On Petition eoe Rehearing.
[En Banc. October 15, 1909.]
Per Curiam.A petition for a rehearing has been filed in this case, in which it is urgently and earnestly contended that *96respondents’ right to claim the value of their property, considered as a boom site or as valuable for other commercial purposes, is a Federal question, and should be so treated by this court. Respondents are of opinion, that the decision of this court results in a talcing of their property without due process of law; that their property is taken without just compensation, and that they are denied the equal protection of the laws, all of which is in violation of the rights guaranteed to the citizen under the constitution of the state of Washington, the Federal constitution, and the fourteenth amendment thereto. From this premise, the question of what is the proper measure of damages is re-argued.
If respondents were the owners of the tide land occupied by appellant, the authorities cited would unquestionably sustain their position. In the case of Boom, Co. v. Patterson, 98 U. S. 403, 408, 25 L. Ed. 206, the principal case relied on by respondents, it was said that, upon condemnation,
“The compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future.”
This rule has been accepted by almost every court in the Union. An altogether different condition is here presented. Appellant is not taking the property of respondents, as was done in the Patterson case. There the owner of the island involved had a riparian right, and with it the right to exercise every incident pertaining thereto. Owning the upland and the littoral and riparian rights, he was entitled to compensation for a possible use. As was said in United States v. Seufert Bros. Co., 78 Fed. 520:
“Use for which condemnation was sought in that case was for the construction of log booms in the Mississippi river adjacent to the lands condemned. The owner might use his land for this purpose on his own or on public account. The use was not necessarily a public one, and required no public license, so long as the navigation of the river was not ob*97structed. There is, therefore, no reason why the adaptability of the lands condemned for boom purposes was not a proper element to be considered in estimating the value of such lands.”
In Chicago etc. R. Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979, the court, after admitting the general rule announced in the Patterson case, says: “Mere possible or imaginary uses, or the speculative schemes of its proprietor are to be excluded.”
Compensation is given for taking or injuriously affecting the property of the landowner. Damages must be predicated upon the property itself, or an incident of the property. When a possible use is dependent upon the acquisition of an interest in property of another, no right of compensation accrues. The interest may rfever be acquired. In the instant case, respondents would have no right to maintain a boom on the tide lands of the state were we to hold as respondents contend that we should. The boom ground occupied by appellant is not located upon the property of respondents, or upon any property in which they have an interest; nor does it cut off any riparian right, for there can be no riparian right over tide lands. Lownsdale v. Grays Harbor Boom Co., post p. 542, 103 Pac. 833. The boom ground is not taken by appellant from respondents, but occupied in virtue of a license granted by the state over its own property, property that is held under a title resting in the sovereignty of the state. It would do violence to the laws of Congress and of this state, as well as the Federal and state constitutions, to hold that the state, being the owner of the tide lands situate within its boundaries, could not sell them or grant a license to use them without first paying their value to an upland owner; or, in other words, compel the purchase of a right from one who did not possess it, one who could not give, grant, or sell the right to maintain the use upon which the claim for damages is predicated. This prin*98ciple is recognized, but not discussed, in the Patterson case, page 408, wherein it is said:
“We do not understand that all persons, except the plaintiff in error were precluded from availing themselves of these lands for the construction of a boom, either on their own account or for general use. The clause in its charter authorizing and requiring it to receive and take the entire control and management of all logs and timber to be conveyed to any point on the Mississippi river must be held to apply to the logs and timber of parties consenting to such control and management, not to logs and timber of parties choosing to keep the control and management of them in their own hands. The Mississippi is a navigable river above the Falls of St. Anthony, and the state could not confer an exclusive use of its waters, or exclusive control and management of logs floating on it, against the consent of their owners.”
It follows that respondents cannot be compensated for the loss of a boom site, for they had no boom site to lose. To possess it they must have obtained title to, or permission to use, the property of the state. This they did not do. They have all that they possessed prior to the institution of this proceeding, and are entitled to no compensation other than for the physical disturbances that will result to their uplands within the rule laid down in our former opinion.
