RIGHT To ACCRETIONS - Gonzaga University Law Review

STATE POWER AND THE Loss OFRIGHT To ACCRETIONS

Plaintiff brought an action to quiet title to imperceptible accre-tions' to her ocean-front property, originally acquired through afederal patent prior to statehood. The trial court found that title toto this alluvion' vested in the plaintiff, and that her seaward boundaryis the shifting boundary established by the mean high tide.' Onappeal, the Attorney General contended that the accretions attachedto the state-owned land because the boundary between the plain-tiff's land and the state's tideland was fixed at the line of meanhigh tide on the day Washington became a state, November 11, 1889.Plaintiff conceded ownership to the tide lands in the state up to the lineof mean high tide, but disputed its right to fix the boundary betweenthe tidelands and the upland owner as of that date. Plaintiff furtherargued that the fixed boundary of the state was in derogation of thecommon law and should not apply, and that the rule of accretionwhich is followed by the federal courts, i.e., the shifting boundarytheory, should apply.4 In reversing the trial court's decision, the Wash-ington supreme court held that the dividing line between the state'stidelands and the plaintiff's property was not a shifting boundary,

1 "Accretions or accreted lands are additions to the area of realty from gradual depositby water of solid material, whether mud, sand, or sediment, producing dry land whichbefore was covered by water, along banks of navigable or unnavigable bodies of water."3 AMERICAN LAW OF PROPERTY 855 (Casner ed. 1952); Smith v. Whitney, 105 Mont.523, 74 P.2d 450, 453 (1937). "Technically speaking, land uncovered by a gradual sub-sidence of water is not an accretion but a reliction, but the terms are often used inter-changeably, and law relating to accretions applies in all its features to reliction." Hansonv. Thornton, 91 Ore. 585, 179 Pac. 494 (1919) ; See also 5A THOMPSON, REAL PROPERTY§ 2560 (1957) ; Harper v. Holston, 119 Wash. 436, 205 Pac. 1062 (1922).

2 "Alluvion is a term applied to the thing deposited, while accretion denotes theprocess of increasing real estate by gradual and imperceptible deposition, through theoperation of natural causes, to that already in the possession of the owner . . . any newalluvion that forms above the tide-line becomes a part of the contiguous upland estate."Humble Oil & Refining Co. v. Sun Oil Co., 190 F.2d 191, 196 (5th Cir. 1951).

3 "This is the average elevation of all high tides as observed at a location through acomplete tidal cycle of 18.6 years. This is an unchanging elevation, and the line of meanhigh tide is where that unchanging elevation meets the shore as it exists at any particulartime." United States v. Washington, 294 F.2d 830, 834 (9th Cir. 1961). See Corker, WhereDoes the Beach Begin, and to What Extent is this a Federal Question?, 42 WASH. L. REV.33 (1966) for a thorough treatment of the implications of the terms "ordinary high tide,""mean high tide" and "line of vegetation" as reference points for determining boundariesbetween tidelands and uplands.

4 The federal rule is that imperceptible accretion attaches to the upland when title isderaigned from the federal governmnt. See United States v. Washington, supra note 3.

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but one fixed by the line of mean high tide as it existed in 1889' and,therefore, subsequent accretions belong to state-owned land, not toupland property. Hughes v. State, 67 Wn.2d 799, 410 P.2d 20(1966).

Although there have been rulings on the ownership of accretionsoccurring seaward of upland owners in the superior courts of the state,in which the accretions were awarded to the state on the theory ofa fixed boundary dating back to 1889,6 Hughes is the first case tobring this problem before the Washington supreme court, and themajority opinion follows the superior court holdings in abrogatingthe shifting boundary between the tideland and the upland owner.7

The right to accretion of land bordering on the ocean has beencarried over from the English common law. Blackstone stated thecommon law rule to be:8

And as to lands gained from the sea, either by alluvion, by the wash-ing up of sand and earth, so as in time to make terra firma, or bydereliction, as when the sea shrinks below the usual water mark; inthese cases the law is held to be, that if this gain be by little andlittle, by small and imperceptible degrees, it shall go to the owner ofthe land adjoining.

The English courts reasoned that, because a littoral owner is subjectto loss of his land by erosive action of tidal waters, the land ownershould be compensated by whatever imperceptible accretions mightattach to this property.9

This common law rule of accretion was adopted by the first Ameri-can states and the federal courts.0 In a landmark case decided in

5 The court phrased this holding in somewhat ambiguous language: "The property lineis the line of ordinary high tide, which we equate to mean high tide on that date." (Em-phasis added.) Hughes v. State, 67 Wn.2d 799, 816, 410 P.2d 20, 29 (1966). Quaere: Isthe court referring to the mean high tide or to the high tide?

