§ 18.5 - The Turning of the Tides in Public Trust Doctrine Development, 1950s-2009

• Jurisdiction: Washington

§18.5 The Turning of the Tides in Public Trust Doctrine Development, 1950s-2016

As documented in the prior analysis, the early Washington cases acknowledging the Public Trust Doctrine typically involved claims between competing development or commercial interests. In the late 1960s the state Supreme Court squarely addressed for the first time the scope of the public's rights as against a shoreland owner's private development plans. See Wilbour v. Gallagher, 77 Wn.2d 306, 462 P.2d 232 (1969). Several other decisions preceding Wilbour involved the scope of common rights across nonnavigable lakes, and the analysis of those cases further illuminates the expansion of public trust rights across surface waters. Nearly 20 years after Wilbour, the Supreme Court firmly upheld the Public Trust Doctrine in Caminiti v. Boyle, 107 Wn.2d 662, 668, 732 P.2d 989 (1987), cert. denied, 484 U.S. 1008 (1988).

(1) Private trust common riparian rights over nonnavigable waters

The cases discussed in this subsection do not directly rely upon Public Trust Doctrine principles. Instead, they involve a very similar common-law principle that shore owners around private lakes share rights in common with each other across the surface waters of the entire lake. Although no court has directly linked this kind of common right over nonnavigable waters to the Public Trust Doctrine, the broad scope of rights detailed in these cases closely resembles the scope of rights that the state Supreme Court has found to exist over navigable waters.

In a case of first impression in Washington, Snively v. Jaber, 48 Wn.2d 815, 296 P.2d 1015 (1956), the court decided that littoral owners on a nonnavigable lake, each of whom owned pie-shaped portions of the lake bed converging at the center of the lake, had rights in common with each other to use the surface waters of the lake. "What practical value would the vested rights to boat, swim, fish, and bathe, have to any riparian owner if such rights were restricted to his fenced-in pie-shaped portion of the lake?" Snively, 48 Wn.2d. at 821. The court in Snively relied in part on prior cases finding compensation owed in eminent domain cases for the loss of such rights on nonnavigable lakes. Id. at 820 (citing In re Martha Lake Water Co., 152 Wash. 53, 277 P. 382 (1929), and In re Clinton Water Dist., 36 Wn.2d 284, 218 P.2d 309 (1950)). All lakeside owners and their invitees share the common rights of use across the surface waters, as long as each user does not unreasonably interfere with the exercise of similar rights by other users. Id. at 822. Jaber had been running a shore-side resort that included a dance hall, picnic grounds, a swimming area, and boat rental for approximately 30 row boats. Id. at 816. Although Jaber's common rights to the lake extended to Jaber's invitees, evidence showed that Jaber's customers were trespassing, littering, and damaging other lake owners' properties, so the court affirmed a two-year injunction against the boat rental business.

Practice Tip: The term "littoral" technically describes waterfront properties on lakes and oceans, while the term "riparian" applies to waterfront properties on rivers but the state Supreme Court has recognized the informal use of "riparian" as describing both contexts. See Botton v. State, 69 Wn.2d 751, 753 n.1, 420 P.2d 352 (1966).

Ten years after Snively v. Jaber, a similar lawsuit arose over the operation of a public fishing area operated by the Washington State Game Department on the shore of a nonnavigable lake in Botton, 69 Wn.2d 751. Evidence demonstrated that public invitees accessing the lake through the Game Department's property were trespassing, damaging, defecating, and littering on other lakefront properties. Id. at 752-53. Increased boat traffic, some of which operated at high speeds, interfered with other lakefront owners' ability to use the lake safely. The trial court had enjoined the Game Department from inviting members of the public to use its boat launch until the department condemned the plaintiffs' property and property rights in accordance with law. The Supreme Court, in a 5-4 decision, upheld the injunction but disagreed that the Game Department had to condemn other lake owners' properties. Instead, the Game Department had to present "a plan for the controlled operation of its property that satisfies the trial court that the rights of other riparian owners will be adequately safeguarded." Id. at 757. It is reported that the Game Department was unable to produce an acceptable management plan and closed down the public access area. See James N. Corbridge Jr., Surface Rights in Artificial Watercourses, 24 Nat'l. Res. J. 887, 889 n.9 (1984).

Comment: See §4.20 in Volume 3, Chapter 4 (Waterfront Titles) of this deskbook for a discussion on when lakes and rivers qualify as "navigable," thus establishing state ownership. Some early state Supreme Court cases seemed to depart from the federal test of navigability by declaring lakes nonnavigable even though the lakes clearly supported vessel traffic. The description of heavy boat traffic, albeit by recreational vessels, undermines the characterization of the lake as being nonnavigable in Botton.

Both Botton and Snively figured heavily in the first case to address lake-filling activity. See Bach v. Sarich, 74 Wn.2d 575, 445 P.2d 648 (1968). Property owners around a 19-acre, nonnavigable lake sued Mr. and Mrs. Sarich and others who were developing their waterfront lot and planned to build two apartments located partially on fill and partially on pilings extending 130 feet out into the lake. Plaintiffs regularly used the common surface of the lake for recreational activities, and they successfully argued that an apartment building extending 130 feet into the lake would interfere with their common rights across the lake surface. Defendants relied on the fact that the property, including the lake in front of their lot, was zoned commercial, and the city had issued a permit for their buildings. They further argued that their own riparian rights on the nonnavigable lake included the right to build the building. The Supreme Court determined that the apartment building did not constitute a "riparian use" because it was not required to be built over the water to be useable. Because the use was not truly riparian, its presence would encroach on the collective lake owners' common right to use all portions of the lake bed for riparian enjoyment. Id. at 580-81. The court relied extensively on Snively and Botton as establishing the rights of shore owners to use the surface waters of the entire nonnavigable lake. The court enjoined the construction and required removal of the fill that had been placed in the waters.

Although the cases involving private rights in common across surfaces of nonnavigable lakes did not rely on public trust principles, the scope of the private common uses...