While it would be interesting, it would not be profitable, nor is it possible within the scope of this opinion, to trace the conflicting theories whether the king (the public) originally held title to shore and tide lands in fee, or subject to the riparian or littoral rights of the upland owner. It is settled in this state. Mr. Farnham, in his recent work on Waters, § 43, says:
“But at the time the governments were established in the American states the doctrine had become settled that the shore was a separate class of property which might and commonly did belong to the owner of the adjoining upland, but which belonged to the Crown unless he could be shown to have parted with it. Therefore the new states took title to all the shore which had not been granted by the Crown, or the Crown grants of which they did not choose to recognize. *99This land they could dispose of as they could the other land which came to them by the transfer of the title from the Crown, and they could make whatever regulations they chose with respect to it. They might ordain, as did Massachusetts, that the grant of the upland would pass title to low-water mark; or they might expressly provide, as did Washington, that the title to the tide lands should remain in the public until expressly disposed of. Most of the states, however, made no express provisions upon the subject, and the question how far the title of the riparian owner extended was left to the courts for determination. The great majority of the courts acted upon the principle that, since the shore was a separate class of property and the grant from the state passed only what was expressly mentioned, therefore the shore did not pass with the grant of the upland.”
The question is not a new one, but is consistent with the repeated rulings of this court, and is the only rule that will give force and effect to the assertion of title on the part of the state to its tide lands. The principal cases are cited in our former opinions. In the case of Board of Harbor Line Com’rs v. State ex rel. Yesler, 2 Wash. 530, 27 Pac. 550, the court said:
“The court is still of the opinion that, as against the state, a littoral owner, simply as such owner, can assert no valuable rights below the line of ordinary high tide. The somewhat careful examination which I have given this case has confirmed my opinion that at common law the sovereign power (resting in England in parliament) could take such lands without compensation, and absolutely exclude the littoral proprietors from any rights thereto. In fact, such is conceded to be the power of parliament by nearly all of the courts. Even those which have taken the strongest ground against the doctrine of the case above cited have admitted such to be the rule. . . . Here the people of a state are absolutely sovereign, except as controlled by the constitution of the United States; and I do not think that it can be successfully contended that the powers of the people of the states have been thus controlled as to the questions here involved. I am unable to find any clause of the constitution of the United States looking to such control, and, as I read the decisions of the United States supreme court, it has expressly *100decided that the states are in no wise controlled in this matter. Acting within their sovereign power, as above recognized, the people of this state, in forming a constitution, saw fit to assert the title of the state to the lands in question, and having done so they are the only power that can interfere with such title. But it is said that, while such assertion of title is made in the constitution, it is so made subject to vested rights of the riparian owner to. be asserted in the courts. I am of the opinion that this vested right cannot be held to be such as is incident to the riparian owner simply as such, but must be held to apply only to some special right held by such owner by way of improvements made under express or implied license from the representative of the sovereign power. To hold that the former was intended, would practically destroy the title of the state, and would, therefore, be inconsistent with the assertion of such title; while the latter construction will give force to every word, and make the provision in its entirety a consistent one. When the people say that they assert the state’s title, it must be held to mean the entire and exclusive title. Of course the rights of the state, as above stated, are subject to the paramount right of the United States to regulate commerce and navigation.”
In the case of Bellingham Bay etc. R. Co. v. Strand, 4 Wash. 311, 317, 30 Pac. 144, the court said:
“Appellant further contends that the amount of damages awarded is greatly in excess of the sum warranted by the proofs. In this regard it is not claimed that there was no testimony in the case which would warrant the verdict rendered. The contention is that all or nearly all of the witnesses that testified as to the value of the property taken were allowed by the court to include in their estimate of said value certain prospective rights to the lands below the line of ordinary high tide in the waters of Puget Sound. That the witnesses were allowed so to do is clear from the record, and we must, therefore, decide whether or not this prospective contingent right was a proper element to be taken into consideration in determining the value of the property taken. We think that it was not. At the time these proceedings were instituted there was no law in force giving to the littoral proprietor any rights whatever in said tide lands, and under the decisions of this court in regard to the rights of littoral *101proprietors in such lands the respondents had no valuable rights therein. It was left entirely to the legislature to say whether or not they should have any recognition as such littoral proprietors. Under these circumstances any value which was placed upon the property taken by reason of any rights which might or might not be bestowed upon it by legislation was too remote to constitute an element of value in proceedings of this kind.”