6 1d. at 810-11, 410 P.2d at 26-27. It appears that the fixed boundary established by theCommissioner of Public Lands has become a "rule of property" based on Washingtonsuperior court decisions.

71d. at 811, 410 P.2d at 26-27.8 2 BLACKSTONE, COMMENTARIES* 261-62, followed in St. Claire County v. Lovingston,

90 U.S. (23 Wall.) 59,63 (1874).9 Id. "For de minimis non curat lex: and, besides, these owners being often losers by

the breaking in of the sea, or at charges to keep it out, this possible gain is therefore areciprocal consideration for such possible charge or loss." 2 BLACKSTONE, COMMENTARIES*262; St. Clair Co. v. Lovingston, supra note 8.

10 "It is the general rule that when nature causes a gradual shift in the line whichseparates riparian land from the abutting water, due either to recission of the water or thedeposit of soil against the margin of the land, there occurs a change in the boundary betweenthe land and the water bed so that the owner of the original water bed has lost title tothat part of it which is now land and the owner of the original body of land has acquiredtitle to the new land thus formed. The doctrine applies not only to land owned by privateparties but to that of the federal government, a state, a county, or municipal corporation."3 AMERICAN LAW OF PROPERTY § 15.27 (1952).

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1893,11 the United States Supreme Court set out the rule that accre-tions belong to the upland owner and that this rule applies to bothfresh and tide waters. The court distinguished this rule from that lawapplicable to the soil lying beneath tide waters in holding that it isbinding on the states as well as private land owners."

When previously confronted with the question of the right to ac-cretion or alluvion the Supreme Court held that "the riparian rightto future alluvion is a vested right. It is an inherent and essentialattribute of the original property." 3 The Ninth Circuit Court ofAppeals has held that: 4

• . . the common law is the source of the tideland title which theUnited States held and which passed to the state of Washington whenit was admitted to the Union. Federal law follows the common lawin determining the measure of title to lands retained by the UnitedStates and the Supreme Court has implicitly so recognized.

Federal courts also adhere to the rule that the boundary betweenupland and tideland is a shifting boundary, 5 and the line of meanhigh tide marks the limit of the state's authority over its tidelandsin a controversy involving the rights of an upland owner. 6

The sole reference to accretions in the Washington statutes re-lates to tidelands and grants to the state the right to reserve titleto accretions to " . .. any tract or tracts of tide or shorelands here-tofore sold or that may hereafter be sold by the state."' 7 In Strand

11 Shively v. Bowlby, 152 U.S. 1 (1893).12d. at 35.13 St. Clair Co. v. Lovingston, supra note 8, at 49.14 United States v. Washington, supra note 3.15 Jefferis v. East Omaha Land Co., 134 U.S. 178 (1890). This rule follows from the

fact that if the boundary is based on a body of water and the point where the water con-tacts the land is subject to change then the boundary is ambulatory.

16 The court in Ghione v. State, 26 Wn.2d 635, 175 P.2d 955 (1946), held that, subjectto federal control for purposes of navigation, Washington became the owner of navigablewaters within its boundaries to the line of ordinary high water at the time of achievingstatehood, and that it could elect to follow the common law rule or establish a different ruleby act of the legislature. This was the rule incorporated into WASH. STATE CONST. art.XVII, § 1. See Barney v. Keokuk, 94 U.S. 324 (1876); Port of Seattle v. Oregon & Wash-ington R. Co., 255 U.S. 58 (1920). Recognition of this rule is noted by the Washingtoncourt in Washougal and LaCamas Transportation Co. v. Dalles, Portland and Astoria Navi-gation Co., 27 Wash. 490, 498, 68 Pac. 74, 77 (1902).

17 WASH. REV. CODE § 79.01.492 (1927) provides that:All tide and shore lands except as herein expressly provided shall be sold uponthe terms provided for the sale of school and granted lands, . . . Provided, thatany accretions that may be added to any tract or tracts of tide or shore landsheretofore sold or that may hereafter be sold by the state shall belong to thestate, and shall not be sold or offered for sale until the said accretions shall havebeen first surveyed and platted under the direction of the commissioner of publiclands, and the adjacent owner shall have the preference right to purchase saidlands for thirty days after the same shall be offered for sale. . ..

