| Cal. | Jul 1, 1866
Ejectment. It appears by the findings that the plaintiff owns a water lot in San Francisco immediately abutting upon the water front, as established by the Act ofMarch 5th, 1851, and that he has so owned the lot since 1855. That the defendants in that year entered upon the demanded premises and “ made an erection thereon, annexed or attached thereto and
As to the lands gained from the sea by alluvion, i. e. by the washing up of sand or earth, so as in time to make terra firma, the law is held to be that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining. (2 Bl. Com. 61.) The findings, however, make a case of purpresture, or encroachment, by the erection of a wharf in a public harbor, and not a case of marine increase by alluvion, within the definition of that term as fixed by the foregoing citation.
It is claimed, however, that the plaintiff is a riparian owner, and as such has a right to “ wharf out ” against his own land; and therefore that the wharf,' though built by the defendant, inures to the plaintiff’s advantage; and that the' present right of entry thereon is vested in him and not in the people.
A riparian proprietor on navigable water has no right at common law to wharf out against his own land. By the common law any erection below high water mark, without license, is regarded as an encroachment and intrusion on the King’s soil, which the King may demolish, seize or arrent at his pleasure. (Ang. on T. W. 199.) This shows decisively that in cases of purpresture the right of entry is not in the adjacent land owner but in the crown. It has been held in some of the States that the riparian proprietor owns the soil between high and low mater mark, or that he is at least so far interested in it that he can wharf out to the line of low water as against the people, if the wharf does not amount to a nuisance. But
But further: We do not consider that the plaintiff is a riparian proprietor in the sense in which that term is used in the law of tide waters. He is not an owner upon the “ shore,” but upon a “ water front ” of statute creation. The water front established by the Act of March 5th, 1851, is what that Act has made it to be, and the rights of the plaintiff as the owner of a beach and water lot abutting upon it, exist only in subordination to that Act. It is provided in the fourth section of the Act that the boundary line described in the first section “ shall be and remain a permanent water front of said city and special provision is made for keeping it free and clear of all obstructions. If the water front could be extended on the ground of marine increase by reliction or alluvion, or by any other kind of accretion, so that the owner of the water lot immediately adjacent would have a right of entry thereon to the exclusion of the State, then the water front, as limited by the red line of the Act, would or might be an ever-shifting instead of a permanent line.
There is another reason why rights, incident to ownership upon the shore of navigable waters, cannot be considered as incident to ownership upon the “ water front” in the Harbor of San Francisco. “ Shore ” is the space between high and low water mark. Against the plaintiff’s water lot there is no such space. The water front at that point is below low water mark, and there can be no riparian right to build a wharf or pier beyond it; and it follows that if a wharf should be built by a stranger below the line of low water, that the owner of the adjacent upland would have no right of entry upon it on which he could maintain ejectment. (Dutton et al. v. Strong, 1 Black. 23.)
The judgment is reversed, and the Court below is directed to enter judgment on the findings for the defendant.