1. The navigable waters in Washington and the lands under them
passed to the state upon its creation in full proprietary
ownership, subject to the federal control over navigation. P.
255 U. S.
2. In conveying tide lands, the state is free to grant them with
Page 255 U. S. 57
in the adjoining water area, or to withhold such rights
completely; the effect of the conveyance in this regard is
determined by the local law. P. 255 U. S.
3. Under the Washington law, a grantee from the uplands on a
natural navigable waterway takes only to high water mark, without
riparian or littoral rights. P. 255 U. S.
4. So too, a grant by the a described parcel of tide land
conveys no rights in or over adjoining tide land or water, these
being withheld in order that the state may not be hampered in
developing waterways and harbors in the public interest. P.
255 U. S.
5. The same rule applies to a conveyance of tide land reclaimed
by the state by filling and abutting on a natural waterway confined
by such reclamation and deepened by dredging. P. 255 U. S.
6. The State of Washington, through the Port of Seattle, filled
in a large area of tide land up to bulkheads confining a waterway;
dredged a channel in the waterway, leaving shoals on either side of
it; divided the land into numbered blocks and lots, and conveyed
lots abutting on the waterway by a deed describing them by their
numbers, without mention of the waterway or of water rights, but
referring to a plat on which the boundaries of the lots were set
forth, with lineal measurements, and on which the waterway was also
shown, and, within it, on each side and some distance from the
bulkheads, a line marked "Pierhead Line."
(1) That, in view of the policy of the state to retain control
over navigable waters, an intention to convey with the lots a right
to wharf out to the line and thus gain access to the fairway could
not be implied, even assuming that there was no law at the time
under which permission to do so could be granted by the state
(2) That the establishment of the pierhead line by the United
States did not create a right to wharf out as against the state,
under the state law, its presence on a plat
had no other effect than as a publication of the federal action. P.
255 U. S.
7. A municipal corporation of a state is a citizen of that state
within the rule governing removal of causes to the district court.
P. 255 U. S.
8. The right to remove a suit brought by a municipality to quiet
the title of the state to a navigable waterway against an abutting
landowner claiming a right to wharf out cannot be denied on the
ground that the state is the real party in interest where the
municipality has an independent financial interest in the
The case is stated in the opinion.
Page 255 U. S. 58
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
The main question in this case is whether the Oregon &
Washington Railroad Company acquired, as owner of land adjoining
East Waterway in the Port of Seattle, the right to build in the
waterway piers, wharves, and other structures over which it would
secure access from its land to the navigable channel. The question
arises in a suit to quiet the title of the state which was brought
against the railroad in a state court of Washington, in 1917, by
the Port, a municipal corporation, [Footnote 1
] created by the laws of Washington. J. F.
Duthie & Co., lessees of the railroad's land, were joined as
defendants, but they have no substantial interest in the
controversy, and their peculiar rights do not require
consideration. The case
Page 255 U. S. 59
was removed to the district court of the United States by
petition of the railroad, which is an Oregon corporation, and a
motion to remand was denied. Upon full hearing on the merits, a
decree was rendered dismissing the bill. The case comes here by
direct appeal of the Port under § 238 of the Judicial Code, it
having been contended by the railroad and held by the lower court
that the validity of c. 168 of the Laws of Washington of 1913, p.
582, is involved, and that its provisions violate the contract
clause and the due process clause of the federal Constitution. The
following facts are material:
When the State of Washington was admitted into the Union, there
lay in front of the City of Seattle extensive tidelands in the area
now comprised within the limits of the municipal corporation known
as Port of Seattle. Under appropriate legislation of the state,
this area has been developed as a port. Waterways have been
established and in part dredged; tidelands abutting upon the
waterways have been filled, platted as city blocks, and laid out
with streets, and lots therein have been sold for business and
other purposes. Among the waterways so established is that known as
East Waterway, which connects Duwamish River with Elliott Bay, an
arm of Puget Sound. East Waterway, as established, has at the point
in question a width of 1,000 feet. The bed of the waterway was, in
its natural state, tideland. The 750 feet of the waterway which lie
in the center have been dredged to a depth at mean low tide of from
26 to 30 feet. The rest of the waterway, being that portion which
extends on either side for a distance of 125 feet from the bulkhead
of the filled land to the fairway, is of varying depth, and is not
navigable by large vessels. The bed of the waterway within these
125 feet areas slopes from the bulkhead to the line of the fairway.