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v. State,8 the statute 9 was construed to apply ". . only to instanceswhere the accretion occurs after the state has divested itself oftitle."2 Additional interpretation of the statute was provided in theform of dicta in Ghione v. State,21 when the court explained that:

. . . the statute in its original form is confusing, but the amendmentclearly shows that it does not relate to accretions in the ordinarysense of the term, that is, accretions to uplands, but on the contrary,relates to accretions to tide and shore lands, and therefore accre-tions, by definition, situate below the line of ordinary high tide orordinary high water which marks the boundary between tide orshore land and the adjoining land.

The foundation for the state's claim to the imperceptible accretionscreated along its coastal shoreline is the state constitution, in whichthe state claims title to ". . . the beds and shore of all navigablewaters in the state up to and including the line of ordinary high tide,in waters where the tide ebbs and flows ... 23

The Hughes court also sought support for its decision from statutesfirst enacted in 1901, setting aside as a "public highway" certainareas of shore and beach along the Pacific Ocean for use as publicrecreational area.2

' The court stated that the legislaturerecognized an 'inner boundary of the highway reservations' andauthorized the sale of lands lying inland of this inner boundaryof highway reservation. '25 Thus, the court derived a concept of ashifting boundary seaward in order to maintain use of the beachfor the public, but, at the same time, insisted on a fixed boundarymarked by the line of ordinary high tide as it existed in 1889 be-

18 16 Wn.2d 107, 132 P.2d 1011 (1943).19 REM. REV. STAT. § 7797-123 (1927), now codified as WASH. REV. CODE § 79.01.492

(1927).20Strand v. State, 16 Wn.2d 107, 129-30, 132 P.2d 1011, 1021 (1943). The court held

that the statute has no application because the accretion occurred when the property wasowned by the state. The statute applies, however, when the accretion occurs after thestate divests itself of title.

2126 Wn.2d 635, 175 P.2d 955 (1946).22 Id. at 650, 175 P.2d at 964.

23 WASH. CONST., § 1 (1889).The state of Washington asserts its ownership to the beds and shores of allnavigable waters in the state up to and including the line of ordinary high tide,in waters where the tide ebbs and flows, and up to and including the line ofordinary high, water within the banks of all navigable rivers and lakes: Provided,that this section shall not be construed so as to debar any person from assertinghis claim to vested rights in the courts of the state.

2467 Wn.2d 799, 806, 410 P.2d 20, 24 (1966). See WASH. REV. CODE §§ 79.16.160-170(1901). The purpose of this statute is not to establish a road for automobile traffic but toinsure that the beach is preserved for use of the public.

25 Id. at 808, 410 P.2d at 25.

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tween the upland owner and state owned tideland.6 This was con-strued by the court in the principal case to mean that title to the landbetween the fixed boundary of 1889 and the boundary of the "publichighway" identified by the present line of ordinary high tide isvested in the state and subject to disposition by the commissionerof public lands.27

The court in Hughes found itself hampered by a dearth of Wash-ington cases upon which to base its decision. One case, Eisenbach v.Hatfield2" is cited in the Hughes opinion as standing for the proposi-tion that riparian rights are a matter which each state may determinefor itself. The court emphasized the following language from Eisen-bach: ". . . it necessarily follows that no individual can have anylegal right whatever to claim any easement in, or to impose any servi-tude upon the tidewaters within the limits of the state, without theconsent of the legislature."29 (Court's emphasis.)

A "rationale" from Eisenbach is derived from the above proposi-tion, which leads the court to hold:30

... that which did not exist when Eisenbach was decided-accre-tion seaward of upland property-now exists. We conclude that itsownership is resolved by the rationale of Eisenbach and that accre-tion formed since November 11, 1889 is an addition to state ownedproperty, not to upland property.

The next decisional prop employed was Harbor Line Commissionersv. State,3 but this case, denying a wharf owner any rights in a state-owned land beneath the wharf,32 merely re-affirmed Eisenbach.3 As

26 Id. at 807, 410 P.2d at 24. The court noted that the inland boundary of state ownedtidelands (the 1889 line of ordinary high tide) would not be affected by the shifting ofthe boundaries of the reserved public highway because of accretion. By definition, theseaward boundary of the public highway is extreme low tide and the inland boundary ofthe public highway is ordinary high tide. See note 24, supra.

27 See WASH. REv. CODE § § 79.01.480, 79.01.484, 79.01.488 (1927), which give theCommissioner of Public Lands the power to sell tidelands other than those reserved as"public highway."

28 2 Wash. 236, 26 Pac. 539 (1891).29 Hughes v. State, 67 Wn.2d 799, 813, 410 P.2d 20, 28 (1966).

