City of Oakland v. Oakland Water Front Co.

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.

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,

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.

“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 corpo

rate 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-

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

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.

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

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

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,

But perhaps some light may be thrown upon this question by a consideration of previous acts in which the expression “ship

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

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

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

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

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

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.”

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,

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.

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

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.”

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 became vested with a perfect title.

But tbe law cannot be so construed. Up to tbis point Car-pentier bad no title—Ms asserted grant from tbe town being absolutely void, and, therefore, if this amendment to tbe city charter bad tbe effect of investing him with complete title, it was substantially a new grant by tbe legislature. For it is to be remembered that tbe pretended grant by tbe town bad been utterly repudiated by its successor, tbe city, which was at that very time endeavoring by its suit in equity to have its title to the waterfront judicially established. We are to suppose, then, that tbe legislature intervened in tbis controversy, ’and, over tbe bead of tbe city, transferred by its fiat tbe whole of tbe waterfront to a private citizen; and not only that, but that it conferred upon him tbe exclusive right for more than a quarter of a century to erect wharves, and regulate tolls and wharfage for a growing and ambitious city. For a confirmation of tbe ordinance of May 17, 1852, not only transferred tbe land in controversy, but sanctioned tbe abdication by tbe municipal authorities of their governmental functions in respect to wharves and tolls.

Of course, it is impossible to suppose that tbe members of tbe legislature actually intended to bring about tbis result, and

The argument of the appellant is, that the language of the amendment necessarily includes all the ordinances of the town, and along with the rest the ordinances mating and confirming the .grant. In other words, the contention is, that the word “ordinances,” as here employed, is to be tahen in its widest and most comprehensive sense. But there is a well-recognized rule of construction of statutes which requires the rejection of the broadest sense of a word, even when it is its most natural and usual sense, if that is necessary in order to give effect to the true intent of the law, or to prevent a result at variance with its apparent purpose. The word “ordinance,” however, in its usual and primary sense, means a local law—a rule of conduct prospective in its operation, and applying generally to the persons and things subject to the local jurisdiction. It does not, in its ordinary use or signification, include a grant of lands. Conceding it to be true that a grant of lands may be made by municipal ordinance, it is equally true that the idea of such a grant is not suggested by the use of the word, and this because it is a very unusual mode of granting lands. It is to be presumed, therefore, that in this instance the legislature used the word in its ordinary and restricted sense, rather than in a sense which would bring about a result at variance with the purposes evinced by other portions of the act. The title to the act, and its declared purpose, was to amend the charter of the city of Oakland, and it did make some trifling amendments really germane to the subject. As an amendment it became part and parcel of the charter—which, like the original charter of the town, conferred the power and imposed the duty upon the municipal authorities to construct wharves and regulate tolls. Can it be supposed, then, that by the general words of this amendment the legislature intended to deprive the city of the means of executing the powers imposed upon it, or that it intended to make a grant to a private citizen without a precedent in the previous legislation of the state, and without a parallel in its subsequent legislation? While it is true that the legislature had the power to make the grant, they will not be held to have made it unless their intention so to do has been clearly manifested, and

The rule of construction upon which this conclusion is founded is stated and illustrated in sections 113, et seq., of End-lich on Interpretation of Statutes, where the authorities which support it are very fully cited.

In this connection I have not overlooked the case of Thompson v. Thompson, 52 Cal. 154 , cited and relied on by appellant. But that case sustains the contention of counsel only to the extent that it holds or assumes that it is competent for the legislature to confirm or validate a void act of a municipal corporation. That the legislature has such power I have no doubt, but the question here is, whether it has attempted to exercise it to the extent claimed, and as to that matter Thompson v. Thompson, supra, is not in point, for the act there in question confirmed “all the acts and proceedings” of the trustees—a confirmation as comprehensive and universal as it could possibly be made. No construction of the language of that act could have excluded the transfer which it was held to have validated, and the transfer itself was of a character entirely consistent with the provisions of the charter. •

It is to be regretted; I think, that a court should ever feel itself bound by rules of construction to give effect to statutes which ratify and confirm by wholesale tire acts of municipal or other political agencies of the state. There is no more reckless or dangerous species of legislation. It is really legislating with the eyes shut, and under the mandatory and prohibitory provisions of

The next contention of defendant is, that although Carpentier may have got no title by the ordinances of 1852-53 and the confirming act of 1861, still the final judgment of dismissal in the case of Oakland v. Carpentier, supra, estops the plaintiff upon the question of title.

