Klauber v. Higgins (117 Cal. 451, 1897)

McFarland, J.

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 interest in said lands, or any part thereof, or any right to the possession of the same. The prayer is that it be decreed “that the defendants have not, nor has either of them, any estate or interest whatever in or to said lands or premises, and that the title of the said plaintiffs thereto is good and valid, and that plaintiffs have a writ for the possession of the premises aforesaid against the defendants herein,” and that defendants be debarred, etc., from setting up any claim to said premises. The defendants, with the exception of a few who disclaimed, answered, denying that plaintiffs, or either of them, had any right, title, or interest in or to said premises, and setting up title or right of possession in themselves. The court found that none of the plaintiffs were seised of said lands, or entitled to possession thereof, and that the defendants did not at any time enter upon the same without right or title, or unlawfully take possession thereof, or that they unlawfully withhold the same from plaintiffs; and judgment was entered accordingly for defendants. From this judgment, and from an order denying a motion for a new trial, plaintiffs appeal.

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 question, because, in our opinion, the particular lands here involved were reserved from the operation of said act of March 28, 1868. If the only question involved here was as to the character of the lands in question, it would no doubt be true under former decisions, that the officers of the land department of the state, by receiving the applications and issuing patents thereon, had determined that the character of the lands was such as described in the act, and that their determination of that question could not be collaterally impeached. (See Gale v. Best, 78 Cal. 235; 12 Am. St. Rep. 44, and the cases there cited.) That is to say: