FULLERTON, J., dissents. Appellant instituted this action to enjoin the respondents from proceeding to lease, and from leasing, certain second-class tide lands owned by the state and situated:
". . . in front of, adjacent to or abutting upon lots 3 and 4, section 9, township 9 north, range 11 West Meridian, including Peacock Spit, lying southwesterly of the main channel range as shown upon the map of the mouth of the Columbia river prepared by the United States Engineer's Office, Second Portland, Oregon, District,"
in Pacific county, Washington.
A temporary restraining order was issued, but, upon a trial on the merits, the action was dismissed with prejudice, and the plaintiff has appealed from that judgment.
The main controversy here, and the only one we find it necessary to discuss, is waged over the location of the mouth of the Columbia river, and the question of whether the tide lands involved are a portion of the shore and beach of the Pacific ocean or of the Columbia river. If they be tide lands of the Columbia river, they are subject to lease by the state, and if they be a part of the shore and beach of the Pacific *Page 167 ocean, then they are declared to be a public highway forever by chapter 110 of the Laws of 1901, p. 225. Sections 1 and 2 of that act, which are applicable here, read:
"Section 1. That the shore and beach of the Pacific ocean, including the area or space lying, abutting or fronting on said ocean and between ordinary high tide and extreme low tide (as such shore and beach now are or hereafter may be) from the Columbia river or Cape Disappointment on the south to a point three hundred feet southerly from the south line of the government jetty on Peterson's point, state of Washington on the north, be and the same are hereby declared a public highway forever, and as such highway shall remain forever open to the use of the public.
"Sec. 2. No part of said shore or beach shall ever be sold, conveyed, leased or otherwise disposed of."
[1] It will be observed that the act quoted makes the southern terminus of the highway "the Columbia river or Cape Disappointment." Of course Cape Disappointment is a considerable body of land, and if the act named the cape only as the initial or starting point of the highway, there might be considerable difference of opinion as to where it would begin, but the words of the act, "from the Columbia river or Cape Disappointment on the south," would seem to indicate clearly the intention that the highway should begin at the extreme southerly point of Cape Disappointment where it is laved by the waters of the Columbia river, so that the traveler may, on leaving the waters of the Columbia, enter immediately upon the highway. No other construction, we think, will give full effect to the language used.
In 1901, when the act was passed, there would apparently have been little or no difficulty in fixing the exact spot where the highway began, but since that time many changes have taken place, though the *Page 168 breakers from the ocean still roll upon the beach. At that time, according to the record, Peacock spit was only a bar, and was entirely submerged even at low tide. In 1914, the Federal government began the construction of what is known as the North Jetty, extending from a point on the shore line, at or near what is now the northerly end of Peacock spit, southwesterly into the waters of the Pacific ocean, a distance, as appears from the exhibits in this case, of fully 9,000 feet. The purpose of the building of the jetty, together with a like jetty to the south on the Oregon side, was apparently to cause the currents and tides to scour out and carry away a bar formed by the deposit of sediment at and beyond the mouth of the river, so as to provide a channel for navigation.
After the jetty was constructed, the action of the tides and currents, influenced by the jetty, caused Peacock spit to be greatly enlarged and built up, so that a large body of dry land has since appeared above high tide, extending from the jetty on the north a long distance southeasterly beyond the point or southern headland of Cape Disappointment. A large body of dry land likewise has appeared to the north of the jetty, changing the high water line so that it now extends southwesterly from a point near Dead Man's Hollow to the extreme outer end of the jetty, instead of southeasterly from Dead Man's Hollow to the point of the cape as it extended in 1901.
In general, the respondents contend that the mouth of the Columbia is now at, or a little beyond, the extreme outer end of the jetty, and that the southern end of the highway is now located at that point and there meets the waters of the Columbia river; while the appellant contends that the mouth of the river is determined by drawing a line from the extreme southern headland on Cape Disappointment to Point *Page 169 Adams, the headland on the Oregon side, thus placing Peacock spit and its shore and beach in the Pacific ocean, and leaving the initial point of the highway practically where it was in 1901.
