Full opinion text
BEATTY, C. J. This is an action to determine conflicting claims to real estate. The subject of the controversy is the land granted to the town of Oakland, by the original act of incorporation, passed May 4, 1852. (Stats. 1852, p. 180.) The claim of the plaintiff is, that as successor to the town of Oakland it continues to be the owner of the land so granted. The defendant, as successor to Horace W. Carpentier, claims that the entire grant to the town of Oakland was, within a few days after the organization of the town council, transferred to Car-pentier by ordinance and deed of Conveyance; that such transfer was subsequently confirmed and ratified by other ordinances and proceedings of the town and city, by acts of the legislature, by the- estoppel of judgments and estoppels in pais, and that its title so acquired is fortified by deeds made in pursuance of execution sales on judgments against the town, and perfected by prescription under the statute of limitations. So far as I may find it necessary to discuss these various deraignménts of title their particulars will be stated as they arise. As tbe findings and decree of the superior court, as well as a principal part of the argument of counsel for respondent, are based upon a certain assumption as to the size and location of the grant, it becomes a point of capital importance to determine at the outset whether that assumption is well founded, for if it shall appear that it is based upon a radical misconstruction of the act of incorporation, and that the grant is really of much less extent than has been so assumed, it must necessarily follow that the conclusions of the superior court, and the argument based upon them, will be to some extent invalidated. In determining this point we shall not be greatly assisted by the labors of counsel, for, since both parties are contending for the land granted, each is naturally interested in maintaining a construction of the grant which will give it the widest possible extent. It is true that at the hearing of this appeal counsel for defendant, for the purpose of avoiding the force of the argument based upon the supposed inordinate extent of the grant to Car-pentier, suggested, rather than contended, that perhaps the grant did not embrace so much of the submerged land on the bay front of the city as the superior court and counsel for the plaintiff have assumed. They did not, however, frankly and unequivocally take that position, and the cou cessions they seemed inclined to make do not include all that is required by any consistent construction of the act of incorporation. As to the plaintiff, its interests, of course, demand that it should contend for the most liberal construction of the grant; for the greater its extent the stronger is the argument founded on the doctrine of the Chicago case (Illinois Cent. R. R. v. Illinois, 146 U. S. 387) against the validity of its alleged transfer to a natural person or private corporation, and the greater the prize to be obtained by the success of the argument. Naturally, therefore, we find counsel for plaintiff confidently asserting as a matter beyond controversy that the grant to the town of Oakland embraced the whole of the estuary of San Antonio> including what is now called the eastern or Brooklyn basin, up to the line of high-water mark on all sides of that inlet, and that it extended out into the bay of San Francisco to the three or four fathom line at low tide, containing in all eight thousand acres of land, spreading out like \a fan on the bay front, and covering at its outer edge more than tbe entire frontage of Oakland and Ala-meda. I find myself eonstm-ned to dissent radically from this view, and since the settlement of this question at the outset is essential to a proper discussion of the case, I shall here state my own construction of the grant, with the reasons upon which it is founded. The grant to the town of Oakland is contained in the third section of the original act of incorporation (Stats. 1852, p. 181), and the description is in these words: “The lands lying within the limits aforesaid [i. e., the corporate limits of the town as defined in the first section of the act] between high tide and ship channel.” Such being the terms of the grant, it is evident that its extent and location depend primarily upon the proper construction to be given to the first section of the act defining the corporate limits. The boundaries of the town are defined as follows: “On the northeast by a straight line at right angles with Main street, running from the bay of San Francisco on the north to the southerly line of the San Antonio creek, or estuary, crossing Main street at a point three hundred and sixty rods northeasterly from ‘Oakland House/ on the comer of Main and First streets, as represented on Portios’ map of ‘Contra Costa/ on file in the office of the secretary of state; thence down the southerly line of said creek, or slough, to its mouth in the bay; thence to ship channel; thence northerly and easterly by the line of ship channel to a point where the same bisects the said northeasterly boundary line.” The first point cf difficulty that presents itself in giving a construction to this language is to determine what is the southerly line of San Antonio creek, or estuary. There are two, and only two, definite lines of that creek on the southern side, viz., the line of high tide and the line of low tide. It is sufficiently clear that one or the other of these two lines was intended by the legislature, but the question remains, Which was intended? It has been assumed throughout the argument, and I understand both parties to be agreed in this claim, that the intention of the legislature was to extend the corporate limits of Oakland to the line of high tide on the opposite side of the estuary, and to carry it around the eastern or Brooklyn basin. There is not, in my opinion, any possible- ground for such a construction of the original act of incorporation, though it is true that a subsequent legislature did its best to legislate such a construction into the original act. Thé first symptom' of this attempt at legislative construction is 'to be found in the second section of the act of 1854 (Stats.1854, p. 184), by which the town of Oakland was reincorporated as the city of Oakland, and the rights and duties of the town devolved upon the city. It is there enacted that the boundaries of the city shall be the same as those of the present town, but a proviso is added saving the right of the citizens of the towns of Clinton and San Antonio to construct wharves at their respective sites, which seems to imply that the eastern basin was regarded as a part of Oakland. This proviso may have been inserted by the legislature out of an abundant caution merely, or it may have been deliberately intended by the framer of the act to give a certain plausibility to the pretensions more fully disclosed in the amendment to this section of the act of 1854, contained in the act of May 15, 1861 (Stats. 