117 Cal. 451 | Cal. | 1897
This action was brought by Abraham Klauber and eighteen other plaintiffs against T. J. Higgins and a very large number of other defendants, including the city of San Diego, and the board of harbor commissioners for the bay of San Diego. In the complaint it is averred that the plaintiffs now are, and for a long time hitherto have been, " the owners seised in fee and lawfully entitled to' the possession” of certain lands specifically described as lands embraced by eight different state tide land surveys adjoining each other. The lands thus described lie between low and high tide in the bay of San Diego, adjoining lands embraced in the territory over which extends the municipal government of the city of San Diego. It is averred “ that the defendants above named, while the plaintiffs were so seised and possessed of said lands and premises, and entitled to possession thereof, did, to wit, on the ■—— day of-, 1890, without right or title, enter into and upon the same, and unlawfully took possession thereof, and still unlawfully withhold possession of the same from these plaintiffs, and said defendants claim an estate or interest in the above-described property adverse to the title of said plaintiffs.” It is further averred, as to each and all of the defendants, that their claim is without any right, and that they have no title or inter
The premises in controversy are tide lands over which the waters of the bay of San Diego ebb and flow, and the appellants claim title thereto upon applications for their purchase under a general law of the state, approved March 28, 1868 (Stats. 1867-68, p. 507), entitled “An act to provide for the management and sale of the lands belonging to the state,” which act, commencing at section 22 thereof, provides for the sale of “the swamp and overflowed salt marsh and tide lands belonging to the state,” and upon patents afterward issued upon said applications.
A large part of the arguments of counsel on both sides is directed to the question whether or not the legislature of the state had any power at all to provide for the sale of and to convey title to lands of the character involved in this action; but, under the views which we take of the case, it is not necessary to consider that
“All the swamp and overflowed, salt marsh and tide lands within one mile of the state prison at San Quentin, within five miles of the city and county of San Francisco, within five miles of the corporate limits of the city of Oakland, and within two miles of any town or village, are hereby excluded from the provisions of this act.” Appellants contend that this provision does not apply in the present instance, because San Diego is a city, and therefore not a town or village; but this position is not tenable. In the first place, it is doubtful whether at the time the applications were approved San Diego was in any sense a city. It seems to have been incorporated as the city of San Diego by an act passed March 27, 1850, entitled “ An act to incorporate the city of San Diego” (Stats. 1850, p. 121); but that act was repealed by an act approved January 30, 1852, entitled an act “to repeal the charter of the city of San Diego, and create a board of trustees.” And by that act a board of trustees was created and given certain rights and powers, among which was the power to pay off the debts of the city whose charter was repealed; there is nothing said in the repealing act about any "city”; and afterward, by an act approved April 16, 1852, entitled an act “for the relief of the indigent sick,” it is provided that “ the trustees of the town of San Diego” are given certain powers, which act must have gone upon the theory that there was no longer any city of San Diego, but that
Appellants contend that, although their title to the lands in question may have been invalid under said act of 1868, yet that their title was confirmed and perfected by the act of the. legislature, approved May 27, 1872. (Stats. 1871-72, p. 622.) That act is entitled “An act to legalize applications heretofore made for the purchase of lands belonging to this state, and to confirm the title of the purchasers under such applications.” The first section reads as follows: “All applications heretofore made for the purchase of lands belonging to this state under the provisions of any act authorizing the sale of state lands shall be good and valid, although the land described in such application and affidavit may be styled salt marsh and tide lands, when in fact it is swamp and overflowed land; or may be styled swamp and overflowed land, when in fact it is salt marsh and tide lands; or may be styled swamp and overflowed and salt marsh and tide land when in fact it may be either.” Section 2 provides that “in all cases where patents have been or may hereafter be issued upon any such applications or affidavits as described in section 1 of this act for any such land, the same shall be deemed and held to convey the legal title to the land in such patent or patents described to the purchaser therein mentioned by whatever style such land may be designated in such patent.” The purpose of this act was clearly simply to legalize applications for lands which were subject to sale under some law of the state, where such applications were defective in manner as described in the act, namely, where the land had been designated in the application as swamp and overflowed land, when in fact it ought to have been described as salt marsh and tide
There is nothing in the position of appellants that respondents are not in a position to attack the patents under which appellants claim. It is averred in the complaint that the respondents were in possession of the land described in the complaint at the commencement of the action; and, one in possession of land is always in a position to contest the right of another claiming under a void patent. (Cucamunga Fruit Co. v.
The judgment and order appealed from are affirmed.
Van Fleet, J., Garoutte, J., Temple, J., Harrison, J., Henshaw, J., and Beatty, C. J., concurred.