Argument for Baer, Plaintiff in Error. The only manner from which it can be determined what the policy of a government has been in relation to any subject is to look for either legislative declarations of that policy, or executive acts from which it could be concluded. It is notorious that there have been thousands of acres of lands lying below the line of ordinary high tide, and so returned on the government surveys, surveyed and patented under general laws in the Territory of Washington. The reason why such lands have been so surveyed and patented is owing to the peculiar condition of things there, in the vast extent of such lands, and the further fact that the upland is covered with an enormous growth of very heavy timber, making the work of fitting it for cultivation expensive and slow. In such circumstances, the settlers soon found that it was far cheaper to reclaim tide lands from the sea, even by the erection of extremely high and strong dikes, than to attempt to remove the existing timber on the high land, not to mention that the reclaimed tide lands formed of alluvial deposits were infinitely richer than the high land. The earliest and choicest selections of farming land under the general land laws in western Washington, were made of land lying wholly below ordinary high water mark, and to-day it is possible to pass, in an ordinary high water, on a steamer past farms protected by dikes, where the whole cultivated area of the farm lies many feet lower than the surface of the water. It is respectfully submitted that Congress, in disposing of the public lands, has not, by any means, acted upon the theory that lands known as ordinary tide lands, between high and low water mark, on navigable waters, in Territories of the United States, were not disposable, and should be held as public highways, unless in case of some international duty or public exigency by the United States in trust for the future States. Upon the contrary, it is respectfully and confidently insisted that the instances in which Congress has acted upon the contrary theory, are so numerous as to constitute the rule and not the exception. But even admitting that it has not been the customary policy of the Executive Department to permit such lands to Counsel for Parties. be entered under the general land laws, what is the case at bar? The plaintiff in error is not claiming land under any general land law, but under a special grant of Congress. He is not restricted by the act to lands subject to entry under general land laws, but the exceptions are expressly enumerated in his grant. It is to be presumed that Congress knew the law, and knew that it had an unrestricted right to dispose of all the tide lands in the Territory of Washington. The mind of the legislature was upon exceptions when the grant was made, and numerous exceptions were made as to the class of lands which Valentine was not to be permitted to take by virtue of his grant. But tide lands or lands below high water mark were not enumerated among those exceptions, and by every rule of construction of either grants, laws, or contracts and the act of 1872 partakes of the nature of all — all classes of lands which Congress had the power to grant, and which were not excluded in express terms, were among those of which he was authorized to make selection. - We submit, from the foregoing exposition of the law and facts, that these lands are public lands of the United States and subject to entry under the act of March 5, 1875. Mr. Joseph H. Parsons filed a brief on behalf of Louis Largie, intervenor, in both cases. Mr. Samuel Dickson and Mr. Frederic D. McKenney for the Tacoma Land Company, appellant. Mr. Frederic D. McKenney, with whom was Mr. Samuel Field Phillips, filed a brief for Dearborn, intervenor in Baer v. Moran Brothers Company. Mr. John P. Fay filed a brief on behalf of Dearborn, intervenor in Baer v. Moran Brothers Company. Mr. W. C. Jones, Attorney General of the State of Washington, filed a brief on behalf of the State, intervenor in Baer v. Moran Brothers Company. Opinion of the Court. Mr. Edwin B. Smith closed for Mann, appellant. MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court. The single question in this case is as to the title of plaintiff to the premises. The lands are tide lands, covered and uncovered by the flow and ebb of the tide, and are situated in Commencement Bay, near to the city of Tacoma. He does not claim by any grant from the State of Washington, nor by any act of Congress specifically granting him these lands, or in terms providing for the location of scrip upon tide lands, but insists that, although the statute under which this scrip was issued, only authorized its location upon "unoccupied and unappropriated public lands," he had a right to locate it upon these tide lands, and acquire full title thereto. That the title to tide lands is in the State is a proposition which has been again and again affirmed by this court, some of the earlier opinions going so far as to declare that the United States had no power to grant to individuals such lands. at any time, even prior to the admission of the State and dur ing the territorial existence. However, in the recent case of Shively