93 P. 878 | Cal. | 1908
This action is prosecuted under the authority of section 2578 of the Political Code, to recover possession of certain premises alleged to constitute a part of the tide-lands of the bay of San Diego. Plaintiff had judgment for part of the land sued for and the defendants appeal from that part of the judgment.
The defendants denied ownership of the lands by the state and pleaded, as a defense, the ten-year statute of limitations, as set forth in section
The land in question lies between the lines of the ordinary high and low tides and is covered and uncovered successively by the ebb and flow thereof. It is, unquestionably, tide-land, in the usual meaning of that term. (People v. Davidson,
Tide-lands of this character vest in and belong to the state by virtue of its sovereignty. (Shively v. Bowlby,
It is true that the public use may, by some lawful act of public authority, be discontinued or abandoned and that, in that event, the property may thereupon cease to be protected *735
by this rule. If the title is at that time held by the state, it will thereafter hold it as a proprietor and not as a public agent or sovereign in charge of a public use. If an adverse possession can be maintained, or if the statute of limitations can run against the state, in regard to such proprietary property, it will begin from the date when the public use ceased and not before. If the power is left to the legislature, it may then provide for the sale of such property in order that it may become the subject of private ownership. But, as was said in Yolo County
v. Barney,
This was the rule applicable to such property, so held and used, before the adoption of the constitution of 1879. To make such tide-lands more secure against unwise disposition by the legislature to the detriment or destruction of the public rights, the following provision was inserted therein: "All tide-lands within two miles of any incorporated city or town in this state, and fronting on the waters of any harbor, estuary, bay, or inlet, used for the purposes of navigation, shall be withheld from grant or sale to private persons, partnerships, or corporations." (Art. XV, sec. 3.) Other constitutional provisions prevent the gift of any state property by the legislature. (Art. IV, sec. 31.) So long, therefore, as property of this character remains subject to use for the purposes of navigation, it cannot without an amendment of the constitution be disposed of by the state in any manner, except in furtherance of the purposes of navigation to which it is dedicated. The provisions of the constitution are of higher force than the statute of limitations, or the statute defining the manner of acquiring title to property by adverse occupancy. If the state is without power to dispose of this land for private use at all, its officers and agents must be without power to make a virtual disposition of it by their neglect in permitting private persons to occupy it for a period of ten years, under claim of ownership, and thus giving such persons an opportunity to invoke for their benefit a legislative declaration *736 that such occupancy will bar the state of its title. So far as the statutes referred to may have had that effect before the adoption of the constitution, they must be considered as having ceased to exist when the constitution took effect. The constitution declares that all laws inconsistent with its provisions shall cease upon its adoption. (Art. XXII, sec. 1.) In this view of the case, it is immaterial whether title by prescription under the code is, or is not, founded upon the presumption that the possession was originally taken under a grant which had been lost in the lapse of time, as was the case at common law, even if it were conceded that the rule that there can be no adverse possession of property devoted to public use did not apply to this land.
It is claimed that the land in controversy is not now devoted to public use for navigation; that, by lawful action of the harbor board, the public use has been discontinued and abandoned and the land made available for sale to private use, and thus has become proprietary in character; that this occurred more than ten years before the action was begun, and hence, that the statute of limitations has barred the action and the defendants have acquired title. This theory is based on the fact that on March 17, 1890, the board of harbor commissioners of San Diego, under the provisions of sections 2587 and 2588 of the Political Code, established a line for the location of a seawall or a harbor embankment to be thereafter erected, and that this land is between that line and the shore, and some one hundred and fifty feet distant from the seawall line. It may be admitted that when a seawall shall be constructed on this line and the water between it and the shore is thereby excluded from use for navigation, the land between the wall and ordinary high-tide line, not abutting on the wall, nor lying so near it as to be reasonably necessary for purposes incidental to and in furtherance of navigation, may become proprietary lands, which, like ordinary public land, may be sold by the state to private persons for private use not connected with navigation. Perhaps before such wall is constructed, land within the seawall line and so remote therefrom that its use for private purposes would not be detrimental to the public use or the public right, might be disposed of to private persons in connection with and in aid of the building of such wall and its adaptation to purposes *737
of navigation and commerce, as, for instance, to raise funds wherewith to build the wall. We are not called upon here to express any opinion on these questions. No such case is presented. No such disposition of the land has been made to the defendants, or to any person. No seawall has been built or projected; no barrier or obstruction to navigation has been placed on the line. For all practical purposes the bay is open to navigation to the actual shore line of high tide over the land in question as fully and freely as before the line was so located. It still remains, in fact, a part of the bay of San Diego which, by section 2579 of the Political Code, is placed in the possession and control of the harbor commissioners, with all the rights, privileges, easements, and appurtenances connected therewith. They may, at any time, change the location of the line. (Pol. Code, secs. 2579, 2588, 2593.) Before a seawall is constructed and before private rights accrue from such construction it would seem that their power to make such change is unlimited. It may therefore be changed so as to include this land within the waters of the bay set apart exclusively to navigation. In People v. Williams,
On March 18, 1850, the alcalde of the pueblo of San Diego, in consideration of the building of a wharf by the grantees, executed a deed purporting to convey to Jose Aguirre and others fifteen acres of land, including the land in controversy. The defendants claim under this deed and deraign title therefrom by a regular chain of conveyances. The wharf was built, but is gone. Defendants do not claim that they ever maintained any wharf. San Diego was incorporated on March 27, 1850, nine days after the execution of this deed. (Stats. 1850, p. 121.) This conveyance could not have been of any force or effect to pass the title. At that time the title had accrued to the United States as sovereign. The community which afterward *738 became the city of San Diego was then a mere unincorporated village, or at most, a Mexican pueblo, exercising some powers in that capacity. Whatever powers it may have possessed over this land as a Mexican pueblo before the cession of the territory to the United States, those powers ceased when the cession took place, and the sole power and authority to dispose of such lands was thereupon transferred to the United States and was by it transmitted to the state of California at the time of its admission as a state on September 9, 1850. There is nothing in the incorporating act creating the city of San Diego that purports to validate the previous grants of tide-lands made by the alcalde. The act of May 14, 1861, refers only to marsh and tide-lands within five miles of the city of Oakland and San Francisco, or within one and a half miles of San Quentin prison. The proviso in that act declares that no sales of such land within those limits shall be confirmed by the act, "excepting alcalde grants which are hereby ratified and confirmed." (Stats. 1861, p. 363.) Statutes which operate to deprive the state of its property are to be construed favorably to the state, or, at all events, are not to be construed strictly against it. Under any theory of interpretation applicable thereto, this statute should not be deemed a ratification of previous alcalde grants of tide-lands in or adjacent to San Diego.
We have said nothing so far upon the question whether or not the provisions of section
"1. Such right or title shall have accrued within ten years before any action or other proceeding for the same is commenced; or,
"2. The people, or those from whom they claim, shall have received the rents and profits of such real property, or of some part thereof, within the space of ten years."
The title of the state to lands lying between high and low tide accrued upon the admission of the state to the union. If all actions to recover such lands are barred under subdivision 1 of section
The judgment is affirmed.
Angellotti, J., and Sloss, J., concurred.
Hearing in Bank denied.