*1 Oo. Oakland Oakland September 13, 1897.] In Bank. and 527. Nos. 389 [S. F. v. OAKLAND WATER OAKLAND, Respondent, OF CITY COMPANY, Appellant. FRONT Grant—“Snip Chan- or State Oakland—Construction Waterfront “ op Tide—Boundary op Estuary’’—Line Southerly Low Line nel of all lands by of Oakland grant the to the town state op Town.—The by corporate lying limits, waterfront, as fixed the within ship channel,” high be May 4, tide and is to “between act of the boundary favorably state, and the the town the most construed creek, estuary,” southerly Antonio or the San line of “the southerly being line of low tide of that estu- the be construed boundary by “ship ary, is to be construed as in- channel” and the boundary tending tide; and of the town of low the Oak- the line of commencing act, the at intersection of the land as defined on the line of low tide the northern branch of northeast line with estuary, on branch the the line of low tide said mouth follows along basin, mouth, said and continues eastern crosses estuary its mouth line of tide on the southern side of the low follows, northerly bay, line low tide and east- and thence erly boundary; till intersects northeastern and the lying ship high-water Oakland was of the lands mark and between channel, boundaries, nothing within these west of included bay front, beyond nothing line of low tide on the line estuary estuary, low tide on the north and west shore of the be- ing navigable, part “ship itself and a channel.” Crossing op Estuary—Extension op Southerly Id.—Line Eastern Basin prom surveying Headland.—The rule in Line Headland boundaries body defined streams or other waters is to follow the stream or water, crossing the mouth affluents other inlets from head- headland; determining boundary land to of the town of Oakland, -which extends from the intersection of the northeast boundary southerly estuary, with the line of San Antonio creek or southerly bay,” “down the line of said creek to its mouth in the legislative conception estuary creek of.the is that it has a head boundary line, above its intersection with the northeastern bay, southerly mouth in the and the line of the creek at low tide estuary must cross the mouth of the eastern basin of the from head- headland, stop land to going southerly and cannot from down the estuary, line of the creek or to ascend and make the circuit of the eastern basin. op Municipal Id.—Strict Construction Boundaries—Connection Welpare.—Where gratuitous the boundaries State Grant—General aof depend upon donation of lands from the state the boundaries aof municipal corporation grant, fixed the same act which makes the act, including the entire municipal corporation, the boundaries of the brought within against grantee; rule of strict construction but, considered without lands, reference to the donation Front Co. Sept. 1897.] v. Oakland Water municipal construed in a manner franchise is to be general welfare, strict construction of conducive to the most defining municipal enforced, act boundaries will where the general *2 rights require it. welfare and the of other communities Change City— Boundary os’ Id.—Reincorporation os1 not Retro as Town High Estuary—Legislative upon upon Property Tide Rishts— active Disregarded.—The (Stats. p. by 1854, 184) act of 1854 which Construction reincorporated city Oakland, as and the of the town of Oakland was the upon city, by rights of the and and duties the town were devolved which city should be same it enacted the boundaries the as was town, specifically described “the those of the but which eastern and estuary slough high Antonio, the and tide line” of San southern proviso saving rights boundaries, with a the the the one of citizens respective wharves and San Antonio to construct at their Clinton sites, extending whatever it have had in effect the limits of the city passage, any from and after its cannot be allowed retroactive upon property city rights grantee, the effect other which must by judicial proper be determined construction the act of limits; of. regardless any 1852, subsequent change in the and subsequent the construction which the act of and the act of April 24, defining Oakland, sought the boundaries of the town of to place upon 1852,being erroneous, disregarded by the act of must be determining property rights depending upon courts that act. Rights Naviga- to Tide Lands—Purlio oe State Alienate Id.—Power oe Fishery—Chicago Oakland.—The Case—Grant Town oe tion and power has full to alienate lands which state covered and uncov- by daily tides, subject only ered rights flux and reflux of to the public purposes navigation to use them for the and fishery; private ownership and such lands are alienable in where capable public right, of reclamation without detriment to the and especially advantage where their naviga- reclamation will be of commerce; nothing tion and and there is in the doctrine established by Illinois, the case of Illinois Central It. It. Co. v. 146 U. S. nonalienability continually submerged relative to the of lands be- Michigan neath the waters of Chicago, Lake in the harbor of which right is inconsistent with the of the state of California to along town of Oakland the mud flats and shoals its water- lying high tide, front between and low awith view to facilitate the construction of wharves improvements, and appearing other it not impaired power that such has legislatures succeeding regulate, protect, improve, develop public rights navigation fishery. oe Id.—Power Oakland to Alienate Entire Waterfront—Question oe Legislative Intent—Public Trust—Invalid Transfer to Private power Citizen.—The town of Oakland had no to alienate its entire water- front, power upon such unless was conferred it the legislature; question it and whether was legislative conferred or not is a in- tent, gathered to be from the terms of the statute construed with general scope its reference to purpose; and the clear intent of creating the act Oakland, granting town of to it the tide CXVIII. Cal.—11 Oal. Front Oo. Oakland front, public along to confer it trust for water was lands its improvement facilities the erection of con- of commercial n regulation along waterfront, and the col- venient wharves wharfage dockage public use, their trust lection delegate any abdicate, power neither nor nor conferred could lands, upon it to alienate tide essential which were regulate tolls; exercise of its to erect wharves and and an attempt private the town to invest a the exclusive citizen with regulate tolls, to erect wharves and him the and to transfer to waterfront, thereon, entire erecting consideration of his wharves
was unauthorized and void. Id.—Limited Power of fob Alienation—Provision Streets Wharves intention of Void.—The Lands —Sale of Parcels—Sale in Bulk protracted the law was that the streets of the town should be spaces waterfront, intervening lots, into blocks and divided subdivisions, preserve public and sold in ample such manner as to navigable bay means of access to the waters of the and es- tuary, municipal ample space and to the authorities for the erection n wharves, piers, docks, and if reasonable measures to *3 taken, by parcels this end had been a sale of the lands would have proper power by municipal authorities; been a exercise of the but a private citizen, any transfer in bulk 1o a without reservation of the right navigable by largely of access to waters the which town was surrounded, gross power. awas and excess of evident by City—Mandate Equity Id.—Dismissal of Suit in of Súfreme Court— Adjudioata—Question of Title undetermined.—The dismissal of Res brought by city equity a in suit the of Oakland to set aside the grant by of the waterfront assumed to have been made the as town being void, fraudulent and which was in dismissed obedience to a supreme court, question mandate of the whose decision left the grantee undetermined, adjudged in title the and that there was no ground equity for, grant that, in for the relief asked and if the was void, city disregard it, rights any appro- the could and assert its in priate manner, adjudicada,upon question title, is not res the and estop city grant not does the to assert the void character of the in subsequent action. a Ratification of Town Ordinance—Confirmation ID.—Lesislative Void Legislature—Question Grant—Power of of Intention Undetermined. within the of the It was vest title to the tide grantee in the Oakland the lands on waterfront of the town under town, purporting same, by legis- of the ordinance void clearly ratifying ordinance; question such but the lation whether amending city 1.801, pro- act of section of the charter so as to vide that “the ordinances of the board of trustees of said town are hereby confirmed,” spec- and ratified was intended to include a void purporting private ordinance ial the entire waterfront to a citizen, general or whether it was intended to include or- legislative character, justices of a dinances one disagreed, and is court undetermined. Subject to Execution.—The lands between Lands not Id.—Waterfront high along being Oakland, by and low tide the waterfront of held Front Co. Sept. 1897.] Water Oakland through laying public subject out streets trust of the town them, docks, piers, wharves, using and other sites for them as seaport town, commerce, were traffic of and to the aids to essential against subject levy the town. and sale under execution not Legislative Conpirmed Authority—Title Compromise under Id.—Valid com- Easements.—The Company—Exceptions—Public in Waterfront city Oakland, 1868, April, promise between in effected Railroad Company, Pacific and Western Front Oakland Water approved authority given pursuant Company, the act March parties, especially passage obtained of which was mayor city of Oakland were council and the terms of which any adjust empowered compromise, settle, and authorized and action, claims, controversies, demands, and causes of and all city effective; interested, and after which the was valid and ownership, compromise, city the date of said had no of Oakland except otherwise, portion waterfront, trustee of her portions compromise, streets, those secured to her such thoroughfares, parcels previously and other as were dedicated to public use; Company title of the Oakland and its assigns subject to the entire waterfront was confirmed to those ex- ceptions, public and to the easements and of control city over the lands so dedicated. Compromise—Discretion op Mayor Id.—Reasonableness oe and Council question op Fraud.—The as to the reasonableness or unrea- —Absence compromise, city sonableness and as to what the should exact making it, or concede awas matter confided to the discretion of mayor council, and, fraud, judg- in the absence of their thereupon ment was conclusive. Places—City Estopped by Id.—Streets and Public Consent Decrees— Inapplicable.—With respect op public to streets and Statute Limitations places public use, estopped by dedicated to is not consent decrees, apply. and the statute of limitations does not from a APPEALS judgment of tbe Superior Court of Ala- meda County from an order denying new trial. F. B. *4 Ogden, Judge.
Tbe facts are stated in tbe of tbe opinion court. Moore,
A. A. Martin, J. C. Brown, H. S. John Garber, and Herrin, W. F. for Oakland Water Front Company, Appellant 527 and No. Appeal Respondent 389. Appeal No.
' Tbe
of Oakland is
city
from
estopped
bringing this action by
conduct
its
and acquiescence. Municipalities and
states
(State,
be thus
etc. v. Flint etc.
estopped.
Ry. Co.,
state had tide lands authority dispose bay estuary. waterfront (Eldridge v. 294; Hyman 4 Cal. 8 Cal. 80; Chapin Bourne, v. v. Cowell, Read, 630; 13 Cal. 15 Wheeler 444; Holladay Frisbie, Miller, v. v. U. S. 124; 281; Burgess%. 16 Cal. 103 Watson, Bondurant v. U. 454; U. 115 S. 20, 33; 107 S. Gage Pumpelly, v. Seligman, 152 U. 140 U. S. v. 371; Shively Bowlby, Hardin v. S.. Jordan, U. 287; 153 S. Mann v. Tacoma 1; Co., Baer Moran Bros. v. ¶. N. 56; 60 Y. 273; 153 U. S. Strong, Land Brookhaven Co., N. Y. 443; N. Y. 95 634; 118 Mayor Hart, etc. v. Trustees v. Smith, N. Y. 7 129; 93 Commonwealth v. Alger, Langdon Mayor etc., v. 114 N 427; Y. Cush. York etc. R. R. Ho- 53; Ramsey Co., v. New 22 657; Gough Bell, 124 U. S. R. R. v. Co., boken Pennsylvania v. Y. 68 N. 77, 78; L. Co., New York etc. 456, 457; N. J. v. People Am. Dec. 132; Mass. 98 Hinman 42; 98 v. Boston, Nichols v. Or. 7 447p Boivlby Or. Taylor, 410; 6 Parker v. Warren, 133; 25 Or. Am. .St. Portland, 416; Or. Lewis v. Shively, *6 ¾. 1G6 Oakland Oakland Water Front Co. Cal. Case 4 772; Loflus, Rep. 730; Scurry Jones, v. 39 Fed. v. Rep. 2 Le Hatfield, Eisenbach v. 468; 236; Wash. Wash. Boston v. Fitchburg R. R. Co. R. R. 432, 433; 17 v. Boston etc. Craw, How. Winnisimmett Co. 86, Allen, 432; 3 Cush. v. 11 Co., 87; Wyman, 141 Mfg. Co., Mass. Rutland 51; Hamlin v. Austin v. Pairpoint 46C; Fed. 45 Vt. State 2 I. 215; 17 v. R. Ry. Co., Rep. Cozzens, 11 R. 210; I. Engs PecJcham, v. Gerhard Seekonk etc. 561; v. East 334; R. I. Haven v. Commrs., Hemmingway, 186; 15 7 Conn. 62 Conn. 136, 138; 333; Prior 36 Am. Swartz, Rep. v. St. 132, Public School Docketc. C'o.v. Trustees, 409; American 39 N. Eq. J. Steamboat Co. v. Potomac etc. Upper Co., 672; Potomac 109 U. S. 251; 23 Gratt. 27 McCullough, City Cooke, v. v. Hardy Norfolk McCready U. Virginia, v. 94 S. v. 435; 391; Gratt. Hatfield 139; Wool, Ired. Bondv. 107 N. C. Grirnstead,7 148,150; Gregory 77; N. C. State v. Narroios Island Forbes, Club, 96 100 N. C. v. 618; Rivas v. Fla. Solary, 6 Am. St. 18 Galves- 477; Rep. 122; 349; Hogg Tex. 41 Menard, Beerman, ton 23 v. Ohio 81; v. St. 71.) Am. Rep. 52 E. Davis, Hill, R. W. Lair J. Pringle,
William and H. A. Powell, City Oakland, No. Respondent Appeal 527, No. Appeal 389. Appellant
The could not pass town title to the legal on lands ordinance. (Dillon waterfront on Municipal ’ ed., 581, 4th secs. Oakland v. Corporations, 582; 13 Carpentier, The 540.) Cal. act confirmatory 1854, applies legislative o?dinances and cannot be generally, presumed to have been in- tended to give away the property city by confirming void granting (San Diego ordinance. Co. v. Diego, San 59 Cal.. on 521, 522; Endlich Interpretation Statutes, secs. 113, 114; Fisher, United States v. 2 Cranch, The 400.) act of 21, March did not to the title of apply the city, there be- “no ing it controversy” applied, it did not em- brace the matter of the subject waterfront. (Haseltine v. Hewitt, 61 The compromise Wis. 121.) was unreasonable in that it the entire gave away substantially waterfront. (San Diegov. Diego San etc. R. R. 44Co., Cal. 114.) legis- lature cannot held give away property city upon a pub- lic nor trust, sanction an unauthorized conveyance it. (San Co. 167 Sept. 1897.] FRONT V. OAKLAND WATER. OAKLAND Francisco 58 Cal. Itsell, 57; Weisenberg Truman, 63; v. 80 Cal. v. Ill. v. 27 N Y. 139 32 People Kerr, 188; Ligare Chicago, 46; v. Am. 30 Am. 179; Alexandria, 115; St. Matthews v. 68 Mo. Rep. not Rep. 776.) The consent could judgment estop v. Francisco (San held trust. property public 1 & Le v. R. Sc. Div. Roy, 656; Robertson, 138 U. S. Jenlcins L. v. San Kelly 139; Cas. 127 Branham
App. 117; Milan, v. IT. S. v. in Oakland Jose, Cal. The dismissal of the bill 604.) rights city. did conclude Carpentier, supra, Hanloio, v. (Fulton 450; McMann, 20 Cal. Rosenthal v. Cal. Turpin, 508, 509; Downey,23 354; Davenport Flandreauv. *7 43 Cal. 94 The Place, 606.) Russell v. U. S. waterfront 597; being use could not be sold under execution. public devoted Y. Ran- (Darlington 248; 31 N. 88 Am. Dec. Mayor etc., 164; v. son Hart v. 15 The Burnett, 530.) v. 29 Cal. Boat, Iowa, 68; to this (Weber statute of limitations is not case. applicable The 67.) grant Carpentier Harbor 18 was Comnirs., Wall. and from the nature of the case, necessarily revocable R. Co. v. Illinois, Cent. R. U. S. (Illinois fact revoked. 387.) conflicting an action to determine
BEATTY, This is C. J. is the land subject controversy The of the claims to real estate. Oakland, act of by the original incorpora- to the town granted 1852. tion, May (Stats. p. 180.) passed is, successor to the town of that as plaintiff The claim of of the land so granted. to be owner Oakland it continues claims that defendant, Carpentier, successor to Horace W. was, of Oakland within a few days town the entire grant council, town transferred to of the Car- after organization Conveyance; and deed of that such transfer by ordinance pentier other ordinances by confirmed ratified was subsequently acts of the city, by of the town and legislature, proceedings in pais, judgments estoppels the- that estoppel pursuance so is fortified deeds made title execu- acquired town, and tion sales on judgments against perfected pre- I may under the statute of limitations. So far as find scription discuss it these various title their necessary deraignménts be stated as particulars they will arise. FRONT Co. V. WATER OAKLAND OAKLAND court, decree of as well as a
As tbe findings superior counsel for are principal part argument respondent, based a certain size and location of the as to the upon assumption it becomes a at grant, determine point capital importance founded, the outset whether is for if it well assumption shall that it is based radical misconstruction of appear upon the act of and that the of much incorporation, grant really less extent than assumed, has been so must follow necessarily court, conclusions of the and the superior argument based them, will be to some extent upon invalidated.
