Petition by Henry L. Yesler in a state court of Washington for a writ of prohibition to restrain the state board of harbor line commissioners, composed of W. F. Prosser, Eugene Semple, H. F. Garretson, Frank Richards, and D. C. Guernsey, from locating harbor lines so as to include petitioner's wharf. The writ was granted by the trial court, but, on appeal to the supreme court of the state, the judgment was reversed. 27 Pac. Rep. 550. Petitioner appeals. Dismissed.
Statement by Mr. Chief Justice FULLER:
On October 28, 1890, the affidavit of J. D. Lowman, the attorney in fact of H. L. Yesler, was filed in the superior court of King county, state of Washington, stating:
Deponent therefore prayed for a writ of prohibition, directed to the said harbor line commissioners, to prohibit and restrain them, and each of them, 'from extending, locating, or establishing the harbor lines in front of the city of Seattle or in the harbor of the city of Seattle over the wharves and docks of the said H. L. Yesler, or any part thereof, and from filing the plat thereof in the office of the secretary of state, or the duplicate thereof in the office of the clerk of the city of Seattle.'
An alternative writ having been issued, defendants appeared and moved to quash. The cause was heard upon the motion, the motion denied, and judgment rendered that the writ be made absolute, 'and that this court does hereby command said respondents, and each of them, absolutely and finally, that they, and each of them, desist and refrain from any future proceedings in locating, establishing, and extending the harbor lines mentioned and referred to in the affidavit of J. D. Lowman, made and filed herein on October 28, 1890, and in said alternative writ issued thereon, over, across, and in front of [146 U.S. 646, 649] the premises of said relator herein, H. L Yesler, mentioned in said alternative writ, to wit, the premises commonly known as 'Yesler's Wharf and Dock' and the upland abutting on the shore of Elliott bay upon which said wharf and dock were constructed, and through the buildings thereon upon the shore of Elliott bay and in the harbor of the city of Seattle, in said King county, or in such a manner as to embrace and include said premises and improvements, or any part thereof, within the harbor lines of said city of Seattle, until compensation shall be ascertained and paid as required by law to said relator, H. L. Yesler, for the taking or damaging of his said property and improvements thereby.'
An appeal was prosecuted to the supreme court of the state of Washington, the judgment reversed, and the petition dismissed. The court held that, as against the state, a littoral owner, simply as such owner, could assert no valuable rights below the line of ordinary high tide, ( Eisenbach v. Hatifield, 26 Pac. Rep. 539;) that Yesler had no right to the land in controversy, and, at the most, the only vested right he had was in the wharf constructed thereon; that, even though he had a right to be compensated for his improvements, that would not enable him to prevent the establishment of harbor lines; that it could not be said that simply including the land under the wharf within the harbor lines was such a taking or damaging of the wharf as would entitle its owner to compensation; and that it did not follow from such including within the harbor lines that the state had interfered or ever would interfere with his ownership or possession of the wharf. The court was also of opinion that Yesler's title was not of a nature to be clouded, and, even if it were, that the proceedings complained of could constitute no cloud thereon; and, further, that, as to the legislation of congress upon the subject of navigation and harbor lines, the state legislation was not opposed thereto; and, besides, that the United States was the only party that could interfere in such case. It was also held that the writ of prohibition should only be granted in a clear case, and when no other remedy was available, and that it was not satisfled that the ordinary proceedings in law or equity would [146 U.S. 646, 650] not completely protect petitioner's rights. State v. Prosser, 27 Pac. Rep. 550.
A writ of error from this court was thereupon allowed.
The state of Washington was admitted into the Union November 11, 1889, having a constitution containing the following provisions:
By a territorial law (Laws Wash. T. 1854, p. 357) it was provided that any person owning land adjoining any navigable waters or water course within or bordering upon the territory might erect upon his own land any wharf or wharves, and might extend them so far into said waters or water courses as the convenience of shipping might require; and that whenever any person should be desirous of erecting upon his own land any wharf at the terminus of any highway, or at any accustomed landing place, he might apply to the county commissioners of the proper county, who, if they should be satisfied that the public convenience required the wharf, might authorize the same to be erected and kept up for any length of time, not exceeding 20 years.
On March 26, 1890, an act of the legislature of the state for the appraising and disposal of the tide and shore lands [146 U.S. 646, 652] belonging to the state was approved, the eleventh section of which provided: 'The owner or owners of any lands abutting or fronting upon or bounded by the shore of the Pacific ocean, or of any bay, harbor, sound, inlet, lake, or water course, shall have the right for sixty days following the filing of the final appraisal of the tide lands to purchase all or any part of the tide lands in front of the lands so owned: provided, that if valuable improvements in actual use for commerce, trade, or business have been made upon said tide lands by any person, association, or corporation, the owner or owners of such improvements shall have the exclusive right to purchase the land so improved for the period aforesaid.' 1 Hill, St. 758.
On March 28, 1890, an act was passed by the legislature of Washington, entitled. 'An act to create a board of harbor line commissioners, prescribing their duties and compensation.' By the first section the board of harbor line commissioners was created, to consist of five disinterested persons, to be appointed by the governor, and the third section is as follows:
Thos. R. Shepard and A. H. Garland, for plaintiff in error.