1861, p. 386), in which the description of the corporate boundaries is expanded as follows: “See. 2. The boundaries of said city shall be the same as the boundaries of the late town of Oakland, which are more particularly defined and described as follows, to wit: Northerly by a straight line drawn at right angles with Broadway, formerly Main street, in said city, crossing the extended line of Broadway at a point three hundred and sixty rods northerly from where formerly stood the ‘Oakland House/ on the northwest corner of Broadway and First streets, and running from the bay of San Francisco on the west to the easterly or southeasterly line of that branch of the San Antonio slough or estuary, over which crosses the bridge from Oakland to Clinton; thence along the eastern and southern high tide line of said slough and of the estuary of San Antonio, following all the meanderings thereof to the mouth of said estuary, in the bay of San Francisco; thence southwesterly to ship channel; thence northerly along the line of ship channel to a point where the same intersects the said northerly boundary line extended westerly; provided, that nothing in this section contained shall be so construed as to prohibit or abridge the rights of the trustees of the towns of Clinton and San Antonio, whenever the citizens thereof may elect to become a body corporate under tbe provisions of an act for tbe incorporation of towns, or under tbe provisions of any act wbicb may hereafter be passed, to provide for tbe construction of wharves and other improvements for the accommodation and convenience of the trade, travel, and commerce of the said towns or villages, at their respective sites.” Whatever effect this amendment may have had in extending the municipal limits of the city of Oakland from and after the date of its passage, it cannot be allowed any retroactive effect upon the property rights of the city or of her grantees, and if the construction which it attempts to place upon the act of 1852 is erroneous, as it clearly is, the courts, in determining the rights of the parties to this action, not only may, but must, disregard it. The same remarks are applicable to the act of April 24, 1862, (Stats. 1862, p. 337), by the second section of which the legislature again sought to give a more particular definition to the original boundaries of the town of Oakland, and in so doing extended it to the highest tide line of the estuary, thereby including a wide expanse of salt marsh above the level of ordinary high tide. What, then, is the^proper construction of the act of 1852? I think it clear that the southerly line of the San Antonio creek or estuary intended by the act was the line of low tide, and not the high tide line, and that this line was to be followed down the creek to the bay, crossing the mouth of the narrow channel connecting with the eastern basin, and not ascending that channel, and following around the basin. If we were dealing with a grant of lands pure and simple, made by the state out of its mere bounty and not upon any valuable consideration, this conclusion would follow inevitably from a principle of construction based upon the presumption that always attends upon such grants, viz., that the words of the grant are attributable to the party securing the legislation, or,in other words, to the grantee; and, consequently, that all ambiguities or uncertainties in its terms are to be resolved in a manner most favorable to the state and least favorable to the recipient of its bounty. But this is not a mere grant of lands, and it may be argued that a more liberal rule of construction is applicable to a law defining the boundaries of a municipal corporation. It would seem to be a sufficient answer to this sug-gestión to say that if tbis is not a grant of lands pure and simple, neither is it purely and simply an act of incorporation. It contains also a gratuitous donation of lands—a grant sufficiently munificent upon any construction—and because the boundaries of the grant depend upon the boundaries of the corporation the entire act is brought within the reason of the rule of strict construction above stated. There is, moreover, another and distinct ground for holding to a strict construction of that part of the act defining the municipal boundaries considered without reference to the grant of lands. The state acts for the public good, and all its grants, including the grant of municipal franchises, are to be construed in a manner most conducive to the general welfare. The town of Oakland as incorporated was situated upon one side of a navigable estuary—navigable in fact and so declared by law. Upon the opposite sides of the estuary were the towns of Clinton and San Antonio, communities as much entitled to the bounty and consideration of the state as the inhabitants of Oakland. These communities, and those to grow up in the future on the southern border of the estuary—then unoccupied—had a natural right to the common use of this body of navigable water, to unrestricted access to its shores, and to the privilege of constructing wharves, docks, piers, and other aids to commerce, fully equal to that of the people of Oakland. It was, therefore, a stretch of liberality on the part of the state to include the whole of the estuary, even to low-water mark on its southern and eastern side, in the limits of Oakland, and it would have been a gross and indefensible excess of liberality to extend its boundaries to include the margin between high and low water mark on that side, thus depriving other communities of privileges of vital importance to them, without any corresponding benefit to Oakland. In saying this I do not forget that a subsequent legislature did, in the manner above stated, actually extend the boundaries of the city of Oakland so as to include the whole estuary, eastern basin and all, to high-water mark on all sides, and did attempt to say that such was the effect of the original act of 1852. As to this attempt of the legislature to impose a construction upon the act of a former legislature, I have already stated my opinion that it was nugatory; and as to the extension of the boundaries of Oakland effected by tbe amendment—if such was its effect— it may be remarked that its excessive liberality was materially qualified -by the proviso reserving to the inhabitants of the towns of Clinton and San Antonio the right to construct wharves and other conveniences for trade and travel at their respective sites as means of access to the navigable waters of the estuary. True, there was no reservation of the same rights to the future inhabitants of Alameda on the south side of the estuary, but the fact that one legislature has improvidently extended the municipal boundaries in one direction is no reason for holding that an ambiguous grant of a former legislature should be construed in a sense which would render it similarly improvident with respect to the corporate limits, and infinitely more so in its disposition of public navigable waters. As to the principle which I have assumed governs in the construction of gratuitous donations by the state, I have not taken the trouble to cite the authorities which sustain it, but they are abundant and I think uniform. The case of Hyman v. Read, 13 Cal. 444, may seem to be an exception, but really is not. The conclusions there announced are based altogether upon a dissenting opinion of Judge Story, in a case in which the decision of the supreme court of the United States was to the opposite effect. (Charles River Bridge v. Warren Bridge, 11 Pet. 582, 600, 601.) But even the views of Judge Story, as expressed in that opinion, and the numerous authorities cited by him, are in entire accord with the proposition above stated. He makes the distinction between free gifts and grants upon a valuable consideration, and admitp that the rule of strict construction applies to the former, and