The final judgment in that case was a dismissal in obedience to the mandate of the supreme court, and the opinion of that court ( 21 Cal. 667 ) shows that the validity of Carpentieris title was not determined. All that was determined was that the suit in equity could not be maintained, even if the grant to Carpentier was void. If it was void, the city could disregard it and assert her rights in any method appropriate to that state of the case.

The plaintiff is here pursuing the appropriate statutory remedy for establishing and enforcing her rights if the grant to Carpentier was void, and the judgment in Oakland v. Carpentier, supra, is no more an estoppel than the dismissal of a suit in equity upon the ground that there was a plain, speedy, and adequate remedy at law would be a bar to the appropriate action at law.

Defendant’s claim of title, based-upon the several execution^, sales of the waterfront under judgments against the town/''&T)ak-land, is the next point requiring notice. It is unnecessary to go into the details of these judgment and execution saldas. A sufficient answer to all the claims based upon them is /round in the conclusion above stated that the lands in (yaMroTfersy were held subject to the public trust of laying out streets through them to and along the waterfront, and of using i^rem as sites for wharves, docks, piers, and other essential ai&p' to commerce and to the

The foregoing discussion brings us down in point of time to the year 1863, when the suit of Oakland v. Carpentier, supra, was finally dismissed, and results in the conclusion that Carpen-tier at that time had no title. The attempted transfer to him of the waterfront was void, and the city of Oakland was free to assert her rights by any action or other proceeding appropriate to that state of the case.

Carpentier, however, still asserted the validity of his title, and appears to have retained possession of such portions of the waterfront as he had found occasion to occupy by himself, his lessees and assignees.

In the year 1867, the authorities of Oakland again began to stir in the matter. A contract was made, or proposed, by which an attorney was retained for the purpose of recovering for the city the waterfront lands and the rights connected therewith. But before the commencement of any action or other proceeding for that .purpose, a compromise of the claims of the city was proposed and accepted. At that time the transcontinental railroad was approaching completion, and the Western Pacific Railroad Company, which owned the franchise from Sacramento to San Jose, was projecting a branch line to a point on the bay at or near San Francisco. In order to induce that company to malee its terminus at Oakland Carpentier offered them a portion of the' -waterfront claimed by him. They, however, had no confidence in^the validity of his claim, and refused to consider his propositioiV unless the necessary steps should be taken to clear up his titled. The whole matter was then submitted to the city authorities ax«u3 ai\eir attorney, with the result that a compromise was agreed upor'^ and subsequently carried out. The substance cif this agreement was that the city should procure from the legislature the necesWry authority to make the compromise,

In pursuance of an understanding to this effect, application was made to the legislature and an act was passed March 21, 1868 (Stats. 1868, p. 222), as follows:

“Section 1. The council of the city of Oakland, with the concurrence of the mayor of said city, is hereby authorized and empowered to compromise, settle, and adjust any and all claims, demands, controversies, and causes of action in which the said city is interested.

“Sec. 2. This act shall take effect immediately.”

On March 31, 1868, all the parties interested, except the city, executed contracts in writing embodying the terms of the compromise, and on April 1st and 2d the following ordinances were duly adopted by the city council and approved by the mayor:

“The council of the city of Oakland do ordain as follows:

“Section 1. The claims, demands, controversies, disputes, liti-gations, and causes of action heretofore existing between the city of Oakland on the one part and Horace W. Carpentier and his assigns of the other part, relating to the force, validity, and effect of a certain ordinance passed by the board of trustees of the town of Oakland on the eighteenth day of May, A. I). 1852, and enrolled May 27, 1852, signed by A. Marier, president of the said board of trustees, and F. K. Shattuck, clerk of said board, entitled, ‘An ordinance for the disposal of the waterfront belonging to the town of Oakland and to provide for the construction of wharves,’ wherein and whereby, for the considerations therein named, ‘the waterfront of said town, that is to say, all the lands lying within the limits of the town of Oakland and between high tide and ship’s channel,’ as described in the act of the legislature for the incorporation of said town, passed May 4, ⅜1852, together with all the right, title, and interest of said town therein, together with all the privileges, rights, and franchises

therein mentioned, were sold, granted, and released to Horace W. Carpentier and his assigns.

