Port of Seattle v. Oregon & Washington R. Co., 255 U.S. 56 (1921)

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Filed: 1921-02-28Precedential Status: PrecedentialCitations: 255 U.S. 56Docket: 107

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255 U.S. 56
41 S.Ct. 237
65 L.Ed. 500

PORT OF SEATTLE
v.
OREGON & W. R. CO. et al.
No. 107.
Argued Dec. 6, 1920.
Decided Jan. 31, 1921.

[Syllabus from pages 56-57 intentionally omitted]
Messrs. Leander T. Turner, Harold Preston, and O. B. Thorgrimson, all of
Seattle, Wash, for appellant.
Messrs. W. H. Boyle, R. S. Terhune, and George F. Aust, all of Seattle,
Wash., and Henry W. Clark, of New Yrok City, for appellees.
Mr. Justice BRANDEIS delivered the opinion of the Court.

1

The main question in this case is whether the Oregon & Washington Railroad
Company acquired, as owner of land adjoining East waterway in the port of
Seattle, the right to build in the waterway piers, wharves, and other structures
over which it would secure access from its land to the navigable channel. The
question arises in a suit to quiet the title of the state which was brought against
the railroad in a state court of Washington, in 1917, by the Port, a municipal
corporation,1 created by the laws of Washington. J. F. Duthie & Co., lessees of
the railroad's land, were joined as defendants; but they have no substantial
interest in the controversy; and their peculiar rights do not require
consideration. The case was removed to the District Court of the United States
by petition of the railroad, which is an Oregon corporation, and a motion to
remand was denied. Upon full hearing on the merits a decree was rendered
dismissing the bill. The case comes here by direct appeal of the port under
section 238 of the Judicial Code (Comp. Ct. § 1215); it having been contended
by the railroad and held by the lower court that the validity of chapter 168 of
the Laws of Washington of 1913, p. 582, is involved, and that its provisions
violate the contract clause and the due process clause of the federal
Constitution. The following facts are material:

2

When the state of Washington was admitted into the Union, there lay in front of
the city of Seattle extensive tidelands in the area now comprised within the
limits of the municipal corporation known as port of Seattle. Under appropriate
legislation of the state this area has been developed as a port. Waterways have
been established and in part dredge; tidelands abutting upon the waterways
have been filled, platted as city blocks, and laid out with streets; and lots therein
have been sold for business and other purposes. Among the waterways so
established is that known as East waterway, which connects Duwamish river
with Elliott Bay, an arm of Puget Sound. East waterway, as established, has at
the point in question a width of 1,000 feet. The bed of the waterway was in its
natural state tideland. The 750 feet of the waterway which lie in the center have
been dredged to a depth at mean low tide of from 26 to 30 feet. The rest of the
waterway, being that portion which extends on either side for a distance of 125
feet from the bulkhead of the filled land to the fairway, is of varying depth and
is not navigable by large vessels. The bed of the waterway within these 125 feet
areas slopes from the bulkhead to the line of the fairway. It is exposed at low
tide ordinarily at points about 36 feet from the bulkhead.

3

The railroad's parcel here in question is filled land adjoining the west side of
this waterway. The tract is a part of block 393, Seattle Tidelands, shown on a
plat duly filed with the county auditor in 1895, and was acquired from the state
by the railroad's predecessors in title prior to 1907. The deeds by which the
state conveyed the land do not in words purport to grant any right in the
waterway; nor is mention made of East waterway either in the granting clause
or elsewhere in the deed.2 On the plat, by which the land was sold, the
boundaries of the block, and of the several lots comprised within it, are set
forth clearly and lineal measurements are given. East waterway is shown on the
plat and, on each side of the waterway, a broken line called 'pierhead line,' is
marked at a distance of 250 feet from the bulkhead. It is alleged by the railroad
that this pierhead line, established by the War Department as prescribing the
limits beyond which structures obstructing navigation would not be permitted in
the waterway, had been adopted also by the state authorities. In 1914, by joint
action of the War Department and of the state authorities, and with the assent of
abutting owners, the pierhead line was moved back to a point 125 feet from the
bulkhead, leaving the fairway in the center 750 feet, as above stated, instead of
500 feet as originally indicated on the plat. The rights claimed by the railroad
are limited to this 125-feet area.