It is exposed at low tide ordinarily at points about 36 feet from
Page 255 U. S. 60
The railroad's parcel here in question is filled land adjoining
the west side of this waterway. The tract is a part of Block 393,
Seattle Tidelands, shown on a plat duly filed with the County
Auditor in 1895, and was acquired from the state by the railroad's
predecessors in title prior to 1907. The deeds by which the state
conveyed the land do not in words purport to grant any right in the
waterway, nor is mention made of East Waterway either in the
granting clause or elsewhere in the deed. [Footnote 2
] On the plat, by which the land was sold,
the boundaries of the block and of the several lots comprised
within it, are set forth clearly, and lineal measurements are
given. East Waterway is shown on the plat and, on each side of the
waterway, a broken line called "pierhead line," is marked at a
distance of 250 feet from the bulkhead. It is alleged by the
railroad that this pierhead line, established by the War Department
as prescribing the limits beyond which structures obstructing
navigation would not be permitted in the waterway, had been adopted
also by the state authorities. In 1914, by joint action of the War
Department and of the state authorities,
Page 255 U. S. 61
and with the assent of abutting owners, the pierhead line was
moved back to a point 125 feet from the bulkhead, leaving the
fairway in the center 750 feet, as above stated, instead of 500
feet as originally indicated on the plat. The rights claimed by the
railroad are limited to this 125 feet area.
Chapter 168 of the Laws of Washington 1913, p. 582, provides
"Whenever, in any waterways created under the laws of the State
of Washington, the government of the United States shall have
established pierhead lines in said waterway at any distance from
the boundaries thereof established by the state, no structure shall
be allowed in the strip of waterway between the boundary and the
nearest pier head line except by consent of the state land
commissioner and upon plans approved and terms and conditions fixed
by him, and then only for such period of use as shall be designated
by him, but any permit shall not extend for a longer period than
thirty (30) years: Provided, however,
that the owner of
land abutting upon either side of any such waterway shall have the
right, if application be made therefor within a period of ninety
(90) days following the date when this act shall go into effect, to
obtain . . ."
a permit authorizing the improvement and use of such area under
conditions to be prescribed by the state authorities upon the
payment of an annual rental dependent in amount upon the assessed
value of an equal area of the abutting land.
The railroad failed to apply for such a permit. Asserting the
rights above stated, it leased a part of its land to J. F. Duthie
& Co. for a shipbuilding and manufacturing plant, and purported
to authorize the construction of wharves, piers, and other
structures upon the adjoining water area up to the 125-foot
pierhead line. By the Act of 1913 the control over the waterways
therein conferred upon land commissioners is to be exercised in
Page 255 U. S. 62
by the port commissioners. This bill to enjoin such use of the
waterway by the railroad and its lessees and to quiet title was
therefore brought by the Port of Seattle.
The decree entered by the lower court declared in substance (1)
that the state has no proprietary interest in the water area
between the bulkhead and the pierhead line; (2) that it is not
entitled to lease the same or otherwise to deprive the railroad of
access to the fairway; (3) that c. 168 of the laws of 1913, insofar
as it provides for such leasing, violates the federal Constitution;
(4) that the railroad has no proprietary interest in the waterway,
but, as owner of the abutting lots, is entitled to access to the
deep or navigable waters "subject to proper governmental
supervision." The decree declared further that the state had never
established harbor lines in the waterway, and expressly recited
that the court does not determine whether or not the state now has
power to establish harbor lines, nor what the effect might be of
hereafter establishing them.
The main question presented for our decision is whether the
railroad acquired, in connection with the lots of filled land
abutting on the waterway, a private riparian or littoral right to
construct wharves, dock and piers on this 125-foot area in order to
provide for itself, as owner of the land, and for those claiming
under it, convenient access to the fairway for purposes of
navigation and commerce. The Port contends that the railroad
acquired no such right, nor any private right whatsoever, in any
part of the adjoining waterway, and that the state is free either
to use this portion of East Waterway directly for purposes of
navigation, as the present fairway is used, or to use it as a part
of the harbor, and that, since it is also the proprietor of the
tideland under this water area, it has the full right to develop
it, or authorize its development by others, through the erection of
Page 255 U. S. 63
piers, docks or other structures in aid of navigation and
commerce, and to charge a rental for the privilege.
