flowed lands within their respective borders.

66

It was provided by shall be applied, ex

the act that the proceeds of said lands clusively, as far as necessary, to the purpose of reclaiming said lands by means of . . . levees and drains."

1. The history of the English law of titles to lands beneath the tidal waters is instructive and of important bearing on the question of the power of the State in the premises. But an attempt to state even its outlines would unduly prolong this opinion. The modern doctrine, obtaining in England since the Seventeenth Century, declares the title to lands over which the tide flows up to ordinary high tide line to be in the sovereign, not as proprietary lands and subject to sale, as are the uplands, but to be held by the sovereign as the representative of the nation, remaining in him and in his successors, as long as the Kingdom shall endure, as a royal prerogative, and as such, not ordinarily subject to alienation.

The high seas are nature's great highways for the common use of all peoples of all countries. It is so recognized by the laws of nations. The free use of the foreshores of the seas ought to be open to all citizens. This right of such use is an integral part of the common law, based primarily upon the proposition that it is a law of nature. By the rules of the Civil Law the shores of the sea (tide lands), as well as the sea itself, were declared to be common to all men by the law of nature, and were classed among those things that can not lawfully belong to individuals-the same as air and running water (Justinian's Institutes, liber 2, title 1, Sec. 1).

In this country the courts from the beginning adopted the doctrine that the title to the lands under the flow of the tides is vested in the State as the sovereign prerogative; or, as it is frequently expressed, such title is possessed by the State by virtue of her sovereignty. This tenure, by which the state is said to hold title to the tide lands, has been characterized by the courts of this country as a title held in trust for all the people."

I understand this statement to mean that the people in their collective capacity organized as a state, hold title to the tide lands in trust for all of the citizens, severally or individually, to the end that they and each of them may freely enjoy the use thereof for purposes of navigation and fishery. It does not mean, however, that limited rights or privileges to the foreshores may not be granted to individuals or corporations when the interests of the public may thereby be advanced and the rights of the citizens to pass and repass thereover and other use thereof are not substantially abridged. Nor does it inhibit the investment of qualified rights therein to owners of abutting uplands by appropriate legis

lative action. Nor does it mean that the shores of navigable waters may not be forever alienated and conveyed into private ownership where they are useless for navigation purposes, or where their use for other purposes will be of greater public advantage or benefit.

It was in recognition of the principle that shores of tide waters may be alienated into private ownership, when a greater public benefit will result, that a large area of the mud flats of the city of San Francisco, constituting a considerable part of the shores of the bay, were conveyed into private ownership and devoted to commerce by special legislative act prior to the adoption of the present State Constitution.

At a given time or place it may prove to advance commerce and create public interest in navigation to permit private owners to erect piers and docks and other commercial facilities on the tide lands. Under such circumstances the permission for the erection of such structures may be given, provided the use of the seas and shores by individual citizens be not substantially abridged. But such permission is revocable, on just terms, at any time at the will of the state.

And so it is recognized by all authorities that, under some circumstances, where it will be to the public advantage, the shores of navigable waters may be conveyed by the state into private ownership, or the state's supervision thereover may be delegated to municipalities, or, subject to proper limitations as to time and under proper restrictions as to use, to private persons or corporations. And the courts of England recognize the power of the crown to convey the shores of the sea and its inlets, i. e., the lands below ordinary high tide line, into private ownership, subject, however, to unrestricted use of the waters for navigation by the public. And this power of disposition, subject to such use, is recognized by the courts of this country.

Counsel for defendants call attention to the principle that the power of the state legislature in governmental matters is unlimited, save by expressed constitutional restrictions, and, therefore, they argue, it is the province of the legislature to alienate into private ownership all lands over which the tide ebbs and flows, if deemed wise. This doctrine of the extent of legislative power is well understood by those instructed in Constitutional Law. But the question naturally arises, Is such alienation of tide lands a governmental matter?" Some things the legislature may not do though the constitution contains no express prohibition. Omission of prohibition does not necessarily confer power. Some judges and some prominent textwriters have expressed the opinion that with the assent of Parliament the crown might grant into private ownership lands beneath tidal waters which are useful for navigation. This is to be seriously doubted. Certain principles there are, the existence of which the state must recognize as essential to the protection of the individual and the minority in the blessings

with which they are endowed by nature. It is axiomate that what is common can not be owned in severalty.

A state, as a political institution, exists to preserve to the members of society that which they inherit as a natural right. It is the province of the state not to deprive man of the enjoyment of nature's gifts, but to insure him of her bounties. The legislature is but an instrumentality used by the state in aid of that object. And such a right-such a gift of nature-is the right to free and untrammeled use of tide lands. They are essential to, and as important as, the use of the seas. It is the province and duty of the courts to declare unlimited and unrestricted alienation by the state of tide lands subversive of the fundamental rights of the individual and any law purporting to authorize it void.