In all the maze of cases bearing upon the abstract question involved, there are but few outside of the previous decisions of this coui’t to offer as confirmation to those who demand authority rather than reason for the rule. In the case of Cohn v. Wausau Boom Co., 47 Wis. 314, 325, 2 N. W. 546, it Was held that, although in that state the upland owner had a riparian right to erect wharves and other structures on the shore lands, it is a private right resting, in the absence of prohibition, upon a passive or implied license by the public, is subordinate to the public use, and may be regulated or prohibited by law. The right to maintain a boom, under a law similar in all respects to our own, was sustained by the court. The court said:
“As against the riparian owners, within the limits specified in the statute, the state has only resumed its own. Otherwise, the title, possession and use of respondent’s land remain intact. If the public action lessen its value, it is literally damnum absque injuria.”
The doctrine of this case was sustained in Falls Mfg. Co. v. Oconto River Imp. Co., 87 Wis. 134, 151, 58 N. W. 257, wherein the plenary power of the state over navigable streams wholly within the state was affirmed, and the right to maintain flooding dams under a state law was held to be a legitimate exercise of legislative power, although it deprived an upland owner of the free use of a water power operated under a statutory authority prior in time to that of the improvement company. In the course of its argument the court said:
“ ‘The legislature is primarily at least, the judge of the necessity of the improvement; and when it delegates the *102power to a corporation, and the state does not question that the improvement made by the corporation is in conformity with the delegated power, it seems to us that neither the necessity nor usefulness of the improvement, nor the manner in which it is made, can be called in question by private parties.’ To the same effect, J. S. Keator Lumber Co. v. St. Croix Boom, Corp., 72 Wis. 80-87; Underwood Lumber Co. v. Pelican Boom Co., 76 Wis. 85. The same doctrine has been repeatedly sanctioned by the supreme court of the United States. Thus, in Huse v. Glover, 119 U. S. 543, it was held: ‘If, in the opinion of a state, its commerce will be more benefited by improving a navigable stream within its borders than by leaving the same in its natural state, it may authorize the improvements, although increased inconvenience and expense may thereby attend the business of individuals.’ ”
In Sutter v. Heckman, 1 Alaska 81, 87, it was held that the riparian and littoral proprietor had no right to, or control over, the tide lands below high-water mark. In the discussion of the case the court said:
“It has been held by many of the state courts of last resort that the owner of lands adjoining navigable water, whether within or above the ebb and flow of the tide, has, independently of local law, a right of property in the soil below high-water mark, and a right to build out wharves, so far at least as to reach water really navigable. This same theory, under the influence of the state statutes, has been indulged in by the federal courts in a few cases; especially in Dutton v. Strong, 1 Black 23, 17 L. Ed. 29; R. R. Co. v. Schurmeier, 7 Wall. 272, 19 L. Ed. 74; Yates v. Milwaukee, 10 Wall. 497, 19 L. Ed. 984; St. Clair v. Lovingston, 23 Wall. 46, 23 L. Ed. 59. But by the later decisions of the courts it is established that the rights of riparian or littoral proprietors in the soil below high-water mark of navigable waters are governed by local laws of the several states, subject only to the rights granted to the United States by the constitution. In the case of Weber v. Harbor Commissioners, 18 Wall. 65, 21 L. Ed. 798, Mr. Justice Field, in speaking of the right to occupy the tide lands, said: ‘Any erection thereon without license is, therefore, deemed an encroachment upon the property of the sovereign, or, as it is termed in the language of the law, a- ‘purpresture,’ which he may remove at pleasure, whether it tend *103to obstruct navigation or otherwise.’ Again, in Atlee v. Packet Co., 21 Wall. 389, 22 L. Ed. 619, a riparian proprietor had no right, without statutory authority, to build out piers into the Mississippi river, as necessary parts of the boom to receive and retain logs until needed for sawing at its mill by the water side. In Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 838, 35 L. Ed. 428, the court said: ‘With regard to grants of the government for lands bordering on tide water, it has been distinctly settled that they only extend to high-water mark, and that the title to the shore and lands under water in front of lands so granted inures to the state within which they are situated, if a state has been organized and established there.’ ”