30 Ibid.312 Wash. 530, 27 Pac. 550 (1891).32 Id. at 535, 27 Pac. at 551. It was held in Harbor Line Commissioners that the only

vested right of the appellant was in the wharf and this right could not be taken from himwithout compensation. The majority in Hughes ignored the holding of this case but insteadinterpreted dicta to support the proposition that the rights of an upland owner to accretionswere terminated in 1889. 67 Wn.2d at 814, 410 P.2d at 28. A careful reading of the firsttwo paragraphs of Harbor Line Commissioners should impress the reader with the factthat the court was merely restating the common law relative to the rights of the sovereignbelow the line of ordinary high tide and was not determining the rights of an upland ownerwhose title was not derived from the state.

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a result of the holding that a littoral owner is prohibited from assertingany rights below the line of ordinary high tide,3' the court in Hughesconcluded that "the state's constitutional assertion of ownership in1889 terminated any right the upland owner may have had to futureaccretion. Thereafter, the possible rights of an upland owner arethose that might be established by the legislature."35

Washougal and LaCamas Transportation Company v. Dalles, Port-land and Astoria Navigation Company36 is cited in Hughes to fortifythe "conclusion" derived from Eisenbach and Harbor Line Com-missioners.37 Washougal held that the state could not claim title toshore land above the high-water mark on navigable rivers such asthe Columbia, as against an upland owner who acquired title fromthe federal government.38 The court in Hughes, finding no support inWashougal, ventured elsewhere in the opinion to find a disclaimerby the state of ownership of shorelands created by erosion "withinthe boundaries of a private claim," and "fills in a river caused byartificial means.9

In Hughes, the plaintiff contended that determination of the boun-dary between the land in controversy and the state's tidelands was afederal question, and that the federal shifting boundary rule wasapplicable. To establish this proposition plaintiff relied on two casesdecided in the federal courts and one in Washington. Borax Consoli-dated, Ltd. v. Los Angeles' held that the boundary between theupland granted by federal patent and the tidelands of a state isdetermined by federal law, but the court in Hughes considered thiscase as not controlling because it ". . . does not involve the ques-

33 Id. at 533, 27 Pac. at 550. The court said that the important questions here are thesame ones discussed in Eisenbach. ". . . [Aind it is only necessary ... to say that theopinion of the court has not been changed by . . . re-examination. . . .[A] littoral owner,• .. can assert no valuable rights below the line of ordinary high tide."

34 Ibid.35 Hughes v. State, 67 Wn.2d 799, 814,410 P.2d 20, 29 (1966).36 27 Wash. 490, 68 Pac. 74 (1902).37 Hughes v. State, supra note 35.38 Respondent contended that the land lying between the meander line and the existing

low water mark of the river was shore land which the state could deed to him. The holdingof the court was that the ". . . title or rights passing under a grant of lands made by theUnited States is a federal question .. " Washougal and LaCamas Transportation Co. v.Dalles, Portland and Astoria Navigation Co., supra note 36, at 496, 67 Pac. at 76.

39 If anything, the rationale of this case is contrary to the position of the court. The courtin Washougal found that no shore lands (analogous to tide lands) existed originally, andthe subsequent formation of land at this point caused by erosion and debris caught inpiling from a wharf may not be claimed by the state and deeded to its grantee. Washougaland LeCamas Transportation Co. v. Dalles, Portland and Astoria Navigation Co., supranote 36, at 499, 68 Pac. at 77.

40 296 U.S. 10, 22 (1935).

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tion of accretion.""1 The most recent case, United States v. Washing-ton,42 held that "imperceptible accretions go with the uplands when-ever title to the uplands is derived from the United States."'3 Thisdecision was considered in Hughes as not applicable to questions ofproperty rights between the state and its citizens."' Further, Ghione v.State' was also held not controlling because, "the case does not involvetidelands."" In jettisoning these three cases the court simply said theywere not "apposite."47

It is difficult to follow the court's reasoning to the conclusion thatthe right of imperceptible accretion should be denied to citizens ofWashington. This position appears untenable because no statute orconstitutional provisions clearly point to the state's right to accre-tions forming seaward of upland, except to tidelands heretofore soldor hereafter sold by the state.4 The problem of title to accretionsformed where title to the upland was not derived from the state wasnot given a thorough analysis by the court, but was bypassed with thecomment that the statute'9 would not be construed as a waiver of thestate's interest in tidelands.'0 The majority opinion does not cite any

41 67 Wn.2d at 815, 410 P.2d at 29. However, as the dissenting opinion points out, Boraxheld that even though no accretions were involved, "when a federal patent is involved, theboundary between upland and tideland is necessarily a federal question." Hughes v. State,supra at 816.