The question thus presented becomes of controlling importance in this case, because appellant, under license from the state, has fish trap locations in the deep waters off Peacock spit south of the main channel range, and necessarily uses the strip between high and low tide on the southern beach of Peacock spit in landing its fish from its traps and in transporting them by wagon to a point where they can be transferred to boats to be carried to the canneries. That the tide lands in dispute have been so used as a highway by fishermen, as well as for other legitimate purposes, for many years, is not in any way disputed.
[2] We approach the question to be decided with great diffidence and hesitancy, because, so far as facts may be involved, the determination by the department ought not to be reviewed by the courts. State ex rel. Smith v. Forrest, 8 Wash. 610,36 P. 686; State ex rel. Megler v. Forrest, 13 Wash. 268,43 P. 51.
But we are convinced that here the essential and controlling facts are in no wise in dispute and the error of respondents, if they be in error, lies in having proceeded upon a fundamentally wrong basis, and is therefore an error of law and not an error of fact.
[3] Let us inquire first what is a river. Bouvier's Law Dictionary, vol. 3, p. 2968, defines a river as follows:
"RIVER. A natural stream of water flowing betwixt banks or walls in a bed of considerable depth and width, being so called whether its current sets always one way or flows and reflows with the tide. Woolrych, Wat. 40; State v. Gilmanton, 14 N.H. 467.
"A body of flowing water; a running stream of no specific dimensions, larger than a brook or rivulet, and *Page 170 pent on either side by walls or banks. Board of Com'rs v.Castetter, 7 Ind. App. 309, 33 N.E. 986, 34 N.E. 687."
To the same effect is Howard v. Ingersoll, 54 U.S. 380,14 Law Ed. 189, and 34 Cyc. 1792.
If a river is necessarily "pent on either side by walls or banks," then when it ceases to be so pent in it must likewise cease to be a river. The Columbia river was not in 1901, has not since been, and is not now pent in on the northerly side by walls or banks beyond or west of the south headland of Cape Disappointment. If it be, the whole Pacific shore line to the north is a bank of the river. True, a jetty has since been built beyond that point extending, as it here appears, 9,000 feet into the sea. That is not a wall or a bank of the river, but an artificial structure maintained to assist natural forces in clearing a channel by means of which navigation can approach and enter the river.
[4] The situation we have just pointed out would seem necessarily to be at least one of the conditions to be taken into consideration by an engineer in fixing the location of the river's mouth, and apparently the engineer of the land department ignored that condition and, though he does not say so, seems to have regarded the 9,000 feet of jetty as the natural bank of the stream.
As an aid to the solution of the question, the natural headlands on either bank of the river should be considered — at least their location would be helpful in determining where the stream ceased to be pent in by banks — the respondents' engineer seems to have given them no consideration whatever. In fact, he seems to have had in mind but one of several elements which should have been considered. He testified: *Page 171
"Q. Now, explain first how the dividing point is determined between the tide lands adjacent to a river and the tide lands adjacent to the ocean? A. It is a point where the general course of the river intersects the general coast line of the ocean. Q. And how would that point be determined as a physical proposition? A. By determining on the ground or on a map the general direction of both shore lines. Q. Would that be, that is to say, would engineers necessarily agree upon the point? A. Probably no two engineers would agree on the identical point, no. Q. And then I take it the matter of determining that point between where you can say, from here on up is ocean beach and from here is river bank, is a question of judgment for an engineer to determine, is that right? A. That is right. Q. That point having been determined by an engineer, what method of division would be used between the two? A. A proportion or a split of the angle between the two lines determines the point."
But according to his testimony, given later, he did not even follow his own rule, for, in determining the general direction of the coast line, he says that he gave consideration only to the coast line north of the river, and gave no thought whatever to the general direction of the coast line south of the river.