As a matter of equity, then, and not in recognition of any riparian or littoral right, the legislature has provided for the protection of those who had settled upon uplands abutting, or who had improved tide lands, upon the mistaken notion that they had thus acquired some rights of ownership. The improver and the upland owner may purchase at the state’s price; thus protecting private interests and investments. Beyond this the state has not gone; and to now hold, after twenty years of settled policy, that a lease or license to use or occupy state tide land carried with it a burden of damages to be paid to an upland owner, would make the occupation of the tide lands all but impossible, and tend to restrain the development of our resources, our business, and our commerce. Indeed, in the opinion of the writer, the question has not been open to discussion since the case of Shively v. Bowlby, 152 U. S. 1, 56, 14 Sup. Ct. 548, 38 L. E. 331, was decided. In that case the reasoning of Justice Lord, of the supreme court of Oregon, was adopted as the law of the case. He said:
“From all this it appears that when the state of Oregon was admitted into the Union, the tide lands became its property and subject to its jurisdiction and disposal; that in the absence of legislation or usage, the common law rule would govern the rights of the upland proprietor, and by that law the title to them is in the state; that the state has the right to dispose of them in such manner as she might deem proper, *104as is frequently done in various ways, and whereby sometimes large areas are reclaimed and occupied by cities, and are put to public and private uses, state control and ownership therein being supreme, subject only to the paramount right of navigation and commerce. The whole question is for the state to determine for itself; it can say to what extent it will preserve its rights of ownership in them, or confer them on others. Our state has done that by the legislation already referred to, and our courts have declared ibs absolute property in and dominion over the tide lands, and its right to dispose of its title in such manner as it might deem best, unaffected by any ‘legal obligation to recognize the rights of either the riparian owners, or those who had occupied such tide lands,’ other than it chose to resign to them, subject only to the paramount right of navigation and the uses of commerce. From these considerations it results, if we are to be bound by the previous adjudications of this court, which have become a rule of property, and upon the faith of which important rights and titles have become vested, and large expenditures have been made and incurred, that the defendants have no rights or interests in the lands in question.”
The decision in this case does not depend upon the construction of a Federal statute, or of the Federal constitution, or any amendment thereto. The Humptulips river is a navigable stream entirely within the state of Washington, and, in the absence of any statute by Congress, a state has plenary power in regard to such waters. Obstructions in these waters may be offenses against the laws of the state, but constitute no offense against the laws of the United States, in the absence of a statute. North Shore Boom & Driving Co. v. Nicomen Boom Co., 212 U. S. 406, 29 Sup. Ct. 355, 53 L. Ed. 574. The right of the state to dispose of the use of its tide lands is a question with which the Federal government has nothing whatever to do. Appellant, being in the lawful occupation of state land, has succeeded for the time being to all the rights of the state. It is exercising a public function within the law of the state.
“Acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though *105their consequences may impair its use, are universally held not to be a ‘taking’ within the meaning of the constitutional provision providing for compensation.” United States v. Certain Lands etc., 112 Fed. 622.
See, also, Northern Transp. Co. v. Chicago, 99 U. S. 635, 25 L. Ed. 336; Gibson v. United States, 166 U. S. 269, 17 Sup. Ct. 578, 41 L. Ed. 996; Meyer v. Richmond, 172 U. S. 82, 19 Sup. Ct. 106, 43 L. Ed. 384.
Legislation has proceeded upon one of two theories with reference to tide and shore lands. The one, that the state will recognize a riparian right in the upland owner and compel the public to subordinate its rights (except as to navigation) to his convenience. The other is that the title to all tide and shore lands is in the state, and may be sold, leased, or otherwise disposed of in aid of business and commerce, and without reference to the comfort and convenience of the upland owner. This state has asserted the latter doctrine. It will thus be seen that this case involves primarily the question of state, policy. The state has a right to deal with its own property as its own. There is, therefore, no Federal question involved. The dissenting judges adhere to their former opinion.
The petition for a rehearing is denied.