The Ninth Circuit Court of Appeals stated in United States v. Washington, 294 F.2d830, 832 (9th Cir. 1961) that:

If the upland owner is entitled to the imperceptible accretions it is because thisis an attribute of title reserved to or obtained by grant from the government.Thus the determination of the attributes of an underlying federal title, quite asmuch as the determination of the boundaries of the land reserved or acquiredunder such a title, 'involves the ascertainment of the essential basis of a rightasserted under federal law.'

42 294 F.2d 830 (9th Cir. 1961).43 Id. at 832. The court further stated at 833-34 that:

None of the cases relied on by the State detract from the principle announcedin Borax Consolidated Ltd. v. City of Los Angeles which in our opinion requiresthat the question of whether imperceptible accretions go with the upland be de-termined in accordance with federal law when title to the uplands is in orderived from the federal government.

44 67 Wn.2d 799, 816, 410 P.2d 20, 29 (1966).45 26 Wn.2d 635, 175 P.2d 955 (1946).46 Hughes v. State, supra note 44, at 816, 410 P.2d at 29.47 Supra note 44, at 815, 410 P.2d at 29.48 WASH. REV. CODE § 79.01.492 (1927). Although the court admits that the meaning of

the statute is clear, it is not willing to concede that there was legislative recognition of therights claimed by upland owners who acquired their land by patent prior to statehood. Themajority of the court states: "It is more logical to conclude that this is a legislative recog-nition of the state's claim to all accretion after 1889 whether the tidelands be sold or not."Hughes v. State, note 44 supra, at 806, 410 P.2d at 24.49 WASH. REV. CODE § 79.01.492 (1927). For text of statute see note 17 supra.50 Hughes v. State, 67 Wn.2d 799, 806, 410 P.2d 20, 24 (1966). The court said that the

accretion belongs to the state, but until tidelands have been sold, the statute does not

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authority from other jurisdictions, exceptions to the common law orfederal decisions in support of its unique theory. The rationale forthis unusual concept of a fixed boundary between tidelands and up-lands is based on a strained interpretation of prior Washington cases,"'none of which deal with the subject of accretions attaching to landsnot sold by the state (e.g., federal patents). The decision is furtherweakened when the court draws rather dubious support from unre-ported cases of the superior courts of this state, which favor stateownership of accretions attaching to land not previously sold by thestate.

Another weakness becomes apparent when the court in Hughes con-cedes that the plaintiff acquired her title to ocean front property".. . from a patent issued prior to statehood""3 by the federalgovernment. No serious effort is made to resolve the conflict betweenFederal law and the holding of the Washington court regarding theownership of accretions.5 4 The historical resume' included in the opin-ion indicates that the legislature has given some thought to public andprivate ownership of tidelands, but only one statute has been en-acted" dealing with the disposition of imperceptible accretions, andapplication of that statute is limited to state-owned tidelands. 6

Eisenbach does not support the court's position in the principal

purport to determine the ownership of the accretion. Accord, Strand v. State, 16 Wn.2d107, 132 P.2d 1011 (1943). The court also said that an interpretation of the statutoryprovisions indicated a legislative intent to claim accretion for the state under these limitedcircumstances. Further, since it is more logical to conclude that the legislature has recog-nized that after 1889 the state claims all accretion whether the tidelands be sold or not.The statute does not waive the state's interest in the tidelands in any way.

st Eisenbach v. Hatfield, 2 Wash. 236, 26 Pac. 539 (1891) ; Harbor Line Commissionersv. State, 2 Wash. 530, 27 Pac. 550 (1891) ; Washougal and LaCamas Transportation Co.v. Dalles, Portland and Astoria Navigation Co., 27 Wash. 490, 68 Pac. 74 (1902) ; Strandv. State, 16 Wn.2d 107, 132 P.2d 1011 (1943) ; Ghione v. State, 26 Wn.2d 635, 175 P.2d955 (1946). The lack of support for the rationale of Hughes from Washington's ownsupreme court decisions has placed the court in the position of legislating rather than ad-judicating. It is likely that the court felt an obligation to support the decisions of theCommissioner of Public Lands regarding a fixed boundary between tidelands and uplands.