especially he admits “that where the terms of a grant are to impose burdens upon the public or to create a restraint injurious to the public interest, there is sound reason for interpreting the terms, if ambiguous, in favor of the public”; though at the same time he insists “that there is not the slightest reason for saying, even in such a case, that the grant is not to be construed favorably to the grantee, so as to secure him in the enjoyment of what is actually granted.” All that Judge Story contends for in that dissenting opinion may be freely conceded without affecting the conclusion that this grant to Oakland, as to which there can be no pretense of a valuable consid ration, must be strictly construed. As to the ease of Hyman v. Read, supra, the discussion therein upon this point seems to have been entirely unnecessary, if not obiier, because there was really no ambiguity in the terms of the grant there in question. But, even if the point was involved, the decision recognized the distinction between a grant based upon a valuable consideration, and free gifts of the public domain, and this must have been the real ground of the decision, for the other reasons mentioned in that connection appear to be either unfounded or inconclusive. It is said, for one thing, that it was not a grant made at the suit or solicitation of the grantee. But how did this appear? Grants to a favored donee by a special act of the legislature, if gratuitous, are always presumed to have been solicited, and therefore the only reason for saying that the grant to San Francisco was not solicited was that it was not gratuitous, and so both of these grounds are resolved into the same thing. The third reason assigned, “that it is the deliberate public act of the legislature,” is a perfect instance of arguing in a circle. Every gift of the public domain is made by public act of the legislature, and every such act is presumed to be deliberate. The proposition, therefore, amounts simply to this, that a public grant must be liberally construed because it is a public grant. It is only fair, however, to add to this analysis of the proposition a quotation from Judge Story’s opinion which probably explains its real meaning. He says: “In the case of a legislative grant there is no ground to impute surprise, imposition, or mistake to the same extent as in a mere private grant of the crown. The words are the words of the legislature upon solemn deliberation and examination and debate. Their purport is presumed to be known, and the public interests are watched and guarded by all the varieties of local, personal, and professional jealousy, as well as by the untiring zeal of members devoted to the public service.” This is a beautiful theory, but it scarcely accords with the well-known fact that the legislature has hut little time to deliberate upon the mass of bills brought before it, and that it is very often imposed upon, and oftener still mistaken as to matters vitally connected with the subjects of legislation. It would seem that all the reasons for protecting the king of England against his own improvidence in granting crown lands would apply with double force to grants by a modern legislature. In recognition of this fact, our own legislature has made it statute law that “every grant by a public officer or body, as such, to a private party, is to be interpreted in favor of the grantor.” (Civ. Code, sec. 1069.) It is certain, moreover, that the principle of construction sustained by the weight of recent authority is that stated by Justice Shiras in his dissenting opinion in the Chicago case (Illinois Cent. R. R. v. Illinois, 146 U. S. 468), where he says: “It must be conceded, in limine, that, in construing this grant, the state is entitled to the benefit of certain well-settled canons of construction that pertain to grants by the state to private persons or corporations, as, for instance, that if there is any ambiguity or uncertainty in the act, that interpretation must be put upon it which is most favorable to the state; that the words of the grant, being attributable to the party procuring the legislation, are to receive a strict construction as against the grantee; and that, as the state acts for the public good, we should expect to find the grant consistent with good morals and the general welfare of the state at large and of the particular community to be affected.” These principles are equally applicable in the construction of every ambiguous term in the description of the boundaries of the town of Oakland, but resort to them is scarcely necessary in order to sustain the conclusion that the intention of the act was that the line on the estuary should cross the mouth of the eastern basin instead of ascending its outlet and passing around the main body. The legislative conception of the estuary is plainly indicated by the language of the act; it was regarded as a creek, or slough, with a head above the intersection of the northeast boundary line and a mouth in the bay, and the direction is, that the line shall follow “down the southerly line of said creek, or slough, to its mouth in the bay.” In following this description there is no warrant for holding that on reaching the outlet from the eastern basin we are to stop following “down” the channel cf the creek or slough, and turn aside to follow up this lateral affluent and around the wide, detached basin in which it has its source. The rule in 'surveying boundaries defined by streams or other waters is always to follow the stream or body of water, crossing the mouth of affluents or other inlets from headland to headland. Such wras the method followed in surveying and patenting the pueblo grant of San Francisco, and considered in the case of Tripp v. Spring, 5 Saw. 209, and in Knight v. United States Assn., 142 U. S. 161. It is true that the decision of both of those cases was based upon tbe conclusiveness of tbe government patent against tbe state of California, and all persons claiming under tbe state, and tbat tbe true method of surveying tbe line on tbe bay was not necessarily or directly involved, but tbe question was directly and necessarily involved in all tbe proceedings in tbe courts, the land office, and tbe department of tbe interior, leading up to tbe issuance of tbe patent, and tbe method of survey approved by tbe department and followed in tbe patent was emphatically indorsed by tbe circuit and supreme courts. See, especially, the concurring opinion of Justice Field in tbe latter case, at pages 207 to 210, where, referring to tbe decision of tbe circuit court in tbe former case, among other things be says: “In addition to .this fact, it may be observed tbat at tbe time tbe circuit court was not ignorant of tbe universal rule governing tbe measurement of waters, to which tbe supreme court of tbe state mates no reference in its decision, and of which it seems to have been entirely oblivious, that where a water of a larger dimension is intersected by a water of a smaller dimension the line of measurement of tbe first crosses tbe latter at tbe points of junction, from headland to headland.” It may be objected tbat this doctrine in tbe terms stated is not applicable to tbe present case because tbe eastern basin of tbe estuary of San Antonio is, as a matter of fact, a water of larger dimension than tbe other branch above tbe junction. But to this objection, if it should be made, there are two answers. In tbe first place, according to tbe coast