(dissenting) — It seems to me the majority opinion assumes the very question in controversy in this case. It assumes that the United States granted, or. attempted to grant, this eleven acres below ordinary high tide, covered and uncovered by the flow and ebb of the tide, to the northern Pacific Railroad Company, by the act of July 2, 1864, and then concludes that this grant was confirmed by § 2 of art. II of the state constitution, which provides as follows:
“The state of Washington disclaims all title in and claim to all tide, swamp, and overflowed lands patented by the United States: Provided, the same is not impeached for fraud.”
In my opinion, the assumption on which the majority bases its conclusion has no foundation in law or in fact. The defendant contends that Congress could not make a valid grant of tide lands within the territory of Washington, as the United States held such lands in trust for the future, stata The plaintiffs contend the contrary. I do not think that that quesion is involved in this case. If any proposi*372tion is settled by the decisions of the federal courts, it is this, that general grants of land, such as the homestead laws, the pre-emption laws, the donation acts, the grant to the Northern Pacific Railroad Company, and all similar acts and grants, do not-extend to or include tide lands. In Mann v. Tacoma Land Co., 153 U. S. 273, 14 Sup. Ct. 820, 38 L. Ed. 714, Justice Brewer, in delivering the opinion of the court, said:
“It is settled that the general legislation of Congress in respect to public lands does not extend to tide lands.”
The grant to the Northern Pacific Railroad Company stopped at ordinary high tide on Puget Sound. There is no more pretense for claiming that it extended beyond this than there would be for claiming that it extended beyond the forty-mile limit. The only effect of the extension of the public surveys, the filing of the map of definite location, and the construction of the road, was to locate the grant. It will scarcely be contended that the ministerial officers of the United States, in erroneously extending the public surveys below ordinary high tide, carried land grants with them. Had the plaintiffs in this action no other right or title than that conferred by the act of July 2, 1864, and were they relying upon such title alone, I have little doubt that a showing that the land was below ordinary high tide, and was therefore not included within the grant, would be a full and complete defense to the action.
Was the claim of plaintiffs, or their predecessor in interest, confirmed by the constitutional provision above quoted? I cannot believe that it was. In Mann v. Tacoma Land Co., supra, the court said that the state “excluded from its claim of title lands which the government had, in the due administration of its land department, disposed of by a patent.” Let us look for a moment at the conditions which confronted the framers of the constitution. The state-to-be asserted “its ownership to the beds and shores of all navigable *373waters in the state np to and including the line of ordinary high tide, in waters where the tide ebbs and flows, and up to and including the line of ordinary high' water within the banks of all navigable rivers and lakes.” Art. 17, § 1, State Const. Within the knowledge of the framers of that instrument, patents had already issued for portions of these tide lands, and, in justice to these patentees, the next section® disclaimed all title in, and claim to, all tide, swamp, and overflowed lands patented by the United States. The disclaimer only extended to such tide lands as had already been patented. It cannot be maintained that the state commissioned the general government to patent tide lands in the future, and I do not understand that the majority so hold. As heretofore stated, the general land laws and general land grants do not extend to or include tide lands. Therefore^ all existing patents issued under the general land laws for tide lands were issued without authority of law, and were void. This constitutional provision was, in effect, a grant of these lands from the state, and this court so held in Scurry v. Jones, 4 Wash. 468, 30 Pac. 726. As a grant from a sovereign state, it should be strictly construed. Nothing passed by implication or by intendment. A constitution is framed with much greater care and deliberation than an ordinary statute, and greater effect is always given to the language used in the former. If I concede that the disclaimer should not be confined to lands patented — which I do not — it should not be extended beyond lands which were the eqnivalent of patented, at most, and these lands were not. The addition of the proviso, “Provided the same is not impeached for fraud,” affords conclusive evidence, to my mind, that the framers of the constitution had in mind the claims of individuals patented under the general land laws in due course of administration, and not cases like the present; for how could a grant by Congress be impeached for fraud?
let us confront the constitutional convention with the facts *374in. this case as they stood at the time of its deliberations. The Northern Pacific Railroad Company had no legal or moral claim to this land, it was not within its grant, and no patent had issued. The utmost that could be claimed was that the public surveys had been inadvertently or erroneously extended below ordinary high tide; for, as said by the court in Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224:
“The United States has wisely abstained from extending (if it could extend) its surveys and grants beyond the limits of high water.”
Would the convention have confirmed the title of the railroad company to this land, and to all lands similarly situated under such circumstances? I can conceive of but one answer to this question, and that answer is not found in the majority opinion. It seems to me that the decision of the supreme court of the United States in Mann v. Tacoma Land Co., supra, if followed, disposes of every question involved in this appeal. The plaintiff in error in that case, prior to the adoption of the state constitution, had selected and scripped certain tide lands in Elliott bay, and the selection had been approved by the local land office. He had received a certificate from the local land office, certifying-that he was entitled to a patent for the land selected as soon as the lands were surveyed by the general government. It was contended in his behalf that his title was confirmed by the constitutional provision relied on by the plaintiffs in this case. In answer to that contention, the supreme court of the United States said:
“Reliance is also placed on art. 17, § 2, of the constitution of the state of Washington, which reads: 'The state of Washington disclaims all title in and claim to all tide, swamp, and overflowed lands patented by the United States: provided, the same is not impeached for fraud.’ In respect to this it is enough to say that these lands were not patented. It is doubtless true, as said by this court in Stark v. Starrs, *3756 Wall. 402, 418, that the ‘right to a patent once vested, is treated by the government when dealing with the public lands, as equivalent to a patent issued.’ But here there was no right to a patent. The entry in the local land office, and the receipt issued by the local land officers, were unauthorized acts, and gave no right to a patent; and it cannot be supposed that the state of Washington, when it excluded from its claim of title lands which-the government had in the due administration of its land department disposed of by a patent, meant thereby to exclude every tract for which a local land officer might wrongfully issue a receiver’s receipt.”
To this we might well add, “nor to exclude every tract over which the ministerial officers of tire government had wrongfully extended the public surveys.”
The above decision also disposes of what is said in the majority opinion about the doctrine of relation. In conclusion, the opinion of the majority rests upon the following statement contained therein:
“The railroad became entitled, in 1884, to whatever patent the government could, under its grant, issue to these lands. It was at that time entitled to, and was the owner of, every property interest in said land which the United States government could, by virtue of said grant, convey. It was such owner and so entitled by reason of having fully complied with the conditions subsequent of the grant, the statute construing a grant in praesenti, with conditions subsequent.”
What I have said sufficiently shows that this declaration is entirely inconsistent with the decisions of the supreme court of the United States. The Northern Pacific Railroad Company acquired no interest whatever in this land in 1884, or prior thereto, or at any time, until a patent was wrongfully issued years after the adoption of the state constitution.
For these reasons I dissent from the majority opinion.
Mount, C. J., and Fullerton, J., concur with Rudkin, J.