52 Inferior decisions are rarely, if ever, considered as precedent for the opinion of acourt of last resort. See Bryan v. W. T. Smith Lumber Co., 278 Ala. 538, 179 So.2d 287(1965) ; State Bd. of Equalization v. Courtesy Motors Inc., 362 P.2d 134 (Wyo. 1961) ;Jackson v. Carroll, 86 Okla. 230, 207 Pac. 735 (1922); 20 AM. JuR. 2d., Courts § 201(1965) ; 21 C.J.S., Courts § 216 (1940). How can lawyers and judges know the law if it isnot reported? Isn't this like Caligula's laws so high on the temple wall that no one couldread them?

53 Hughes v. State, supra note 50, at 801, 410 P.2d at 21.54 This conclusion is drawn from the failure of the court to distinguish Borax Consoli-

dated, Ltd. v. Los Angeles, supra note 40; Ghione v. State, supra note 45; and UnitedStates v. Washington, supra note 42. These cases warranted something more than a cur-sory dismissal with the comment that they are not in point.55 WASH. REV. CODE § 79.01.492 (1927).56 Hughes v. State, supra note 50, at 806, 410 P.2d at 24.

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case because that case did not determine that an upland owner's rightto accretion is a property right over which the state has any control. 7

The "rationale of Eisenbach" becomes unclear when it is under-stood that Eisenbach merely held that an upland owner does nothave a vested right to wharf out over state-owned property belowthe line of ordinary high tide.5" There is quite a distinction betweenthe holding in Eisenbach and the proposition that the "high watermark" should be frozen for all time. The court is indicating that ifone cannot have an easement in the state's tidelands below the lineof ordinary high tide, the upland owner has no right to accretion.This would be a complete non sequitur. Nowhere has it been heldthat, in order for an upland owner to assert title to imperceptible ac-cretions forming adjacent to his property, he must first have aneasement below the line of ordinary high water or below the highwater mark in the property that was accreted.

The "rationale of Eisenbach" the court has reference to 9 may beextracted from the language in Eisenbach regarding present vestedrights. If so, the "rationale" is based on (1) dictum, and (2) ambigu-ous dictum at that, since Eisenbach may be saying: he has no rightto accretions now, because there are no accretions; we will decidethe upland owner's right to accretion when the proper occasion arises.Because the court in Eisenbach specifically declined to determinewhether the right to future accretions is the vested right of an uplandowner, the validity of the "rationale" leaves the Hughes opinion opento question.60

57 2 Wash. 236, 244-46, 26 Pac. 539, 541 (1891).58 In Eisenbach, supra note 51, the respondent contended that his riparian rights included

the right to wharf out to navigable water, the right to ferriage, the right to unobstructedaccess to navigable water and the right to future accretions. The court, relying on the factthat title to tidelands is undisputedly in the state, answered these contentions by sayingthat, although the right to wharf out was available under an act of the territorial legislature,the constitution and subsequent laws abrogated the earlier territorial license.

59 Hughes v. State, 67 Wn.2d 799, 812-13, 410 P.2d 20, 28 (1966).60 The specific passage concerned in Eisenbach, supra note 51, is found at p. 250:

But appellee claims that he has a vested right to future accretions to his land, andcites as authority to sustain his position the case of County of St. Clair v. Lovings-ton, 23 Wall. 46. And the court in that case does say that the riparian right offuture accretions is a vested right. But we are unable to see how one can have apresent vested right to that which does not exist, and which may never have anexistence. (Emphasis added.) It seems to us that the more reasonable doctrine isannounced in the case of Taylor v. Underhill, 40 Cal. 471, in which the court says:

The plaintiff, as a riparian owner, has also a right to accretions to his land,and it is said the claim of defendant will be a cloud upon his title to suchaccretions. But, as yet, there is no such property, and there may never be.He cannot ask the court to interfere in advance, and prevent a cloud beingcast upon his title to that which may never have an existence. (Emphasisadded.)

Without regard to what the passage says that the right to future accretions is not a presentvested right, the court in Hughes construes it to mean there is no vested right inthe upland owner to accretions to his land that now exist.