The right of the United States in the navigable
waters within the several states is limited to the control thereof
for purposes of navigation. Subject to that right, Washington
became, upon its organization as a state, the owner of the
navigable waters within its boundaries and of the land under the
same. Weber v. Board of Harbor
18 Wall. 57. By § 1 of Article XVII
of its constitution, the state asserted its ownership in the bed
and shore "up to and including the line of ordinary high tide in
waters where the tide ebbs and flows." The extent of the state's
ownership of the land is more accurately defined by the decisions
of the highest court as being the land below high water mark or the
meander line, whichever of these lines is the lower. [Footnote 3
] The character of the state's
ownership in the land and in the waters is the full proprietary
right. The state, being the absolute owner of the tidelands and of
the waters over them, is free in conveying tidelands either to
grant with them right in the adjoining water area or to completely
withhold all such rights. Whether a conveyance made by the state of
land abutting upon navigable water does confer upon the grantee any
right or interest in those waters or in the land under the same is
a matter wholly of local law. Shively v. Bowlby,
152 U. S. 1
such questions, the provisions of the Constitution and statutes of
the state and the decisions of its highest court are accepted by us
as conclusive. St. Anthony Falls Water Power Co. v. St. Paul
Commissioners, 168 U. S. 349
precise question presented here is whether the
Page 255 U. S. 64
state, by executing the deed of the land, which in fact adjoined
East Waterway, conveyed rights in that waterway. That question is,
in essence, one of construction of the deed taken in connection
with the plat therein referred to.
Under the law of Washington (which differs in
this respect from the law generally prevailing elsewhere), a
conveyance by the state of uplands abutting upon a natural
navigable waterway grants no right of any kind either in land below
high water mark, Eisenbach v. Hatfield,
2 Wash. 236, or
in, to, or over the water, Van Siclen v. Muir,
38, 41, except the limited preferential right conferred by statute
upon the owner of the upland to purchase the shoreland if the state
concludes to sell the same. Act of March 26, 1890, § 11 and 12,
Laws of Washington 1889-1890, p. 435. The grantee of the upland
cannot complain of another who erects a structure below high water
mark, Muir v. Johnson,
49 Wash. 66. He does not acquire
any right of access over the intervening land and water area to the
navigable channel, Lowsdale v. Grays Harbor Boom Co.,
Wash. 542, 550, 551. So complete is the absence of riparian or
littoral rights that the state may, subject to the superior rights
of the United States, wholly divert a navigable stream, sell the
river bed, and yet have impaired in so doing no right of the upland
owners whose land is thereby separated from all contact with the
water. Newell v. Loeb,
77 Wash. 182, 193-194; Hill v.
86 Wash. 227, 228. [Footnote 4
Page 255 U. S. 65
The railroad admits that such are the rights of
a grantee from the state, where it is the upland which is conveyed.
But it contends that a different rule applies where the sale is of
tidelands. No basis for the distinction can be found either in the
decisions of the highest court of the state or in reason. Since the
upland owner has been denied riparian rights in deference to the
asserted right of the state to control unhampered the course and
development of navigable waters, the state's right must be superior
also to the claim of the tideland owner. For the assertion of title
in the state was obviously made in order that it might not be
hampered in developing waterways and harbors in the manner and to
the extent that the public interest should from time to time
demand. Such development obviously includes harbor facilities like
piers, docks and wharves, as well as adequate channels. Compare
State v. Bridges,
87 Wash. 260. The proprietary right of the
state over navigable waters and of the soil thereunder is neither
exhausted nor impaired by making a sale of a tract of tideland, be
it the parcel nearest the upland or some other. The state may in
one year fill and sell the 100 feet of tidelands nearest the
upland, and in the next year fill and sell the parcel beyond.