“And also in relation to the validity, force, and effect of a certain conveyance, executed and delivered to the said Carpen-tier, of the said waterfront, dated May 31, 1852, by the said Amedee Marier, president of said board of trustees, under and in pursuance of said ordinance.

“And also in relation to the force, validity, and effect of a certain other ordinance passed by the board of trustees on the thirtieth day of December, A. D. 1852, entitled, “An ordinance to improve the wharf at the foot of Main street, and to extend the time for construction of other wharves/ which said ordinance was enrolled January 1, A. D. 1853, and signed by said president and clerk of the said board of trustees, wherein and whereby the said first-mentioned ordinance and the said deed of conveyance were recognized and approved.

“And also in relation to the force, validity, and effect of a certain other ordinance entitled, An ordinance concerning wharves and the waterfront/ passed on the twenty-seventh day of August, A. D. 1853, by said board of trustees, which said ordinance was enrolled dated August 27, A. D. 1853, and was signed by A. W. Barrell, president, and A. D. Hurlbutt, clerk, of the said board of trustees, wherein and whereby the said first-mentioned ordinance was in all things ratified and confirmed and the said waterfront again granted, sold, and conveyed to the said Carpentier in fee simple forever—are hereby compromised, settled and adjusted, and the said above-mentioned ordinances and conveyances are made valid, binding, and ratified and confirmed, and all disputes, litigations, controversies, and claims in and to the franchises and property described in said ordinances and deed of conveyance, and every part thereof, are abandoned and released by the said city of Oakland to the said Carpentier and his assigns upon the following conditions, to wit, that the said Carpentier and his assigns shall convey by proper and sufficient deeds of conveyance all the property and franchises mentioned and described in said ordinances and deed of conveyance hereinbefore referred to, to tire Oakland Water Front Company, to be used and applied in accordance with the terms, conditions, stipulations, and agreements, contained in certain contracts between the said

Oakland Water Front Company and the Western Pacific Kail-road Company and other parties, bearing even date herewith, with the exceptions in the agreement specified. But nothing herein contained shall be deemed to affect any rights of the San Francisco and Oakland Kailroad Company derived under an ordinance of the city of Oakland passed the twentieth day of November, 1861.

“Passed April 1, 1868.

“B. F. PENDLETON,

‘‘President of the Council.

“Attest: H. Hillebrand, City Clerk.

“Approved April 1, A. D. 1868.

“SAM MERRITT,

“Mayor.”

“The council of the city of Oakland do ordain as follows:

“An ordinance entitled an ordinance to amend an ordinance entitled ‘An ordinance for the settlement of controversies and disputes concerning the waterfront of the city of Oakland, the franchises thereof, and other matters relating thereto/

“Section 1. The third clause of section 1 shall be amended to read as follows: And also in relation to the force, validity, and effect of a certain other ordinance passed by the board of trustees on the thirtieth day of December, 1852, entitled ‘An ordinance to approve the wharf at the foot of Main street and to extend the time for constructing the other wharves/ which said ordinance was enrolled January 1, 1853, and signed by the said president and clerk of the said board of trustees, wherein and whereby the said first-mentioned ordinance and the said deed of conveyance were recognized and approved.

“Passed April 2, 1868.

“President of the Council.

“Approved April 2, A. D. 1868.