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Furthermore, no firmer footing is established for the "rationale ofEisenbach" by the court's reliance on Harbor Line Commissionersv. State,61 to support the uncontroverted assertion that a littoral ownerhas no rights below the line of ordinary high tide. The difficultyarising from the use of this case to support the holding that an uplandowner has no rights to accretion, is that Harbor Line Commissionersstands for the proposition that a wharf owner, whose wharf, builtprior to statehood, and extending out over tidelands owned by thestate, possessed only vested rights in the structure and no rights inthe tideland beneath." Accretion is not at issue in that case and noprinciples are enunciated applicable to a controversy over rights toaccretions. Disregarding the lack of substantive law to support itsreasoning, the court in Hughes concludes that ". . . the state's con-stitutional assertion of ownership in 1889 terminated any rightsthe upland owner may have had to future accretion. '

The "conclusion" that the state constitution terminated the rightsof upland owners to future accretion is allegedly supported by Wash-ougal,, but Washougal holds that the state's boundary along theColumbia River between the shore and the property of an uplandowner is the high water mark and not the meander line establishedinland by the federal government surveyors. The court in Hughesextracted from the Washougal decision the statement that "it can-not be that shore lands created by the erosion of the banks of astream within the boundaries of a private claim inure to the benefitof the state; nor can the state claim, as shorelands, fills in a rivercaused by artificial means."6 The relevance of this reference toerosion and artificial accretion to the issue of imperceptible accre-tions attaching to uplands bordering on the ocean is unclear. In thefinal analysis, it appears that Washougal66 contains nothing to sup-

61 2 Wash. 530, 27 Pac. 550 (1891).62 The court in Harbor Line, supra note 61 held that:

the riparian proprietor, as we have seen, has no interest in the land, but simply inthe wharf on the land; and, this being so, it cannot be said that simply includingthe land under the wharf within the harbor lines is such a taking or damaging ofthe wharf as will entitle the owner to compensation. Id. at 535, 27 Pac. at 550.

63 To arrive at the court's "conclusion" that a fixed boundary resulted from the consti-tutional assertion of state "ownership to the beds and shores of all navigable waters in thestate up to and including the line of ordinary high tide, in waters where the tide ebbsand flows, . . .", it seems almost necessary to find that the writers of the constitution wereunfamiliar with, the fact that accretion, reliction and erosion effect changes in the boundarybetween upland and tideland. There was no indication in Ghione, supra note 45, or in anycases prior to it that a fixed boundary was contemplated by the legislature or courtsbetween tidelands and uplands.

64 27 Wash. 490, 68 Pac. 74 (1902).65 Supra note 59, at 810, 410 P.2d at 26.66 Supra note 51.

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port the majority's ruling that accretions attaching to upland since1889 should vest title in the state of Washington."7

The real issues, although given cursory consideration by the ma-jority, are asserted in Judge Hill's dissenting opinion. He points outthat (1) ". . . when a federal patent is involved, the boundary be-tween upland and tideland is necessarily a federal question"; (2)under federal law "... imperceptible accretions go with the up-lands whenever title to the uplands is derived from the United States";(3) "federal law being applicable, the 'shifting boundary theory'applies";6 and (4) a previous decision of the Washington supremecourt adopted the shifting boundary theory to vest title to accretionsin upland owners." The real significance of Hughes is that it hasbrought the state of Washington into direct conflict with the UnitedStates government's present ownership of approximately two hundredand fifteen miles of land bordering on the Pacific Ocean within thestate. 70

If Washington is permitted to assert ownership of accretions formedsince 1889, it follows that individual owners of land purchased fromthe federal government have no right to accretions, whether the landwas purchased prior to 1889 or is purchased any time in the future."It is extremely unlikely that the federal government will permit astate to place such restrictions on a federal patent, as federal law

67 If the holding of Washougal, supra note 51 relates to the "conclusion" that an uplandowner loses his rights to accretion after 1889, the mystery deepens. Washougal would seemto contribute even less support to the Hughes decision and the question of ownership ofaccretions than WVaterfront Commissioners, supra note 61, or Eisenbach, supra note 57.

68 Hughes v. State, 67 Wn.2d 799, 817, 410 P.2d 20, 30 (1966).69 Ghione v. State, 26 Wn.2d 635, 175 P.2d 955 (1946).70 Memorandum for the United States as amicus curiae, Stella Hughes, Petitioner v.

State of Washington, p. 3 (no. 339 October Term 1966). The Department of the Interioris the source of information that federal ownership along the Washington coast extendsto approximately "93 miles in the custody of the Bureau of Sport Fisheries and Wildlife;some 50 miles in the custody of the National Park Service; and some 72 miles supervisedby the Bureau of Indian Affairs. The additional 72 miles of coastline are presently beingacquired for the National Park Service."

