(dissenting). — The foregoing opinion does not make any reference to what I consider the most vital point in the case, and the point which ought to cause a reversal. All other questions aside, the appellant showed that it had been in possession of these tide lands for many years with its railroad tracks and machine shops, all of which it had constructed on piles. The premises constituted a railroad wharf, and the respondent, without any regard to the appellant’s improvements, and to the destruction of some of them, was proposing to open a street when this injunction suit was brought.
Whatever may be said as to the proper construction of art. 15, §3 of the constitution, authorizing cities to extend streets to the ‘1 harbor areas, ’ ’ I am satisfied that the legislature, by the act of 1890, authorizing cities to project or extend their streets over tide lands, did not for one moment contemplate that the rights of ‘ ‘ improvers ’ ’ of tide lands should be taken away in the opening of streets, without compensation to the owners. The general legislation in the state contradicts any such proposition. The act of the same year concerning school lands carefully protected *335every improver of them, so that he could not be dispossessed until his improvements were paid for, even though he were a mere squatter (Wilkes v. Hunt, 4 Wash. 100, 29 Pac. Rep. 830); and so, in dealing with tide lands, while the same liberality was not manifested, by requiring purchasers of these lands to pay for improvements which they had not themselves placed there, the right of preemption was given to improvers, which was not given to settlers on school lands. In degree, the liberality was equal. But this decision practically holds that improvers of tide lands have no rights when their improvements happen to lie in the course of a. street extension.
The act of February 28, 1890 (Laws, p.733), declaring all streets in incorporated cities which extended from high tide into the navigable waters, public highways, only applied to improved ways, not to imaginary ones. There can, in the nature of things, be no such thing as a street in navigable waters, unless it is in the shape of a causeway of wood, iron, stone, earth, or something equivalent.
I hold that the power to project and extend streets over tide lands granted by the thirty-seventh paragraph of the act of March 24, 1890, to cities of the first class, was intended to have precisely the same application to private persons as the seventh paragraph, which authorized them to lay out, open and extend streets, alleys, etc., and of the eighth, which authorized them to change the grade of streets. They can do none of these things without compensation to the owner of property taken or damaged, and as the right of preemption inuring to a tide land improver is certainly property, he should be equally protected. The act of March 21th was passed with an emergency clause, and went into effect at once. The tide land act was passed two days later; and if there is any conflict between the two the latter should prevail.
Anders, J., concurs.