4

Chapter 168 of the Laws of Washington 1913, p. 582, provides that:

5

'Whenever, in any waterways created under the laws of the state of Washington,
the government of the United States shall have established pierhead lines in
said waterway at any distance from the boundaries thereof established by the
state, no structure shall be allowed in the strip of waterway between the
boundary and the nearest pier head line except by consent of the state land
commissioner and upon plans approved and terms and conditions fixed by him,
and then only for such period of use as shall be designated by him, but any
permit shall not extend for a longer period than thirty (30) years: Provided,
however, that the owner of land abutting upon either side of any such waterway
shall have the right, if application be made therefor within a period of ninety
(90) days following the date when this act shall go into effect, to obtain * * *'

6

—a permit authorizing the improvement and use of such area under conditions
to be prescribed by the state authorities upon the payment of an annual rental
dependent in amount upon the assessed value of an equal area of the abutting
land.

7

The railroad failed to apply for such a permit. Asserting the rights above stated,
it leased a part of its land to J. F. Duthie & Co. for a shipbuilding and
manufacturing plant, and purported to authorize the construction of wharves,
piers and other structures upon the adjoining water area up to the 125-foot
pierhead line. By the act of 1913 the control over the waterways therein
conferred upon land commissioners is to be exercised in port districts by the
port commissioners. This bill to enjoin such use of the waterway by the railroad
and its lessees and to quiet title was therefore brought by the port of Seattle.

8

The decree entered by the lower court declared in substance (1) that the state
has no proprietary interest in the water area between the bulkhead and the
pierhead line; (2) that it is not entitled to lease the same or otherwise to deprive
the railroad of access to the fairway; (3) that chapter 168 of the laws of 1913 in
so far as it provides for such leasing violates the federal Constitution; (4) that
the railroad has no proprietary interest in the waterway, but as owner of the
abutting lots is entitled to access to the deep or navigable waters 'subject to
proper governmental supervision.' The decree declared further that the state had
never established harbor lines in the waterway, and expressly recited that the
court does not determine whether or not the state now has power to establish
harbor lines, nor what the effect might be of hereafter establishing them.

9

The main question presented for our decision is whether the railroad acquired,
in connection with the lots of filled land abutting on the waterway, a private
riparian or littoral right to construct wharves, dock and piers on this 125-foot
area, in order to provide for itself, as owner of the land, and for those claiming
under it, convenient access to the fairway for purposes of navigation and
commerce. The port contends that the railroad acquired no such right, nor any
private right whatsoever, in any part of the adjoining waterway; and that the
state is free either to use this portion of East waterway directly for purposes of
navigation, as the present fairway is used, or to use it as a part of the harbor;
and that, since it is also the proprietor of the tideland, under this water area, it
has the full right to develop it, or authorize its development by others, through
the erection of wharves, piers, docks or other structures in aid of navigation and
commerce; and to charge a rental for the privilege.

10

First. The right of the United States in the navigable waters within the several
states is limited to the control thereof for purposes of navigation. Subject to that
right Washington became upon its organization as a state the owner of the
navigable waters within its boundaries and of the land under the same. Weber
v. Board of Harbor Commissioners, 18 Wall. 57, 21 L. Ed. 798. By section 1 of
article 17 of its Constitution the state asserted its ownership in the bed and
shore 'up to and including the line of ordinary high tide in waters where the tide
ebbs and flows.' The extent of the state's ownership of the land is more
accurately defined by the decisions of the highest court, as being the land
below highwater mark or the meander line, which ever of these lines is the
lower.3 The character of the state's ownership in the land and in the waters is
the full proprietary right. The state, being the absolute owner of the tidelands
and of the waters over them, is free in conveying tidelands either to grant with
them right in the adjoining water area or to completely withhold all such rights.
Whether a conveyance veyance made by the state of land abutting upon
navigable water does confer upon the grantee any right or interest in those
waters or in the land under the same, is a matter wholly of local law. Shively v.
Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331. Upon such questions the
provisions of the Constitution and statutes of the state and the decisions of its
highest court are accepted by us as conclusive. St. Anthony Falls Water Power
Co. v. St. Paul Commissioners, 168 U. S. 349, 18 Sup. Ct. 157, 42 L. Ed. 497.
The precise question presented here is whether the state by executing the deed
of the land, which in fact adjoined East waterway, conveyed rights in that
waterway. That question is, in essence, one of construction of the deed taken in
connection with the plat therein referred to.