“Section 1. It appearing to the satisfaction of the council that all terms and conditions of a certain ordinance heretofore passed,

entitled 'An o-rdinance for the settlement of controversies and disputes concerning the waterfront of the city of Oakland, the franchises thereof and other matters relating thereto/ having been fully satisfied and complied with by Horace W. Carpentier and his assigns, all the ordinances and deeds therein mentioned and described are hereby finally ratified and confirmed, and all disputes, controversies, claims, demands, and causes of action heretofore existing between the city of Oakland on the one part 7 and Horace W. Carpentier and his assigns of the other part, relating to the force and validity of the said ordinances and deed, are hereby abandoned and released by the said city of Oakland to the said Carpentier and his assigns; provided, that nothing herein contained shall release the right of the city of Oakland to the reversion of the property, franchises, and rights released, as provided in the contract between the Western Pacific Eailroad Company and the Oakland Water Front Company, in case said city of Oakland shall become entitled to same under said contract. '

“Passed April 2, A. D. 1868.

“B. F. PENDLETON,

“President Council.

“Approved April 2, 1868.

“SAM MERRITT, Mayor.

“Attest : H. Hillebrand, City Clerk.”

I am utterly unable to see any reason for denying the efficacy of this compromise.

By the very terms of the act the council, with the concurrence of the mayor, was authorized to compromise, settle, and adjust any and all controversies in which the said city was interested. This is very different from the paraphrase “its controversies,” which counsel for respondent use in their argument. There is some plausibility in the contention that authority merely to compromise “its controversies” would not enable the city to alienate property held subject to a public trust, but authority to compromise, settle, and adjust any controversy in which it was interested, conferred by the same power that created the trust, is certainly comprehensive enough to sustain a transfer of the property subject to the trust.

The conclusion, I think, necessarily follows that from and after the second day of April, 1868, the city of Oakland ceased to be the owner as trustee, or otherwise, of any portion of her waterfront except those portions secured to her by the compromise of that date, and such streets, thoroughfares, and other parcels as may have been previously dedicated to public use. As to all such places the transfer to the Water Front Company and its assigns was subject to the public easement, and the city as trustee for the public is no doubt entitled to a decree in this action defining her right of control over the lands so dedicated.

With respect to such streets and public places, the various consent decrees, relied upon by defendant, constitute no estoppel, and the statute of limitations does not apply.

It results from what has been said that the judgment on both appeals and the order denying a new trial must be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed. It is accordingly so ordered.

Temple, J., and Van Fleet, J., concurred.

concurring. I concur in the judgment of reversal and in the conclusion reached in the opinion of the chief justice that the grant involved in this case, and the land claimed by the waterfront company is limited by the line of low tide on the westerly side, and on the estuary, and with respect to all other boundaries, by the lines designated in said opinion. In that view the ease at bar is not within the Chicago case; and

concurring. I concur in the judgment of reversal. The grant in this case should be confined within the smallest limits possible. The state should have the benefit of all doubtful constructions in matter of description, and for this rea^-son the westerly line of the grant should be established at the point of low tide. In this respect I agree with the conclusion of the chief justice.

There is no trust relation existing between the state and its people which prevents the disposition of its tide lands. The title to such lands is in the state as perfect, full, and complete as title to land can vest; and, in the absence of statutory or constitutional law to the contrary, the state has the power to part with such title. This power has always been recognized and exercised by the state. It is the settled policy of the state. Acting under it, the state has parted with tens of thousands of acres. Indeed, it may be said that all such lands have passed from the state to private ownership. If, by some principle of law not to be found in constitution or statute, a trust rests upon these lands in favor of the public, a trust which, like the burden that rested upon Sinbad, can never be shifted, then every grant of such land by the state in the past is void, and the whole theory upon which the state has acted in the disposition of these lands has been wrong. That such result necessarily follows is plain, for this trust, if there be one, is a trust for all time, and attaches to every rood of tide land in the state. If the power exists in the state to release a single square foot from its embrace, that power exists to release it all; for, when quantity is considered, it becomes a question of policy and not one of power. .1 am satisfied no trust ever rested upon the tide lands of this state which prevents an absolute disposition of them.

