
    164 F. 974
    DECKER v. PACIFIC COAST S. S. CO.
    No. 1,564.
    Circuit Court of Appeals, Ninth Circuit.
    Oct. 19, 1908.
    
      E. M. Barnes, for appellant.
    Shackleford & Lyons (Geo. W. Towle,,of counsel), for appellee.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   MORROW, Circuit Judge

(after stating the facts as above).

In the recent case of Columbia Canning Company v. Hampton, 161 F. 64, this court had occasion to consider the claim of right asserted by the locator of land in Alaska which bordered on navigable or tidal waters to occupy the shore between high tide and low tide abutting upon his upland location as a basis for the purpose of carrying on the fishing business in connection with a fish trap extending out into the navigable waters of Lynn Canal. The court held that the littoral right attached to plaintiff’s homestead location entitled him. to free access to the navigable waters of Lynn Canal, but not to build upon the shore or erect any structure reaching out into deep water, so as to obstruct navigation. In support of this rule the court cited Gould on Waters (3d Ed.) par. 149, Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 35 L.Ed. 428, and Shively v. Bowlby, 152 U.S. 1, 58, 14 S.Ct. 548, 38 L.Ed. 331, and said: “It follows, from these authorities, that while the owner or locator of lands in Alaska which border upon navigable or tidal waters has, under the general law, the right of access to such waters for the purpose of navigation, he can acquire no right or title to the soil below high-water mark, and he can have, therefore, no right of possession upon which he can base an action against an intruder whom he charges with interfering with and obstructing him in the erection and use of a structure upon the shore below such high-water mark.”

The court said further: “He may have, however, a right of action against an intruder who places obstacles on the shore that prevent him from having access to the navigable waters.”

This is the general rule, and is designed to keep navigable waters free and open to the public for commerce and navigation, and at the same time permit the littoral owner and those engaged in commerce and navigation to have access to navigable waters; but it cannot be ascertained from the allegations of the complaint in this case, nor does it appear in evidence, in what manner the maintenance of the buildings and wharf by the appellee in front of appellant’s premises prevents her- from having access to the navigable waters pf Gastineaux Channel. The presumption is that such access would be facilitated, rather than obstructed, by the maintenance of a wharf and other suitable structures for the accommodation of the public in the discharge and shipment of passengers and merchandise arriving and departing by water at the port of Juneau.

But, however that may be, there is a more serious objection to appellant’s cause of action. In the deed of February 20, 1897, introduced in evidence by the appellee, E. O. Decker and J. M. Decker and the appellant, the then wife of E. O. Decker, conveyed, not only the then rights of the grantors, but also all the right, title, and interest and estate, legal and equitable, to the shore 'of Gastineaux Channel, which they then or might thereafter possess, by virtue of any law of the United States or otherwise, by reason of their ownership of blocks K and L in the town-of Juneau, and further granted the right to wharf out from the said premises southwesterly to deep water and maintain wharves and warehouses thereon for the benefit of trade and commerce, and to own, possess, and occupy the same forever by itself and its successors and assigns. .

It is contended by the appellant that the evidence relating to this deed was incompetent, and should have been excluded, on the ground that Congress alone had the power to make grants below high-water mark in the territory of Alaska, and for the further reason that the rights of the littoral owner cannot be detached from the soil out of which they arise or to which they are incident, and therefore cannot be transferred without an actual conveyance of the soil itself. In the case of, McCloskey v. Pacific Coast Company (C.C.A.) 160 F. 794, the owner of a lot in the town of Juneau had brought a suit in equity to enjoin the defendant from erecting a structure on tide lands in front of property belonging to the plaintiff fronting on Gastineaux Channel, alleging that as a littoral owner of lands abutting on the shore plaintiff was entitled to free access to and from the navigable waters fronting thereon. The defendant in his answer denied that plaintiff was a littoral owner of the seashore and alleged facts to show that by the dedication and grant of a sidewalk and street in front of its land the plaintiff had parted with all of its littoral rights. The court below held that plaintiff possessed the littoral right of access to the water in front of its land and on that ground awarded an injunction. This court, upon the evidence of the dedication and a grant by deed of the strip of land for a sidewalk and street along the water front of plaintiff’s premises, held that the plaintiff had by dedication and deed parted with all its littoral rights, although the order granting a preliminary injunction was affirmed on a right of possession established under Act May 17, 1884, c. 53, 23 Stat. 24, 26.

If the littoral owner can dedicate or convey to the public his right of access to the navigable waters in front of his premises, he can convey that right to an individual or to a corporation for the purpose of enabling such individual or corporation to erect and maintain a wharf for the benefit of commerce and navigation. The law of that case is applicable here, and we are of opinion that, whatever appellant’s rights may have been as the owner of land abutting on navigable waters, she parted with such rights in the deed of February 20, 1897, that the appellee’s lessor has succeeded to such rights, and the appellant cannot, upon the facts in the case, maintain this action to abate the wharf and buildings occupied by the appellee as a nuisance.

The judgment of the District Court is affirmed.  