11

Second. Under the law of Washington (which differs in this respect from the
law generally prevailing elsewhere) a conveyance by the state of uplands
abutting upon a natural navigable waterway grants no right of any kind either in
land below highwater mark, Eisenbach v. Hatfield, 2 Wash. 236, 26 Pac. 539,
12 L. R. A. 632; or in, to, or over the water, Van Siclen v. Muir, 46 Wash. 38,
41, 89 Pac. 188; except the limited preferential right conferred by statute upon
the owner of the upland, to purchase the shoreland, if the state concludes to sell
the same. Act of March 26, 1890, section 11 and 12, Laws of Washington
1889-1890, p. 435. The grantee of the upland cannot complain of another who
erects a structure below highwater mark, Muir v. Johnson, 49 Wash. 66, 94 Pac.
899. He does not acquire any right of access over the intervening land and
water area to the navigable channel, Lowsdale v. Grays Harbor Boom Co., 54
Wash. 542, 550, 551, 103 Pac. 833. So complete is the absence of riparian or
littoral rights that the state may—subject to the superior rights of the United
States wholly divert a navigable stream, sell the river bed and yet have impaired
in so doing no right of the upland owners whose land is thereby separated from
all contact with the water. Newell v. Loeb, 77 Wash. 182, 193-194, 137 Pac.
811; Hill v. Newell, 86 Wash. 227, 228, 149 Pac. 951.4

12

Lthird. The railroad admits that such are the rights of a grantee from the state,
where it is the upland which is conveyed. But it contends that a different rule
applies where the sale is of tidelands. No basis for the distinction can be found
either in the decisions of the highest court of the state or in reason. Since the
upland owner has been denied riparian rights in deference to the asserted right
of the state to control unhampered the course and development of navigable
waters, the state's right must be superior also to the claim of the tideland owner.
For the assertion of title in the state was obviously made in order that it might
not be hampered in developing waterways and harbors in the manner and to the
extent that the public interest should from time to time demand. Such
development obviously includes harbor facilities, like piers, docks and wharves,
as well as adequate channels. Compare State v. Bridges, 87 Wash. 260, 151
Pac. 490. The proprietary right of the state over navigable waters and of the soil
thereunder is neither exhausted nor impaired by making a sale of a tract of
tideland, be it the parcel nearest the upland or some other. The state may in one
year fill and sell the 100 feet of tidelands nearest the upland and in the next
year fill and sell the parcel beyond. Compare State v. Scott, 89 Wash. 63, 70,
72, 154 Pac. 165. Or it may sell first the parcel more remote from the upland
and later the one immediately adjoining it, or any other. In every case it may, in
conveying the tideland, either grant or withhold rights in the water or in the
water area, as it sees fit. When land washed by the ebb and flow of the tide is
conveyed by the state with clearly defined boundaries, no rights of any kind
beyond those boundaries ordinarily pass under the deed. Pearl Oyster Co. v.
Heuston, 57 Wash. 533, 107 Pac. 349, 832, 135 Am. St. Rep. 1007. Where a
tideland owner acquires rights of access to deep water it is by arrangement with
the owner of the interevening land. Compare Pioneer Sand & Gravel Co. v.
Seattle Construction & Dry Dock Co., 102 Wash. 608, 173 Pac. 508.