In determining this we shall not be assisted point greatly counsel, for, labors of since both parties contending for land each is granted, naturally interested in a con- maintaining struction of the grant will it the ex- give widest possible tent. true that at the of this hearing counsel for de- appeal
fendant, for the the force of purpose avoiding the argument based inordinate extent supposed Car- pentier, rather than suggested, contended, that perhaps did not embrace so much of the land on the front submerged bay as the court and counsel for the superior plaintiff not, however, have assumed. did They frankly unequivocally position, take that the coucessions seemed they inclined to *8 make do not include all that is required by any consistent con- struction the act of incorporation. the interests,
As to plaintiff, course, demand that should contend for the most liberal construction of the grant; for the its extent is greater stronger founded argument on Illinois, Cent. R. R. v. (Illinois the doctrine case Chicago a of its transfer to alleged 387) against validity 146 U. S. or and the greater prize private corporation, natural person there Naturally, the success of the argument. to be obtained as a matter confidently asserting we find counsel for fore, plaintiff em to the town of Oakland controversy that beyond what the whole of the of San estuary including braced Antonio> basin, called the eastern the line of Brooklyn is now or up inlet, mark all on sides of that and that it extended high-water bay into the of San Francisco to the three or four fathom out tide, land, at low in all acres of containing line thousand eight Co¡ Watjck. Oakland Fkont Sept. 1897.] front, fan at its bay covering on the like out spreading \a Ala- tbe of Oakland and entire frontage more outer edge than meda. view, to dissent radically
I find myself from eonstm-ned of this at the outset is essential question and since the settlement I shall case, discussion of the here state own con- my to proper reasons struction with the which it is founded. grant, upon to the town of Oakland is contained in the third sec- tion of the act of original incorporation (Stats. p. 181), these words: “The lands description within lying e., the limits aforesaid limits of the town as de- corporate [i. fined in the first section of the tide and between high ship act] channel.”
Such the terms of the being it is evident that its grant, extent and location depend primarily proper construction to given first section of the act lim- defining corporate its. The boundaries of the town are defined as follows: “On the northeast line at by straight with Main right angles street, run- from the bay of San Francisco ning on the north to the south- line of the erly creek, San Antonio Main estuary, crossing at a street three point hundred and sixty rods northeasterly from ‘Oakland on the comer of Main and streets, First House/ on represented Portios’ of ‘Contra map on file in the Costa/ office of the secretary state; thence down the line southerly creek, of said to its mouth in slough, thence bay; to ship channel; thence northerly easterly by line of channel ship to a where same point bisects the said northeasterly boundary line.”
The first cf point difficulty presents itself in giving con- struction to this language to determine what is the southerly creek, line of San Antonio or estuary. two, There are and only two, definite lines of that creek on side, viz., the southern the line tide and the high line of low tide. It is clear sufficiently one or the other of these two lines was intended legisla- ture, remains, but question Which was intended?
It has been assumed throughout and I argument, under- stand both parties claim, agreed that the intention of the legislature was to extend the limits Oakland corporate to the line of high tide on the opposite estuary, side of the around carry it the eastern or Brooklyn basin. n Frowt Co. Oakland
170 OaklaND any possible- for such a not, my opinion, ground is There incorporation, act of it though the original construction did its best to such a legislate legislature a subsequent true that act. Thé first of this original symptom' into construction 'to be found in second construction at legislative attempt the act of which town (Stats.1854, p. 184), section of Oakland, as the and the city was reincorporated of Oakland city. and duties of the town devolved It is there rights boundaries of the shall be the same as those city enacted town, but a is added present proviso saving citizens of the towns of Clinton and San Antonio to construct sites, at their which seems to respective wharves that the imply eastern basin was as a of Oakland. This regarded part proviso have been inserted out of an may abundant merely, caution or have been intended deliberately a certain framer of the act give plausibility pretensions to this act in the amendment section of the disclosed fully more 1861, act of May p. (Stats. contained boundaries is ex- corporate in which the description 386), follows: as panded The boundaries shall be the as the 2. of said same
“See. Oakland, town which are more of the late particu- boundaries follows, as to wit: defined and described larly Northerly by Broadway, Main formerly drawn at right angles line straight line of Broadway the extended at street, city, crossing in said from northerly where sixty formerly hundred rods three point corner on the northwest of Broadway stood the ‘Oakland House/ Francisco bay from the San streets, running First line of that branch southeasterly or easterly west on the estuary, over crosses slough Antonio the San Clinton; thence the eastern and along from bridge and of the estuary tide line of said of San slough high southern all thereof to meanderings the mouth Antonio, following Francisco; southwesterly thence bay in the San estuary, said channel; the line of channel northerly along thence ship to ship the said northerly boundary where the same intersects to a point in this section westerly; provided, nothing line extended be so construed abridge shall prohibit contained Antonio, the trustees of the towns of Clinton and San rights corpo- body the citizens thereof to become a may elect whenever *10 Oakland Water Front Co. OaklaND Sept. 1897.] towns, of an act for tbe incorporation rate under tbe provisions or tbe act wbicb any may under hereafter be provisions passed, and other of wharves improve- to for tbe construction provide trade, convenience of the for the accommodation and ments re- at their travel, villages, and commerce of the said towns or sites.” spective in extending
Whatever have had may effect this amendment from and after limits of of Oakland the municipal city any it retroactive effect upon of its cannot be allowed passage, date or her and if the con- property rights grantees, 1852 is struction which it the act of attempts place upon erroneous, courts, is, it clearly determining rights action, must, but it. only may, disregard this parties 1862, The same remarks are the act of April applicable section of which the legisla- the second (Stats. p. 337), definition to the or- ture a more again sought give particular Oakland, and in so ex- doing boundaries of the town of iginal includ- estuary, thereby it to tide line of the tended the highest level ordinary high a wide marsh above the salt ing expanse tide. the act of 1852? the^proper construction of then,
What, Antonio creek line of the San southerly clear that the I think it tide, and not was the line of low the act intended estuary be followed down this line was to line, tide and that the high channel mouth of the narrow bay, crossing creek to the basin, chan- and not that ascending eastern with the connecting a If were dealing the basin. we around nel, following out of its mere made the state lands and simple, pure grant consideration, this conclusion any valuable and not upon bounty based of construction inevitably from principle follow would viz., attends such always upon grants, that presumption upon securing to the attributable party grant words that the and, words, consequent- or,in grantee; other the legislation, be re- its terms are to uncertainties in ambiguities all ly, and least favorable to the state most favorable in a manner solved this is not mere grant But bounty. of its recipient more liberal rule of construc- that a lands, argued and it of a boundaries municipal defining to a law is applicable tion a sufficient answer to sug- seem to be It would corporation. Co. Oakland Water and simple, of lands pure if not a tbis is gestión say grant It con- incorporation. an act of neither is purely simply mu- sufficiently tains donation of lands—a also gratuitous the boundaries nificent construction—and because upon en- corporation boundaries depend the rule strict con- act within the reason of brought tire struction above stated. *11 is, for moreover,
There and distinct ground holding another to a strict construction of that of act the munic- part defining considered reference to of boundaries without ipal lands. The all in- state acts public good, grants, franchises, are cluding municipal to be construed in manner a most conducive to town general welfare. of Oakland as was situated one of a incorporated side navigable estuary—navigable in fact and so declared law. sides of the Upon opposite estuary were the towns of Clinton Antonio, and San much entitled communities as the bounty and consideration of the state as the inhabitants Oakland. These communities, and grow those to in the up future on the southern border of the estuary—then a natu- unoccupied—had ral right to the common use body water, navigable unrestricted shores, access to its and to the privilege of construct- wharves, docks, ing and other piers, commerce, aids fully equal to that of the was, people therefore, Oakland. a stretch of liberality on the part state to include the whole estuary, even to low-water mark on its southern and side, eastern in the limits Oakland, and it would have been a gross and indefensible excess of liberality to extend its boundaries to in- clude the margin between high and low water mark on that side, thus other depriving communities privileges of vital importance them, without any benefit corresponding to Oak- land. In this I do saying a forget that subsequent legislature did, in the manner stated, above actually extend the boundaries city Oakland so as to include the whole estuary, eastern all, basin and to high-water mark on all sides, and did attempt to say that such was the effect of the original act of 1852. As to this attempt of the legislature to impose construction upon the act of former I legislature, have already my stated opinion it that was nugatory; as to the extension of the boundaries Sept. 1897.] OAKLAND V. OAKLAND Water Fkont Co. such was effected tbe amendment—if its effect—
of Oakland liberality be remarked that its excessive materially to the inhabitants -by of the towns qualified proviso reserving of Clinton and San Antonio the to construct wharves and other conveniences for trade and travel at their sites respective of access as means to the waters of the navigable True, estuary. was no there reservation of the same to the future in- rights habitants Alameda on the south side of the estuary, but fact that one has legislature improvidently extended the munici- boundaries in one direction is no reason for pal that an holding of a former ambiguous grant should construed in would render sense which it similarly improvident respect limits, more corporate infinitely so its disposition waters. public navigable As to the which I have principle assumed governs the con struction of donations I gratuitous state, have not taken trouble to cite the it, authorities which sustain but they abundant and I think uniform. The case of Hyman Read, may seem to be an exception, really but is not. The conclusions there announced are based altogether *12 a upon dissent in a ing opinion Judge case which Story, the decision of court of supreme the United States was to the effect. opposite River v. Warren (Charles Bridge Bridge, 582, 600, Pet. 601.) But even the views of Judge Story, as expressed in that opinion, and the numerous authorities cited by him, are in entire accord above proposition stated. He makes the be distinction consideration, tween free gifts grants a valuable upon admitp that the rule of strict construction applies former, he admits especially “that where the terms of a are to grant burdens impose upon or to create public a restraint injurious interest, to the public there is sound reason for interpreting terms, if ambiguous, favor of the public”; at though the same time he insists “that there is not the slightest reason for saying, case, in such a favorably even that is not to be construed grant so as to secure him grantee, in the of what is enjoyment All actually granted.” Story that contends for in that Judge may be conceded without dissenting opinion freely affecting Oakland, grant conclusion this as to which there can be no valuable consid must con pretense ration, be strictly strued. CO. . V. OAKLAND WATER FRONT OAKLAND Read, supra, the discussion therein Hyman to the ease of
As to have been if entirely unnecessary, seems point upon really because there was no the terms of the obiier, ambiguity But, involved, even if there in was question. point grant the distinction between a based recognized grant the decision consideration, and free of the gifts a valuable do public upon main, decision, and this must have been the real of the ground other reasons mentioned in for the that connection to be appear said, unfounded or inconclusive. It is for one either thing, it not a made at the suit or solicitation of the grant grantee. how did this Grants to a But favored donee appear? special act of the if have legislature, gratuitous, always presumed solicited, and therefore the reason for that the only been saying Francisco was to San not solicited was that it was not gra tuitous, and so both of these resolved into grounds are the same The third reason is assigned, “that it the deliberate thing. pub lic act of the is a legislature,” instance of in a perfect arguing circle. Every gift domain is made act public by public such legislature, every act is to be presumed deliberate. therefore, The proposition, this, amounts that a simply public liberally must be construed because is a public grant. fair, however, to add to this analysis proposition from Judge Story’s quotation opinion probably explains real He “In meaning. says: the case of a legislative grant there is no to impute ground surprise, imposition, mistake to the same extent as in a mere of the crown. private grant words are the words of the solemn deliberation and examination and debate. Their to be purport presumed known, and the interests public are watched and all guarded by local, varieties of personal, professional as well jealousy, zeal of members untiring devoted to the service.” public
This is a beautiful but it theory, scarcely accords with well- *13 known that fact the has hut legislature little time to deliberate it, the mass of bills upon brought before and that isit often very and oftener imposed upon, still mistaken as to matters vitally the subjects connected with It legislation. would seem that the all reasons for the protecting king England his against own in improvidence crown granting lands would apply with double force to a modern grants by In legislature. recognition Fjjont Co. 175 Sept. 1897.] Oakland Water that fact, “every own has made it statute law our this is to such, as to a by body, private party, a officer or public Code, sec. in favor interpreted grantor.” (Civ. 1069.) of the be sus of construction certain, moreover, is that the principle stated Justice by the of recent is that weight authority tained case (Illinois in in the Chicago his dissenting opinion Shiras R. “It must says: R. v. 146 U. where he Illinois, 468), Cent. S. in this the state conceded, limine, that, in construing grant, canons con entitled to the benefit of certain well-settled is state to persons that the pertain grants private struction as, instance, that if there is or any ambiguity or corporations, act, the that must be interpretation put uncertainty words of the state; grant, is favorable to the that the most are to the the procuring legislation, attributable being party that, as as construction the against grantee; a strict receive to find the acts for the we should good, expect the state public morals of the consistent with welfare general good affected.” community and of to be at large particular state in the construction of applicable These equally principles boundaries of term in the description every ambiguous Oakland, scarcely necessary but resort them is order town that the act was conclusion intention to sustain the the mouth of the eastern the line on the should cross estuary passing outlet and around ascending basin instead estuary The is legislative plainly body. conception main act; regarded creek, it was language indicated above the intersection of the northeast head slough, or is, in the line and mouth the direction bay, boundary creek, line of said southerly line follow “down shall bay.” mouth In following description to its slough, holding there no warrant for that on outlet from reaching we “down” the channel following the eastern basin are to stop cf the and turn to follow this lateral slough, up creek or aside wide, affluent around basin in which it has its detached source. rule in boundaries defined streams or 'surveying water, other follow the stream cross always body waters from headland head affluents or other inlets mouth of ing and patenting followed in surveying land. Such wras method in the case Francisco, considered San pueblo grant *14 176 Co. OAKLAND-U, OAKLAND WATER FRONT 5 v. Saw. and in Tripp Spring, Knight Assn., v. United States 142 161. It is of U. S. true that decision of both those cases was based tbe conclusiveness of tbe government patent California, under tbe state all persons claiming against state, tbat tbe tbe line on tbe tbe true method surveying tbe directly involved, but was bay necessarily question was not in all tbe in tbe necessarily involved directly proceedings office, interior, tbe courts, the land tbe lead department issuance of and tbe method of patent, survey tbe tbe ing toup tbe and followed in tbe was em department patent approved See, indorsed tbe circuit and courts. es phatically supreme in tbe concurring Justice Field latter opinion pecially, 210, where, case, referring at to tbe decision of tbe pages case, circuit court tbe former things says: other be among fact, to .this “In addition it be observed tbat tbe time at tbe was court not tbe rule ignorant circuit universal tbe governing waters, measurement which tbe court of state supreme tbe decision, in its and of mates no reference which it seems to have oblivious, been that where a water of a entirely larger dimension a water of is intersected a smaller dimension the line meas of tbe first crosses tbe latter urement at tbe of junction, points bemay objected from headland headland.” tbat this doc terms tbe stated is not applicable present trine in to tbe case be tbe basin of tbe estuary is, cause eastern San Antonio as a fact, a water of matter of dimension than larger tbe other branch tbe junction. objection, above But to this if it made, should be there two answers. In first tbe place, according to tbe coast which is one of the survey map case, exhibits tbe tbe eastern is not tbe body basin at larger junction tbe which is controlling tbe In tbe second point. it is evident that place, tbe the act did passed not the northern regard affluent of branch, branch as an tbe eastern they its place at bay, “mouth” in not If junction. it should be neither contended that regarded an other, affluent but each considered equal importance, can be said that nothing contention, there is sustain tbe while there is in the act, of tbe language evidence tbe But contrary. conceding point for sake of argument, tbe necessary result that, would a line following “down” branch either FroNT Co. Sept. OaklaNd 1897.] tbe could bay, moutb in we ascend other branch from the This junction. does not seem to me to cor reasoning require roboration, if but it does the same conclusion must follow from *15 rule of strict construction above stated. then,
I assume as a established, proposition that thoroughly the eastern and southerly boundary the town of ex- tended the line along crossing low tide on the estuary mouth, the inlet of the eastern basin at its continuing in mouth of the estuary bay.