v. Bowlby, 152 U. S. 1, after a careful review of the authorities, it was held that the denial in those opinions of the power of Congress to make such a grant was not strictly correct; but it was also held that, although Congress could, it had never undertaken by general laws to dispose of such lands, and in the summing up at the close of the opinion it was stated: "The United States, while they hold the country as a Territory, having all the powers both of national and of municipal government, may grant, for appropriate purposes, titles or rights in the soil below high water mark of tide waters. But they have never done so by general laws; and, unless in some case of international duty or public exigency, have acted upon the policy, as most in accordance with the interest of the people and with the object for which the Territories were acquired, of leaving the administration and disposition of the sovereign rights in navigable waters, and in the soil under Opinion of the Court. them, to the control of the States, respectively, when organized and admitted into the Union." It It is unnecessary, in view of this recent examination of the question, to enter into any discussion respecting the same. is settled that the general legislation of Congress in respect to public lands does not extend to tide lands. There is nothing in the act authorizing the Valentine scrip, or in the circumstances which gave occasion for its passage, to make an exception to the general rule. It provided that the scrip might be located on the unoccupied and unappropriated public lands, but the term "public lands" does not include tide lands. As said in Newhall v. Sanger, 92 U. S. 761, 763: "The words 'public lands' are habitually used in our legislation to describe, such as are subject to sale or other disposal under general laws." See also Leavenworth &c. Railroad v. United States, 92 U. S. 733; Doolan v. Carr, 125 U. S. 618. Further, in the act of February 22, 1889, c. 180, providing for the admission of Washington, Montana, and the two Dakotas, into the Union, 25 Stat. 676, 677, among the conditions imposed was this: "That the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof." No one can for a moment suppose that it was the thought of Congress to change the whole policy of the government and reserve to the nation the title and control of the soil beneath the tide waters and those of navigable streams. Indeed, in the constitution of Washington, (art. 17, sec. 1,) there is an express assertion of the title of the State to the tide lands within its borders. That there was no intent in the Valentine scrip act to make any exception to the general rule is evident not merely from the use of a term having such an accepted meaning, but from the further provision that the land, "if unsurveyed when taken, to conform, when surveyed, to the general system of United States land surveys," for under that general system surveys are not extended to tide lands, nor those under navigable rivers above tide water. In Barney v. Keokuk, 94 U. S. 324, 338, it was said: "The Opinion of the Court. United States has wisely abstained from extending (if it could extend) its survey and grants beyond the limits of high water." But it is claimed that there is a peculiar equity attaching to the Valentine scrip because the Miranda grant in fact embraced tide lands, and was of great value-$2,000,000 as stated in the debate in Congress. It is said by counsel that the intention of Congress, as indicated by this act, under the circumstances, was manifestly to give Valentine the right of selection of lands of the United States belonging to the same classes as were to be found in the Miranda grant, which he relinquished. The import of the language is precisely this, and the contract to be equal requires the construction which the language plainly means. Any other construction would be against the just intentions of the national legislature. So far as respects the great value of the Miranda grant, it was that which was created by the building up of a city within its borders, and not something which inhered in the land itself. So that when Valentine failed to secure a confirmation of that grant, he was not losing property which was of the value of $2,000,000 when granted by the Mexican government, but only losing the opportunity to appropriate $2,000,000 worth of value created by the labors of others upon lands to which they supposed they had title. Further, as appears from the statement made by the Secretary of the Interior, he had lost all legal right to this land, for when a commission had been provided for investigating the validity of such claims, he presented his claim for confirmation and then withdrew it. Congress had fulfilled all obligations to him growing out of the treaty with Mexico, and when by his own act he had forfeited his legal claims to the land, it was a mere act of grace by which was given to him the right to select an equal amount of land elsewhere. If Congress had thought that it was necessary in order to do justice that he should be permitted to select an equal quantity of land of like character, it was easy to have expressed that intention. Having failed to do so, and omitted any reference |