13

The cases most strongly relied upon by the railroad do not relate to tidelands.
They deal with the rights of shore land owners on an inland lake, the level of
which had been lowered by the government. State v. Sturtevant, 76 Wash. 158,
135 Pac. 1035, 138 Pac. 650; Puget Mill Co. v. State, 93 Wash. 128, 160 Pac.
310. Shore lands differ from tidelands not only in their situation, which in many
cases makes an almost indefinite filling in of the latter a possibility, but also in
legal definition. Tidelands have a definite boundary at the line of mean low
tide, or by later legislation, of extreme low tide. State v. Scott, supra, 89 Wash.
68, 69, 154 Pac. 165. The shore lands, on the other hand, were those 'below the
line of ordinary high water and not subject to tidal flow.' They had no defined
outer boundary. Accordingly when the waters of the lake there in question were
lowered, it became necessary to determine the ownership both of the lands
exposed and those below the new line of ordinary high water. The court held
that the outer boundary of the shore land was the line of navigability, and that
grantees were entitled to follow that line out when it was moved by act of their
grantor. The considerations which brought the court to this result were, it is
true, largely the same which in other jurisdictions led to the reccognition of
riparian rights; that is, the claim of the shore land owner to access to deep
water. But the court did not secure this interest to the shore land owner by
granting him extraterritorial rights—i. e., riparian or littoral rights. It did so by
construing the outer boundary of his land to be the line of navigability; holding
that since the Legislature had not limited the outer boundary of shore lands, as
it had done in the case of tidelands, it must have intended that the shore lands
granted should extend to the line of navigable water, in the absence of
legislation to the contrary. Compare Bilger v. State, 63 Wash. 457, 116 Pac. 19.
The Legislature confirmed this boundary, expressly restricting it to the lands to
which the court had applied it; that is shore lands not within city limits. This
doctrine can have no application to shore lands where the property line is fixed
in the deed. And it cannot apply to tidelands, the dissimilarity of which to shore
lands furnished the ground for enunciating the rule.

14

It appears, therefore, that the law of Washington does not recognize, as
appurtenant to upland, tideland, or shore land in its natural condition, rights of
any sort beyond the boundaries of the property. A right of access to the
navigable channel over intervening land, above or below low water, must arise
from a grant by the owner of the intervening property.

15

Fourth. The railroad contends that a different rule should be applied here where
we are dealing with made land abutting on an artificial waterway. East
waterway is not properly described as such. It is a natural waterway deepened
and confined. Compare Fox River Flour & Paper Co. v. Kelley, 70 Wis. 287,
800, 35 N. W. 744. And obviously the mere fact that tideland conveyed has
been filled would not, by the law of Washington, confer upon the grantee, as
appurtenant to the land, riparian rights in adjoining navigable waters. But the
railroad insists that even if the right of access to the navigable channel is not
appurtenant to its land as a matter of riparian law, its predecessor in title
received the right by implied grant from the state. The right, it says, 'depends in
the last analysis upon a proper construction of the grant by the state of the
abutting lots' in the light of all the circumstances. Among the most important of
those, is the fact that the whole development project was an artificial creation.
Land, it is urged, was artificially made up to a bulkhead. At some distance
beyond a navigable channel was artificially created out of an unnavigable
stream. Between the bulkhead and the channel are shoals which prevent full
use of waterside lots in connection with navigation unless wharves are erected.
When the original grant was made no provision in the law authorized leasing
these shoals for docking purposes, but on the contrary the whole waterway was
reserved by the statute forever from sale or lease. And, finally, the plat, by
reference to which all lots were sold, showed a pierhead line at the point of
navigable water. This situation, it is urged, indicates that the lots were sold as
part of a completed project, that it was intended they should have full shipping
facilities, and that since the state could not lease the shoals under then existing
legislation, it must have been the intention that abutting owners should have the
right of access to the pierhead line. This argument of the railroad rests,
however, upon an assumption which is at least open to serious doubt. It asserts
that under then existing legislation no state official was authorized to permit the
grantee to construct a wharf in East waterway. By the Constitution (article 15,
section 1) and by Act of March 28, 1890, p. 239, provision had been made for
the establishment of harbor lines in navigable waters. It appears from Wilson v.
Oregon-Washington Railroad & Navigation Co., 71 Wash. 102, 107, 127 Pac.
847, to have been the practice to permit parts of the harbor area so created to be
used for the erection of piers and wharves. East waterway was and is one of the
navigable waters of the state. Our attention has not been called to any statute or
decision which indicates that at the time of the original grant power to create
harbor areas in it and to grant permits to erect wharves therein would not have
been possessed by the harbor commissioners.