survey map of 1859, which is one of the exhibits in tbe case, tbe eastern basin is not tbe larger body at tbe junction which is tbe controlling point. In tbe second place, it is evident that tbe legislature which passed the act did not regard the northern branch as an affluent of tbe eastern branch, for they place its “mouth” in the bay, and not at the junction. If it should be contended that neither was regarded as an affluent of the other, but each considered of equal importance, it can only be said that there is nothing to sustain tbe contention, while there is in the language of tbe act, evidence to tbe contrary. But conceding the point for the sake of tbe argument, the necessary result would be that, in following a line “down” either branch to its moutb in tbe bay, we could not ascend the other branch from the junction. This reasoning does not seem to me to require corroboration, but if it does the same conclusion must follow from the rule of strict construction above stated. I assume then, as a proposition thoroughly established, that the eastern and southerly boundary of the town of Oakland extended along the line of low tide on the estuary crossing the inlet of the eastern basin at its mouth, and continuing to the mouth of the estuary in the bay. The next term of the description which requires construction is “thence to ship channel.” What did the legislature mean by “ship channel”? It has been assumed that they meant the three fathom line or the four fathom line in the bay. But this assumption, which pervades the entire argument of counsel for the city, and seems to have guided the defendant in all its dealings with the subject of the controversy for a long series of years, has, so far as I can discover, no tangible basis. It is certain some meaning must be ascribed to the term “ship channel” in order to give effect to the act, and it must be some precise and definite meaning; for the law abhors want of definition in matters of boundary as nature abhors a vacuum. Especially is this true with respect to the boundaries of a municipal corporation invested with power and authority to make and enforce local laws, civil and criminal. It is not to be supposed that the legislature, in conferring the municipal franchise upon the inhabitants of a local district, will purposely leave its boundaries in any respect uncertain. On the contrary, it must be assumed that the intention was to mark the boundary so exactly and definitely that no question could arise as to whether a particular spot was within or without the local jurisdiction. It is true this presumption of a precise and definite intention on the part of the legislature in the enactment of laws is often opposed to the actual fact. It frequently happens that the framers of a law have no well-defined idea of what they desire to accomplish or no capacity to give expression to their ideas. In such cases the difficult task is imposed upon the courts of discovering a meaning that never existed. Such, I think, is really the case here. The act under consideration is in many respects confused, incoherent, and ambiguous. In the case of Oakland v. Carpentier, 13 Cal. 550, Baldwin, Justice, in the course of his opinion refers to it in these terms: “The charter is, perhaps, the most defective upon the statute-book, and this is saying a great deal. A perverse ingenuity seems to have been exercised to make it as lame and loose as possible. The joint labors of Malaprop and Partington could scarcely have made such a collocation or dislocation of words and sentences.’' But, in spite of the possibility that the framer of the law did not himself know what he intended, and the certainty that if he had a definite idea he has failed to give it definite expression, we must hold that “ship channel” was a line capable of location on the ground, and must determine where it ran. That it was a line different from the line of high tide is rendered certain by the fact that the land granted is described as lying between the line of high tide and ship channel, but beyond this it cannot be said that anything is certain. A witness in the case (Allardt) testified that he should consider the eighteen foot (three fathom) line at low tide the boundary of ship channel, but he was testifying more than forty years after the enactment of the law, and there is nothing to show that prior to its passage the words “ship channel” in that collocation had ever acquired, by general or local usage or by legal enactment, any such meaning. The channel of a river, strait, or bay, in the technical sense of the term, means the deeper part which can be most safely navigated, but in this sense it cannot imply any fixed depth of water, for it is entirely relative to the particular river, strait, or bay to which reference is made, and the deepest portion of one body of water may be shallow compared to the channel of another. And in the same body of water the channel for vessels of lighter draft would generally be more extensive than the channel for vessels of heavier draft, as it certainly is in front of Oakland. Ship channel, therefore—in this sense of the word “channel”—had no definite boundaries in the bay of San Francisco at the date of the passage of the act, and it is a purely arbitrary assumption to say that the three fathom line was intended. It could be said with exactly as much plausibility that the legislature meant the four fathom line or the two fathom line. But perhaps some light may be thrown upon this question by a consideration of previous acts in which the expression “ship channel” occurs. Indeed, it would seem entirely reasonable to suppose that in two acts of the same legislature it was used on each occasion to signify the same thing. By the act of April 21, 1851, entitled, “An act providing for the disposition of certain property” (Stats. 1851, p. 305), there was granted to the town of Martinez a strip of tide land a half mile in length in front of the town, the outer boundary of which was “the line of ordinary ship’s channel.” The act, however, affords no clue to the meaning of these words, though it does very clearly evince the intention of the legislature that the land granted should be surveyed, subdivided, platted, and sold, and the proceeds used for the general improvement of the town, and particularly for the benefit of commerce by the construction of wharves, piers, docks, etc. By the act of March 26,1851, to provide for the disposition of the ‘Teach and water lots” of San Francisco (Stats. 1851, p. 307), a permanent water front of the city was established. The boundary of this waterfront was traced along the outer edge of the outermost streets as delineated on the map of a survey that had been previously made of the city front, and which extended beyond the line of low tide a considerable distance out into the bay and to deep water. The survey terminated, however, at the intersection of the northern line of Jefferson street with the western line of Larkin street, and to define the waterfront from that point to the western boundary of the city it was provided that it should follow “the line of ship channel.” Now here we have an indication of the meaning of the term. The waterfront established by law and ship’s channel are coterminous—-the line to which the city may extend its streets, and within which it may sell lots and authorize the purchasers to fill them up and .occupy them, is waterfront. Immediately beyond is ship channel, and it includes all the space between the piers and wharves which by the act of May 1, 1851 (Stats. 