Page 255 U. S. 66
Compare State v. Scott,
89 Wash. 63, 70, 72. Or it may
sell first the parcel more remote from the upland, and later the
one immediately adjoining it, or any other. In every case, it may,
in conveying the tideland, either grant or withhold rights in the
water or in the water area, as it sees fit. When land washed by the
ebb and flow of the tide is conveyed by the state with clearly
defined boundaries, no rights of any kind beyond those boundaries
ordinarily pass under the deed. Pearl Oyster Co. v.
57 Wash. 533. Where a tideland owner acquires rights
of access to deep water, it is by arrangement with the owner of the
intervening land. Compare Pioneer Sand & Gravel Co. v.
Seattle Construction & Dry Dock Co.,
102 Wash. 608.
The cases most strongly relied upon by the railroad do not
relate to tidelands. They deal with the rights of shoreland owners
on an inland lake, the level of which had been lowered by the
government. State v. Sturtevant,
76 Wash. 158; Puget
Mill Co. v. State,
93 Wash. 128. Shorelands differ from
tidelands not only in their situation, which in many cases makes an
almost indefinite filling in of the latter a possibility, but also
in legal definition. Tidelands have a definite boundary at the line
of mean low tide, or, by later legislation, of extreme low tide.
State v. Scott, supra,
89 Wash. 68, 69. The shorelands, on
the other hand, were those "below the line of ordinary high water,
and not subject to tidal flow." They had no defined outer boundary.
Accordingly, when the waters of the lake there in question were
lowered, it became necessary to determine the ownership both of the
lands exposed and those below the new line of ordinary high water.
The court held that the outer boundary of the shoreland was the
line of navigability, and that grantees were entitled to follow
that line out when it was moved by act of their grantor. The
considerations which brought the court to this result were, it is
true, largely the
Page 255 U. S. 67
same which in other jurisdictions led to the recognition of
riparian rights -- that is, the claim of the shoreland owner to
access to deep water. But the court did not secure this interest to
the shoreland owner by granting him extraterritorial rights --
riparian or littoral rights. It did so by construing
the outer boundary of his land to be the line of navigability;
holding that, since the legislature had not limited the outer
boundary of shorelands, as it had done in the case of tidelands, it
must have intended that the shorelands granted should extend to the
line of navigable water, in the absence of legislation to the
contrary. Compare Bilger v. State,
63 Wash. 457. The
legislature confirmed this boundary, expressly restricting it to
the lands to which the court had applied it -- that is, shorelands
not within city limits. This doctrine can have no application to
shorelands where the property line is fixed in the deed. And it
cannot apply to tidelands, the dissimilarity of which to shorelands
furnished the ground for enunciating the rule.
It appears, therefore, that the law of Washington does not
recognize, as appurtenant to upland, tideland, or shoreland in its
natural condition, rights of any sort beyond the boundaries of the
property. A right of access to the navigable channel over
intervening land, above or below low water, must arise from a grant
by the owner of the intervening property.
The railroad contends that a different rule
should be applied here, where we are dealing with made land
abutting on an artificial waterway. East Waterway is not properly
described as such. It is a natural waterway deepened and confined.
Compare Fox River Flour & Paper Co. v. Kelley,
287, 800. And obviously the mere fact that tideland conveyed has
been filled would not, by the law of Washington, confer upon the
grantee, as appurtenant to the land, riparian rights in adjoining
navigable waters. But the railroad insists
Page 255 U. S. 68
that, even if the right of access to the navigable channel is
not appurtenant to its land as a matter of riparian law, its
predecessor in title received the right by implied grant from the
state. The right, it says, "depends in the last analysis upon a
proper construction of the grant by the state of the abutting lots"
in the light of all the circumstances. Among the most important of
those is the fact that the whole development project was an
artificial creation. Land, it is urged, was artificially made up to
a bulkhead. At some distance beyond, a navigable channel was
artificially created out of an unnavigable stream. Between the
bulkhead and the channel are shoals which prevent full use of
waterside lots in connection with navigation unless wharves are
erected. When the original grant was made, no provision in the law
authorized leasing these shoals for docking purposes, but, on the
contrary, the whole waterway was reserved by the statute forever
from sale or lease. And, finally, the plat, by reference to which
all lots were sold, showed a pierhead line at the point of
navigable water. This situation, it is urged, indicates that the
lots were sold as part of a completed project, that it was intended
they should have full shipping facilities, and that, since the
state could not lease the shoals under then existing legislation,
it must have been the intention that abutting owners should have
the right of access to the pierhead line. This argument of the
railroad rests, however, upon an assumption which is at least open
to serious doubt. It asserts that, under then-existing legislation,
no state official was authorized to permit the grantee to construct
a wharf in East Waterway. By the constitution (Article XV, § 1) and
by Act of March 28, 1890, p. 239, provision had been made for the
establishment of harbor lines in navigable waters. It appears from
Wilson v. Oregon-Washington Railroad & Navigation Co.,
71 Wash. 102, 107, to have been the practice to permit parts of
Page 255 U. S. 69
harbor area so created to be used for the erection of piers and
wharves. East Waterway was and is one of the navigable waters of
the state. Our attention has not been called to any statute or
decision which indicates that, at the time of the original grant,
power to create harbor areas in it and to grant permits to erect
wharves therein would not have been possessed by the harbor
Even if the assumptions upon which the arguments rest were all
true, the conclusion contended for would not follow. Ever since the
organization of the state, it has been the clearly defined policy
of Washington not to grant riparian rights in navigable waters.