71 Id. at pp. 5-6, where it is stated:Indeed, the courts of Washington might well hold that all accretion occurringsince the attainment of statehood in 1889 reverts to the State when the federalgovernment relinquishes its title. But even if that extreme position were not taken,the asserted inability of the federal government to convey to its wards an im-portant attribute of the title it now holds in trust for them-namely the right tofuture accretions--would seriously inhibit the furtherance of the government'sIndian program through the disposition of land. While the problem thus raisedwith respect to Indian lands is exemplary, it is also clear that the decision belowrestrains the government from disposing of the full measure of its title in connec-tion with any program or policy which it may wish to pursue in the future. In sum,we do not believe that it can be said here, as it could in Walls v. Pan AmericanPetroleum Corp., 384 U.S. 63, 68, 'that there is no significant threat to any identi-fiable federal policy or interest.'72 Supra note 70.

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holds that the right to accretions is a valuable property right of theupland owner and he may not be divested of this right without justcompensation. The due process provisions of the Fifth and FourteenthAmendments of the U. S. Constitution are applicable, and favor thefederal patentee because property may not be taken without dueprocess of law.73

The court studiously avoided resolving the questions raised byplaintiff concerning her rights under federal law to imperceptible ac-cretions flowing from the grant of a federal patent prior to state-hood. Although mentioned in the opinion, the court gave no seriousconsideration to the guidelines set out in United States v. Washing-ton,74 which held that federal law is controlling when title to the up-lands is derived from the federal government. If thought were givento the federal questions presented by the plaintiff, the court musthave felt the safest course was to avoid meeting the issues head on.This attitude is understandable, because the weight of the commonlaw and federal law is heavily set against denial of the well estab-lished property right of an upland property owner to accretionsattaching to his land."

It remains to be considered whether the holding in Hughes couldbe extended to deny property owners on navigable lakes and streamsthe right to accretions formed since 1889.76 Although the court inHughes pointed out that Ghione77 did not involve tidelands, the im-portance of Ghione is that the contention of the state that it is en-titled to all lands under navigable waters in 1889, whether or notpresently covered by such waters, is the same argument asserted inHughes. In Ghione, the Attorney General alleged that "the state has

73 U, S. CONST. amend. V provides in part as follows: "... nor shall any person ...be deprived of life, liberty or property, without due process of law; nor shall privateproperty be taken for public use without just compensation."

U. S. CONST. amend. XIV provides in part as follows: ". . . nor shall any state depriveany person of life, liberty, or property, without due process of law; nor deny to any personwithin its jurisdiction the equal protection of the laws."

74 294 F.2d 830 (9th Cir. 1961).75 Jones v. Johnson, 18 How. 150, 155 (1855) ; County of St. Clair v. Lovingston, 90 U.S.

(23 Wall.) 46, 68 (1874) ; Shively v. Bowlby, 152 U.S. 1, 34, 40 (1893).76 The rights of a riparian or littoral owner to accretions has been recognized in Wash-

ington where tidelands are not involved. See Harper v. Holston, 119 Wash. 436, 205 Pac.1062 (1922) ; Glenn v. Wagner, 199 Wash. 160, 90 P.2d 734 (1939) ; Hirt v. Entus, 37Wn.2d 418, 224 P.2d 620 (1950) ; Ghione v. State, 26 Wn.2d 635, 175 P.2d 955 (1946). Thecourt in Hughes does not clearly hold that there is a distinction between the rule of ac-cretion applicable to littoral and riparian upland owners when it says that Ghione is notapposite because it "does not involve tidelands." Does this mean that the rule of accretionapplicable to upland bordering on navigable waters of a river or lake is not the same rulethat is applicable to upland bordering on tide waters?

77 26 Wn.2d 635, 175 P.2d 955 (1946).

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title to lands which lay within the lines of ordinary high water ofnavigable streams in 1889, even though, by imperceptible accre-tions or relictions, such lands have since come above the line of or-dinary high water and have ceased to be a part of the river bed."78

This allegation was rejected by the court in Ghione because it wascontrary to the universally accepted theory of a shifting boundaryand because the Washington state constitution did not indicate thatthe state of Washington had adopted a contrary theory. The Ghionecourt made no distinction between fresh and salt water. No argu-ments presented in Hughes overcome the rationale of the opinion inGhione.

The impression left by the Hughes decision is succinctly expressedby Judge Hill, in dissent, where he states, "I find myself lost in ad-miration at the scholarship and erudition manifested in the majorityopinion. However, all the legal signposts that I can read and under-stand point in the opposite direction, so I am compelled to dissent.' 9

(Court's emphasis.)GEORGE E. SMALL

78 Id. at 644, 175 P.2d at 961.79 67 Wn.2d 799, 816, 410 P.2d 20, 30 (1966).

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