The next term of the construction description requires to is “thence channel.” What ship did the legislature mean channel”? It has been “ship assumed that meant three they fathom line or the four fathom line in the But this bay. assump- tion, which pervades argument city, entire counsel for the to have in seems all guided defendant with dealings subject for controversy has, a series of so long years, I discover, far as can no tangible basis. is
It certain some meaning must be ascribed to the term “ship channel” in order give act, effect to the it must some and definite precise meaning; the law abhors want of defini in of boundary tion matters nature abhors vacuum. Especi is ally this true with respect the boundaries of a municipal invested corporation power and authority make and en laws, force local civil and criminal. It is not to be supposed in the legislature, conferring municipal upon franchise inhabitants of a district, local will leave its purposely boundaries in any respect uncertain. On the it contrary, must be assumed that the was to mark intention the boundary exactly so and defi nitely that no could question arise as to whether a particular spot was within or without the jurisdiction. local It is true this pre of a precise definite intention on the sumption part in the enactment of is laws often opposed the actual fact. that the no frequently happens framers of a law have well-defined idea of what they desire to or no accomplish capacity to their ideas. In expression such give cases the difficult task the courts of imposed upon discovering that never meaning think, I Such, existed. is really the case here. The act under confused, consideration is many respects incoherent, and am Baldwin, In the case of Oakland biguous. Cal. Carpentier, CXVIII. CAL.—12
178 Oakland Oaeland Co. Justice, the course of his refers to it these opinion stat- is, most defective “The charter perhaps, terms: A ingenuity deal. ute-book, great perverse and this is saying lame and loose as pos- to make it as have been exercised seems scarce- could Partington labors of Malaprop The joint sible. and sen- or dislocation words made such a collocation have ly framer of that the But, in possibility tences.’' spite and the intended, certainty know he not himself what law did ex- he failed to it definite give had a definite idea has that if he was a line capable channel” “ship we must hold that pression, and must determine where it the ground, on ran. of location the line of is rendered high different from tide was a line it That land is described as granted lying that the the fact certain channel, beyond tide and but high ship line between certain. A witness in the case anything be said cannot *16 eighteen he should consider the foot that testified (Allardt) channel, low tide the of but boundary line at ship fathom) (three years more after the enactment forty than testifying was he show that to its nothing prior there is law, passage the in that collocation had ever channel” acquired, “ship words the enactment, by legal any or such mean- usage or local by general river, strait, a in the technical bay, channel of The ing. term, can means the which be most deeper part sense of but in this it cannot fixed sense imply safely navigated, river, water, entirely relative to the particular for it is depth made, and the to which reference strait, bay deepest por- of water be shallow to the chan- compared body one tion of And in the same of water the channel body for another. nel would be more extensive than generally draft of lighter vessels draft, certainly it is in front for vessels heavier channel channel, this sense of word therefore—in Ship of Oakland. Fran- bay no definite boundaries in the San “channel”—had act, date of the and it is passage purely cisco at the three fathom line was in- say that arbitrary assumption that as much exactly plausibility could be said tended. or the two the four fathom line fathom meant line. light may question
But some be thrown perhaps the expression “ship consideration acts previous Sept. Co. 179 v. Oakland Water 1897.] Indeed, channel” would occurs. it seem entirely reasonable to that in two acts of the same suppose legislature it was used on each occasion to same signify the the act thing. By of April 1851, entitled, “An act for the providing of certain disposition property” (Stats. 1851, there p. was 305), granted town of Martinez a of tide land a half strip mile in front of the length town, the outer of which was boundary “the line of ordinary channel.” ship’s act, however, affords no clue to the mean- of these ing words, it does though very evince inten- clearly tion of the legislature that the land granted should be surveyed, subdivided, platted, sold, and the used proceeds for the gen- eral improvement town, for the benefit particularly of commerce construction of wharves, docks, etc. piers, the act of
By 26,1851, March provide disposition the ‘Teach water lots” of San Francisco (Stats. p. 307), water front of the city established. permanent The boun- waterfront of this was traced dary along outer edge streets as delineated on outermost of a map survey that had front, been made previously and which extended be- line of low tide a considerable yond distance out into the and to water. The deep survey terminated, bay however, at the of the northern line of intersection Jefferson street with the west- street, of Larkin ern line to define the waterfront from to the western boundary point city was provided follow it should “the line of channel.” ship Now here we an indication of the have meaning term. The water- law and front established channel ship’s are coterminous—-the *17 city line which the extend may streets, its and within which lots and sell authorize the may purchasers to fill them up them, is waterfront. .occupy Immediately beyond is chan- ship includes nel, and it all the between space the piers and wharves 1, the act of May (Stats. p. 311) city was authorized to extend from the end of every street terminating two hundred at waterfront out into the channel. 3'ards
This of the law meaning seems to me to be a fair deduction the fact that from at the northwest point corner of Jefferson Larkin streets is at the same time on the line of channel ship and on that of waterfront. If the lines are coincident at one must be point, they coincident throughout as far as the survey Fjront «. Oakland Co. limits western survey tbe end of to tbe extends, and from tbe less more nor than line of channel is ship nothing of tbe tbe and legal line fixed of tbe survey tbe to be tbe completion conclude, I of tbe of tbe waterfront. establishment balance therefore, channel,” as this earlier tbe term used in that “ship include all tbe Francisco, act was intended to San relating termed navigable bay waters of tbe outside of what be tbe may bulkhead line as established law. Oakland,
But this fully ddes not solve tbe as to be- question cause was not in has been, there and never law estab- any lishing waterfront or bulkhead line in city. front of that We are, however, this far: channel tbe helped wa- ship's comprises left ters free to and when we navigation; required to locate and no artificial precision, boundary with has boundaries are driven to seek by competent authority, been established we found, and boundary, any a definite natural if such be here do line of This we find such at tbe low tide. is a boundary line, only and tbe definite line line of beyond definite tbe high tide, is, conclusion tbe line of tide as it my that low ex- May, 1852, 4th of western boundary isted on the was tbe tbe intended tbe act of original of Oakland incorporation. town objection to conclusion out of arising tbe possible Tbe see, far I act, so as can that it is of tbe inconsistent terms of an interval between the mouth of tbe implication channel, words, contained “thence to estuary ship course, if we assume Of that tbe southern channel.” shore ship low-water mark is tbe at southern estuary boundary of tbe shore of the bay tbe eastern at low-water mark town, and tbe can be no interval between tbe mouth of channel, there ship channel, words and tbe “thence to ship channel” ship estuary This, course, would superfluous. not be rejected be must could be reconciled whole description if allowable cannot; for, But in fact it in addition to lines. definite any line in bay definite finding beyond low- impossibility call mark, important is another specific there water if we rejected must the three adopt fathom description line uniform depth bay other could be line boundary call the western is “thence north- suggested. the line of channel to a ship where easterly by point erly *18 Oakland Front Co. Sept. 1897.] northeastern line.” bisects the said But the boundary tbe same not run northerly easterly; line does and it runs three fathom its whole extent a uniform direc- northwesterly throughout tion, whereas the line of low tide from the mouth of the estuary at low tide marked the intersection of (this point United States bulkhead line with government jetty walls) is, fulfills this in the exactly description; call that course is northerly circumstance sufficient in itself easterly—a words, counterbalance the force of the channel,” “thence ship in the call. previous
The result this discussion summed as briefly up follows: The of the of Oakland, town as defined boundary 4, act of May at the intersection of the commencing northeast line with the line of on low tide the eastern side of the northern branch of the estuary, follows the line of low.tide on said branch to the mouth of the basin, eastern crosses said mouth and continues the line of on southern along low tide side of the estuary its mouth in the bay, thence follows the line of tide northerly low till it the north- easterly intersects eastern line, boundary the location of there seems to be no to Oakland was of be- dispute. the lands lying tween channel, mark and high-water within these bounda-' ship ries, and therefore included west of the line of low tide nothing on front, bay beyond the line of low tide on nothing north and west I shore of the estuary. say was included nothing line beyond along estuary, estuary because the was itself channel, there was no part ship part town on between it tide tire south and east side. high My reason estuary is, was a channel saying part ship it was in fact and that fact had navigable, been recognized declared an act day one before the passed passage act Oakland. incorporating (Stats. By this act p. 183.) the “stream called Antonio San creek” was declared navigable from its mouth Antonio, to the old embarcadero of San and all obstructions to its navigation were forbidden. is true this act does not seem to have included the northern branch of the but, in I matter, estuary, the view take legislative recog- nition -of the navigability fact of was not to constitute necessary channel. The fact was itself and the coast ship sufficient, *19 Front Oo. Oal. Water Oakland OaklaND v. branch was northern navigable that the shows map
survey San Antonio-. Each could to go that class vessels every as the feet at low tide—the same of two had a depth branch which meant estuary, at the mouth of the on the bar depth eight twenty- from seven to feet every at full tide of high depth im- to accommodate a hours, very and this was sufficient four the The so much insisted that upon traffic. contention portant has been converted harbor, only was not a natural but estuary the and out by carried into harbor the works by projected body that no assumption to the seems rest upon government, vessels can be unless large water deserves to called navigable It is of the tide. any stage enter it in natural condition at act under which which the legislature certain the passed that view, and a different applied both claim entertained parties identical of water. body view to this think, I thus, subject as shown Having conclusively dimen- of the was a of much more moderate controversy grant way than been assumed in tire argument, opened sions has Has the land a consideration the question ownership. to of the town and its remained the always property so granted from successor, did it the town or the plaintiff, pass claims methods in which the defendant any the various by have derived its asserted title? to stated sound—if grant
If the conclusion above to Oak- of land bounded comprised strip by land lines only tide, and low ordinary extending estuary high along case is at once relieved of front of the town—the bay ques- as discussed in the power tion so much to argument such a to a grant private corporation to make legislature be is, and the considered wheth- only question natural person; in this instance made the claimed. For the state has er in the doctrine established in case Chicago is nothing there California, legislature or of impeach I be state, lands—by to alienate tide which am to expression those lands which covered understood as referring flux uncovered and reflux of the tides. daily was, case Chicago decided whether question act of the Illinois constitutional an act to a railroad a former making corporation repealed Co. OakláNd Sept. 1897.] city, barbor front tbe ou the laud tract of submerged of a breadth, in- a mile and a balf in length a mile about the federal gov- constructed of the works the whole cluding harbor, for the improvement protection ernment to decide this water. In order at all times covered by deep ex- course, consider what it became necessary, question, state, and this tent lands of this character are alienable the owner- nature of necessarily involved a discussion of the and over such lands. dominion of the several states in ship and the doctrine The conclusions of the court these points of its established are conceded to be a thereby necessary part *20 decision, them, I I entirely and do not dissent from only them. Stated I understand the doctrine of approve briefly, case to be that the several hold and own the lands covered states by navigable waters within their boundaries in their respective sovereign capacity, for tire of primarily purpose preserving improving public fishery. rights navigation in They have them a jus jus double and a right, publicum The former their privatum. pertains political power—-their dominion, and sovereign cannot be alienated or ma- irrevocably The latter terially and the impaired. proprietary subject but it is alienable in strict ownership, subordina- private tion to former. No of lands covered by navigable can waters be made which will of a impair power subsequent of the The regulate enjoyment public right. takes the mere grantee proprietary soil, interest and holds easement, to the subject and, if his public of the ownership stands in the way soil works or be- public necessary likely to come for the necessary improvement and in aid of navigation commerce, the be revoked grant may the tender of a fair upon for such lawful compensation improvements may have been made by grantee pursuance express implied contained in the license But in grant. accord perfect this it was also held that doctrine the state might alienate irrevoca- extent, of its lands of bly parcels submerged reasonable for the docks, erection of piers, other aids to commerce. It was : conceded to be a further proper exercise of the powdr harbor to establish lines and state to authorize the reclamation shoals, mud flats and where that could be done without Oakland Co. Cal. lands, tbe The rights. detriment of such public filling up said, often an and an improvement navigation, it was commerce, and lands therefore advantage susceptible This, that method by reclamation be alienated irrevocably. terms, case, doctrine and of general Chicago numerous decisions therein reviewed and commented upon. is also the doetine which has been announced our distinctly by in the former court of this state. In supreme predecessors says: Ward “But v. Mulford, Judge Sanderson we not desire to be that the Mex holding do understood as state, of absolute ican or this has the same government, lands in virtue of their alienation over held sovereignty other lands. The land which the state holds have over they understood, as is well is such as is sovereignty, of her virtue the flow and ebb of the neap and uncovered covered in trust is held state and for land tides. Such ordinary state is subservient of the people. benefit fishery, theoretically, of navigation rights to the public no of them prejudicial can make least, disposition the state at use them for the purposes navigation public the right them, she does make of and, disposition whatever fishery; same terms which she upon them takes her grantee above them, subject public right and of course holds *21 her dis does not from prevent But this restriction mentioned. the interests so as to advance of promote of them posing such a of them would contrary, disposition On the navigation. in the of the trust she holds purposes in which keeping be sea, from where it can of them reclaiming Nor them. of right navigation, to prejudice public without done uses. There are purposes large to other them applying exam lands, the land in suit an of which salt marsh of tracts flow and ebb of the and uncovered covered which are ple, virtue of her to the state ticles, belong and therefore neap use for the of no purposes are of possible which sovereignty, or other agricultural pur be valuable for may but navigation, lands the state the tides. Such from reclaimed poses if, recla purposes for ownership in undoubtedly private grant to public no right such a course use, mation would be prejudiced. of navigation use for the purposes their Front Co. 185 Oakland Water OAKLAND Sept. 1897.] cases, might in many of navigation, contrary, right On tbe such reclamation.” be subserved Underhill, v. in Taylor same doctrine is recognized Eldridge in more stated distinctly and was even decision of this court
Cowell, Cal. 80. There is no cases, of these with the doctrine conflicts in the slightest degree lands of the the fact that the submerged each which recognizes trust, are never state, subject held and owned to though public of recla alienable in where ownership capable theless private and a right, mation without detriment to public fortiori to advantage navigation where their reclamation will be commerce. therefore, mud flats and California,
A by the state grant and low tide on the margin bay shoals between high have in Francisco cannot be held to been excess San such in the absence proof legislative power, seriously succeeding legislatures has impaired of navi- develop public rights regulate, protect, improve, in case it does not fishery, appear gation Oakland, construed, would have that effect if as here a natural or private person corporation. transferred the shore may is true that the private ownership prevent but so does to the waters of the navigable bay, private access access the shore and to the upland prevent ownership waters the same sense and to same extent. navigable however, is a minor and inconvenience for which This, temporary an laws of all civilized states provide ample laws our of eminent the exercise of the domain all remedy. By right of access from the uplands means the waterfront necessary use, cost condemned for the at a excess public bemay subjected value of the land taken or of the reasonable And there is no this com- injustice requiring servitude. of shore lands be made to the when his grantee pensation law; for, valid in lands is in other like respects to such state, he of title derived from is presumed other holders what, at the time of the grant, deemed a fair given to have *22 land granted. for the equivalent case, review the doctrine of cursory Chicago
With this .of I decisions, take leave of the of the question of our own and OAKLAND WATER FRONT Go. OAKLAND V. of California to have made a valid power of the land to Horace W. or to controversy Carpentier the Oakland Water Front and address to Company, myself more serious and whether, fact, difficult question, point to the town of Oakland has been transferred to those as claimed parties, defendant, by the or has devolved and has remained Oakland, in the as claimed by the plaintiff. seen, original grant, we have was contained in the act town, features which incorporation have general been stated. will now become to consider already necessary more terms and particularly of the act specific provisions for the to what extent and to purpose ascertaining subject what conditions the land so was alienable the town granted successor, and its city Oakland. section 2 of
By the act 181), (Stats. p. corporate pow- ers and duties of said town were vested in a board of five trus- tees, and section it was enacted as follows:
“Sec. 3. The board of trustees shall have make to such they may and ordinances as deem and by-laws proper necessary; sell, to or otherwise of the common regulate, improve, dispose fires; out, lay make, and prevent extinguish property; open, widen, streets, roads, all repair and regulate, keep bridges, ferries, wharves, docks, and grounds, public places piers, slips, wells, and and authorize the sewers, alleys, construction of the same, and with a view to facilitate the construction of wharves lands and other within the limits improvements, lying channel, and aforesaid, between tide high ship hereby granted town; released to said that said lands shall be re- provided, town as common of for the property, disposed tained said aforesaid; and collect and dock- wharfage to regulate purposes cleanliness, ornament, health, peace, good secure the age; schools; town; to common organize support said order of houses, horseracing, gambling and suppress dramshops, license ill-fame, all indecent or immoral practices, and houses amusements; to the location of shows, regulate slaughter- stables, and for the houses, storage gunpowder, places as, in their laws and ordinances opinion, such other pass welfare of town order, government, general good require.” *23 Water Go. v. Oakland
Sept. OaelaNd 1897.] and May TLis was approved of incorporation act thereunder, being Carpentier immediately organized town to qualify. trustees, failing but one of elected following adopted of trustees the board 17, 1852, May On ordinance: constructing of and right privilege exclusive 1. The
“Section lim- within corporate at wharves, and docks point piers, wharfage collecting Oakland, with the of the town reasonable, hereby is he deem as at such rates and dockage and his legal Carpentier Horace W. confirmed unto and granted years; provided, thirty-seven the period for representatives shall, within or his legal representatives, grantee, that the said Main at least the foot street a wharf at months, six provide water fifteen feet extending toward.deep wide and feet twenty street; at the of said that he or wharf foot beyond present at of F construct wharf the foot shall, year, within one they channel; also, and, within street out boat extending street G- street; E wharf at D street or months another the foot of twenty for two cent shall wharfage provided, per receipts of Oakland. to the town payable a view the more out speedily carry 2. With “Sec. act May of the legislature, passed intention purposes entitled, 'An fourth, thousand hundred eight fifty-two, one the town of Oakland and to act to incorporate provide in which wharves certain property construction thereat/ and released the town of Oakland to granted facilitate now, therefore, of certain making improvements; in considera- contained, herein and of a tion certain premises obligation Oakland, Horace W. Carpentier said with the town of made build in which he undertakes to for said town a school- public house, waterfront said town—that is to all land say, within the limits of the town of Oakland between lying high act, described in tide and channel—as said ship together title, and interest of the town of therein, all the Oakland right, sold, hereby released unto the said granted, Horace W. his assigns legal with all representatives, Carpentier, rights, interests thereunto improvements, belonging. 3. The of the board of is hereby “See. trustees president on duty with the behalf of the charged executing town of 188 Oakland Oakland Front Oo. Oal. grant and in accordance with the conveyance pro- visions of this ordinance/’
This was Marier, followed on A. describ- May 31st deed of himself ing of the board of of the town president trustees Oakland, sell, to Horace purporting transfer, and release grant, W. title, Carpentier, his all the legal representatives, right, interest said town land of Oakland in between lying *24 tide and high ship channel the limits. This within corporate deed referred to the it, ordinance authorizing and set forth the conditions made, subsequent viz., which it the was construction of the wharves, etc. 30,
On December ordinance another was adopted ap- the wharf at the foot of proving street, Main and extending the time for the completing others.