1851, p. 311) the city was authorized to extend from the end of every street terminating at the waterfront two hundred 3'ards out into the channel. This meaning of the law seems to me to be a fair deduction from the fact that the point at the northwest corner of Jefferson and Larkin streets is at the same time on the line of ship channel and on that of waterfront. If the lines are coincident at one point, they must be coincident throughout as far as the survey extends, and from tbe end of tbe survey to tbe western limits of tbe city tbe line of ship channel is nothing more nor less than tbe line to be fixed by tbe completion of tbe survey and legal establishment of tbe balance of tbe waterfront. I conclude, therefore, that tbe term “ship channel,” as used in this earlier act relating to San Francisco, was intended to include all tbe navigable waters of tbe bay outside of what may be termed tbe bulkhead line as established by law. But this ddes not fully solve tbe question as to Oakland, because there was not in 1852, and never has been, any law establishing a waterfront or bulkhead line in front of that city. We are, however, helped this far: ship's channel comprises tbe waters left free to navigation; and when we are required to locate its boundaries with precision, and no artificial boundary has been established by competent authority, we are driven to seek a definite natural boundary, if any such may be found, and here we do find such a boundary at tbe line of low tide. This is a definite line, and tbe only definite line beyond tbe line of high tide, and my conclusion is, that tbe line of low tide as it existed on the 4th of May, 1852, was tbe western boundary of tbe town of Oakland intended by tbe original act of incorporation. Tbe only possible objection to this conclusion arising out of tbe terms of tbe act, so far as I can see, is that it is inconsistent with tbe implication of an interval between the mouth of the estuary and ship channel, contained in the words, “thence to ship channel.” Of course, if we assume that tbe southern shore of tbe estuary at low-water mark is tbe southern boundary of tbe town, and tbe eastern shore of the bay at low-water mark is ship channel, there can be no interval between tbe mouth of the estuary and ship channel, and tbe words “thence to ship channel” must be rejected as superfluous. This, of course, would not be allowable if the whole description could be reconciled upon definite lines. But in fact it cannot; for, in addition to the impossibility of finding any definite line in the bay beyond low-water mark, there is another important and specific call in the description that must be rejected if we adopt the three fathom line or any other line of uniform depth in the bay that could be suggested. The call for the western boundary is “thence northerly and easterly by the line of ship channel to a point where tbe same bisects the said northeastern boundary line.” But the three fathom line does not run northerly and easterly; it runs throughout its whole extent in a uniform northwesterly direction, whereas the line of low tide from the mouth of the estuary at low tide (this point is marked by the intersection of the United States government bulkhead line with the jetty walls) exactly fulfills this call in the description; that is, its course is northerly and easterly—a circumstance sufficient in itself to counterbalance the force of the words, “thence to ship channel,” in the previous call. The result of this discussion may be briefly summed up as follows: The boundary of the town of Oakland, as defined by the act of May 4, 1853, commencing at the intersection of the northeast line with the line of low tide on the eastern side of the northern branch of the estuary, follows the line of low. tide on said branch to the mouth of the eastern basin, crosses said mouth and continues along the line of low tide on the southern side of the estuary to its mouth in the bay, and thence follows the line of low tide northerly and easterly till it intersects the northeastern boundary line, as to the location of which there seems to be no dispute. The grant to Oakland was of the lands lying between high-water mark and ship channel, within these bounda-' ries, and therefore included nothing west of the line of low tide on the bay front, and nothing beyond the line of low tide on the north and west shore of the estuary. I say nothing was included beyond this line along the estuary, because the estuary was itself a part of the ship channel, and there was no part of the town between it and high tide on tire south and east side. My reason for saying that the estuary was a part of ship channel is, that it was in fact navigable, and that fact had been recognized and declared by an act passed only one day before the passage of the act incorporating Oakland. (Stats. 1853, p. 183.) By this act the “stream called San Antonio creek” was declared navigable from its mouth to the old embarcadero of San Antonio, and all obstructions to its navigation were forbidden. It is true this act does not seem to have included the northern branch of the estuary, but, in the view I take of the matter, legislative recognition -of the fact of navigability was not necessary to constitute a ship channel. The fact was itself sufficient, and the coast survey map shows that the northern branch was navigable for every class of vessels that could go to San Antonio-. Each branch had a depth of two feet at low tide—the same as the depth on the bar at the mouth of the estuary, which meant a depth at full high tide of from seven to eight feet every twenty-four hours, and this was sufficient to accommodate a very important traffic. The contention so much insisted upon that the estuary was not a natural harbor, but has only been converted into a harbor by the works projected and carried out by the government, seems to rest upon the assumption that no body of water deserves to be called navigable unless large vessels can enter it in its natural condition at any stage of the tide. It is certain that the legislature which passed the act under which both parties claim entertained a different view, and applied that view to this identical body of water. Having thus, as I think, conclusively shown that the subject of the controversy was a grant of much more moderate dimensions than has been assumed in the argument, tire way is opened to a consideration of the question of ownership. Has the land so granted always remained the property of the town and its successor, the plaintiff, or did it pass from the town or the city by any of the various methods in which the defendant claims to have derived its asserted title? If the conclusion above stated is sound—if the grant to Oakland comprised only the strip of land bounded by the lines of ordinary high and low tide, and extending along the estuary and bay front of the town—the case is at once relieved of the question so much discussed in the argument as to the power of the legislature to make such a grant to a private corporation or natural person; and the only question to be considered is, whether the state has in this instance made the grant as claimed. For there is nothing in the doctrine established in the Chicago case to impeach the power of the legislature of California, or of any state, to alienate tide lands—by which expression I am to be understood