On Rehearing.
[.En Banc. February 13, 1914.]
Chadwick, J.A petition for rehearing has been filed by the Attorney General, by the city of Seattle, the Park Board of the city of Seattle, the county of King, the town of Renton, the town of Bothell, the Commercial Waterway District No. 2, municipal corporations, and by the defendants Schertzers.
The Attorney General complains that we have foreclosed *177the right of the state to fix an inner harbor line and create a harbor area having reference to present conditions and to thereafter lower the waters of Lake Washington. It seems to be his contention that, if this were done, the uncovered land would belong to the state and its grantee would have no remedy. It is insisted that this question was not before the court. It was our judgment when the opinion was written, and is now, that it was, in fact, of the very essence of the case, and that it was incumbent upon us to determine the legal effect of the deed made by the state to the Rainier Beach Improvement Company, in the light of present legislation and the present plan of the state to lower the waters of Lake Washington. If that were not the real question before the court, there is no excuse for this proceeding. The state might have fixed its inner harbor line before the waters were lowered, and left it to the shore owners to bring an action to determine its right so to do.
In his original brief the Attorney General says: “This is an action by the state of Washington ... to recover possession of, and quiet title to certain submerged lands of Lake Washington.” He says: “The lower court held that, by that deed, the state of Washington . . . conveyed all the lands lying between the line of ordinary high water and the line of ordinary navigability, and that, therefore, the respondents had title to the lands in question as against the appellant.” And also, “the only question . . . that is presented by the appeal of the state is, what lands were conveyed by deed of second class shore lands, executed and delivered by the state in 1904, or what is the water or outer boundary of such grant?”
Clearly our opinion is within the bounds fixed by the state in its first brief, and well within the issues as they were found to be and decided by the trial judge.
The Attorney General is, also, of the opinion that we have held that the shore owner is entitled to carry his title to the line of “practical commercial navigabilitythat the line of *178navigable water is necessarily to be located in water of sufficient depth to accommodate all shipping. The Attorney General assumes that the line of navigability is the outer harbor line, or government pier head line. We have undertaken to make it plain, all the way through the opinion, that the line of navigability, as there used, is the inner harbor line. We say:
“The area lying between high water and the line of navigability, as fixed or to be fixed by the inner harbor line, being, whether submerged or not, theoretically nonnavigable, is treated as land and not water, and is wholly within the keeping of the state. . . . The owner of shore land takes subject to the right of the state to fix a harbor line, in the event that the land finally comes within the limits of a city. ... If this be done, the boundary of the shore land would be, under the statute, and repeated decisions of this court, the inner harbor line. Now, theoretically, that line is already fixed. It is the line of navigability. Although not surveyed and put on paper, the officers of .the state are presumed to find that line and define it when establishing the inner harbor line. . . . Inasmuch as the harbor line stands for and includes both the line of ordinary low water and the line of navigability, it would seem that, when it is defined, the water boundary theretofore open would be forever settled. . . . The deeds of shore owners, in form as the one before us, carry title to the line of navigability as it may be thereafter fixed. . . . The state has invited investment in these lands upon the theory that, in private ownership, all land lying back of the inner harbor line or the line of ordinary navigability would be reclaimed and put to useful purposes.”
Moreover, the act of 1913 referred to in our opinion, confirms title in the owner of the shore land to be artificially made up to “the line of ordinary navigability as the same shall be found in such waters after such lowering, etc.”
Inasmuch as this court has held that harbor lines do not necessarily have to be laid in deep water (State ex rel. Stimson Mill Co. v. Board of Harbor Line Com’rs., 4 Wash. 6, 29 Pac. 938) ; and the further fact that harbor lines cannot *179always be made to follow the sinuosities of the line of navigability, as that term is defined at common law, that the inner harbor line may at times be in deep water and at other times in shallow water, but wherever fixed, that which is within it is land, and that without is water, we think that there is no room for misconstruction or misunderstanding of our opinion.
The Attorney General, in his brief, does not refer to the act of 1913, which in itself affirms the spirit of our decision; the only question left open by it is the one reserved by us.
It is the contention of the municipal petitioning bodies that the result of our decision may be to put upon the state and its municipal agents the burden and expense of repurchasing title to some of the lands conveyed; and, for that reason, we should reconsider our decision and hold that the right of the state to insist that it has a reserve title is not foreclosed; that the title of the shore owners is in the nature of an easement, and may be reasserted under the right of jus publicum, such doctrine being announced in the recent case of People v. Steeplechase Park Co., 143 N. Y. Supp. 503, and Lewis Blue Point Oyster Cultivation Co. v. Briggs, 198 N. Y. 287, 91 N. E. 846, 34 L. R. A. (N. S.) 1084; Scranton v. Wheeler, 179 U. S. 141; Illinois Cent R. Co. v. Illinois, 146 U. S. 387, and other authorities.
We think it will require no argument to convince these petitioners that this court has no right to deny the present shore owners the title which the state has given them because the state has heretofore conveyed the lands for an amount which seems inadequate, in the light of subsequent conditions. The economic questions involved have been heretofore considered and settled by the legislature. Whatever our individual opinions may be, we have no right to say, at this time, that the policy of the people of the state, as evidenced in the constitution and in the several acts of the legislature, and the titles made by the state at prices fixed by it, should be overturned by the courts, for the reason that the state *180needs the property, which has become valuable in the hands of private owners.
As to the other question, the right of the state to assert a right jus publicum in any of the uncovered lands, this was expressly reserved, and we will meet it when it is properly submitted to us.
Counsel for the defendants Schertzers reminds us that we have not decided, as between the Sturtevants and Schertzers, the right of possession of the property in controversy between this time and the time when the waters of Lake Washington are actually lowered, saying, “The opinion . . . leaves entirely open and does not decide the right of possession of this property during the interval of time preceding the lowering of the lake.” They insist that the right of possession will not pass to the cross-appellant Sturtevant until the water is actually lowered.
We agree with counsel that the right of the shore owner cannot be asserted until the waters are actually lowered, and the land thus to be artificially made comes into being, not by some legal fiction, but by the changed conditions anticipated and referred to in the act of the legislature of March S,5, 1913.
The petitions for rehearing are denied.
Crow, C. J., Fullerton, Morris, Parker, Ellis, Gose, and Mount, JJ., concur.