On August 7, 1853, a third ordinance was adopted accepting another wharf and a schoolhouse, the site of the changing re- maining wharves, and ratifying and confirming the ordinance of May 1852. It further that “the provided said waterfront of the town as therein described is sold, hereby granted, and unto said conveyed and his Carpentier legal representatives in forever, fee wharves, to erect simple docks, piers, at and all buildings points thereon not obstructing navi- freely and to use gation, the lands herein occupy conveyed.” Numerous questions of a technical highly character have been raised counsel for as to the respondent nature estate vested in Carpentier by these proceedings, them assuming valid. have been But back all these questions, and more all, than is the important question as power the trustees to transfer Oakland Carpentier entire waterfront of the town. If it shall be held they possessed no such power, a critical examination of the deed and ordinances for the purpose their technical determining sufficiency to transfer a fee simple the lands estate in described will be wholly unnecessary. not to require any very elaborate ought discussion in order to show that the transfer to attempted of the Carpentier whole of the lands to the town for the granted purposes declared in was void. incorporation absolutely act The of the power to make a a these lands to natural person, and the of the power municipal corporation make the grant, Sept. Front Co. 189 ¾. Oakland 1897.] are two had no very different The things. corporation power to alienate these lands unless such was conferred legislature, and whether it not is a question was conferred or of legislative intent to be the terms of the statute gathered from construed with reference general scope purpose. was act to create a com-
purpose municipal corporation -inhabitants of surrounded three posed peninsula on sides waters of navigable bay of San Francisco. Con- sidering extent included territory within the corporate boundaries, evident that growth of was rapid population anticipated, town, the situation of the with relation to the surrounding country the most on important harbor coast, no less than act, express language the title of that one of the most proves ends important contemplated creation corporation was of com- improvement mercial facilities the erection of convenient wharves along its waterfront.
To carry principal, minor, other effect, into purposes the municipal corporation created invested with share *25 of the sovereign political to be power exercised within the local boundaries. The trust thereby imposed' upon municipal and could neither government public, be nor abdi- delegated But, by recited, cated. the proceedings above there was an to do attempt both, by a investing citizen with the private ex- clusive to erect and right wharves tolls. In regulate this aspect void, of the ordinance it is confessedly but counsel for appellant contend that the strenuously valid, of the land was and a rested lawful and sufficient consideration. I do not The ownership so. land was essential think to the exer- of the That this was power. fully cise understood is shown not charter, of the but only by provisions by all the proceedings trustees. At every the town step two things went to- very and in their nature it is apparent that gether, the one was bound the other. For necessarily how was up it possible for after town to erect wharves parting with its entire water- could have done so front? repurchasing the neces- and it is not be sites, sary supposed the legislature absurd so consequence. intended ‘ Front Co. Oakland Oakland Water intention of the charter it was the
Undoubtedly, in some waterfront should disposed lands comprising consistent was to be manner, but the manner of their disposition council was invested The town with the purpose grant. streets, other out and things, lay plain power, among was, town should be pro- of the law that the streets of the intent divided into waterfront, the intervening spaces tracted lots, and and sold as to blocks in subdivisions in such a manner means access to the preserve public ample navigable bay estuary, waters to the authorities municipal wharves, for the erection of If docks. ample space piers, taken, reasonable measures to this end had been a sale of the would no doubt have lands been parcels proper exercise of authorities, but municipal a transfer in power bulk ato citizen, without any reservation of private of access right waters navigable which the town was almost completely surrounded, was a gross evident excess of power.
Counsel for have referred us appellant to the numerous de- cisions of sales of affirming validity the beach and water Francisco, lots of San but there is not the slightest similarity be- tween the two cases. The San Francisco was of the lots platted upon survey showing streets extending along permanent waterfront of the city, and authority to sell the lots was expressly conferred and was subject to no con- dition, express or implied, except the return of a percentage the proceeds to the state. There was no other trust connected with the grant. right access to the waterfront, and of for wharves, sites etc., was secured in advance by a dedication the streets connecting the upland- with the channel, ship covering whole No length. the corporation was in the slightest degree impaired, no the public infringed, by the sale of the lots bounded by these public high- *26 ways. What had been done in San Francisco was indeed an example to guide Oakland in of disposing her waterfront, I and do not doubt that it was in contempation of the legislature
that substantially the same course should be pursued. Certain is, at events, all that no such downright absurdity can be imputed to the legislature as an intention to vest the council with authority to cut the town off from access to the waterfront by 1897.] Front Co. Oakland Sept. same time that lands at the shore of strip whole a transfer wharves, and when duty erecting of charged were they of declared was not one of wharves construction of the grant. motive act, express was but purposes deed is, ordinances and this point conclusion My the entire to transfer it was' 1852-53, attempted which by void. wholly to were Carpentier, waterfront be Car- came to well understood doubt this fact And no he efforts from see, made various himself, for, as we shall pentier confirmation, his title by legislative to time to strengthen time to sales, etc., at and these are the matters execution purchases considered. be next seen, have of Oakland was year 1854,
In the as we town, to the and with the same as successor incorporated it commenced time after incorporation, boundaries. Some to on the equity Carpentier, suit in to set aside the fraud, A demurrer was sus- complaint etc. ground amend, tained, and was entered city declining judgment court, of defendants. On appeal supreme in favor reversed, remanded for and the cause further judgment Before the case (Oakland Carpentier, supra.) proceedings. trial the second time the the act legislature passed came to 1861, charter of May (Stats. p. 334), amending I have cited in which before connection with the city, question act, This besides some trifling of boundaries. amendments re- the rate taxes and lating municipal the office pound- shown, Ias have attempted, enlarge keeper, construction lands defini- giving legislative original boundaries, and, thereto, town addition tion amended 12 of the it in act these terms: re-enacting section 12. “See. created this act shall corporation succeed claims, all the legal equitable rights, privileges, to all the liabilities legal subject equitable obligations Oakland; the town and the ordinances of the board trus- confirmed, of said tees town are ratified and hereby the coun- shall have cil to maintain suits courts to proper interest, recover right, or have property, accrued to the town of Oakland.”
192 u. Front Co. Oakland Water
Tbe insertion of “and amendment consisted in tbe tbe words tbe ordinances of tbe board of trustees said town are hereby ratified and confirmed.-” tbe of tbis filed
TJpon passage act a Carpentier supplemental ¶. answer in tbe case Oakland Carpentier, supra, setting up of said section 12 as a provisions legislative confirmation of title, tbe bis and wben case to went tbe again court tbis supreme very fully counsel, was but argued by not point decided tbe by Oakland v. court. (See Carpentier, Cal. 642.) tbe case, In present however, it becomes to decide necessary whether, by tbis amendment to tbe charter of tbe city, Carpen- tier was invested with title to tbe waterfront. was, as has been shown, within tbe clearly of tbe to
legislature grant these lands to Carpentier, only and tbe is, to be decided question whether that was tbe tbe intention of If law. such was tbe intention, it cannot be denied that be then became vested with a title. perfect
But tbe law cannot be so construed. toUp tbis Car- point bad no title—Ms asserted from tbe pentier town being void, and, absolutely therefore, if this amendment to tbe city bad charter tbe effect of him investing title, complete it new a tbe substantially grant by legislature. For it that tbe pretended be remembered tbe been town bad successor, its utterly city, tbe which that repudiated was at endeavoring by time its suit very equity to have title to its then, We are established. judicially suppose, the waterfront intervened in over ’and, that tbe tbis controversy, transferred fiat tbe city, tbe bead of tbe whole of tbe citizen; only that, and not but that private waterfront tbe exclusive more than a him quarter conferred wharves, and tolls and regulate wharfage to erect century of a ambitious For tbe city. confirmation of growing for a 17, 1852, transferred tbe land May ordinance tbe abdication tbe municipal but sanctioned controversy, functions in governmental respect of their wharves authorities tolls. tbe members course, impossible it is suppose Of result, about tbis actually bring intended tbe legislature Oo. OaelaND Oakland Sept. 1897.] used language whether have is, they only question tbe to that effect. construction compels is, the language argument appellant *28 town, of the includes all the ordinances necessarily
amendment confirming and ordinances mating and with the rest the along is, that the word words, In the contention other .grant. and “ordinances,” to be tahen in its widest as here is employed, But a rule there is well-recognized most sense. comprehensive of rejection statutes which requires of construction its most natural and word, sense a even when it is broadest sense, if that is in order effect to true necessary give usual its law, or to a result at variance with intent of prevent “ordinance,” however, The word in its usual apparent purpose. sense, and means a local law—a rule of conduct pro- primary in its and spective operation, generally persons applying subject not, to the local does things jurisdiction. its use or include a ordinary grant lands. Con- signification, it to be true lands ceding be made mu- ordinance, it is nicipal true that the idea such a equally suggested by word, use of the and this because very it is a unusual mode of lands. granting It is to be pre- therefore, sumed, that in instance the legislature used the sense, word in ordinary restricted rather than in a sense which would about a result at bring variance with the purposes other evinced of the act. The portions title to act, its declared was to amend purpose, the charter of the city Oakland, and did it make some trifling amendments really ger- mane to the subject. As an amendment it became part charter—which, parcel like the original charter of the town, conferred the imposed duty upon the mu- authorities to nicipal construct wharves and regulate tolls. Can it be supposed, then, that general words of this amend- ment legislature intended to deprive the the means executing powers imposed it, or upon that it intended to make a grant to private citizen without a precedent in the pre- vious legislation the state, and without a parallel in its subse- quent legislation? While it true that the legislature had the power make the grant, they will not be held to have made it unless their intention so to do has been clearly manifested, and
cxvin. caí.—13 Co. Oakland There than dubious. is more such an intention certainly
here a grant the idea of of the act to suggest in the title was nothing germane no degree and such grant to Carpentier, have was, as we contrary, avowed of the act. On the purpose seen, provisions at variance with some of the most important that the amendment the charter. For reasons I conclude these of Oakland of the town the ordinances ratifying confirming so called must be held to to ordinances exclusively properly apply is, town, —that not to ordinances to the local laws of mere of the lands of the grants were grants attempted of the legisla- ordinances corporation—-to adopted pursuance council, and tive not to ordinances which were authority in effect mere conveyances conveyances attempted prop- erty interest of the town in its waterfront lands.
The rule of construction which this conclusion is *29 founded is stated and et illustrated in sections of End- seq., lich on Statutes, where the Interpretation authorities which it are cited. support very fully
In this connection I have not overlooked the case of Thomp son v. Thompson, cited and relied on by appellant. But that case sustains the contention of counsel only to ex tent that it holds or assumes that it is for competent the legisla to confirm ture or validate a void act of a municipal corporation. That the has such I doubt, have no but the is, here whether it has question attempted exercise it to the claimed, extent and as to that matter v. Thompson Thompson, is not in for the act in supra, point, there question confirmed “all the acts of the proceedings” trustees—a confirmation as com and universal as it could prehensive be possibly made. No con struction act language could have excluded the it was transfer which held to validated, have and the transfer itself was of character entirely consistent with the provisions of (cid:127) charter. It is to I think, be regretted; that a court should ever feel itself rules of bound construction to effect give to statutes which ratify confirm by wholesale tire acts of or other municipal agencies state. political There is no more reckless or dan- gerous species legislation. is really legislating shut, and under the eyes mandatory and prohibitory provisions Co. Sept. 1897.] OAKLAND Oakland tbe old constitu- TJnder impossible. constitution our present tion, however, which, in to local special legislation, respect etc., bills, merely directory, legisla- was construed to be titles tion this character was laws ratifying passed possible, existence, while it in must be en- was when clear explicit, forced, no be the may matter how multifarious incongruous subjects should, however, which they They closely embrace. scrutinized and in construed order to as far as strictly prevent involve, the evils which possible they which the fram- against ers of our constitution present have taken such strict and such necessary precautions. next is, contention of defendant that although Carpentier have got no title by the ordinances of 1852-53 and the con- act of
firming 1861, still the final of dismissal in judgment case of Oakland v. Carpentier, supra, estops plaintiff upon the question of title.
The final
in
judgment
that case was a dismissal in obedience
to the mandate of the
court, and
supreme
opinion
court (
The plaintiff is here pursuing appropriate statutory rem edy establishing her enforcing if rights void, Carpentier and the judgment Oakland v. Carpentier, no supra, more an estoppel than the dismissal of a suit in *30 equity upon the ground that there was plain, speedy, and ade quate remedy at law would be a bar to the appropriate action at law.
Defendant’s title, claim of based-upon the several execution^, of the waterfront sales under judgments against the town/''&T)ak- land, is the next point notice. to requiring It is go unnecessary the details of these A into suffi- judgment execution saldas. cient answer to all the claims based in the upon them /round (yaMroTfersy conclusion above stated that the in were lands held to the subject through trust of public streets laying out them to as sites waterfront, along wharves, and of using i^rem to commerce docks, ai&p' and other piers, essential Cal, Front Co. v. Oakland Water OaklaND subject this reason not were for -They town. of a seaport traffic Burnett, 578.) v. execution. (Hart under and sale levy to of Oakland waterfront manner in which the difference The lots of San beach and water in which the from that held was stated, sufficiently been already has held Francisco were Smith decisions—such as the inapplicability demonstrates of execu subject lots were water v. Morse—holding tion sales. of time us down brings point discussion
The foregoing supra, Carpentier, of Oakland 1863, when the suit year conclusion that Carpen- in the dismissed, and results finally was to him transfer attempted no title. The at time had tier was free of Oakland void, city was of the waterfront or other any proceeding appropriate action her rights by assert case. to that state title, and asserted of his however, validity still
Carpentier, of such of the water- portions have retained possession appears himself, his lessees occasion to occupy front as he had found and assignees.