W. C. Jones, for defendants in error.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.
The averment in relator's petition is that 'he is now, and has been for 30 years last past, the owner of the following described property, to wit, the property commonly known as 'Yesler's Wharf and Dock' and the upland abutting on the shore upon which said wharf and dock were constructed.' It is said in argument that he is an original patentee of the United States, under the 'Donation Act' of September 27, 1850, (9 St. p. 496, c. 76,) of a tract of about 160 acres of land, entered by him in 1852, embracing all the [146 U.S. 646, 654] upland mentioned in the petition, and bounded on the west by the meander line of Elliott bay; but this is not so stated in the petition, and, whatever might be inferred as to the character and source of his ownership, it cannot reasonably be held that relator by this allegation specially set up or claimed a title, right, privilege, or immunity under the constitution, or a statute, of, or authority exercised under, the United States in this behalf. In other words, the ground of our jurisdiction cannot be rested upon the denial by the state court of a right claimed by plaintiff in error, in respect to his ownership, under an act of congress. But it is contended that the contemplated action of the harbor line commissioners would be in violation of the provisions of the fourteenth amendment, as amounting to a deprivation of property without due process of law; and also that it would be in conflict with the act of congress entitled 'An act making appropriations for the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes,' approved September 19, 1890, (26 St. pp. 426, 454, c. 907.)
Section 7 of that act declares that it shall not be lawful to build any wharf, pier, dolphin, boom, dam, wier, breakwater, bulkhead, jetty, or structure of any kind outside of established harbor lines, or in any navigable waters of the United States where no harbor lines are or may be established, without the permission of the secretary of war, in any port, roadstead, haven, harbor, navigable river, or other waters of the United States, in such manner as shall obstruct or impair navigation, commerce, or anchorage in said waters; and by section 12 in amendment of section 12 of the river and harbor act of August 11, 1888, the secretary of war was authorized to cause harbor lines to be established when essential to the preservation and protection of harbors, beyond which no piers, wharves, bulkheads, or other works should be extended or deposits made, except under such regulations as might be prescribed from time to time by him. Penalties are denounced for the violation of either of these sections. We do not understand that any conflict of jurisdiction over the regulation of the [146 U.S. 646, 655] harbor of Seattle will be precipitated by what the defendants propose to do, or that relator could sustain his invocation of judicial interference on such a theory. If the location and establishment of harbor lines by these commissioners is actually in violation of the laws of the United States, their vindication may properly be left to the general government. It is obvious that the decision of the state court in this regard was not against any title or right of relator arising under a statute of the United States.
This brings us to consider whether the contemplated proceedings would deprive Yesler of his property without due process of law. The contention seems to be that a part of his improvements are included in the strip which the constitution of Washington forbids the state from selling, or granting, or relinquishing its rights over, and that, therefore, the location and establishment of the harbor lines as proposed would amount to a taking of his property without compensation. The harbor line is the line beyond which wharves and other structures cannot be extended, and a map is exhibited by counsel which shows an inner line, delineating the inner boundary of the strip referred to. This inner line, which is 600 feet distant from the harbor line, hap pens to cross the outer end of relator's wharf, but the harbor line is several hundred feet away.
By the sixteenth section of article 1 of the constitution of Washington no private property can be taken or damaged for public use without just compensation. The similar limitation upon the power of the general government, expressed in the fifth amendment, is to be read with the fourteenth amendment, prohibiting the states from depriving any person of property without due process of law, and from denying to any person within their jurisdiction the equal protection of the laws. The amendment undoubtedly forbids any arbitrary deprivation of life, liberty, or property, and secures equal protection to all under like circumstances in the enjoyment of their rights. Assuming our jurisdiction to revise the judgment of a state tribunal upholding a law authorizing the taking of private property without compensation to be un- [146 U.S. 646, 656] questionable, (Kaukauna Water Power Co. v. Green Bay, etc., Co., 142 U.S. 254, 269 , 12 S. Sup. Ct. Rep. 173,) we cannot accede to the position that the action of the harbor line commissioners in locating the harbor line and filing the plat would take any of relator's property, or so injuriously affect it as to come within the constitutional inhibition. The filing of maps of definite location, in the exercise of the power of eminent domain, furnishes no analogy. The design of the state law is to prohibit the encroachment by private individuals and corporations on navigable waters, and to secure a uniform water front; and it does not appear from relator's application that the defendants have threatened in any manner to disturb him in his possession, nor that that which is proposed to be done tends to produce that effect. Whatever his rights, they remained the same after as before, and the proceedings, as the supreme court said, could not operate to constitute a cloud upon them from the standpoint of relator himself, for, if nothing further could lawfully be done in the absence of legislation for his protection, that was apparent. The consequences which he deprecated were too remote to form the basis of decision. Whatever private rights or property he has by virtue of the territorial act of 1854 or of the state act of 1890, whatever his right of access to navigable waters or to construct a wharf from his own land, we do not see that he would be deprived of any of them by the action he has sought to prohibit. It may be true that the width of the reserved strip as delineated on the map brings the inner line across the outer end of relator's wharf, in respect of which, as if it were the harbor line, he complains that his right under the act of March 26, 1890, to purchase the ground occupied by his improvements, would be interfered with; but the construction of that act is for the state court to determine, and the averments of the affidavit and alternative writ make no issue upon it, as affected by the constitutional provision. The commissioners are to locate and establish harbor lines, whereupon the area between the harbor line and the line of ordinary high tide, within not less than 50 nor more than 600 feet of the harbor line, is reserved, under the state constitution. Whether the end of relator's [146 U.S. 646, 657] wharf is within that area, and the consequent effect, the record does not call upon us to consider.
It may properly be added that the decision of the supreme court indicates that, in its opinion, relator was not entitled to the writ of prohibition, because he had other remedies of which he might have availed himself. This was a ground broad enough to sustain the judgment, irrespective of the decision of any federal question, if such arose; but we have considered the case in the other aspect, as the ruling of the supreme court in this regard is perhaps not sufficiently definite for us justly to decline jurisdiction upon that ground.
Our conclusion is that no federal question was so raised upon this record as to justify our interposition, and therefore the writ of error is dismissed.