patent issued September 23, 1889, just prior to statehood. Shortly after receiving his patent, Mr. Baer filed a lawsuit to eject the Moran Brothers Company's foundry and machine shop located on the tidelands.

The superior court refused to eject the Moran Brothers Company, and the Washington Supreme Court affirmed on the basis that Baer's federal patent for tidelands was invalid under the Equal Footing Doctrine. Id. at 613. The Baer court observed that tidelands are held by the federal government "‘in trust for the public purposes of navigation and fishing, and cannot be retained or granted out to individuals by the United States.'" Id. (quoting Hardin v. Jordan, 140 U.S. 371, 381, 11 S. Ct. 808, 35 L. Ed. 428 (1891)). Those lands and all their public attributes are to be transferred to future states on an equal footing with the original 13 states.

(2) Public trust versus property rights in the flow of surface waters

Another early state case extensively discussing the public's interest in navigable waters again arose out of a dispute that did not involve public claims of navigation or fishing. City of New Whatcom v. Fairhaven Land Co., 24 Wash. 493, 64 P. 735 (1901), involved a unique twist of facts that merged principles of the Equal Footing Doctrine, the Public Trust Doctrine, and riparian rights to the flow of nonnavigable surface waters. Fairhaven Land Co. ran a sawmill powered off of waterwheels running in Whatcom Creek, the only outlet from Lake Whatcom. Fairhaven and its predecessors had used the power source since 1854 with only a short period of interruption. Whatcom Creek was "not in any sense a navigable stream." Id. at 494. The city of New Whatcom purchased and expanded a domestic water supply system that withdrew waters from Lake Whatcom, which is a large, navigable, freshwater lake covering about 5000 acres at that time. The water diversions from the lake dried up the outlet creek at times of the year, idling Fairhaven's mill, prompting Fairhaven to sue for damages.

New Whatcom defended the water withdrawals, arguing that because the lake was navigable, the state owned the beds of the lake and had the right...