In the authorities of again began year made, was A contract proposed, by stir the matter. for the an was retained for the attorney purpose recovering lands and the connected rights therewith. city the waterfront action or But other proceeding before commencement of the claims of was compromise for that .purpose, At that time the rail- transcontinental accepted. proposed was and the Western Rail- road Pacific approaching completion, road which owned franchise from Sacramento to Company, to a Jose, was branch line on projecting point bay San at In near Francisco. order induce that company San to malee its terminus at Oakland offered them a Carpentier portion of the' however, -waterfront claimed him. They, had no confi- dence claim, of his validity refused to consider his in^the propositioiV the necessary unless should be taken steps to clear his titled. up whole matter was then submitted to the city ax«u3 authorities ai\eir with the result attorney, that a compro- agreed upor'^ mise and subsequently carried out. The sub- agreement stance cif was that the city should procure from necesWry authority make the compromise, *31 Watee, Oakland Feont Go. Sept. 1897.] city tbat a small of the waterfront to the portion go should divided between tbe rest be the OaJdand Front Company— of which was the stockholder corporation Carpentier principal n —andthe railroad The consideration company. principal city, share in the was the principal compromise, estab- of the lishment railroad terminus at the front and the ex- city of five hundred thousand dollars in erection of penditure and other terminal works. depots
In of an pursuance effect, to this understanding application was made to the and an legislature 21, act was March passed 1868, as (Stats. follows: p. 222), 1.
“Section The council of Oakland, city the con- currence of the of said mayor city, hereby authorized and em- settle, and powered compromise, adjust claims, and all demands, controversies, and causes of action in which the said is interested. city
“Sec. 2. This act shall take effect immediately.” 31, 1868, On March all the parties interested, city, except executed contracts in writing the terms of embodying the com- and on 1st and 2d promise, April the following ordinances were duly city council and adopted approved by the mayor:
“The council of city of Oakland do ordain as follows: 1. claims, demands, “Section controversies, disputes, liti- and causes of action gations, heretofore existing between the of Oakland on the one part Horace W. Carpentier and his the other assigns part, relating force, validity, and effect of a certain ordinance passed by the board of trustees I). of the town of Oakland on the eighteenth day A. May, 27, 1852, Marier, and enrolled May A. signed by president trustees, said board of Shattuck, and F. K. clerk of said board, entitled, ‘An ordinance for the disposal waterfront to the town of Oakland and to belonging provide for the con wharves,’ wherein and whereby, struction for the considera named, therein ‘the waterfront of said town, tions that is to say, all the lands within limits lying of the town of Oakland and channel,’ between tide described in high ship’s the act of town, said incorporation passed 4,May n title, with all right, and interest together of said town
therein, with all the together privileges, rights, franchises Co. Oal. Oakland Water
198 OaklaNd *32 v. to Horace sold, and released mentioned, granted, were therein and his assigns. W. Carpentier force, and effect of the validity, in relation to also
“And the said delivered to Carpen- and conveyance, executed certain 1852, 31, by dated said tier, waterfront, May said in trustees, under and Marier, of said board Amedee president of said ordinance. pursuance and force, in relation to the effect a cer- validity,
“And also ordinance the board of trustees on the tain other passed by 1852, entitled, A. D. “An ordinance to December, thirtieth day street, wharf of Main and to extend the at foot improve time for construction of other which said ordinance wharves/ 1, 1853, January was enrolled A. D. and said signed president trustees, the said and whereby and clerk of board of wherein said and the said first-mentioned ordinance deed conveyance were and recognized approved. force,
“And in relation and also effect validity, of a cer- tain entitled, other ordinance An ordinance wharves concerning and the on the passed twenty-seventh day August, waterfront/ 1853, A. D. said trustees, board of which said ordinance was 27, enrolled dated A. D. August W. and was A. signed by Barrell, and A. D. president, Hurlbutt, clerk, the said board of trustees, wherein and whereby the said first-mentioned ordi- nance all was in and things ratified confirmed and the said water- front again granted, sold, and conveyed to the said Carpentier fee hereby simple forever—are compromised, settled and adjust- ed, and the said above-mentioned and ordinances conveyances are valid, made and binding, confirmed, ratified and all dis- controversies, and litigations, claims in and putes, to the fran- chises and described said ordinances property and deed of thereof, conveyance, every part abandoned and released city of Oakland the said said Carpentier and his assigns conditions, following wit, said Carpentier shall assigns and his convey proper sufficient deeds of all the conveyance property franchises mentioned and de- scribed said ordinances and deed of conveyance hereinbefore to, to referred tire Oakland Water Front Company, to be used terms, in accordance with the conditions, applied stipulations, contained in certain agreements, contracts between the said Co. Sept. Oakland Oakland Water 1897.] Kail- Pacific Oakland Water Front and the Western Company herewith, date road other even Company parties, bearing nothing But specified. in the agreement with the exceptions of the San any rights affect shall be deemed to contained herein an under derived Kailroad Company Francisco and of No- day the twentieth of Oakland passed ordinance 1861. vember, 1, 1868.
“Passed April PENDLETON, “B. F. Council.
‘‘President of the Hillebrand, H. Clerk. City “Attest: *33 A. 1868. 1, D. April “Approved MERRITT, “SAM
“Mayor.” of Oakland do ordain as follows: city council of “The entitled an ordinance to amend an ordinance “An ordinance for the settlement of controversies and ‘An ordinance entitled Oakland, the waterfront of the concerning city disputes thereof, and other matters thereto/ relating franchises third clause of section shall be 1. The amended to “Section force, And also relation to the validity, follows: and read as other ordinance the board passed of a certain of trus- effect December, 1852, day thirtieth entitled ‘An ordi- tees on wharf at the of Main foot street and approve nance to ex- constructing time for the other tend the which said wharves/ 1, 1853, January was enrolled and signed by ordinance the said trustees, clerk of the said board of and wherein and president said first-mentioned ordinance and whereby said deed were and recognized approved. of conveyance 2, 1868. “Passed April
“B. F. PENDLETON, “President of the Council. 2, A. D. 1868. April “Approved
MERRITT,
“SAM
“Mayor.” city “The council of Oakland do ordain as follows: 1. It “Section satisfaction appearing of the council that all and terms conditions of a certain ordinance heretofore passed, Oal. Front Oo.
200 Oakland Oakland Water 'An settlement of controversies entitled o-rdinance for the Oakland, the city the waterfront disputes concerning having franchises thereof and other matters relating thereto/ W. Carpentier been satisfied and Horace fully complied and his mentioned assigns, all the ordinances and deeds therein confirmed, and all described are ratified and hereby finally claims, of action disputes, controversies, demands, and causes heretofore one existing between the of Oakland city part on 7and Horace W. his other re- Carpentier assigns part, deed, force said
lating ordinances validity abandoned hereby and released of Oakland city said to the said Carpentier assigns; his provided, nothing herein contained shall release the of Oakland to the reversion franchises, released, property, rights in the contract between provided Pacific Eailroad Western and the Company case said Company, city of Oakland shall become entitled to same under said con- ' tract.
“Passed April A. D. 1868.
“B. PENDLETON, F. “President Council. April 2, “Approved 1868. MERRITT,
“SAM Mayor. H. “Attest : Hillebrand, Clerk.” City *34 utterly I am unable any to see reason for denying the efficacy compromise. of this terms
By very the council, act with the concurrence mayor, was authorized compromise, settle, and adjust and all controversies in which the said was city interested. very different from This is the paraphrase “its controversies,” which counsel use in respondent their argument. There is in the contention that some plausibility authority merely com- controversies” “its would not enable the promise city to alienate to a subject trust, held but public authority to property com- settle, and adjust any controversy in which it promise, was in- terested, by conferred the same power that created trust, certainly comprehensive enough sustain a transfer the prop- to the trust. subject erty Front Oo. Oakland
Sept. 1897.] exist- that there was no in the suggestion Nor is there anything If ever compromised. to be ing controversy Carpentier over controversy anything, notorious there was a flagrant between controversy Carpentier there was such a certainly waterfront, and it was none the city of Oakland over this March, was 1868, there the Slst of less because on controversy in court. As to actually no action or legal pending proceeding it can of the compromise, unreasonableness alleged that the city gave up to have been unreasonable in the sense said exact, what should city much and too little. But kept too concede, was matter confided to making compromise council, and, in discretion of the the absence mayor fraud, their is conclusive. judgment conclusion, think, I follows that from and necessarily
after the second of Oakland ceased day city April, trustee, otherwise, to be the owner as of her any portion waterfront those her secured to except portions compro- date, streets, mise of that and other such thoroughfares, par- cels as been may have dedicated to use. previously public As all such the transfer to the Water Front and its places Company easement, subject and the as trus- assigns public tee for the is no doubt entitled to a decree in this action public her of control over the lands so defining dedicated. to such respect
With streets and the various public places, con- decrees, defendant, relied sent constitute no estoppel, the statute limitations does not apply. from what has been said that the results on both judgment and the order a new trial must be denying reversed, appeals for further remanded accordance with proceedings the cause It is so expressed. accordingly herein ordered. views Fleet, J., Van J., and concurred. Temple, MeFARLAND, J., I concurin the concurring. judgment reached in the in the of the chief opinion conclusion reversal case, involved in this and the land claimed the grant justice the line of is limited low tide on company waterfront *35 the and with all side, estuary, respect and on westerly the In in said boundaries, opinion. the lines designated other case; Chicago ease at bar is not within view that FRONTCo. WATER OAKLAND V. OAKLAND her of the state to dispose to the respect general power with I borders, her express under within navigable lands waters lying power. As thus limited there is as to the opinion. no no question grantor I think that title the land in contest to the passed 1868—at the waterfront compromise before company re- least act 1861. In other confirmatory legislative I concur in the the di- justice the chief and in spects opinion rections given therein the court below. J.,
GAROUTTE, in concurring. I concur judgment reversal. this case should confined be within smallest limits The state possible. should have the benefit of all doubtful constructions in matter of this rea^- description, line westerly son the be grant should established at the of low tide. In I with the respect agree conclusion of point justice. the chief
There is no trust relation between the state and its existing which of its tide lands. The title people prevents disposition lands is in the full, to such state as perfect, title complete and, vest; to land can in the absence of or constitu- statutory law state tional has the contrary, power to part title. This has power always such been recognized and exercised the state. It is the settled of the state. policy under Acting it, state has with tens thousands of parted Indeed, acres. it be said all have such from passed lands the state to If, by some of law private ownership. principle be found statute, in constitution or a trust rests these in favor lands upon which, a trust like the burden that public, rested upon Sinbad, can be shifted, never then every of such land by void, the state is past whole theory upon state has acted in the disposition of these lands has been That such result wrong. follows necessarily for this plain, trust, one, if there is a trust for all time, and attaches to every of tide land the state. If rood exists power in the state square embrace, to release foot from its single exists for, all; when considered, release quantity it becomes a policy not one am question power. .1 satisfied no trust rested ever tide lands of this state which an prevents absolute disposition them. *36 Fkont Co. Oaeland Oakland Water
Sept. 1897.J title to the Test the absolute of the state to Conceding Oakland, exercise that these lands in the town of did state It is that it held by now claimed of Oakland power? city ullra state, lands an act these in trust from the and that it was vires upon part Conceding its of them to dispose Carpentier. contention, still the for the soundness of this present purposes is so because no for This city has prop depend upon support. lands to Carpen- these city Oakland transferred the title to act ordinance, by tier and state by legislature, subsequently 1861, ratified “all ordinances” the town and confirmed it This ordinance answered to that description; Oakland. class; assume that within that and this court is bound to came ratifi- meant The confirmation and what said. legislature of this ordinance made the by cation the state a for all and such Carpentier legislative grant; purposes state; here as a to him from the The views stood direct grant waters. As by navigable refer to tide lands not covered expressed I lands under waters leave the navigable question open. I am with the HARRISON, J., agree unable dissenting. majority of the court. by plaintiff reached conclusion title as defendant against action to quiet brought of the the line of tide ordinary high lands below lying certain Antonio, within estuary Francisco and the of San and San bay in- Oakland, as defined in the act city boundaries 24, 1862. The cause was tried city, April said corporating in favor court, rendered judgment plaintiff with the described in the complaint, exception the lands as to described in the title of judgment, the parcels designated certain valid, is vested in and held it as good is the plaintiff governmental state of agency corporation a public common benefit of all the for the the state people California that, as to certain whole described public; parcels and the are found to been and which have filled in and the judgment tide, natural ordinary the level high above plaintiff raised acquired thereto, the defendant has the title in fee has lost valid; title thereto and also good and the defendant’s the owner of the land part of that described plaintiff lies from southwardly south- complaint present line of the A motion boundary new ern of.Oakland. 204 OakláND v. Oakland Water Front Oo. Oal. trial was made by denied, tbe defendant and and from tbe judg- ment in favor of plaintiff tbe and tbe a new denying order trial bas defendant appealed. tbe of Oakland an act of tbe legis-
Tbe town was incorporated following witb tbe (Stats. 180), lature May p. “On line right angles boundaries: tbe at straight northeast street, on witb Main from tbe San Francisco running bay of *37 estuary, or north to tbe Antonio southerly line of tbe San creek Main at a rods crossing sixty street three hundred and point northeasterly from of Main ‘Oakland on corner and tbe House/ streets, First as on Portois’ of ‘Contra Costa’ represented map file state; on in tbe office of tbe of secretary thence down the line of said creek in southerly slough bay; or to its mouth channel; to thence thence line ship northerly easterly by and tbe of channel to a where the said ship same bisects the north- point eastern boundary line.” 3 of the act town
Section declares: “The incorporating have to or- board trustees shall make such and by-laws deem they dinances as proper necessary; regulate, and sell, or to. otherwise common improve, property; dispose fires; out, make, lay widen, and prevent extinguish reg- open, ulate, streets, roads, ferries, and in all keep bridges, repair public wharves, docks, walls, and grounds, sewers, places, piers, slips, and alleys, and, and to authorize construction of same, view facilitate the construction of with wharves and other the lands within the limits improvements, lying aforesaid, be- channel, tide and high ship hereby tween granted released town; to said provided that said lands shall be retained by said disposed town common for property, afore- purposes said; and collect to regulate wharfage and etc.” dockage, the trustees of the
May town of Oakland an adopted “An entitled ordinance for disposal ordinance of the water- to the town belonging Oakland, front to provide for the of wharves.” The ordinance is construction in the following terms: 1. The
“Section exclusive right privilege of constructing wharves, docks at piers, within any points the corporate lim- Oakland, of the town of with the collecting wharfage at such rates as he dockage may deem reasonable, is hereby Oo. &ept. 1897.] OAKLAND V. OAKLAND legal bis W. Carpentier, confirmed Horace nnto granted years; thirty-seven provided, tbe for period representatives, six shall, within bis grantee tbat said representatives twenty least Main street at months, at the foot of wharf provide beyond feet water fifteen wide and toward extending deep feet of said street. wharf at the foot present the inten- carry out 2. view more speedily “See. With a 4,May passed of the act of the legislature tions and purposes Oakland, and town 1852, entitled, incorporate ‘An act certain wharves for the construction of to provide thereat/ the town and released to which certain is granted property now, improvements, of certain making Oakland to facilitate contained, and therefore, consideration herein premises with W. obligation Carpentier a certain made said Horace said the town of Oakland in to build which he undertakes town, that of said schoolhouse, town a waterfront public Oak- of the town all the lands within the limits say, lying said channel, as tide and described land between high ship of the town act, title, and interest all the together right, *38 and unto the therein, sold, (cid:127)of Oakland released hereby granted, or representa- W. to his Carpentier, assigns legal said Horace thereunto tives, all the interests rights, improvements, belonging.” a said
Section 3 execution of of conveyance provided By of the board by lands to of trustees. Carpentier president trustees, ordinance the of the board of president virtue this Marier, May A. to land conveyance executed Carpentier 31, The conveyed 1852. interest thus to became Carpentier to in the defendant herein prior vested commencement action, and the lands so to him included within conveyed contained in herein. complaint the description an plaintiff originally by act of incorporated legis- 1854, 1854 May to (Stats. p. 187), succeeded passed lature lands; and claims of the town of Oakland in said rights all in reincorporated (Stats. and was p. 337), was then to maintain suits to recover or empowered right interest have accrued the town and of Oak- property land. Co. Oakland Water Oaeland tbe ordinance, and tbe foregoing below held
Tbe court lands therein of tbe to sell dispose Marier purporting deed of bad trustees board of void, that said null and described were no bad ordinance, and said Marier said pass or right power no thereof. in pursuance instrument execute said or right of tbe court tbe decision underlies finding of this Tbe correctness received hereto, and has properly rights parties and tbe and by in counsel argument the main consideration court in the case. determining nature
Tbe for determination are tbe thus questions presented bolds tbe title tbe or character tbe tenure which tbe state by borders, the effect of lands within its tbe act granting tide Oakland, and also these lands the town the interest in ordinance, was taken virtue of by land which tbe Carpentier as well as the effect acts and subsequent legislative judicial proceedings.