16

Even if the assumptions upon which the arguments rest were all true, the
conclusion contended for would not follow. Ever since the organization of the
state it has been the clearly defined policy of Washington not to grant riparian
rights in navigable waters. This policy, declared in its constitution and
expressed in careful legislation, has been consistently enforced by its courts. A
grant by implication of the riparian right here asserted might perhaps be
inferred in other jurisdictions from the circumstances stated. But in Washington
such an implication seems wholly inadmissible. If in the development in
question it had been the intention of the state to make such a radical departure
as that for which the railroad contends, the intention would doubtless have been
expressed by appropriate language in the deed. But East waterway was not even
mentioned in it. Until we are so informed by the Supreme Court of
Washington, we cannot, in the light of the waterway history of the state, beleive
that there were implications in the situation described which without more are
sufficient to indicate an intention to depart from the settled policy of the state.

17

So far as the pierhead lines are concerned, the railroad concedes that their
establishment by the United States did not create as against the state a right to
wharf out. They merely fixed the line beyond which piers might not extend.
Compare Wilson v. Oregon-Washington Railroad & Navigation Co., supra, 71
Wash. 107, 108, 127 Pac. 847. And the power of the United States in this
respect was not exhausted by its first exercise. Philadelphia Co. v. Stimson, 223
U. S. 605, 638, 32 Sup. Ct. 340, 56 L. Ed. 570. The lines so fixed, although
acted upon by the erection of piers, could be changed by the United States at
any time. Greenleaf Johnson Lumber Co. v. Garrison, 237 U. S. 251.5 From the
authorities to which we have been directed it appears that under the laws of the
state the presence of pierhead lines on the plat could have no effect other than
as a publication of action taken by the federal government. In Puget Mill Co. v.
State, 93 Wash. 128, 160 Pac. 310, decided in 1916, the power of state officials
to establish such lines is expressly denied by Judge Chadwick, who said:

18

'The use of the words 'pierhead line' on the plat prepared by the state, and in the
decree, is an unfortunate misuse of terms. The word means nothing under our
Constitution and statutes. In some of the Eastern states, we understand that
'pierhead lines' are defined, but the constitution makers in this state were careful
to avoid the confusion that may result from the drawing of an arbitrary line
beyond which piers and docks should not be erected, by providing for an inner
and an outer harbor line with an intervening area subject to state ownership and
control.'

19

It is unnecessary, therefore, for us to consider whether on this record it is open
to the port to contend that pierhead lines were in fact never fixed by any state
official.

20

Fifth. The port renews here the objection that the case was improperly removed
from the state court, Germania Insurance Co. v. Wisconsin, 119 U. S. 473, 7
Sup. Ct. 260, 30 L. Ed. 461; Postal Telegraph Cable Co. v. Alabama, 155 U. S.
482, 15 Sup. Ct. 192, 39 L. Ed. 231; insisting that since the state is the owner of
the bed of East waterway, it is the real party in interest, Murray v. Wilson
Distilling Co., 213 U. S. 151, 29 Sup. Ct. 458, 53 L. Ed. 742; Lankford v. Platte
Iron Works, 235 U. S. 461, 35 Sup. Ct. 173, 59 L. Ed. 316; and that it has not
merely a governmental interest, as in Reagan v. Farmers' Loan & Trust Co., 154
U. S. 362, 390, 14 Sup. Ct. 1047, 38 L. Ed. 1014, and in Missouri, Kansas &
Texas Railway Co. v. Missouri Railroad & Warehouse Commissioners, 183 U.
S. 53, 60, 22 Sup. Ct. 18, 46 L. Ed. 78. The objection to the jurisdiction of the
District Court is clearly unsound. The port, being a municipal corporation under
the laws of Washington, is a citizen of that state and could have been sued in
the federal court. Lincoln County v. Luning, 133 U. S. 529, 10 Sup. Ct. 363, 33
L. Ed. 766; Chicot County v. Sherwood, 148 U. S. 529, 13 Sup. Ct. 695, 37 L.
Ed. 546. It had both the power and the duty to bring suit to protect the interests
here involved; and it had a direct financial interest in the result. For chapter 168
of the Laws of 1913 provides for a payment by abutting owners, in the nature of
a rental, for the permit to use parts of the waterways in the erection of wharves,
docks or other structures, and that 75 per cent. of such rental shall be paid to the
county 'for the use of said port district.' The port has thus an independent
financial interest in this controversy; and although the state has also an interest,
suit against the port would not be prevented by the Eleventh Amendment. What
effect the judgment in this case will have upon the state's interest we have no
occasion to consider. Compare Tindal v. Wesley, 167 U. S. 204, 17 Sup. Ct.
770, 42 L. Ed. 137; Hopkins v. Clemson Agricultural College, 221 U. S. 636,
31 Sup. Ct. 654, 55 L. Ed. 890, 35 L. R. A. (N. S.) 243.