To permit such alienation would be, in effect, a denial of the existence of the trust in the state for all the people. It would be the alienation of one of the sovereign prerogatives which can never be allowed because pro tanto destructive of the very purpose for which the state organization exists. Title to tide lands is an incident and part of its sovereignty that can not be surrendered, alienated or delegated, except for some public purpose or benefit." (Coxe vs. State, 144 N. Y., 396.)

In the Illinois case, supra, it was unequivocally declared that the act of the legislature of Illinois revoking a grant (unreserved in its terms) of lands lying beneath navigable waters and along the shore of a harbor was legal and effective. The court there recognized, by most positive terms of expression, the doctrine that the state's holding of land underneath navigable waters was in trust for the people and that it was not in the power of the legislature to grant it away to private owners.

It can not be denied that the various acts of the legislature (of California Editor]) from 1855 to 1863 were constructed in a manner well calculated to confuse. The drafting thereof was often inaccurate and indefinite; loose and ambiguous terms were frequently employed, tending to obscure the real purpose or legislative intent. But the mind of the legislature can be discovered by attentive study of the provisions of these various acts considered together. The intent must be gathered from a consideration of all that was said by the legislature on the subject, as incorporated in the various acts passed during this period covering several years. And what was said must be considered in the light of the aforementioned fundamental principles of the common law and the recognized rights of individuals under natural law.

Where such rights of the people are involved no act of the legis

lature shall be construed as intending to deprive them thereof in any degree, unless it he couched in language which permits of no other honest construction. It is a very old rule of construction, familiar to students of the common law of England, that all grants by the crown are construed most strongly against the grantee and in favor of the crown. In this country the state takes the place of the crown-the state is here the sovereign.

*

*

In the case of People vs. Russ, 132 Cal., 102, it appears that certain non-navigable sloughs threading a tract of swamp and overflowed lands had been purchased under the law authorizing it and patent issued; that in prosecuting the work of reclamation of the tract dams were constructed across the sloughs which were tributary to a navigable tidal stream. It was held that the owner of the land granted had no right to dam the sloughs, if the navigability of the stream was thereby materially impaired, and that such dams would constitute a public nuisance, abatable at the instance of the state. It is to be noted that this case, in effect, determines that even a grant of title to sloughs threading tracts of swamp and overflowed lands passes only a qualified title, and they may not be used by the owner in a manner which will substantially interfere with the navigability of adjacent tidal waters.

As evidence of the high regard which the law has for navigation, the court remarks in the opinion in this case: While the state is pleased to see its swamp and overflowed lands reclaimed, and thereby become productive, yet the constitution of the state declares that no owner of tide lands of any harbor, bay, inlet, estuary, or other navigable water in this state, shall be permitted to destroy or obstruct the free navigation of such water. (Const. Art. XIV, Sec. 2.) "

The case of the People vs. Kerber, reported in 152 Cal., 731, has important bearing on the issues of the case before the bar. The property involved was certain tide lands situated in the city of San Diego and lying between ordinary high tide line and the line established by the harbor commissioners of San Diego for the location of a seawall, about 150 feet distant.

** The principal point of decision in this case was whether or not title to such lands could be acquired by adverse possession. Of this the court declares: "Property thus held by the state in trust for public use can not be gained by adverse possession, and the statute of limitations does not apply. This is the settled rule."

*

During the pendency of the application of Banning for the purchase of tide land location No. 69 a contest arose between him and one Learned as to who had the better right to make the purchase. judgment being rendered to the effect that Banning "has

the right and is entitled to purchase of the State of California and to hold the land described in his affidavit and application," describing the land by meets and bounds, "saving and excepting therefrom that portion thereof described in the affidavit and application" of Learned, which was duly described, right to purchase which was adjudged in him.

And now it is claimed by the defendants that the judgment thus entered by the Superior Court was and is not only binding upon the parties, but also that the state is thereby estopped to thereafter claim the patent to be void for want of power of the legislature to authorize the sale or that there is no law offering such lands for sale.

*

If there be no law per

The title can not rise above its source. mitting the sale of state lands of a certain character, no decision of the surveyor-general, nor of the court in actions to which the state is not a party, can make the patent effective to carry title.

The controversy in the case of Ward vs. Mulford, reported in the 32nd California, page 365, involved certain tide lands included in a Mexican grant, which was confirmed by the Commission appointed. by the act of Congress, March 3, 1851, and patent issued accordingly.

*

*

The question whether or not Mexico, as a sovereign state, could lawfuly alienate tide lands does not appear to have been considered.

**

Teschemacher vs. Thompson, 18 Cal., 11.

*

* If the title to tide lands, passed by the United States patent under the circumstances presented in the Teschemacher and the Ward case, is vested beyond revocation, it is upon the principle of res adjudicata, and not because the question of the power of the sovereign state to alienate tide lands has been decided by them. No case has been found which holds that any sovereign state has, or ever did have, the absolute power to alienate into private ownership in fee simple absolute tide lands which are useful for purposes of navigation.

The defendants' claim of title, by reason of undisturbed possession, and their plea of statute of limitations, and their plea of