(dissenting)—I do not concur in the reasoning or the judgment of the majority. The opinion proceeds upon a fundamental error, and in all such cases, the premise being assumed, the argument seems convincing. The error of my associates lies in this: They have assumed that the city has an ownership or superior easement in the so-*334called streets as extended over the tide lands. This is not so. The extended street or way is state property, reserved as a convenience of navigation and commerce. Const., art. 15, § 1. The city is, as these appellants are, a mere licensee, and in the absence of express legislation, its privileges are equal, and necessarily the one licensee cannot interfere with the right of the other to use the public thoroughfare of the state. By the constitution, by every law ever passed upon the subject, and by every decision ever pronounced by this court concerning harbor areas', it has been declared that they are to be and remain open for the purposes of navigation and commerce. When the state allowed the same to be leased, that wharves, docks, and other structures might be placed thereon, and platted the same, leaving these open ways of water, it affirmed, as positively as the will of the people can be expressed, that such streets should be water streets or waterways, unobstructed by wharves, docks, and structures of like character, and that they should be open to the whole public. Not to any individual or quasi public corporation, or to be put to a particular use by either. Otherwise it would have leased the area so included for the erection of such structures, as it had the undoubted right to do. For the property being that of the state, it might, if it had seen fit to do so, have provided that the city of Seattle, because of its municipal character and the commerce coming to it, should have the right to erect any structure of any character on any part of the reserved area designated and set aside for its use. But it has not done so. Therefore, the questions of policy that are raised and discussed in the majority opinion are legislative questions, and, in the absence of an affirmative grant on the part of the legislature, should not be held to control our judgment.
Another error is that the majority assume that if their decision were otherwise, appellants might have an exclusive right to use the street. But this is not so. The street being an open waterway, they can land vessels at their abutting *335dock and keep them there while loading or unloading. When this work is done, the vessel must proceed on its way or find anchorage elsewhere. And yet, although the rights of the appellants and the city are equal and neither one has a right over the other, this court has nevertheless said that the city may so exercise its license in the property of another, which in terms has been forever reserved to the public, that it destroys the use of it to an adjoining proprietor and defeats the object of the constitutional reservation. The policy of the state to reserve waterways has been so clearly manifested in the several legislative enactments, particularly the act of 1897, wherein it changed the streets so as to make them run at an angle to the upland streets, that it seems almost impertinent for a court to hold that any party, private or quasi public can erect permanent structures or eventually fill up at its will its reserved water streets, and thus eventually devote them to exclusive uses. If the legislature has power to do as it pleases with the state’s property, it has made no grant to the city, and for its omissions we are not to be held answerable. It is truly unfortunate that the constitution makers and the several legislatures used the word “streets” in the constitution and in the harbor area statutes; for, notwithstanding the fact that the title is in the state, and that the reserved area is, and for all time must be, water and not land, this court has given to the term that meaning which attaches to the country highway threading through the village, and the streets of the city which are admittedly under the jurisdiction and subject to the will of city councils.
Mount, J., concurs with Chadwick, J.