This policy, declared in its constitution and expressed in careful
legislation, has been consistently enforced by its courts. A grant
by implication of the riparian right here asserted might perhaps be
inferred in other jurisdictions from the circumstances stated. But
in Washington such an implication seems wholly inadmissible. If, in
the development in question, it had been the intention of the state
to make such a radical departure as that for which the railroad
contends, the intention would doubtless have been expressed by
appropriate language in the deed. But East Waterway was not even
mentioned in it. Until we are so informed by the Supreme Court of
Washington, we cannot, in the light of the waterway history of the
state, believe that there were implications in the situation
described which, without more, are sufficient to indicate an
intention to depart from the settled policy of the state.
So far as the pierhead lines are concerned, the railroad
concedes that their establishment by the United States did not
create as against the state a right to wharf out. They merely fixed
the line beyond which piers might not extend. Compare Wilson v.
Oregon-Washington Railroad & Navigation Co., supra,
107-108. And the power of the United States in this respect was not
Page 255 U. S. 70
its first exercise. Philadelphia Co. v. Stimson,
223 U. S. 605
223 U. S. 638
The lines so fixed, although acted upon by the erection of piers,
could be changed by the United States at any time. Greenleaf
Johnson Lumber Co. v. Garrison, 237 U.
. From the authorities to which we have been
directed, it appears that, under the laws of the state, the
presence of pierhead lines on the plat could have no effect other
than as a publication of action taken by the federal government. In
Puget Mill Co. v. State,
93 Wash. 128, decided in 1916,
the power of state officials to establish such lines is expressly
denied by Judge Chadwick, who said:
"The use of the words 'pierhead line' on the plat prepared by
the state and in the decree is an unfortunate misuse of terms. The
word means nothing under our Constitution and statutes. In some of
the Eastern states, we understand that 'pierhead lines' are
defined, but the constitution makers in this state were careful to
avoid the confusion that may result from the drawing of an
arbitrary line beyond which piers and docks should not be erected,
by providing for an inner and an outer harbor line with an
intervening area subject to state ownership and control."
It is unnecessary, therefore, for us to consider whether, on
this record, it is open to the Port to contend that pierhead lines
were in fact never fixed by any state official.
The Port renews here the objection that the case
was improperly removed from the state court, Germania Insurance
Co. v. Wisconsin, 119 U. S. 473
Postal Telegraph Cable Co. v. Alabama, 155 U.
, insisting that, since the state is the owner of
the bed of East Waterway, it is the real party in interest,
Murray v. Wilson Distilling Co., 213 U.
; Lankford v. Platte Iron Works,
235 U. S. 461
that it has not merely a governmental interest, as in Reagan v.
Farmers' Loan & Trust Co., 154 U.
, 154 U. S. 390
and in Missouri, Kansas &
Page 255 U. S. 71
Railway Co. v. Missouri Railroad & Warehouse
Commissioners, 183 U. S. 53
183 U. S. 60
The objection to the jurisdiction of the district court is clearly
unsound. The Port, being a municipal corporation under the laws of
Washington, is a citizen of that state, and could have been sued in
the federal court. Lincoln County v. Luning, 133 U.