1. Tbe nature of the title state’s to tide lands and lands cov- waters, ered by navigable as well as the effect of conveyance these lands aby from or grant, directly either tbe through legislative has authority, been the subject frequent courts, consideration by the and many expressions are in found opinions given deciding tbe cases in which the title is charac- terized of an absolute owner in fee. Tbe cases in which has question been considered have all instances, nearly however, been those in which tbe to tbe disputed lands was controverted individuals claiming the same as against each other virtue conflicting grants claims derived un- state, der when the rights a grantee of the state were to one opposed claiming prescription, or by virtue of a riparian claim, or to claim alleged to paramount or anterior to that state, and have arisen only where limited areas were in- volved. In these cases courts determining the title of the *39 under the state grantee have characterized the original title of the state thus eonvej'-ed to him as that of a sovereign with of power full disposition; but, as was said by the supreme court of the United States in discussing question this in the Chicago ease hereinafter cited: “General language sometimes found in of opinions the courts of expressive absolute ownership and con- Go. Sept. OAKLAND v. Oakland 1897.] of waters, irrespective trol tbe navigable state of lands under con read and tx x must be to any disposition, tbeir use cases.” of particular strued wi n to facts reference tbe special pertinent facts Commrs., In Weber Harbor tbe Wall. investigation tbe lands in did not an question require then in the court title, of but determination of tbe nature tbe state’s in “absolute property declared that state opinion tbe bad tbe tide waters dominion under over all soils sovereignty her of tbe title limits, within consequent right dispose of soils as she deem any part might prop said in such manner of tbe er, to tbe over subject right navigation paramount neces waters, so far such be tbe navigation required as might nations, or of commerce with the several foreign among sities found Similar in in other expressions may opinions states.” Illinois to that of Cent. R. R. cases, prior but in none of these cases 146 U. Illinois, Co. v. S. question directly tbe presented public tbe of tbe rights grantee rights between lands, in or tbe extent to which the state tbe remaining granted lands, such or whether there were tbe power bad In the exercise that case power. upon limitations had alienate certain lands beneath attempted of Illinois state Labe which included a Michigan, large portion the waters and the court of the United Chicago, supreme waterfront first called to consider time the extent upon was for the States of the state lands thus held right pub to which without impairing rights exercised those could be lic use existed, and so doing pointed the trust out benefit for whose had been done the nature of this clearly previously than more there limitations tenure, and that In its opinion of such lands. that case to dispose state Weber v. Harbor Commrs., declaration in its previous modified lands, of such disposition in state’s supra, “when that can be done without sub the qualification serting interest of the public the waters.” impairment stantial many found in the opinions, expressions repeated Commrs., from Weberv. Harbor quotation supra, foregoing in the the dominion and over these sovereignty holds state the state is sover- statement that frequent well as lands, as significance unless the misleading proper to be apt eign, *40 OAKLAND Oakland Water Oo. Oal. term when thus used is also “sovereign." considered. To the ex- tent that the state is not subject any control or au- superior it is thority but it does not follow that sovereign, it has absolute or that its authority, of power disposition over these lands is limitation. without XJnder the political system of this country the actual is the and all sovereign people, power government ownership public is vested property them, and is to be solely exercised for their benefit. The state is but the organized form of government which the have people established for their both as protection, individuals and as body politic, powers defined a written constitution, and is to the ex- sovereign only tent with which the have people invested it with their sover- eignty. Being only a political entity, the powers sovereignty thus conferred individuals, must be exercised people and the exercise of the under power consideration has been in- trusted to the legislature. is, however, only agent representative and holds people, power conferred sovereignty it in trust upon shall be they exer- cised in the interest and for the benefit constituent, of its subordinate to the trust under which are held. they As in the case of other trustee, or agent an act done itby for the pur- and with the pose necessary result of injuring its or principal, destroying subject trust, matter of the even un- done though der it, the forms conferred authority will be held in- upon effective. ' Whatever has been power sovereignty conferred state be exercised for the benefit and in the interest of the entire cannot be abdicated people, or surrendered to individ- uals, or exercised in favor of some detriment or disad- of others. The lands which the state holds in vantage trust for entire are held it in this limited public sovereignty, under the same trust as is the police power, of taxa- power tion, domain, or the of eminent and for the same reason are beyond its control. the state incapable being placed Although lands, vested with the dominion and control of these sovereign it does not follow that is the same power disposition an individual lands that of over he holds the absolute in- fee, or that its tenure the lands is identical with that of an dividual owner. These lands are not held for the purposes Front Oo. 209 Oakland Oakland Water Sept. 1897.] sale, or uni therefrom, revenue or income but are producing versally declared be held for the use benefit public, and the alienation, as well as the title of state there *41 to, is limited by this under In trust are held. they Illinois Cent. R.R. Co. v. said that Illinois, it was the title supra, of the state to these lands “is a in character from title different that which the state holds It dif in lands for sale. intended ferent from the title which the United in States hold the public lands which are open to and sale. It held is a title pre-emption trust in for the of the state that the navi people they may enjoy waters, gation them, on and carry commerce over have of liberty therein, freed from fishing the obstruction or interfer- ence of private parties.The trust the state devolving upon for the and public, which can be discharged by manage- ment and control of in which the has an inter- property public est, be cannot a relinquished by transfer of the The property. control of the state for the of the trust purposes can never be lost, as except to such parcels as are used in the in- promoting of therein, terests or can public be without disposed substantial impairment and interest in the lands public waters state remaining.The can no more its abdicate trust over in which the whole property interested, like people waters soils under navigable them, so as to leave them entire- ly under use control of parties, in private except the in- stances mentioned for parcels improvement navi- waters, and use of when can be gation parcels disposed remains, without interest in than impairment public what can abdicate police it its the administration of powers govern- In peace. ment the administration preservation of such for limited government, period the use a powers always but delegated body, be or other there municipality ex- the state the to revoke those powers, remains with manner, them in a more direct one more ercise conformable with trusts to its wishes. So connected with public property, character, of a like lands under special or property navigable cannot waters, they placed be the direction and entirely beyond of the state.” control of the unlimited question power grant private ownership may fairly presented
these lands into be CXVIII. Cal.-14 Oakland Water Oo.
210 that that could be induced to body consideration by assuming an to a of all make a individual or the tide corporation grant waters by navigable lands and lands covered belonging state. of the constitutional limitation Irrespective state not would against gifts public property, contended for could be sustained. grant moment such “A of all grant of a has navigable the lands under the waters state never been ad- legislative be within the power; any attempted judged held, if void on absolutely of the kind would be Cent. R. Illinois, revocation.” R. Co. v. face, subject (Illinois said court of New supreme Jersey supra.) 356: N. J. L. Am. Dec. "The sovereign Arnold v. Mundy, cannot, itself with the law consistently principles make a society, of a well-ordered the constitution of nature all divesting waters of the state direct and absolute *42 It be a grievance common would right. of their the citizens A by grant borne a free people.” never could be long river, the all land covered Sacramento by of of the an individual thereon, mani- the and flow of the tide would within ebb or lying of a the the but beyond power legislature; grant be festly a which all ingress of municipality, waterfront entire and the waters navigable bordering the upland between egress individual, will at of an arbitrary off or the placed is cut thereon a the bed of the from of Sacramento degree grant in only differs state. of entire was shown by the waterfront the or of river the distance from the line case that of in the present testimony channel, measured the north- along tide to high ship ordinary Oakland, as the town of defined the act boundary of easterly miles, that, of five reason di- is of upward boundaries, its and south the tract' of land of north lines verging of tide and channel is the high ship line shape the between it extends into so that the fan, bay, as the widening frontage of a is miles. of channel about seven The court ship line found at the herein: “The the line the length the facts of shore of as one in the measured on the line of land described complaint, tract tide, thirteen fifty-six is hundredths ordinary high natural of its channel lines thir- miles; frontage upon length the area of said tract of land is miles, and about seven teen hundred and seventy acres.” eight thousand Co. 21 Sept. 1897.] FRONT WATER ¾. OAKLAND OAKLAND to make or evidence of argument needs nor admits Tt neither this extent a grant make state cannot it manifest the public the interest “a substantial impairment without bordering those as well as grant, covered in the waters” it to the public available a waterfront be thereon. That sides, from water from both approach must be capable water; terms land but land, well from as as a cordon front of the entire upland there is drawn in of this grant between the width, egress making ingress of land miles will at the grantee. land and the water impossible, except au- it If had to authorize this could grant, state similar and could by every organize thorize grants municipality, water by which the entire the state municipalities frontage If state its irrevocably would be can occupied. part Oakland, dominion the entire waterfront of can so over do with the entire waterfront of and every within municipality borders, and it to conceive of necessary similar grants Alameda, Berkeley, Pablo, and San other towns bordering elsewhere, bay in order to see the state deprived of its lands, entire control sovereignty and over these fully as as though had been they granted by No single legislative all act. instance has been cited of in extent the approximating one under consideration, we do not say hesitate to that no court has ever sustained the validity this extent. thus principles not, declared however, do prevent state from conveying by its grant an absolute fee to parcels these lands, and the cases in which such grants have been upheld illustrate the extent to which the grants may made, well *43 as their As limitations. one the main purposes the trust under which they are held is that the public may them for enjoy benefits commerce and navigation to be derived therefrom, state, as the organized representative of the public, inmay, trust, administration of that it to be for the find advantage public, and promotion in of the purposes trust, of the well as to secure the benefits of navigation commerce, docks, wharves, construct piers, basins upon the lands covered waters, these for that purpose may authorize their con- struction by others, and may part with the title to the land upon which they are constructed. It was said in the Chicago case: Oo. Oakland
W2 waters of the the navigation of the people interest “The instances in many bemay improved over them in commerce therein, for which pur- docks, and wharves,, piers erection of and, lands, submerged may grant parcels state poses no valid for such purpose, is made as their disposition so long case the same And in to the grants.” can be made objections been considered that have said that the grants the court further as a valid exercise of legis- cases adjudged and sustained of lands under navi- “grants parcels lative have been wharves, foundation for waters, may piers, that afford gable commerce, aid of docks, structures in grants and other which, substantially do not impair being occupied, parcels “it and waters that remaining”; interest in the lands public the distinction between a of such only by grant is observing interest, for the or which when improvement public parcels in the substantially do not interest occupied impair public lands and waters and a remaining, grant the whole property interested, in which the public of the ad- language cases can be reconciled.” judged of a parcel land may which serve as th.e foundation a wharf or for a pier, used actually for such would purpose, be within the direct the trust for which the purposes lands are held state; and it also be conceded if lands covered with state, water are by the granted are afterward reclaimed and for occupied purposes connected with commerce and navi- but in such a as not gation, way impair rights of the pub- lic in the waters still remaining, leaving them to free open access from the upland, the state would not be at liberty to recall the is, grant. however, This an entirely different proposition from of the entire waterfront of a city or township, either as a donation or consideration of constructing single thereon, wharf or the construction of some public improvement disconnected with the use of the lands.
The state cannot part the control of these lands for other uses public than those for which they held, or than such as will promote the interests of the public and commerce, navigation and is from precluded alienating them other purposes. The same considerations which it from prevent making donation of them to an individ- *44 Oakland Co. 2IS Water. Sept. 1897.] ual for bis own it from alienat private purposes preclude they them for than those for which ing public other purposes are held in trust. “The are held is they govern trust which mental, and cannot be alienated in those instances men except tioned of parcels used in the interest thus improvement held, or when can detriment to parcels be of without disposed in interest the lands and waters public remaining.” (Illinois Cent. R. Illinois, R. Co. v. supra.) The can no more legislature extinguish destroy the in these lands right public by ex them for lands or changing to be used for other property public than it can purposes them solido a alienating by legislative grant. 'Whether the state may appropriate the it shall moneys re ceive for such it portions as sell to lawfully other public pur need poses considered, not be is it nor necessary consider the of, extent of the which it or whether the parcels may dispose is judgment as to the extent of such legislature disposition final. A by the act of co-ordinate branch grant make and, grant so as its long of the government, are not justified refusing question, judiciary an open Bonds, 310; Am. Irrigation it effect. give (Madera is pre this question If a contest upon 106.) Rep. St. authorized to determine courts, would be they sented determine authorized to they are the same extent of emi taxation or the right for which the purpose whether or whether purpose, is authorized is public ment domain in any is taken particular property use for private If exercise of this power use. is a public instance line, susceptible is equally the border case lies any given courts will validity, its of as against in favor of a construction of the government that branch the determination respect terms from the exercise; if it is apparent but its question refuse to the legisla is in excess of the power itself that it grant which the lands trust upon violation ture, or is in more state, pronounce will no hesitate courts held act the legislature other declare any than to invalid grant If authority. without been passed that has effect without in a single if it harbor, or purports of an entire be city, to basin or water approaches land forming all the tract invalidity. no question there can *45 FRONT Oo. n V. OAKLAND OAKLAND WATER the and the The fact at the time of of the act tliat passage of thereunder Oakland had bnt a fraction the grant population land which it now or that the value of the possesses, granted the small, was a false in determining immaterial and quantity lands were of the The trust under which the power legislature. date, held not limited the was to that but extended throughout time, held for existence of the state for all the lands were as for of enjoying future well as those then generations capable the of case, them. In the was of Chicago grant the portion At the into the lake. nearly lake mile out extending front city of the was not one- time it was made the population when rendered, was the decision thereon fourth it was when what for deter- of came before the courts validity grant when the the south, it for miles further but had extended city mination the the any respect these facts in affected was contended that not the of at time of the the validity grant the made. was these lands increased the defendant in is the right
Neither have been of land extent great other tracts the fact that those grants state. The facts connected with the conveyed by in an us, justified expressing and we would are not before The to San Francisco validity. grant their opinion 1851 (Stats. 307), peculiarly March p. the act of of the state to of these lands right dispose conceded within the the interests of commerce promoting for the purpose parcels which was act granted The land that and navigation. boundaries, certain “according was situate within that which Francisco-, of San and the city survey map plat in the now on record office the recorder of the same The Francisco-.” land within these boundaries county of San blocks, out lots and laid into streets had been intersecting blocks, and also the waterfront and along there extending and in the act itself these lots upland, from to the were designated San Francisco beach water lots.” The “the had map been drawn in accordance with a survey made virtue of the directions of Kearny, General beach and water lots thereon, each with an designated area of one-third of a fifty vara lot, and seven hundred and number, had been seventy-two sold at auction under the public direction of the ayuntamiento Go. 215 OakláND Sept. 1897'.] city, tbe and at incorporation passage prior and the ownership, city were claimed in private act to these releasing grantees right was for purpose therein, state and of their claim thereto. confirming (See Cowell, Cal. was of 80.) Eldridge the use and land a limited with the period, occupation same, that the title thus dispose providing conferred should inure to the benefit of her grantees. previous 4 of Section the same act line de provided boundary scribed in the first act section should be and remain authori waterfront of said permanent city, *46 line, beyond the said city keep ties the should space therefrom, distance of five hundred clear and yards the whatsoever; and, free from all obstructions as if to em the of the state not .with control over phasize purpose part waters, it in 6: “Nothing the was declared section act as a surrender of its by shall be construed the state to regu the or other so that improvements late construction wharves shall interfere with and commercial inter they shipping the of San Francisco.” At the same ses bay ests the and harbor another act passed (Stats. p. sion the was authorized “to con by city which the of San Francisco 311), ends of all at the commencing bay struct wharves at the streets Francisco, by to be made the extension wharves San direction, not exceed into in their the bay present said streets outside line beyond present yards two hundred ing lots, wharfage the rates of prescribe water and beach constructed. The space on said wharves when shall collected extended, which is situated when are they wharves said between and water lot de line of beach property, the outer outside of remain free from obstructions shall legislature, fined benefit of the for the accommodation and slips as public be used state.” When state after commerce general its reversion in the property the disposition authorized ward be sold it directed that the property to the city, granted thus official of said now laid out on the map same are as the lots icby out, in such lots as laid then such so none and, where city, official with the said conformity out board be laid 1853, p. 219.) map.” (Stats. Front Co. Oakland Water under which tbe it holds not violate trust
The state does line at a waterfront within title to these lands designating tide, from and at high distance the line the same a reasonable and piers for the construction of wharves at that time providing line, naviga- this is in interests of commerce since direct also in said such tion and is execution of trust. Whether water- tide, or be at the line of or low at below high point front should that, conformation of shore and the depend upon would distance between it water. deep Upon designation waterfront, such the line of means of access providing thereto from sufficient to meet the upland present prospective commerce, the lands within this line not so reserved necessities subject would cease to be trust upon they were held, and the itself, state could either reclaim previously them or it could of them as as it can of dispose freely any lands other held in its by merely proprietary right. how- principle, ever, under which such action the state is is entirely upheld, inconsistent it of grant by the entire between the space line of tide and channel in high which no line ship designated waterfront, for a made for access to provision the waters from or for the upland, construction of at wharves any point lands, within the granted and which no obligation imposed, grantee to construct wharves therein or to make *47 any provision the necessities of commerce and navigation. ’ follows, therefore, by that the act of 1852 the legislature the of did not confer town Oakland upon the title in fee to the lands within its limits then below the lying tide, line of high to or the of same right the as an dispose entirety byor a single and that the grant, ordinance passed by town granting said lands to as well as Carpentier, the conveyance executed to him Marier in by pursuance thereof, were invalid to vest any title said lands or Carpentier part thereof. The could not town of legislature give to the Oakland any greater power alienate or of these dispose lands than was possessed itself, and by by the town to Carpentier must be re- as taken him with full notice garded the limitations upon and the same legislature, with effect as if made had to him directly been itself in the terms of’ the act.