21

Reversed, and the cause remanded to the District Court for further proceedings
in conformity with this opinion.

1

2

Chapter 92 of the Laws of 1911, p. 412, as amended by Laws of 1913, c.
62, p. 202. It has power, among other things, to improve navigable and
non-navigable waters of the United States and of the state within the port
district; 'to create and improve for harbor purposes new waterways within
the port district; to regulate and control all such water * * * within the
limits of such port district so far and to the full extent that this state can'
and hereby does 'grant the same, and remove obstructions therefrom; to
straighten, widen, deepen and otherwise improve any and all waters; * * *
to execute leases of all lands, wharves, docks and property owned and
controlled by said port district upon such terms as to the prot commission
may deem proper.' It exercises also powers similar to those exercised by
counties including the power to sue and be sued. State v. Bridges, 87
Wash. 260, 151 Pac. 490. The state did not transfer to the port districts its
ownership in the beds and shores of navigable waters.
The form of the deed is as follows:
First party does hereby grant, bargain, sell and convey unto the second
party, and his heirs and assigns, the following described tidelands of the
first class, situated in front of the city of Seattle, Kings county,
Washington, to wit:
Lots one to nine, inclusive, block 393, as shown on the official map of
Seattle Tidelands, filed with the board of state land commissioners at
Olympia, Washington, March 15, 1895.
Subject, however, to any lien or liens that may arise or be created in
consequence of an act of the Legislature of the state of Washington
entitled 'An act prescribing the ways in which waterways for the uses of
navigation may be excavated by private contract, providing for liens upon
tide and shore lands belonging to the state, granting rights of way across
lands belonging to the state,' approved March 9, 1893.
Witness the seal of the state affixed.
Henry McBride, Governor.

3

See Scurry v. Jones, 4 Wash. 468, 30 Pac. 726; Cogswell v. Forrest, 14
Wash. 1, 43 Pac. 1098; Washougal, etc., Transportation Co. v. Dalles, etc.,
Navigation Co., 27 Wash. 490, 68 Pac. 74; Johnson v. Brown, 33 Wash.
588, 74 Pac. 677; Van Siclen v. Muir, 46 Wash. 38, 40, 89 Pac. 188; Brace
& Hergert Mill Co. v. State, 49 Wash. 326, 331, 95 Pac. 278.

4

5

In some states the shore between the high and the low water mark belongs
to the private owner of the upland and as such owner he has all rights not
inconsistent with the public's rights incident to navigation. In other states,
although the land below high-water mark belongs to the state, the private
owner of the upland has the right of access over it to the navigable channel
and the right to use the state's land in connection therewith. See 27 R. C.
L., sections 273-279, 284. But, in Washington, it is 'uniformly held that
there is no riparian right in the owners of lands bordering on the navigable
waters of the state,' and that the state retains the proprietary right to the
soil below high-water mark. State v. Sturtevant, 76 Wash. 158, 163, 135
Pac. 1035, 1037; Brace & Hergert Mill Co. v. State, 49 Wash. 326, 331, 95
Pac. 278. The language of some earlier cases apparently in conflict with
these views, was explained in Hulet v. Wishkah Boom Co., 54 Wash. 510,
517, 103 Pac. 814. The cases referred to go no further than to hold that the
owner of uplands has a right in common with the public to use the stream
for navigation, as it flows past his land; and that others conducting
operations upon the river may not willfully or negligently destroy his
upland. Dawson v. McMillan, 34 Wash. 269, 75 Pac. 807; Monroe Mill
Co. v. Menzel, 35 Wash. 487, 77 Pac. 813, 70 L. R. A. 272, 102 Am. St.
Rep. 905; Burrows v. Grays Harbor Boom Co., 44 Wash. 630, 87 Pac.
937. See also Judson v. Tidewater Lumber Co., 51 Wash. 164, 98 Pac.
377.
35 Sup. Ct. 551, 59 L. Ed. 939.

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