; Chicot County v. Sherwood, 148 U.
. It had both the power and the duty to bring suit
to protect the interests here involved, and it had a direct
financial interest in the result. For c. 168 of the Laws of 1913
provides for a payment by abutting owners, in the nature of a
rental, for the permit to use parts of the waterways in the
erection of wharves, docks, or other structures, and that 75% of
such rental shall be paid to the county "for the use of said Port
district." The Port has thus an independent financial interest in
this controversy, and although the state has also an interest, suit
against the Port would not be prevented by the Eleventh Amendment.
What effect the judgment in this case will have upon the state's
interest we have no occasion to consider. Compare Tindal v.
Wesley, 167 U. S. 204
Hopkins v. Clemson Agricultural College, 221 U.
Reversed, and the cause remanded to the district court for
further proceedings in conformity with this opinion.
C. 92 of the Laws of 1911, p. 412, as amended by Laws of 1913,
c. 62, p. 202. It has power, among other things, to improve
navigable and nonnavigable waters of the United States and of the
state within the port district;
"to create and improve for harbor purposes new waterways within
the port district; to regulate and control all such water . . .
within the limits of such port district so far and to the full
extent that this state can and hereby does grant the same, and
remove obstructions therefrom; to straighten, widen, deepen and
otherwise improve any and all waters, . . . to execute leases of
all lands, wharves, docks and property owned and controlled by said
port district upon such terms as to the commission may deem
It exercises also powers similar to those exercised by counties
including the power to sue and be sued. State v. Bridges,
87 Wash. 260. The state did not transfer to the port districts its
ownership in the beds and shores of navigable waters.
The form of the deed is as follows:
"First party does hereby grant, bargain, sell and convey unto
the second party, and his heirs and assigns, the following
described tidelands of the first class, situated in front of the
City of Seattle, Kings County, Washington, to-wit:"
"Lots one to nine, inclusive, block 393, as shown on the
official map of Seattle Tidelands, filed with the Board of State
Land Commissioners at Olympia, Washington, March 15, 1895."
"Subject, however, to any lien or liens that may arise or be
created in consequence of an act of the legislature of the State of
Washington entitled 'An act prescribing the ways in which waterways
for the uses of navigation may be excavated by private contract,
providing for liens upon tide and shore lands belonging to the
state, granting rights of way across lands belonging to the state,'
approved March 9, 1893."
"Witness the seal of the state affixed."
"Henry McBride, Governor."
See Scurry v. Jones,
4 Wash. 468; Cogswell v.
14 Wash. 1; Washougal & La Camas
Transportation Co. v. Dalles, Portland & Astoria Navigation
27 Wash. 490; Johnson v. Brown,
33 Wash. 588;
Van Siclen v. Muir,
46 Wash. 38, 40; Brace &
Hergert Mill Co. v. State,
49 Wash. 326.
In some states, the shore between the high and the low water
mark belongs to the private owner of the upland, and, as such
owner, he has all rights not inconsistent with the public's rights
incident to navigation. In other states, although the land below
high water mark belongs to the state, the private owner of the
upland has the right of access over it to the navigable channel and
the right to use the state's land in connection therewith.
27 R.C.L., §§ 273-279, 284. But, in Washington, it is
"uniformly held that there is no riparian right in the owners of
lands bordering on the navigable waters of the state," and that the
state retains the proprietary right to the soil below high water
mark. State v. Sturtevant,
76 Wash. 158, 163; Brace
& Hergert Mill Co. v. State,
49 Wash. 326, 331. The
language of some earlier cases apparently in conflict with these
views, was explained in Hulet v. Wishkah Boom Co.,
Wash. 510, 517. The cases referred to go no further than to hold
that the owner of uplands has a right in common with the public to
use the stream for navigation as it flows past his land, and that
others conducting operations upon the river may not willfully or
negligently destroy his upland. Dawson v. McMillan,
Wash. 269; Monroe Mill Co. v. Menzel,
35 Wash. 487;
Burrows v. Grays Harbor Boom Co.,
44 Wash. 630. See
also Judson v. Tidewater Lumber Co.,
51 Wash. 164.