Sept. Front Co. 217 Oakland Oakland Water 1897.]
2. defendant, in a answer separate to the complaint, that by reason of a rendered in pleaded judgment a former ac tion between its and predecessor plaintiff, plaintiff from estopped maintaining action. the facts present upon rests alleged as follows: In estoppel 1857 the herein commenced an action plaintiff against for the Carpentier purpose having aforesaid and ordinance grant adjudged void, be null and in its alleging that complaint by the act of it had succeeded to the rights of the town of Oakland; that virtue the act of the town incorporating Oakland, was made to the town of the lands described in that act; second section of the act the corporate powers the town wmreto be exercised aby board of five trustees; that, although elected, five trustees were four and qualified acted; that at a meeting these four a resolution was passed by wbicb they pretended to convey Carpentier “the exclusive right privilege wharves, constructing piers, and docks at within any point limits of the town corporate Oakland, with the right collecting wharfage as dockage be might reasonable, deem certain upon conditions in said ordinance par forth”; set the same ticularly “by pretended ordinance, and for the considerations therein forth, set a pretended grant was made the said of all Carpentier the improvements, rights, interests town, to the said belonging to the lands lying Oakland”; the limits of the town of within and that thereafter of the board of trustees made a president conveyance in Car-pentier ordinance, of said wbicb purported to pursuance convey to e exclusive privilege constructing wharves th for the collecting wharfage period thirty-seven years,” title, all right, together interest of the town of in and to the town, waterfront of said and situated channel, tide and high ship granted between to said town described in said and as act of the fourth last-mentioned day of conditions and for May, set the/coS&i4&!$tions out in deed.” the plaintiff said said changed action therefore *48 nn time not, said that “the was at corporation of the passage-of ordinances, eonstituife¿ lawfully t he said provisions under the act, of the said and that all the doings purporting and actings to be the acts said corporation, said pretended including Co. Oakland Water OaklaND thereof, absolutely pursuance made in and deed ordinances grantee”; said on pretended no void, rights and confer null and May; day the twenty-seventh deed said pretended “that the it is effect, because of no is void and corporation to said ex “the that said corporation”; seal of the made under the a franchise was and dockage collect wharfage right clusive use for the said corporation conferred such it town, and as said of all the inhabitants of and benefit incorporation act of authority or under the had no power Car- alleged was further the same.” It alienate or transfer the said pretended fraudulently procuring acted had pentier ordinances, other and and grants and grant, procuring fraud was were in which the set charged various particulars and the therefore “that complaint, charged in said plaintiff forth a cloud ordinances and deeds constitute on the above-mentioned embarrasses the in the exercise title plaintiff, thereto”; functions legitimate appertaining prayed said ordinances deeds be declared “that the pretended effect, and of no null and void defendant directed pretended deliver the- to be con up plaintiff property To deeds ordinances.” veyed complaint said answered, the averments in the denying defendants complaint with reference to tine of the town of incorporation Oakland, and doings that the actings purporting be the acts of denying them, void, or were null and or any conferred said corporation, or that the deed from the rights upon Carpentier, no corporation effect, void or no or that the to him was exclusive right wharves, construct exclusive to collect wharfage, a franchise which had no corporation alienate transfer; denied and also “that the said ordinances and mentioned, said or complaint them, deeds in the consti on the title of tute a cloud plaintiff, embarrasses the city crn-eise of the functions legitimate thereto, in the appertaining ” The defendant also any^efgrmaa-u''- denied the several in the charged and, in complaint, addition allegations of fraud alleged the incorporation of the affirmatively -to these denials, their organization and town, adop the election of ^trustees, the land to Carpentier, setting tion of the ordinance grating the conveyance thereof to him forth the ordinance at length *49 Sept. 1897.] Go. FRONT WATER V. OAKLAND OAKLAND him, by of the board, grant acceptance the the the president conditions therein the bis to perform on part and the agreement thereof, and that by subsequent performance and his imposed, the title to the lands vested with be bad become thereof reason from maintaining was estopped and that the plaintiff question, its said action. rendered in was tried the court by judgment
The cause taken From this an was judgment appeal favor of the plaintiff. court, and the of the trial court was judgment to the supreme court, reversed and the district court was directed to by In its dismiss the Cal. Carpentier, 642.) suit. (Oakland court, rendered the the upon deciding supreme opinion appeal, is, course, ease, after the facts in the said: “the suit reciting relief, for and the for the equitable grounds alleged interposition obtained fraud conveyance by are that the equity grant made without on on the and was part authority Carpentier, trustees, constitutes a cloud upon the part and embarrasses her her title of the exercise of city, and, functions”; after that the of fraud stating charges legitimate of their to consideration reason by vague were not entitled character, they fully as well as the fact that were by indefinite further unsustained the court wholly denied and proofs, fraud, whole claim for “Stripped charges said: valid, relief falls to the was either ground. equitable void, If as contended the counsel or void or voidable. there can be no occasion for the interference the respondent, void, If the condition of things—of a. court of equity. no and estate of the city—remains though rights, privileges, title, bad been No cloud is cast her transfer attempted. upon can attend the exercise of her legitimate no embarrassment has and assert her only proceed functions. She privileges interests, and whoever interferes with claim her them will however, If, voidable, is only trespasser. abe the aid of a court of can void, seeking equity only the plaintiff is, can only she obtain by doing equity—that relief equity obtain town agents acts tendering compensa from defendant, has rebed who them for bis ex tion conclusion which follows from the views penditures.the is evident. of fraud as a charges expressed ground have we Oakland Front Oo. answered, court are equitable interposition fully *zoxthe and must be left out the case. If the ordinances of board void, the franchises and lands are there Carpentier granting no occasion for the If interposition they equity. n voidable,that interference cannot be invoked until equity is, it—that claiming done plaintiff by placing offering *50 the the acts of the place party relying agents of the upon to town the same which he would in have position but for occupied his upon validity. reliance their These views dispose the case it to unnecessary and render consider the other points made The the of the court appellants. judgment below must therefore reversed, and that court directed to suit; be dismiss the and it is so ordered.” the Upon filing the remittitur in the district court, court, in that accordance with the directions of the su court, entered" a “that the judgment preme judgment heretofore entered herein in favor of the plaintiffs) and against the defend that reversed, and ants, be and the same all things is in hereby be the dismissed.” action hereby same is res or judicata, estoppel by doctrine reason of a The former that a cause rests of action principle upon which judgment, its merits a upon determined been once competent has tribu- that tribunal over whom had nal, jurisdiction, between parties them in litigated by afterward another cannot proceeding, tribunal, or a different and it the same is immaterial either is of equitable of action or of cause legal such whether cogni- was in a zance, judgment given whether the common-law or court a court of equity; rendered effect of a final or But, is the same. if tribunal in either the judgment judgment for a reason is rendered or a upon tribunal ground either of the no such controversy, the merits effect can involving re- immaterial, judgment of the but form The unless it sult. it was given record that upon from consideration appears if controversy, or it affirmatively merits appears considered, it were not is not merits available an section subdivision of the Code of By estoppel. Civil Procedure, effect of a conclusive judgment “in to respect by section “that directly adjudged,” the matter only in a former been action which adjudged ap- is deemed have was actu- its face have been so adjudged, pears upon Front Co.- Oakland Water Sept. 1897.] N, thereto necessary included therein or ally necessarily and, is an in the Certainty every essential element estoppel, case of a unless this the face certainty judgment, appear upon record, the record of the will not an judgment constitute When various of defense grounds are set forth in estoppel. to the some of which complaint, answer relate merely action, in which form manner the suit is brought, merits, and the others is in terms judgment general indicating grounds based, without which it is cannot from parties again be held an preclude entering upon of the merits of the controversy. examination distinction attributed to the sometimes effect of in a judgment common- action from that rendered in a suit in law is due equity chiefly mode of to the since either case procedure, this effect is only of an and the can estoppel, estoppel extend In where adjudged. jurisdictions matter actions at law and suits were conducted in different tribunals, in equity the forms of to each were observed peculiar procedure respective tribunals, and a *51 judgment dismissing was complaint ordinarily as a final on the merits. judgment treated This distinction from the different mode of the arose cause of action presenting In á bill in the' equity court. complaint ordinarily set arose, out of which the equity the facts forth corresponding at the trial of an action at presented law, evidence the the court was invoked upon sufficiency of these judgment to the relief asked, entitle the he plaintiff while in an facts made his demand law the plaintiff at in damages action gen- to their terms, leaving to be recovery eral determined he make at the trial. might A “nonsuit” proof in but was equity practice, recognized peculiar to not com- was at the instance given or with the practice, mon-law however, In equity, dismissal plaintiff. consent same effect as a nonsuit, instances the many had bill a Procedure, the Code of Civil involuntary 581 nonsuits section state, and two this steps procedure in the are allowed each other. made That equivalent are section a cause trial instances “an action may in certain be dismissed, that declares entered,” nonsuit the two making proceedings judgment aor other, and without distinction to each between equivalent 222 OAKLAND Oakland Watek Front Co. Oal. (cid:127)their effect. v. Beard, 33 (Coit 357; Barb. Ruckman, Wheeler v. 391.) N. Y. In this state there is but one ac form of mil tion, and the'rules procedure applicable alike to all actions. A of nonsuit judgment may be entered in a suit in or a equity, common-law action may dismissed, be with the like effect in each. judgment is entitled to no greater consideration from fact the mere that its terms it is given a upon dismissal of the court, action at instance of the than if it merely were a of nonsuit at judgment the instance of the plaintiff. When ever such is relied judgment as a upon bar to another action, or is offered in evidence as an must estoppel, it appear involved a necessarily determination of the fact sought established second by the action. The dismissal of a bill in equity upon ground for the reason that the has plaintiff an at law is not a adequate remedy judgment upon merits and, controversy, if it from appear the record that dismissal have been upon that ground, it will not be held that the merits were considered court, or that the judg- a ment is bar to another action. In order that the judgment bar, it must bemay affirmatively that it was not appear made In Foote v. Gibbs, ground. Gray, Chief Justice “If a Shaw said: court does not jurisdiction taire of a suit in dismisses the bill but because the equity, has plaintiff an ade- law, at or for want of remedy quate prosecution, or otherwise an embracing adjudication cause merits, for some on the In is not bar.” Hughes Stales, dismissal United 4 Wall. such court said: “In order supreme judgment may suit, a bar to another it must be rendered in a proceed- constitute same or their parties privies, between and the ing point cases, must be same in both controversy and must be deter- merits. If first suit was on dismissed mined for defect *52 or a or parties, misconception of the form of pleadings pro- of jurisdiction, the want or or was ceeding, disposed of on any action, did not go which merits of ground judg- will no bar prove to another rendered .suit.” In ment Smith v. 262, Kan. had court refused Auld, to enter upon a con- merits, and had sideration thereupon dismissed the ac- it was held that such tion, and dismissal was not a bar to another after action, various saying, quoting authorities to this effect: Front Co. 223 v. Oakland OAKLAND Sept. 1897.] mere authorities that the from these fairly it follows “We think to be without expressed prejudice the dismissal is not that fact on the that it was a decision establish necessarily does not In Foster a a action.” subsequent bar to merits, and therefore Busteed," 135, 1 Am. Richard 100 Mass. Rep. “The it bar to future proceedings, follows: “To a rule is stated as necessarily involved the the former judgment that must appear fact, to which it disprove the same or prove determination of that in evidence. is not enough or introduced is pleaded in former It must also was issues suit. one question And to the sugges- have been determined.” precisely appear bill the dis- in of a that imported the dismissal equity tion that a merits, on and therefore bar to future proceed- missal court said: is no essential difference between “There ings, in of a and of a common-law equity judgment effect decree merits, where A bill dismissed regularly upon respect. the dismissal not with- passed matter has been is out a bar future either in prejudice, equity is proceedings law, at similar a at law is a judgment under circumstances future bar to But no such effect is proceedings equity. to a decree a bill for want jurisdiction, attributable dismissing failure of want of other cause not prosecution, parties, merits of the And where controversy. essential involving forth, matters of defense are set some of the answer various others to relate maintenance of the suit and which merits, dismissed, from and there is a decree of bill general of de- it does not was the prevailing ground what appear hold fense, operates pre- it the decree impossible Boston, 137 In Butchers’ etc. Assn. v. clude future proceedings.” 186, the “If a is dismissed for some cause Mass. court said: bill merits, such an as that the involving adjudication upon law, remedy has an at such dismissal is not adequate plaintiff bar suit law. If the record does not show for what cause to a at dismissed, extrinsic resort be had to evidence to the bill is Place, U. it Russell v. S. was said: “It show this.” In that a court of com- undoubtedly judgment settled law involved in question directly one jurisdiction, upon petent suit, another suit between question is conclusive th'S-iudgment But must the same to this parties. operation of *53 Oal. Oo. Front 224 Oakland Oakland Water v. ex- record or be shown by either face appear, upon was raised and deter- evidence, that the precise question trinsic this any uncertainty If be on anined in the former suit. there dis- record, as, in if it that several example, head appear or more tinct matters have been one litigated, upon which without which judgment may indicating have passed, them was thus which the litigated upon judgment rendered, the whole of the action be at subject matter will contention, ato new unless large open uncertainty removed extrinsic evidence precise involved showing point If, record, determined. the face is left upon anything conjecture decided, as to what was necessarily involved and there is no in it when estoppel pleaded, conclusive nothing offered also, Bardwell, it-when evidence.” Baird (See, v. 164; 60 Peck, Miss. Aiken v. 260; 22 Vt. v. 10 Truman, Lessee 1 45; Ohio Evidence, 530; St. Greenleaf on sec. Story’s Equity a; 793, sec. Pleading, cases cited in 1 note Daniell’s Chan Practice, cery b; note on Bigelow Estoppel, 58.) Section 581 of the Code of Civil Procedure an provides that bemay action dismissed judgment nonsuit entered in several instances, enumerated and in section 582 it is declared: “In every case other than those mentioned in section, the last judgment must be rendered on the merits.” It is contended on the part that, the defendant as it does not appear that the judgment the case of Oakland v. Carpentier, supra, was ren- dered under the provisions of section it was of necessity rendered upon the merits. Section 582 is, however, the declaration of a rule procedure, rather than a principle not law. the fact that every judgment that is not rendered under the provisions section is rendered upon the merits. 430 of Section the Code of Civil Procedure specifies various grounds upon a demurrer to the complaint bemay made, if, upon such sustaining demurrer complaint is amended, judgment will then be entered in favor the defend- ant. If such judgment entered for want jurisdiction court, or for defect of or for parties, ambiguity in statement of the of action, cause it would be neither un- der the provisions 581 nor “A upon the merits.” .ef'^ction judgment upon-.-the is one which determines either merits Co. Oakland Sept. 1897.] (Ros is right” party or fact wbieb an issue of law merits 509), 93 Cal. but McMann, enthal v. *54 different entirely is a matter the facts upon presented
