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estoppel against the plaintiff, growing out of the fact that they have long possessed the land in question and have constructed extensive and costly improvements thereon, must each and all be disallowed.

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On the question of title by adverse possession the court in the Kerber (152 Cal., 731) case quotes with approval from another case: "There can be no adverse holding of such land which will deprive the public of the right thereto The rule is universal in its application. The same principles which govern the adverse holding of a street, public square, a quay, a wharf, a common, apply to the adverse holding" of a school house or other property held for public use. "The public is not to lose its right through the negligence of its agents nor because it has not chosen to resist an encroachment by one of its own number, whose duty it was, as much as that of any other citizen, to protect the State in its right." And, again, the court says in the same case: "So long as property of this character (tide land) remains subjeet to use for the purposes of navigation it can not be disposed of by the state in any way except in furtherance of the purposes of navigation to which it is dedicated."

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Finally it may be stated as a general proposition that neither the plea of the statute of limitations nor of adverse possession is ever available as a defense to an action by the state to recover possession of or quiet title to property devoted to public use or held in trust for that purpose.

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The state is not to be deprived of its right to assert title of which it has never been divested, merely because Mr. Banning and the state officials were ignorant of the fact that there was no law permitting the sale of the land. Under such circumstances it cannot be said to be a hardship upon the purchaser who, without legal right, has attempted to possess himself of title to the lands, for, the sale of which there was no law.

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Some amount of attention has been given by counsel to the subject of reclaimability of the lands involved in this action. It is hardly worthy of serious consideration. "Reclaimability," as the term is used in the statutes herein reviewed, has reference to the redemption or protection of the lands offered for sale from

inundation, to the end that they may be used for agricultural purposes. The very term itself would suggest such purpose.

The suggestion that Mr. Banning applied for these lands with the view of reclaiming them for agriculture is an impeachment of his common sense. That he sought to acquire them with a view to their ultimate value for commerce is a credit to his farsightedness and business sagacity. That such was his purpose, no reasonable man can doubt.

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A grant of a franchise to private persons to operate a street railroad in a public highway is not a perversion of the use of the highway, but, rather, aids the public use thereof. But a purported grant by the state or its municipalities of the fee of a street, the use of which is indispensable or important to the public would be absolutely void. So also would a lease or other transfer of a street for a limited time (no matter how short), the purpose whereof is to vest exclusive dominion in the lessee or transferee. And upon reason, this must also be true of tide lands.

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A lease,' as the term is ordinarily used, means a grant of absolute and complete dominion (except as to waste) against all the world over the land leased during the term. Such a grant is as much against the policy of the law as any other. Leases of such lands by the state or authorized municipalities are sufficient to give lessees a right of possession against a squatter; but, upon principle and the authorities cited, as between the state or the municipality and the lessee, the lease is but a permit and revocable at any time without compensation if no improvements have been made, otherwise by the payment of the just value thereof.

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Much evidence and argument has been presented to the question of the proper location, on the ground, of ordinary high tide line, and also the correct depth of the water at ordinary high tide above datum line. And the court has given the question much study. In view, however, of the conclusions arrived at on other involved problems, a determination of the disputed point as to the depths of the water at ordinary high tide above datum is immaterial. And it suffices, for the purposes of this case, and the other cases, to determine that ordinary high tide line is coincidental with the boundary line of Los Palos Verdes Rancho

on the westerly side of the channel and of the Rancho San Pedro on the western and northern sides of the inner bay.

Some of the tide land locations involved in these actions have been extensively filled in by the several claimants. This has been done without consent of the State, but, on the contrary, with knowledge on the part of all claimants that the State denied their claims to ownership in toto. This filling in in no way helps the cause of any claimant. Nor does it, in the slightest degree, add any equity calling for consideration.

A summary of conclusions from these considerations is as follows:

1. As a general proposition, tide lands which are immediately, or in the future, will be useful for navigation are not the subject of private ownership. They are held in common-the state is vested with title as trustee. The state ought not to, and can not without violence to the purposes for which it exists, alienate into absolute private ownership such lands. Such alienation would be an infringement upon the natural rights of the individual, and, therefore, subversive of the purposes of organized government. It would also be a surrender of an attribute of sovereignty, an abrogation of a vital political function. It is, therefore, forbidden.

2. The state may alienate into private ownership title to tide lands which are useless for navigation. It may also so alienate the title to tide lands for use other than navigation, when a greater public benefit will result.

3. The state may also grant franchises for constructing and maintaining wharves and docks for reasonable time and under proper terms and restrictions, and otherwise vest in private individuals or corporations a qualified or limited right in the use of tide lands when the right of the general public to such use is not substantially diminished and when navigation will be thereby aided and the public advantage subserved. Mere permits or licenses. to use such lands are subject to revocation at any time at the will of the state or its municipal subdivisions, authorized thereto upon payment of reasonable value of improvements (if any) placed thereon by the licensee.

4. The general statutes and the code provisions passed by the legislature, and in force from 1858 to 1907, permitted the sale of tide lands when the same were unuseful for navigation and were so situated that they naturally formed an integral part of a tract

of swamp and overflowed lands and were reclaimable therewith. That the sale of no other tide lands was ever provided for by such

statutes.

5. No statute of limitations has run against the plaintiff's right of action.

6. That such lands as are involved in this action are not the subject of acquisition by adverse possession. That the state is not estopped to maintain the action.

7. That portion of the land involved, lying north of the center line of Fourth street in the city of San Pedro, was excluded from sale by the terms of the general statutes and code provisions, being, at the time Mr. Banning procured his certificate of purchase, within two miles of the city of Wilmington as incorporated by the special legislative act of 1872.

8. The tide land in question is not reclaimable within the meaning of the statutes bearing upon that subject.

9. Tide lands which are not subject to sale are not subject to lease, whereby exclusive dominion would be vested in the lessee for a term named.

Let judgment be entered for plaintiff.

January 3rd, 1911.

WALTER BORDWELL, Judge.

Corps of Engineers, United States Army, and Engineer Department at Large
Published Quarterly at the Engineer School, Washington Barracks, D. C., by the
School Board. NOTE: Authors alone are responsible for statements made and
opinions expressed in their respective articles.

VOL. III

JULY-SEPTEMBER, 1911

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