While on the witness stand, this witness gave, as his authority for the rule which he attempted to follow, Clark on Surveying and Boundaries, which we have also consulted, and our reading leads us to fear that the witness did not have in mind all of that authority's rules. For instance, in § 261 of that work it is said:
"Not only the shape of the shore line but also the general trend of the stream must be taken into consideration."
The engineer seems to have omitted entirely from his consideration the shape of the shore line at and near the river's mouth, disregarding the decided incurve of the shore line which begins at North Head, *Page 172 and what he had in mind, when he considered the general trend of the stream, we are entirely unable to determine from the record. Did he consider the river's course for the last two hundred miles, the last one hundred miles, or the last mile or two of the north channel? Each would give a different result. In fact, appellant's engineers, on rebuttal, took the rule which respondents' engineer said he used, and, by its use, arrived at results substantially the same as those they obtained from the headland to headland method, and entirely different from the results which the respondents' engineer obtained.
The evidence offered by the appellant tended to show that the Federal government had fixed the mouth of the river many years ago, had established the lighthouse at the mouth and had treated that point (the southerly point of Cape Disappointment) ever since as marking the river's mouth. The New International Encyclopaedia, vol. 4, p. 490, gives the following:
"CAPE DISAPPOINTMENT. The southwest point of the state of Washington, on the north side of the mouth of the Columbia river, in lat. 46° 16' N., long. 124° 3' W. It has a lighthouse with a light flashing alternately red and white (interval between flashes 15 seconds), at a height of 233 feet above sea level (Map: Washington, A3)."
The American Encyclopaedia gives similar information.
The case of State v. State, 211 U.S. 127, 53 Law Ed. 118, does not touch upon the location of the mouth of the river, discussing only the boundary line between the two states, but the maps published as a part of that opinion rather clearly show the main features here involved and speak eloquently in appellant's favor.
While no case is cited which exactly meets the conditions here shown, the authorities generally, so far *Page 173 as they have been brought to our attention, seem to support the rule followed by appellant's engineers, and, at the same time, show clearly that respondents' engineer omitted necessary and vital elements in arriving at his conclusion.
Time and space considerations preclude an analysis of the various holdings, but, in a general sense, the following authorities lend support to appellant's position: Wonson v.Wonson, 14 Allen (Mass.) 71; Malone v. Mobbs, 102 Ark. 542,145 S.W. 193, 146 S.W. 143; Northern Pine Land Co. v. Bigelow,84 Wis. 157, 54 N.W. 496; Deerfield v. Arms, 17 Pick. 41; Ballv. Slack, 2 Whart. (Pa. St.) 508, 30 Am. Dec. 278; ColumbiaLand Co. v. Van Dusen Inv. Co., 50 Ore. 59, 91 P. 469; Farnham on Waters, vol. II, p. 1463.
[5] Were the question doubtful, which we think it is not, as between the solemn dedication to a public use made by the legislature nearly a generation ago and the right of the state in its proprietary capacity to use the lands for individual profit, we think the former consideration should prevail over the latter; and since the right to the free use of all public highways is one of our cherished inheritances, we have no hesitancy in holding that the highway extends along the beach of Peacock spit until it reaches the waters of the Columbia river flowing between natural banks.
[6] In a companion case, where the parties are similarly situated, it has been urged that appellant's fishing locations are described by its location notices and maps as being in the waters of the Columbia river, and that it has no license or right to make locations anywhere other than in the waters of the Columbia river. We think that fact is immaterial here. No elements of estoppel are shown to exist. Appellant has the right to the use of the highway for all legitimate purposes, and if it attempts to make unlawful *Page 174 use of it, or if it is fishing unauthorized locations, the state has ample power to end such activities.
The judgment is reversed, with instructions to permanently restrain the issuance of the lease in question so far as it attempts to lease any part of the shore or beach of the Pacific ocean lying between ordinary high tide and extreme low tide.
HOLCOMB, and MILLARD, JJ., concur.