as referring to those lands only which are covered and uncovered by the daily flux and reflux of the tides. The question to be decided in the Chicago case was, whether an act of the legislature of Illinois was constitutional which repealed a former act making a grant to a railroad corporation of a tract of submerged laud ou the barbor front of tbe city, about a mile and a balf in length by a mile in breadth, and including the whole of the works constructed by the federal government for the improvement and protection of the harbor, and at all times covered by deep water. In order to decide this question, it became necessary, of course, to consider to what extent lands of this character are alienable by the state, and this necessarily involved a discussion of the nature of the ownership and dominion of the several states in and over such lands. The conclusions of the court upon these points and the doctrine thereby established are conceded to be a necessary part of its decision, and I not only do not dissent from them, I entirely approve them. Stated briefly, I understand the doctrine of that case to be that the several states hold and own the lands covered by navigable waters within their respective boundaries in their sovereign capacity, and primarily for tire purpose of preserving and improving the public rights of navigation and fishery. They have in them a double right, a jus publicum and a jus privatum. The former pertains to their political power—-their sovereign dominion, and cannot be irrevocably alienated or materially impaired. The latter is proprietary and the subject of private ownership, but it is alienable only in strict subordination to the former. No grant of lands covered by navigable waters can be made which will impair the power of a subsequent legislature to regulate the enjoyment of the public right. The grantee takes the mere proprietary interest in the soil, and holds it subject to the public easement, and, if his ownership of the soil stands in the way of public works necessary or likely to become necessary for the improvement of navigation and in aid of commerce, the grant may be revoked upon the tender of a fair compensation for such lawful improvements as may have been made by the grantee in pursuance of any express or implied license contained in the grant. But in perfect accord with this doctrine it was also held that the state might alienate irrevocably parcels of its submerged lands of reasonable extent, for the erection of docks, piers, and other aids to commerce. : It was further conceded to be a proper exercise of the powdr of the state to establish harbor lines and to authorize the reclamation of mud flats and shoals, where that could be done without detriment to tbe public rights. The filling up of such lands, it was said, was often an improvement of navigation, and an advantage to commerce, and therefore lands susceptible of reclamation by that method may be alienated irrevocably. This, in general terms, is the doctrine of the Chicago case, and of the numerous decisions therein reviewed and commented upon. It is also the doetine which has been distinctly announced by our predecessors in the former supreme court of this state. In Ward v. Mulford, 32 Cal. 372, Judge Sanderson says: “But by this we do not desire to be understood as holding that the Mexican government, or this state, has the same power of absolute alienation over lands held in virtue of their sovereignty which they have over other lands. The land which the state holds by virtue of her sovereignty, as is well understood, is such as is covered and uncovered by the flow and ebb of the neap or ordinary tides. Such land is held by the state in trust and for the benefit of the people. The right of the state is subservient to the public rights of navigation and fishery, and theoretically, at least, the state can make no disposition of them prejudicial to the right of the public to use them for the purposes of navigation and fishery; and, whatever disposition she does make of them, her grantee takes them upon the same terms upon which she holds them, and of course subject to the public right above mentioned. But this restriction does not prevent her from disposing of them so as to advance and promote the interests of navigation. On the contrary, such a disposition of them would be in keeping with the purposes of the trust in which she holds them. Nor of reclaiming them from the sea, where it can be done without prejudice to the public right of navigation, and applying them to other purposes and uses. There are large tracts of salt marsh lands, of which the land in suit is an example, which are covered and uncovered by the flow and ebb of the neap ticles, and therefore belong to the state by virtue of her sovereignty, which are of no possible use for the purposes of navigation, but may be valuable for agricultural or other purposes if, reclaimed from the tides. Such lands the state may undoubtedly grant in private ownership for the purposes of reclamation and use, for by such a course no right of the public to their use for the purposes of navigation would be prejudiced. On tbe contrary, the right of navigation, in many cases, might be subserved by such reclamation.” The same doctrine is recognized in Taylor v. Underhill, 40 Cal. 471, and was even more distinctly stated in Eldridge v. Cowell, 4 Cal. 80. There is no decision of this court which conflicts in the slightest degree with the doctrine of these cases, each of which recognizes the fact that the submerged lands of the state, though held and owned subject to a public trust, are nevertheless alienable in private ownership where capable of reclamation without detriment to the public right, and a fortiori where their reclamation will be of advantage to navigation and commerce. A grant by the state of California, therefore, of mud flats and shoals between high and low tide on the margin of the bay of San Francisco cannot be held to have been in excess of the legislative power, in the absence of any proof that such grant has seriously impaired the power of succeeding legislatures to regulate, protect, improve, or develop the public rights of navigation or fishery, and in this case it does not appear that the grant to Oakland, as here construed, would have that effect if transferred to a natural person or private corporation. It is true that the private ownership of the shore may prevent access to the navigable waters of the bay, but so does the private ownership of the upland prevent access to the shore and to the navigable waters in the same sense and to the same extent. This, however, is a minor and temporary inconvenience for which our laws and the laws of all civilized states provide an ample remedy. By the exercise of the right of eminent domain all necessary means of access from the uplands to the waterfront may be condemned for the public use, at a cost not in excess of the reasonable value of the land taken or subjected to the servitude. And there is no injustice in requiring this compensation to be made to the grantee of shore lands when his right to such lands is in other respects valid in law; for, like other holders of title derived from the state, he is presumed to have given what, at the time of the grant, was deemed a fair equivalent for the land granted. With this cursory review .of the doctrine of the Chicago case, and of our own decisions, I take leave of the question of the power of the legislature of California to have made a valid grant of the land in controversy to Horace W. Carpentier or to the Oakland Water Front Company, and address myself to the more serious and difficult question, whether, in point of fact, the grant to the town of Oakland has been transferred to those parties, as claimed by the defendant, or has devolved upon and has remained in the city of Oakland, as claimed by the plaintiff. The original grant, as we have seen, was contained in the act of incorporation of the town, the general features of which have been already stated. It will now become necessary to consider more particularly the specific terms and provisions of the act for the purpose of ascertaining to what extent and subject to what conditions the land so granted was alienable by the town and its successor, the city of Oakland. By section 2 of the act (Stats. 