On January 25, 2024, the Washington State Supreme Court decided King County v. Abernathy, an important case concerning state constitutional law with respect to shorelands.

Article XVII of the state constitution provides for state ownership of the beds and shorelands of the state’s navigable waters at the time the state constitution was enacted in the 1880s, except if those lands were “patented by the United States.”

If land was granted to someone by the federal government by a patent at the time of statehood, then that property owner owned the land. However, if it was not conveyed by the federal government through a patent at the time of statehood, then the state owned the land.

Abernathy concerns a 3.6 mile stretch of land on the eastern shore of Lake Sammamish. In the 1880s, the federal government granted a portion of the land to a railroad company for a right-of-way. That right-of-way over time transferred ownership from the railroad to King County, who has since used the stretch of land for an interim public trail along the lake.

The Abernathys (along with other property owners) own property on and adjoining the land, and have used it for docks, fences, and other structures.

King County sued the Abernathys in federal court for ejectment, quiet title, and trespass. The County claimed that because the right of way was given to the railroad by the federal government prior to statehood, it was a patent conveyed by the United States. Thus, Washington—which under the state constitution owned shoreland in the state prior to statehood—could never have conveyed the land to the Abernathys, and King County was the true owner.

The Abernathys argued that it was not a patent, and that they held true title to the property.

Because the issue presented a novel question of state constitutional law, Chief Judge Estudillo of the United States District Court for the Western District of Washington certified the question about what a patent is under the state constitution to the Washington Supreme Court.

In a unanimous opinion, the Washington Supreme Court held that the right-of-way granted prior to statehood is not a patent under the state Constitution.

Justice Montoya-Lewis wrote that a patent from the federal government means conveying the property in fee simple. The Court held that the right-of-way granted to the railroad (now owned by King County) was not a deed in fee simple, but merely a railroad easement through the land. Because of the limited transfer, the State maintained ownership at the time of statehood, and the Abernathys were the true owners.

The Abernathy decision will likely affect only property owners who have title disputes related to the origin of title to their shoreland property from the State. If there is a debate over whether Washington State or the federal government originally held title at the time of statehood, Abernathy dictates that the grant from the federal government must have been in fee simple, not a merely possessory interest such as an easement.