(dissenting) — I find myself lost in admiration at the scholarship and erudition manifested in the majority opinion. However, all the legal signposts that I can read and understand point in the opposite direction, so I am compelled to dissent.
We must decide whether the westerly (seaward) boundary of Stella Hughes’ property is the present mean high tide line, or whether it is the line of ordinary high tide as the state of Washington computes it to have been on November 11, 1889. It is really as simple as that.
Signpost 1: Location of plaintiff’s westerly (seaward) boundary is a federal question.
The plaintiff traces her title to a federal patent issued before Washington became a state. This court recognized a long time ago the right of federal courts to ascertain the limit, of federal grants. See Washougal & LaCamas Transp. Co. v. Dalles, P. & A. Nav. Co., 27 Wash. 490, 496, 68 Pac. 74 (1902). In Borax Consol., Ltd. v. Los Angeles, 296 U.S. 10, 80 L.Ed. 9, 56 Sup. Ct. 23 (1935), it was stated that when a federal patent is involved, the boundary between upland and tideland is necessarily a federal question. True, no accretions were involved, but it seems unlikely that this *817would have made any difference as to whether federal law should be applied.
Signpost 2: Federal law being applicable, the “shifting boundary theory” applies.
If federal law is applicable, then United States v. Washington,20 294 F.2d 280 (9th Cir. 1961), cert. denied, 369 U.S. 817 (1962), is decisive. That case holds that imperceptible accretions go with the uplands whenever title to the uplands is derived from the United States. The western or seaward boundary to the property involved21 in that case was, as here, the line between uplands and tidelands. The present line of “mean high tide,” which was defined as the average elevation of all high tides at a given location through a complete tidal cycle of 18.6 years, was held to be that boundary. This definition was formulated by the United States Coast and Geodetic Survey and is part of what has been called the “shifting boundary theory.” 2 Shalowitz, Shore and Sea Boundaries, 503 note 34.
This is the western or seaward line fixed by the trial court in this case, and it should be affirmed.
If this seems a ridiculously short and simple solution of the apparently complex problem with which the majority opinion deals, I can only say that it is the result dictated by common law,22 and (as we have seen) by the federal *818law. It is a plain and well-traveled legal path. To arrive at the result the state desires (and the majority approves), a new, circuitous and rather devious route, rarely explored, must be followed. This is conceded in the state’s brief when it says:
It is a rare occurrence, of course, when a state denies a riparian owner title to tidelands[23] that have become fast lands by slow and imperceptible accretion, but at least two other states have done so.
I would extend my discussion to point out four interesting circumstances that have been lost sight of, or at least have been obscured, to date:
1. We have not previously defined the exact meaning of the phrase “line of ordinary high tide,” as used in art. 17, § 1 of our state constitution.
The case of Harkins v. Del Pozzi, 50 Wn.2d 237, 240, 310 P.2d 532 (1957) states:
The line of ordinary high tide is that line which the water impresses on the soil by covering it for sufficient periods to deprive the soil of vegetation and destroy its value for agricultural purposes.
However, the authority cited for this proposition is an Idaho case which was actually concerned with the ordinary high water mark on Lake Pend Oreille. The Circuit Court of Appeals rejected such a definition in United States v. Washington, supra, saying:
In the case of tidal waters such as are involved here, the high-water mark means the line of high water as determined by the course of the tides, not as determined by physical markings made upon the ground by the water. The latter method of making this determination, which was followed by the district court, is appropriate only in the case of streams and other non-tidal waters which have no absolute ascertainable level because of variations of flow from a multitude of causes, (p. 834)
There is also dictum in Narrows Realty Co. Inc. v. State, 52 Wn.2d 843, 844 n.3, 329 P.2d 836 (1958), which defines the phrase as:
*819"... line of ‘ordinary high tide,’ that is, the usual or ordinary high-water mark, the limit reached by the ‘neap tides,’ those tides which happen between the full and change of the moon twice in every 24 hours . . . ” 30 Words & Phrases (Perm. ed.) 253.
Neither of these cases involved imperceptible accretions or were concerned with the problem of possible shifting boundaries.
The question of whether the “line of ordinary high tide” is a shifting line is squarely presented here, and I believe the definition of this constitutional phrase should (and perhaps must) be identical with the definition of “mean high tide” heretofore quoted and adopted by the federal courts.
2. The state’s ownership of
the beds and shores of all navigable waters in the state up to and including the line of ordinary high tide, in waters where the tide ebbs and flows ... . Const. art. 17, § 1.
is not questioned. Any rights of riparian or littoral owners in such “beds and shores” have properly been held to present a question of local law. Such a case was Eisenbach v. Hatfield, 2 Wash. 236, 26 Pac. 539 (1891), on which the state and the majority place great reliance. The case dealt solely with the relative rights of the state and the upland owner in the tidelands, the court holding that the upland owner had no right to extend a wharf beyond the high-water mark. The court specifically declined to decide whether plaintiff would be entitled to future accretions to his land.
No question, as to the complete control of the state over “beds and shores” of all navigable waters is raised. Hence, the Eisenbach case has, it seems to me, no application.
The state had, on November 11, 1889, and the state has today and has had at all intervening times, title to the beds and shores of all navigable waters of the state lying seaward of the line of ordinary high tide (properly equated to mean “the line of mean high tide,” as defined herein). The state loses no tidelands by the shifting boundary, because *820the accreted land has become “fastland,” and it always has had title to the shore and beach between ordinary high tide (mean high tide) and extreme low tide. But, by the fixed-boundary rule, which Washington and “at least two other states” have invented, the upland owner loses the “fast-land,” which has been added to his upland by slow and imperceptible accretion, and his contact with the line of mean high tide which, in many instances, may have been the reason for the acquisition of the property.
It is apparent also that the purpose of the state is not primarily to make a greater area available for public use, but to dispose of such accreted lands to private individuals and put a new upland owner between the grantees of the original upland owner and the line of mean high tide. That the state does not consider accretion as shore or beach, is evidenced by its sale thereof, for the state certainly would not disregard the statutory declaration that
[S]hore and beach of the Pacific Ocean, . . . between ordinary high tide [mean high tide] and extreme low tide . . . shall remain forever open to the use of the public. RCW 79.16.170
and that no part thereof “shall ever be sold, conveyed, leased or otherwise disposed of.” (RCW 79.16.171)
3. The really pertinent decision in Washington is not the Eisenbach case, which has nothing to do with imperceptible accretions, but the case of Ghione v. State, 26 Wn.2d 635, 175 P.2d 955 (1946). The state asserted there, as it does here, that it was entitled to all lands covered by navigable waters in 1889. The state also contended that it was entitled to all lands submerged by navigable waters subsequent to 1889.
The court discussed a number of cases — including Eisenbach and an 1899 statute on accretions (cited here by the majority) — before adopting a shifting boundary theory which vested title to imperceptible accretions in the upland owner. The majority seeks to distinguish the Ghione case because it involved a river, but the court there believed that the shifting boundary theory applied “to both tidewaters *821and fresh waters,” and there is no apparent reason for distinguishing between them.
4. No consideration has been given to the effect of the fixed boundary theory where there has been an erosion instead of an accretion. We can only speculate as to how the majority opinion would read if this were an erosion case. At certain places, the 1889 line of ordinary high tide or mean high tide is now a long way out in the Pacific Ocean, in consequence of erosion, and the upland owner has seen his upland become tideland to which he has heretofore thought he had no title. Under the majority rule, the upland owner would continue to have title to the 1889 line, and the public, seemingly, would have to swim to enjoy its “highway” and beach rights. Only under the shifting boundary rule will the rights of the public always be preserved in the property in the beds and shores of all navigable waters in the state, up to and including the line of ordinary high tide — “in waters where the tide ebbs and flows.”
I would follow the federal cases, adhere to the shifting boundary rule, and affirm the trial court.
Hunter, J., concurs with Hell, J.
April 14, 1966. Petition for rehearing denied.
It is interesting to note that in the cited case the state of Washington made all of the arguments it makes here for its fixed boundary of November 11, 1889, but found the Circuit Court of Appeals a forum less friendly to its idea of rewriting the law relative to accretions.
The property involved: “Lots 3 and 4 of section 15 in township 18 north of range 12 west of the Willamette Meridian, adjacent to the Pacific Ocean in Grays Harbor County, Washington,” belonged to the United States, subject to a trust patent issued in 1916 to Samson Johns, a Quinault Indian who died in 1930. In 1858, these lands were surveyed by the General Land Office, which established a meander line along and adjacent to the Pacific Ocean. The accretions which pushed the high-water mark seaward were held to belong to the United States subject to the heirs of Samson Johns, and not to the state of Washington.
“ ... At common law the person whose land is bounded by sea, lake or river owns any additions thereto resulting from imperceptible accretion.” United States v. Washington, supra (p. 834); Shively v. Bowlby, 152 U.S. 1, at page 35, 38 L.Ed. 331, 14 Sup. Ct. 548 (1894).
I would interpolate “former” before “tidelands.”