1852, p. 181), the corporate powers and duties of said town were vested in a board of five trustees, and by section 3 it was enacted as follows: “Sec. 3. The board of trustees shall have power to make such by-laws and ordinances as they may deem proper and necessary; to regulate, improve, sell, or otherwise dispose of the common property; to prevent and extinguish fires; to lay out, make, open, widen, regulate, and keep in repair all streets, roads, bridges, ferries, public places and grounds, wharves, docks, piers, slips, sewers, wells, and alleys, and to authorize the construction of the same, and with a view to facilitate the construction of wharves and other improvements, the lands lying within the limits aforesaid, between high tide and ship channel, are hereby granted and released to said town; provided, that said lands shall be retained by said town as common property, or disposed of for the purposes aforesaid; to regulate and collect wharfage and dock-age; to secure the health, cleanliness, ornament, peace, and good order of said town; to organize and support common schools; to license and suppress dramshops, horseracing, gambling houses, and houses of ill-fame, and all indecent or immoral practices, shows, and amusements; to regulate the location of slaughterhouses, stables, and places for the storage of gunpowder, and to pass such other laws and ordinances as, in their opinion, the order, good government, and general welfare of the town may require.” TLis act of incorporation was approved May 4, 1852, and the town was immediately organized thereunder, Carpentier being elected one of the trustees, but failing to qualify. On May 17, 1852, the board of trustees adopted the following ordinance: “Section 1. The exclusive right and privilege of constructing wharves, piers, and docks at any point within the corporate limits of the town of Oakland, with the right of collecting wharfage and dockage at such rates as he may deem reasonable, is hereby granted and confirmed unto Horace W. Carpentier and his legal representatives for the period of thirty-seven years; provided, that the said grantee, or his legal representatives, shall, within six months, provide a wharf at the foot of Main street at least twenty feet wide and extending toward.deep water fifteen feet beyond the present wharf at the foot of said street; that he or they shall, within one year, construct a wharf at the foot of F street or G- street extending out to boat channel; and, also, within twenty months another wharf at the foot of D street or E street; provided, that two per cent of the receipts for wharfage shall be payable to the town of Oakland. “Sec. 2. With a view the more speedily to carry out the intention and purposes of the act of the legislature, passed May fourth, one thousand eight hundred and fifty-two, entitled, 'An act to incorporate the town of Oakland and to provide for the construction of wharves thereat/ in which certain property is granted and released to the town of Oakland to facilitate the making of certain improvements; now, therefore, in consideration of the premises herein contained, and of a certain obligation made by said Horace W. Carpentier with the town of Oakland, in which he undertakes to build for said town a public schoolhouse, the waterfront of said town—that is to say, all the land lying within the limits of the town of Oakland between high tide and ship channel—as described in said act, together with all the right, title, and interest of the town of Oakland therein, is hereby sold, granted, and released unto the said Horace W. Carpentier, and to his assigns or legal representatives, with all the improvements, rights, and interests thereunto belonging. “See. 3. The president of the board of trustees is hereby charged with the duty of executing on behalf of the town of Oakland a grant and conveyance in accordance with the provisions of this ordinance/’ This was followed on May 31st by a deed of A. Marier, describing himself as president of the board of trustees of the town of Oakland, purporting to sell, transfer, grant, and release to Horace W. Carpentier, and his legal representatives, all the right, title, and interest of said town of Oakland in the land lying between high tide and ship channel within the corporate limits. This deed referred to the ordinance as authorizing it, and set forth the conditions subsequent upon which it was made, viz., the construction of the wharves, etc. On December 30, 1852, another ordinance was adopted approving the wharf at the foot of Main street, and extending the time for completing the others. On August 7, 1853, a third ordinance was adopted accepting another wharf and a schoolhouse, changing the site of the remaining wharves, and ratifying and confirming the ordinance of May 17, 1852. It further provided that “the said waterfront of the town as therein described is hereby granted, sold, and conveyed unto said Carpentier and his legal representatives in fee simple forever, with the right to erect wharves, piers, docks, and buildings at any and all points thereon not obstructing navigation, and to freely use and occupy the lands herein conveyed.” Numerous questions of a highly technical character have been raised by counsel for respondent as to the nature of the estate vested in Carpentier by these proceedings, assuming them to have been valid. But back of all these questions, and more important than all, is the question as to the power of the trustees of Oakland to transfer to Carpentier the entire waterfront of the town. If it shall be held that they possessed no such power, a critical examination of the deed and ordinances for the purpose of determining their technical sufficiency to transfer a fee simple estate in the lands described will be wholly unnecessary. It ought not to require any very elaborate discussion in order to show that the attempted transfer to Carpentier of the whole of the lands granted to the town for the purposes declared in the act of incorporation was absolutely void. The power of the legislature to make a grant of these lands to a natural person, and the power of the municipal corporation to make the grant, are two very different things. The corporation had no power to alienate these lands unless such power was conferred by the legislature, and whether it was conferred or not is a question of legislative intent to be gathered from the terms of the statute construed with reference to its general scope and purpose. The purpose of the act was to create a municipal corporation composed of the -inhabitants of a peninsula surrounded on three sides by