issue the law. the issue upon the merits of presented from it must be held that the the foregoing principles plain Under by from action maintaining present tiff is not estopped the suit in the action dismissing reason of the judgment finally that was Carpentier, Oakland supra. judgment was entered in the district court in that action the judgment court, by and was rendered reason of con supreme not court, sideration the merits the district controversy can, therefore, be invoked as an as to those estoppel matters which were determined court and made supreme the basis of its direction to the district court. That court did to make its purport decision a consideration .of the upon merits of controversy, nor can it be determined its from whether it directed opinion the dismissal upon ground had an plaintiff adequate law, at remedy upon ground that its did not complaint state sufficient to entitle it grounds invoke the particular aid of equity which The ele sought. ment of so certainty, essential in every estoppel, Lord wanting. sajrs Littleton, Coke on (Coke 35¾ b): “Every must be estoppel intent, certain to every and not to be taken by argument in ference”; but only by either inference or argument can it shit, determined what ground that court directed that the be dismissed. It did not determine whether the grant to Car- pentier void; was valid or but we have that, the right to assume if it had been required to make a decision thereon, it have would decided in accordance with the conclusion reached us in the former part of this opinion, that 4, the act of May 1852, gave town Oakland no authority to make the grant to Car- , pentier. 3. 19, February 1880, the plaintiff herein commenced an ac- tion the superior court for county Alameda against defendant herein and others to quiet its title to the lands in- volved in this action, and to obtain a judgment that it held the said lands as successor of the state of California aby good and sufficient title in trust for the use and benefit of the public. Issues were joined therein by the several defendants, and,
CXVIII. Cal.—15 Gal. Oo. Front OaelaND v. Oakland Water cross-complaint filed herein thereto,
addition the defendant _aof portion ownership against plaintiff alleging an- No thereto. title its lands, and asking judgment quieting While the plaintiff. filed to this was cross-complaint swer January Oakland, council of the city the action pending to prevent “An ordinance entitled an ordinance adopted waterfront,” by the Oakland concerning litigation further action as to discontinue the said were directed attorneys Company, the Oakland all the defendants except action that “to said stipulation and also file quiet- decree have a final judgment Water Front Company but with- cross-complaint, in its its title to the land described ing 1, 1882, Thereafter, February there was or costs.” out damages *55 attor- signed by respective said action a stipulation filed in be hereby “It is this action follows, stipulated viz: neys as Oakland Water as all the defendants except dismissed the Oakland and it is further stipulated Company, final judgment against plaintiff have a Company Water Front in or com- to the land described cross-bill its title its quieting costs,” decree day and on the same a without damages plaint, court in the terms: entered following in said action was be heard coming upon cause on to the cross-complaint “This the Oakland Water Front defendant, Company, decree; file herein to this consenting on parties stipulation ordered, therefore, it is and decreed that now, adjudged, said defendant, Company, the Oakland Water Front the owner of herein”; and its as title thereto premises quieting the lands herein. defendant has The plaintiff pleaded against in bar of the to maintain the present plaintiff’s judgment action. res rendered consent becomes adjudicata
A judgment thereto, and, if the were parties parties competent between may to such be in bar of judgment, pleaded to consent another them, with the same effect as if action between rendered after and a merits of the A litigation controversy. resistance cannot, however, so as res adjudi- rendered treated judgment cata unless the parties thereto had the make capacity they have consented shall into agreement judgment. pass refer- controversy to a make an may agreement The parties 1897. OAKLANDWater Front Oo. 227 OakláND Sept. J in rights their transaction respective obligations ence to after an action has been readily brought judicial for the de- action, of those as without termination such have rights record, their made a matter of agreement judicial and such rec- ord of their will agreement have the same effect them as upon the record of a a trial judgment given upon by the court. In such case, a however, a the record is not of the court judgment upon a consideration of the merits of the but a controversy, judicial declaration that the have made such an parties agree- ment, and court, in its consent, such judgment upon merely exercises ministerial or administrative function in recording what has been agreed between the parties. Texas
In elc. Co. v. Ry. Southern Co., Pac. 137 U. S. cer decrees, tain entered by consent of the parties, were invoked as bar another action them, between but the court said: “The decrees were by consent, entered accordance with the agreement, court merely an exercising administrative func tion in what had recording been agreed between the parties, and it was court of open supreme Louisiana to determine general law that the upon principles VI validity article controversy not in in the causes in which the passed de were rendered.” was stated principle crees Lord Bomilly Robertson, Jenkins v. L. & R. 1 Sc. Div. Cas. 117: “Res App. its words means matter court judicata by very upon which the mind, and has come judicial has to the conclusion exercised *56 has a decision side and right, pronounced that one accordingly; an action declarator is and a brought but when verdict is aside, which is set and an by obtained the pursuers, arrangement which, in place by takes consideration afterward the payment money, an interlocutor is pronounced of a sum for the de fenders, registers interlocutor, court that simply the without on the I judicial opinion subject, am of expressing opinion all to consider contrary to that such a principle that it is transac as res really judicata.In be treated my tion can opinion has, court after judicata signifies res the and con argument sideration, matter; come to a decision on a contested here the subject. exercised no function the judicial upon court has the exercised an administrative function in merely by recording to between the In terlocutor which had been San agreed parties.” Water Front 228 Oakland Co. Oal. v. 656, etc. v. Le 138 U. S. an Roy, Francisco where action bad been one the oí brought by against city connty Shaw San Fran cisco, court, lands, to his title to certain quiet in the state pueblo by attorney and the had filed a disclaimer city appeared a a favor of the the court judgment plaintiff, consent in reference thereto: “Whatever the authority attorney said have had conduct its county may the ordinary litiga tion, he had none reserved for benefit relinquish rights the Milan, the the In public by Van Ness ordinance.” v. 127 Kelley an 139, bonds, U. S. action to enforce certain the municipal relied a upon chancery decree théir valid confirming plaintiff which it was shown had been entered consent of the ity, by par by an to that effect the upon agreement signed mayor. Upon ties court: adjudication by this it was said the “This was no the validity of the of the bonds the submission to it a court on tribunal of the of such question validity. declara judicial the validity of the the bonds contained in decree was made tion effect to that contained in the solely in consent pursuance town and officer of the signed mayor agreement court solely railroad The decree was based company. in the mayor agreement the declaration of cannot, in the under adjudication were valid. The decree bonds circumstances, as a be set determination up judicial the bonds. This was not the case of a submission to validity of the merits, for its decision on but it was question court of decision who in advance to had particular person a consent consent, bind the town such a because it gave no bonds, authorities of the town had no more to invalid life than had to issue bonds they do so In originally.” v. Mills, Co. elc. Janesville U. Mfg. Lawrence S. the same court “The declared, the decree was saying: prior principle consent, and not of the judgment consequence so, the the right court had to decline court, and, this being also, v. adjudicóla." See, Gay res Parpart, treat it as Jose, San 73 Ill. Branham v. Gay, 698, Wadhams U. S. ayunta- that the said: “It is obvious court 604, where 24 Cal. under acting the pueblo, agents merely being miento, bind the property could not powers, limited expressly defined *57 act not any community by them by purposes trust held Sept. Front Co. Oakland Oakland Water 1897.] within, either of contract or powers, by way by those strictly of judicial proceedings.” mere sufferance that the judg- it is manifest Under the authorities foregoing as a muniment defendant on is not available relied ment against or as an estoppel the lands in question, title to lands. The claim to the said assertion of its in the plaintiff defendant no to the judgment gave consent plaintiff’s lands, for the of the would its simple grant than right greater held they under which were reason of the trust by reason that as we have from such making disposition, was precluded it to a seen, ju- or by consenting above either direct by dicial decision. to the several con-
4. effect is to be attributed No greater town of Oak- by ordinances firmatory subsequently adopted Oakland, than was created land, by original in the town to inability infirmity ordinance. The same ordinance, land, or to malee the grant, by original transfer the confirmatory inherent at the time of the adoption was herein, successor, ordinances, and continued its plaintiff ordinance which any confirmatory might and equally precluded greater effect than did the ordinance from having be adopted The ordinances adopted. adopted by was originally which 8, 1868, to release which April purported city April and his all its claims in assigns abandon to Carpentier ordi- described in the former franchises property far as it city, without the so nances, equally were land, to said or to thereby part attempted was condition ordinances. The of the release the preceding confirm ordinances, and which in first of said the second named in the been was transfer of the land performed, to have is recited herein, defendant but, by Carpentier franchises an was in pursuance agreement therefor such transfer pre- them, into between to become entered effective viously ordinance, and, said as the herein plaintiff adoption such nor agreement, received party neither considera- reason of the agreement benefit tion or -or its subsequent exe- cution, was no created equity there in favor of thereby the de- and against plaintiff, fendant plaintiff pre- cluded from its want of asserting power to the ordinance. adopt *58 Cal,
230 CaxJjAxdv. Co. WatbeFeoNt 222), act of March the legislature (Stats. p. ordi- to the said city under which the council adopt purported to nances, as to city power cannot be construed the giving never been alienate which had by way compromise property alienate, alienation it was without power within its whose the to authorize. the is to show that the the unnecessary rights city could not a sale under execution by upon judg-
land be divested city might it. Whatever liabilities the recovered against ment it, held incur, against as as be obligations might well whatever from from its own and not property,' be discharged could for the land was held in trust the As public. which it that the for by city in trust the public, held property, public assessment created virtue of by could be no thereto right taxes for levied thereon. or payment within the found certain of land 5. The court parcels earth, “have been filled in with described in the complaint tract of ordinary above level said have been raised the whereby pieces tide,” and “that reason of said several of land by pieces high as tide, from the in these filled in and reclaimed appearing being has the lost, acquired, has and the defendant findings, plaintiff is the owner filled, to each of said so pieces proprietary title are described particularly fee of the same.” These parcels land of which and are from the tract of excepted in the findings, owner, and defendant’s title to be the the adjudged the plaintiff be and valid. The court also good said parcels adjudged use, the in a had occupy that the defendant found ordinary with the uses inconsistent purposes manner commerce, two described in wharves the judg- navigation the land which the been constructed title which had ment be made to compensation in the until plaintiff, found to be the value; and also found that is not the plaintiff their it for described in the of the lands complaint of that part owner boundary southerly the line of southerly present from lies which with these findings In accordance judg- of Oakland. the the against prayer plaintiff. rendered was therefore ment has judgment plaintiff appealed. portions From these complaint described in the lands The parcels by filling tide ordinary high above been raised the-level have Co. "Water v. Oakland Sept. OAKLAND 1897.] use common capable earth ceased to thereby have and navigation, commerce public purposes therefore trust under which subject have ceased to be thereby waters and lands covered held navigable state, and of the state agent consequently plaintiff, trust, in the has further interest in lands discharge no reclaimed, or If so function to in reference thereto. perform the lands have held state in sovereign ceased to be under trust, title may acquire above individuals capacity of the state thereto same means as title they *59 lands other the in its any by merely proprietary right. held state The re- is, wharves for which the the plaintiff by judgment, to make be before the defendant shall quired compensation to surrender constructed required many years were possession, the before commencement of action and while defendant the its the or was in the of the lands under predecessor possession ostensible of the These wharves plaintiff’s predecessor. are instruments out of the under carrying the trust purposes lands their by state, which the were held the construction the under was within for which state the lands piupose placed the control of the they by the the As were constructed plaintiff. ostensible of the or its it would permission plaintiff predecessors, and suffered by be for the stood inequitable plaintiff, having thereto, to de- making objection their construction without any making the defendant thereof without compensation prive therefor. Oakland, of of 1852 the town the act incorporating
In the line San Antonio southerly extended to boundaries of said creek or southerly slough “thence the line .creek; down channel.” of in the thence to The act bay; ship mouth to its of Oakland boun- city the “the provided incorporating 1854 as the be the same boundaries of the shall city of said daries 12 of Oakland,” by section the act it suc- town present town of equitable rights the Oak- legal to all ceeded city the reincorporating declared: “The act of land. be same as are shall the the said city boundaries boundaries Oakland, which are more particularly defined town of late easterly wit: “To the follows, to southeasterly described Antonio slough, the San estuary, line over branch Oal. Fílont Co. OAKLANDv. Oakland Clinton; thence along from Oakland to bridge which crosses the said and of line of slough tide highest and southern eastern thereof Antonio, meanderings all the following estuary San Francisco; thence bay in the San estuary to the mouth of said In the charter adopted by channel.” southwesterly ship 1889, Oakland, by citizens of and approved the intersection of the -boundaries of the after city, reaching Alameda, is Park with the Encinal line of the town of avenue center of the and the cen- westerly slough “thence following Antonio channel in bay ter of the of San estuary ship San Francisco.” to the question only by
As the claim lands plaintiff’s being corporation governmental agency virtue public state, its to the control of of said lands must those of which it is the governmental agent limited to claim to the lands as successor state. The to the town plaintiff’s of Oakland must be limited to such as state released the act of since town that is statute state has the control of these lands. delegated Although of Oakland boundaries of the were extended act of did not confer the city the state the control of the than had been conferred act tide lands other of 1852. *60 had at all times right The state the to the boundaries change and whenever such was made it municipality, change ceased be the of the state for the governmental agent management state’s interest in lands any and control outside of its char- necessary limits. It was not that the state should ter expressly or or revoke the of control power originally given repeal the town of Oakland. The exclusion of any it to by portion of lands from the of the would territory plaintiff remove its effectually as would a direct control thereof as of the repeal their by in the act management was originally in- given it; in the change boundaries of trusted the city adopted in 1889 was as the citizens effective for this by as if purpose made that, itself. follows by claim plaintiff’s limits, limited to lands within its charter the court was not to enter a judgment authorized action present affecting title to lands outside those limits. Front Go. 233
Sept. 1897.] Oakland Water Oak- of Oakland tbe city to observe that tbe It is proper action, to tbis tbe only parties Water Front Company land of tbe rights is determinative tbe herein judgment and that in the to tbe land described Whatever rights these only parties. or thereof, tbe of tbe state to any people part complaint, affected Neither are hereby. have will not be other person boundaries of the land granted called to determine the we upon 1852, or determine 4, the act of May of Oakland town channel,” of the meaning the line of “ship the location of nor was is no issue presented pleadings, term. There trial, the location of upon “ship at any-controversy there not, did either in its or in channel,” and the court its findings location, determined merely fix its but assume to judgment, channel in the bay extended “to ship of the plaintiff the title Francisco; westwardly along ship thence northwardly San northwestwardly its intersection with the projection channel to Oakland.” The plain- boundary of the northern in the legisla- to all the land described title quiet tiff seeks act of viz: May of Oakland to the town tive channel,” and bases tide and high between lying ship lands “The while the title to the land which solely grant, its title derived under the same legislative defendant is by the is claimed bemay Whatever conveyance Carpentier. through grant, line, it is the limit equally of that location the proper location of chan- “ship hereto. The of the parties each claim under the views expressed immaterial is therefore nel” an issue between the but as it was not opinion, foregoing in the court, superior determination did not require parties this court. call for an examination by does not new trial and order should be af- denying judgment firmed. J., opinion concurred in the
Henshaw, foregoing Mr. Harrison. Justice *61 denied.
Rehearing