dissenting. I am unable to agree with the conclusion reached by a majority of the court. The plaintiff brought this action to quiet its title as against the defendant to certain lands lying below the line of ordinary high tide of the bay of San Francisco and the estuary of San Antonio, and within the boundaries of the city of Oakland, as defined in the act incorporating said city, April 24, 1862. The cause was tried by the court, and judgment rendered in favor of the plaintiff that as to the lands described in the complaint, with the exception of certain designated parcels described in the judgment, the title of the plaintiff is good and valid, and is vested in and held by it as a public corporation and governmental agency of the state of California for the common benefit of all the people of the state and the whole public; and that, as to certain parcels described in the judgment and which are found to have been filled in and raised above the level of ordinary natural high tide, the plaintiff has lost and the defendant has acquired the title in fee thereto, and the defendant’s title thereto is good and valid; and also that the plaintiff is not the owner of that part of the land described in the complaint which lies southwardly from the present southern boundary line of the city of.Oakland. A motion for a new

Tbe town of Oakland was incorporated by an act of tbe legislature May 4, 1852 (Stats. 1852, p. 180), witb tbe following boundaries: “On tbe northeast by a straight line at right angles witb Main street, running from tbe bay of San Francisco on the north to tbe southerly line of tbe San Antonio creek or estuary, crossing Main street at a point three hundred and sixty rods northeasterly from ‘Oakland House/ on tbe corner of Main and First streets, as represented on Portois’ map of ‘Contra Costa’ on file in tbe office of tbe 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 tbe line of ship channel to a point where the same bisects the said northeastern boundary line.”

Section 3 of the act incorporating the town declares: “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, walls, 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 dockage, etc.”

May 18, 1852, the trustees of the town of Oakland adopted an ordinance entitled “An ordinance for the disposal of the waterfront belonging to the town of Oakland, and to provide for the construction of wharves.” The ordinance is in the following terms:

“Section 1. The exclusive right and privilege of constructing wharves, piers, and docks at any points 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 nnto Horace W. Carpentier, and bis legal representatives, for tbe period of thirty-seven years; provided, tbat the said grantee or bis 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.

“See. 2. With a view the more speedily to carry out the intentions and purposes of the act of the legislature passed May 4, 1852, entitled, ‘An act to incorporate the town of Oakland, and to provide for the construction of certain 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 lands 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.”

Section 3 provided for the execution of a conveyance of said lands to Carpentier by the president of the board of trustees. By virtue of this ordinance the president of the board of trustees, A. Marier, executed to Carpentier a conveyance of the land May 31, 1852. The interest thus conveyed to Carpentier became vested in the defendant herein prior to the commencement of this action, and the lands so conveyed to him are included within the description contained in the complaint herein.

The plaintiff was originally incorporated by an act of the legislature passed May 25, 1854 (Stats. 1854, p. 187), and succeeded to all the rights and claims of the town of Oakland in said lands; and was reincorporated in 1862 (Stats. 1862, p. 337), and was then empowered to maintain suits to recover any right or interest to property which may have accrued to the town and city of Oakland.

Tbe questions thus presented for determination are tbe nature or character of tbe tenure by which tbe state bolds tbe title to tbe tide lands within its borders, and the effect of tbe act granting these lands to the town of Oakland, and also the interest in the land which was taken by Carpentier by virtue of tbe ordinance, as well as the effect of subsequent legislative acts and judicial proceedings.

1. Tbe nature of the state’s title to tide lands and lands covered by navigable waters, as well as the effect of a conveyance of these lands by a grant, either directly from tbe legislature or through legislative authority, has been the subject of frequent consideration by the courts, and many expressions are found in opinions given in deciding tbe cases in which the title is characterized as that of an absolute owner in fee. Tbe cases in which the question has been considered have in nearly all instances, however, been those in which tbe right to tbe disputed lands was controverted by individuals claiming the same as against each other by virtue of conflicting grants or claims derived under the state, or when the rights of a grantee of the state were opposed to one claiming by prescription, or by virtue of a riparian claim, or to a claim alleged to be paramount or anterior to that of the state, and have arisen only where limited areas were involved. In these cases courts in determining the title of the grantee under the state have characterized the original title of the state thus eonvej'-ed to him as that of a sovereign with the full power of disposition; but, as was said by the supreme court of the United States in discussing this question in the Chicago ease hereinafter cited: “General language sometimes found in opinions of the courts expressive of absolute ownership and con