the navigable waters of the bay of San Francisco. Considering the extent of territory included within the corporate boundaries, it is evident that a rapid growth of population was anticipated, and the situation of the town, with relation to the surrounding country and the most important harbor on the coast, no less than the express language of the title of the act, proves that one of the most important ends contemplated in the creation of the corporation was the improvement of commercial facilities by the erection of convenient wharves along its waterfront. To carry this principal, and other minor, purposes into effect, the municipal corporation was created and invested with a share of the sovereign political power to be exercised within the local boundaries. The trust thereby imposed' upon the municipal government was public, and could neither be delegated nor abdicated. But, by the proceedings above recited, there was an attempt to do both, by investing a private citizen with the exclusive right to erect wharves and regulate tolls. In this aspect of the ordinance it is confessedly void, but counsel for appellant strenuously contend that the grant of the land was valid, and rested upon a lawful and sufficient consideration. I do not think so. The ownership of the land was essential to the exercise of the power. That this was fully understood is shown not only by the provisions of the charter, but by all the proceedings of the town trustees. At every step the two things went together, and in their very nature it is apparent that the one was necessarily bound up in the other. For how was it possible for the town to erect wharves after parting with its entire waterfront? It could only have done so by repurchasing the necessary sites, and it is not to be supposed that the legislature intended so absurd a consequence. Undoubtedly, it was the intention of the charter that the lands comprising the waterfront should be disposed of in some manner, but the manner of their disposition was to be consistent with the purpose of the grant. The town council was invested with power, among other things, to lay out streets, and the plain intent of the law was, that the streets of the town should be protracted to the waterfront, the intervening spaces divided into blocks and lots, and sold in subdivisions in such a manner as to preserve to the public ample means of access to the navigable waters of the bay and estuary, and to the municipal authorities ample space for the erection of wharves, piers, and docks. If any reasonable measures to this end had been taken, a sale of the lands by parcels would no doubt have been a proper exercise of power by the municipal authorities, but a transfer in bulk to a private citizen, without any reservation of the right of access to the navigable waters by which the town was almost completely surrounded, was a gross and evident excess of power. Counsel for appellant have referred us to the numerous decisions affirming the validity of sales of the beach and water lots of San Francisco, but there is not the slightest similarity between the two cases. The grant to San Francisco was of the lots platted upon a survey showing streets extending to and along the permanent waterfront of the city, and authority to sell the lots was expressly conferred and was subject to no condition, express or implied, except the return of a percentage of the proceeds to the state. There was no other trust connected with the grant. The right of access to the waterfront, and of sites for wharves, etc., was secured in advance by a dedication of the streets connecting the upland- with the ship channel, and covering its whole length. No power of the corporation was in the slightest degree impaired, and no right of the public infringed, by the sale of the lots bounded by these public highways. What had been done in San Francisco was indeed an example and a guide to Oakland in disposing of her waterfront, and I do not doubt that it was in contempation of the legislature that substantially the same course should be pursued. Certain it is, at all events, that no such downright absurdity can be imputed to the legislature as an intention to vest the council with authority to cut the town off from access to the waterfront by a transfer of the whole strip of shore lands at the same time that they were charged with the duty of erecting wharves, and when the construction of wharves was not only one of the declared purposes of the act, but was the express motive of the grant. My conclusion upon this point is, the ordinances and deed of 1852-53, by which it was' attempted to transfer the entire waterfront to Carpentier, were wholly void. And no doubt this fact came to be well understood by Car-pentier himself, for, as we shall see, he made various efforts from time to time to strengthen his title by legislative confirmation, purchases at execution sales, etc., and these are the matters to be next considered. In the year 1854, as we have seen, the city of Oakland was incorporated as successor to the town, and with the same boundaries. Some time after its incorporation, it commenced a suit in equity to set aside the grant to Carpentier, on the ground of fraud, etc. A demurrer to the complaint was sustained, and the city declining to amend, judgment was entered in favor of defendants. On appeal to the supreme court, this judgment was reversed, and the cause remanded for further proceedings. (Oakland v. Carpentier, supra.) Before the case came to trial the second time the legislature passed the act of May 15, 1861 (Stats. 1861, p. 334), amending the charter of the city, which I have before cited in connection with the question of boundaries. This act, besides some trifling amendments relating to the rate of municipal taxes and the office of pound-keeper, attempted, as I have shown, to enlarge the grant of lands by giving a legislative construction to the original definition of the town boundaries, and, in addition thereto, amended section 12 of the act of 1854, by re-enacting it in these terms: “See. 12. The corporation created by this act shall succeed to all the legal and equitable rights, claims, and privileges, and be subject to all the legal or equitable liabilities and obligations of the town of Oakland; and the ordinances of the board of trustees of said town are hereby ratified and confirmed, and the council shall have power to maintain suits in the proper courts to recover any right, or interest, or property, which may have accrued to the town of Oakland.” Tbe amendment consisted in tbe insertion of tbe words “and tbe ordinances of tbe board of trustees of said town are hereby ratified and confirmed.-” TJpon tbe passage of tbis act Carpentier filed a supplemental answer in tbe case of Oakland ¶. Carpentier, supra, setting up the provisions of said section 12 as a legislative confirmation of bis title, and wben tbe case again went to tbe supreme court tbis point was very fully argued by counsel, but not decided by tbe court. (See Oakland v. Carpentier, 21 Cal. 642.) In tbe present case, however, it becomes necessary to decide whether, by tbis amendment to tbe charter of tbe city, Carpen-tier was invested with title to tbe waterfront. It was, as has been shown, clearly within tbe power of tbe legislature to grant these lands to Carpentier, and tbe only question to be decided is, whether that was tbe intention of tbe law. If such was tbe intention, it cannot be denied that be then bec