Washington Court Protects Public Access to Tidelands on Bainbridge Island

City of Bainbridge Island v. Brennan, 2005 Wash. App. LEXIS 1744 (Wash. App. July 20, 2005).

Sabena Singh, 3L, South Texas College of Law

On July 20, 2005, the Court of Appeals of Washington held that a dedicated right-of-way laid out to navigable waters is presumed to provide access to the water’s edge.

Facts
Bainbridge Island, located 35 minutes by ferry from Seattle, is home to quiet harbors, farms, and a rich history. Bainbridge Island grew from a small town of two square miles with 3,147 people to a bustling community of 20,920. Over the years, it has managed to uphold its friendly aura, small town charm, and natural environments.

In 1898, Peder Erlandsen purchased 32 acres on Bainbridge Island, which adjoined, but did not include, the tidelands of Fletcher Bay. Over the years, a county road was built across Erlandsen’s property to provide access to the beach and later a wharf that extended from the end of the road into the bay. In 1911, Erlandsen dedicated for public use all the streets and avenues on his property, which included the county road. Soon thereafter, Erlandsen received title to all of the tidelands adjoining his property.

A few years later, a private ferry company began providing service between Fletcher Bay and the Kitsap Peninsula. Customers accessed the ferry via the county road and the wharf. In 1923, Erlandsen dedicated an additional 40-foot right-of-way to accommodate a change in the county road’s route following a county improvement project. The public frequently used the wharf and the surrounding beach to dig clams and moor their boats, even after the ferry service was discontinued in 1941 and the wharf dismantled.

Erlandsen died in 1943 and his property, including the tidelands, was eventually subdivided. Some of the new lot owners began challenging the public’s use of the tidelands going so far as to build a fence and erecting a locked gate to blocked access.

In 1999, the City of Bainbridge Island (City) which had acquired an undivided 2/20 interest in the tidelands, sued to quiet title to the road and tidelands. The trial court quieted title in favor of the City holding that “the land-based portion of Fletcher Landing was dedicated to the public as a public road right-of-way to the western edge of the concrete bulkhead built in 1924 and still presently on site.”1 A few of the record owners of tideland parcels appealed.

Dedication to Public Use
Appellants made several claims on appeal. First, appellants contended that the City failed to prove that Erlandsen intended to dedicate the tidelands to public use. Under Washington state law, “a dedication is generally defined as the devotion of property to a public use by an unequivocal act of the owner, manifesting an intention that it shall be accepted and used presently or in the future.”2 The elements that indicate a dedication are (1) intention of the owner to dedicate and (2) acceptance by the public. The court determined that Erlandsen’s conduct before and after he purchased the tidelands indicated his intention to dedicate them for public use and that the public accepted this dedication. The court cited well-established Washington law that “when a public highway is laid out to navigable waters, its terminus is presumed to be a public landing as incident to the highway.”3 Since the public frequently used the tidelands, the court found that the two elements were clearly satisfied.

The record owners also argued that they were bona fide purchasers for value and therefore entitled to exclusive use of the property. Under Washington law, “where there is an apparent dedication to public use, or where such a dedication may be inferred or suggested from the condition of the property, the purchaser is put on notice and cannot defeat the right of the public therein, should such a right in fact exist; and this is so regardless of the state of the record title or of the recitals in his deed.”4 This court agreed with the trial court’s finding that the record owners had knowledge of the land’s dedication for public use, and were therefore put on notice and could not defeat the right of the public. The court reasoned that the physical attributes and location of the property should have put appellants on notice that the land was dedicated for public use or, at the very least, put them on notice of the need to inquire further.

Public Trust Doctrine
A cross appeal was filed by the Larsons who owned waterfront property close to the tidelands. Because of their property’s steep bank, they used the tidelands to launch their small boats and gain access to the tide flats. The Larsons claimed they had a right to use the tidelands for recreational purposes based on the public trust doctrine. Developing out of the public’s need for access to navigable water, the public trust doctrine protects “public ownership interests in certain uses of navigable waters and underlying lands.”5 The doctrine reserves a public property interest in tidelands and the waters flowing over them despite the sale of these lands into private ownership.

The Washington Supreme Court has never considered pedestrian passage over tidelands. Although the appeals court recognized the right of the Larsons to access the tide flats under the public trust doctrine for “navigation, commerce, fisheries, recreation, and environmental quality,” it affirmed the dismissal of the Larsons’ claims to pedestrian travel over privately-owned tidelands when not covered by water. The court stated that under the public trust doctrine, the public is allowed to use the neighboring tidelands when covered by water, but when the tide is out, the public has no right to walk across private property.

Conclusion
In sum, under Washington law, a dedicated right-of-way laid out to navigable waters is presumed to provide access to the water’s edge. The court also found that the public trust doctrine does not extend to protect pedestrian travel over privately-owned tidelands when not covered by water.

Endnotes
1. City of Bainbridge Island v. Brennan, 2005 Wash. App. LEXIS 1744 at *11 (Wash. App. July 20, 2005).
2. Id. at *13.
3. Id. at *28.
4. Id.
5. 40 C.F.R. § 132.4(h).
6. Id. at *59.