The expressions found in many of the opinions, and repeated in the foregoing quotation from Weber v. Harbor Commrs., supra, that the state holds the dominion and sovereignty over these lands, as well as the frequent statement that the state is sovereign, is apt to be misleading unless the proper significance of the

Whatever power or sovereignty has been conferred upon the ' state to be exercised only for the benefit and in the interest of the entire people, cannot be abdicated or surrendered to individuals, or exercised in favor of some to the detriment or disadvantage of others. The lands which the state holds in trust for the entire public are held by it in this limited sovereignty, and under the same trust as is the police power, or the power of taxation, or the right of eminent domain, and for the same reason are incapable of being placed beyond its control. Although the state is vested with the dominion and sovereign control of these lands, it does not follow that its power of disposition is the same as that of an individual over lands of which he holds the absolute fee, or that its tenure of the lands is identical with that of an individual owner. These lands are not held for the purposes of

The question of the unlimited power of the legislature to grant these lands into private ownership may be fairly presented for

The principles thus declared do not, however, prevent the state from conveying by its grant an absolute fee to parcels of these lands, and the cases in which such grants have been upheld illustrate the extent to which the grants may be made, as well as their limitations. As one of the main purposes of the trust under which they are held is that the public may enjoy them for the benefits of commerce and navigation to be derived therefrom, the state, as the organized representative of the public, may, in its administration of that trust, find it to be for the advantage of the public, and in promotion of the purposes of the trust, as well as to secure the benefits of navigation and commerce, to construct docks, wharves, piers, or basins upon the lands covered by these waters, and for that purpose may authorize their construction by others, and may part with the title to the land upon which they are constructed. It was said in the Chicago case:

The state cannot part with the control of these lands for other public uses than those for which they are held, or than such as will promote the interests of the public in navigation and commerce, and is precluded from alienating them for other purposes. The same considerations which prevent it from making a donation of them to an individ

Neither is the right of the defendant in these lands increased by the fact that other tracts of land of great extent have been conveyed by the state. The facts connected with those grants are not before us, and we would not be justified in expressing an opinion upon their validity. The grant to San Francisco by the act of March 26, 1851 (Stats. 1851, p. 307), is peculiarly within the conceded right of the state to dispose of these lands in parcels for the purpose of promoting the interests of commerce and navigation. The land which was granted by that act was that which was situate within certain boundaries, “according to the survey of the city of San Francisco-, and the map or plat of the same now on record in the office of the recorder of the county of San Francisco-.” The land within these boundaries had been laid out into lots and blocks, with streets intersecting the blocks, and also along the waterfront and extending therefrom to the upland, and in the act itself these lots were designated as “the San Francisco beach and water lots.” The map had been drawn in accordance with a survey made in 1847 by virtue of the directions of General Kearny, and the beach and water lots designated thereon, each with an area of one-third of a fifty vara lot, and seven hundred and seventy-two in number, had been sold at public auction under the direction of the ayuntamiento

It follows, therefore, that by the act of 1852 the legislature ’ did not confer upon the town of Oakland the title in fee to the lands within its limits then lying below the line of high tide, or the right to dispose of the same as an entirety or by a single grant, and that the ordinance passed by the town granting the said lands to Carpentier, as well as the conveyance executed to him by Marier in pursuance thereof, were invalid to vest in Carpentier any title to said lands or to any part thereof. The legislature could not give to the town of Oakland any greater power to alienate or dispose of these lands than was possessed by itself, and the grant by the town to Carpentier must be regarded as taken by him with full notice of the limitations upon the power of the legislature, and with the same effect as if it had been made directly to him by the legislature itself in the terms of’ the act.

The cause was tried by the court and judgment rendered in favor of the plaintiff. From this judgment an appeal was taken to the supreme court, and the judgment of the trial court was reversed by that court, and the district court was directed to dismiss the suit. (Oakland v. Carpentier, 21 Cal. 642 .) In its opinion rendered upon deciding the appeal, the supreme court, after reciting the facts in the ease, said: “the suit is, of course, for equitable relief, and the grounds alleged for the interposition of equity are that the grant or conveyance was obtained by fraud on the part of Carpentier, and was made without authority on the part of the trustees, and that it constitutes a cloud upon the title of the city, and embarrasses her in the exercise of her legitimate functions”; and, after stating that the charges of fraud were not entitled to consideration by reason of their vague and indefinite character, as well as by the fact that they were fully denied and wholly unsustained by the proofs, the court further said: “Stripped of the charges of fraud, the whole claim for equitable relief falls to the ground. the grant was either valid, or void or voidable. If void, as contended by the counsel for the respondent, there can be no occasion for the interference of a. court of equity. If void, the condition of things—of the rights, privileges, and estate of the city—remains as though no transfer bad been attempted. No cloud is cast upon her title, and no embarrassment can attend the exercise of her legitimate functions. She has only to proceed and assert her privileges and claim her interests, and whoever interferes with them will be a trespasser. If, however, the grant is only voidable, and not void, the plaintiff seeking the aid of a court of equity can only obtain equity by doing equity—that is, she can only obtain relief from the acts of the agents of the town by tendering compensation to the defendant, who has rebed upon them for bis expenditures.the conclusion which follows from the views we have expressed is evident. the charges of fraud as a ground

The doctrine of res judicata, or estoppel by reason of a former judgment, rests upon the principle that a cause of action which has been once determined upon its merits by a competent tribunal, between parties over whom that tribunal had jurisdiction, cannot afterward be litigated by them in another proceeding, either in the same or a different tribunal, and it is immaterial whether such cause of action is of equitable or of legal cognizance, or whether the judgment was given in a common-law court or was rendered by a court of equity; the effect of a final judgment in either tribunal is the same. But, if the judgment in either tribunal is rendered for a reason or upon a ground not involving the merits of the controversy, no such effect can result. The form of the judgment is immaterial, but unless it appears from the record that it was given upon a consideration of the merits of the controversy, or if it affirmatively appears that the merits were not considered, it is not available as an estoppel. By section 1908, subdivision 2, of the Code of Civil Procedure, the effect of a judgment is conclusive “in respect to the matter directly adjudged,” and by section 1911 “that only is deemed to have been adjudged in a former action which appears upon its face to have been so adjudged, or which was actu

Section 581 of the Code of Civil Procedure provides that an action may be dismissed or a judgment of nonsuit entered in several enumerated instances, and in section 582 it is declared: “In every case other than those mentioned in the last section, judgment must be rendered on the merits.” It is contended on the part of the defendant that, as it does not appear that the judgment in the case of Oakland v. Carpentier, supra, was rendered under any of the provisions of section 581, it was of necessity rendered upon the merits. Section 582 is, however, the declaration of a rule of procedure, rather than a principle of law. It is not the fact that every judgment that is not rendered under the provisions of section 581 is rendered upon the merits. Section 430 of the Code of Civil Procedure specifies various grounds upon which a demurrer to the complaint may be made, and if, upon sustaining such demurrer the complaint is not amended, judgment will then be entered in favor of the defendant. If such judgment is entered for want of jurisdiction in the court, or for defect of parties, or for ambiguity in the statement of the cause of action, it would be neither under the provisions .ef'^ction 581 nor upon the merits.” “A judgment upon-.-the merits is one which determines either

Under the foregoing principles it must be held that the plaintiff is not estopped from maintaining the present action by reason of the judgment dismissing the suit in the action of Oakland v. Carpentier, supra. The judgment that was finally entered in the district court in that action was the judgment of the supreme court, and was not rendered by reason of any consideration of the merits of the controversy by the district court, and can, therefore, be invoked as an estoppel only as to those matters which were determined by the supreme court and made the basis of its direction to the district court. That court did not purport to make its decision upon a consideration .of the merits of the controversy, nor can it be determined from its opinion whether it directed the dismissal upon the ground that the plaintiff had an adequate remedy at law, or upon the ground that its complaint did not state sufficient grounds to entitle it to invoke the particular aid of equity which it sought. The element of certainty, so essential in every estoppel, is wanting. Lord Coke sajrs (Coke on Littleton, 35¾ b): “Every estoppel must be certain to every intent, and not to be taken by argument or inference”; but only by either inference or argument can it be determined upon what ground that court directed that the shit, be dismissed. It did not determine whether the grant to Car-pentier was valid or void; but we have the right to assume that, if it had been required to make a decision thereon, it would have decided in accordance with the conclusion reached by us in the former part of this opinion, that the act of May 4, 1852, gave to the town of Oakland no authority to make the grant to Car-pentier. ,

3. February 19, 1880, the plaintiff herein commenced an action in the superior court for the county of Alameda against the defendant herein and others to quiet its title to the lands involved in this action, and to obtain a judgment that it held the said lands as successor of the state of California by a good and sufficient title in trust for the use and benefit of the public. Issues were joined therein by the several defendants, and, in

A judgment rendered by consent becomes res adjudicata between the parties thereto, and, if the parties were competent to consent to such judgment, may be pleaded in bar of another action between them, with the same effect as if rendered after resistance and a litigation of the merits of the controversy. A judgment so rendered cannot, however, be treated as res adjudi-cata unless the parties thereto had the capacity to make the agreement which they have consented shall pass into judgment. The parties to a controversy may make an agreement with refer

In Texas elc. Ry. Co. v. Southern Pac. Co., 137 U. S. 48 , certain decrees, entered by consent of the parties, were invoked as a bar in another action between them, but the court said: “The decrees were entered by consent, and in accordance with the agreement, the court merely exercising an administrative function in recording what had been agreed to between the parties, and it was open to the supreme court of Louisiana to determine upon general principles of law that the validity of article VI was not in controversy or passed upon in the causes in which the decrees were rendered.” The principle was stated by Lord Bomilly in Jenkins v. Robertson, L. R. 1 Sc. & Div. App. Cas. 117: “Res judicata by its very words means a matter upon which the court has exercised its judicial mind, and has come to the conclusion that one side is right, and has pronounced a decision accordingly; but when an action of declarator is brought and a verdict is obtained by the pursuers, which is set aside, and an arrangement afterward takes place by which, in consideration of the payment of a sum of money, an interlocutor is pronounced for the defenders, and the court simply registers that interlocutor, without expressing any judicial opinion on the subject, I am of opinion that it is contrary to all principle to consider that such a transaction can be treated really as res judicata.In my opinion res judicata signifies that the court has, after argument and consideration, come to a decision on a contested matter; here the court exercised no judicial function upon the subject. It has merely exercised an administrative function by recording the interlocutor which had been agreed to between the parties.” In San

Under the foregoing authorities it is manifest that the judgment relied on is not available to the defendant as a muniment of title to the lands in question, or as an estoppel against the plaintiff in the assertion of its claim to the said lands. The plaintiff’s consent to the judgment gave to the defendant no greater right than would its simple grant of the lands, for the reason that by reason of the trust under which they were held it was precluded from making such disposition, as we have above seen, either by a direct grant or by consenting to a judicial decision.

4. No greater effect is to be attributed to the several confirmatory ordinances subsequently adopted by the town of Oakland, or by the city of Oakland, than was created by the original ordinance. The same inability or infirmity in the town to transfer the land, or to malee the grant, by the original ordinance, was inherent at the time of the adoption of the confirmatory ordinances, and continued in its successor, the plaintiff herein, and equally precluded any confirmatory ordinance which might be adopted from having a greater effect than did the ordinance which was originally adopted. The ordinances adopted by the city April 1 and April 8, 1868, by which it purported to release and abandon to Carpentier and his assigns all its claims in and to the franchises and property described in the former ordinances, were equally without the power of the city, so far as it was attempted thereby to part with its right to said land, or to confirm the preceding ordinances. The condition of the release named in the first of said ordinances, and which in the second is recited to have been performed, was the transfer of the land and franchises by Carpentier to the defendant herein, but, as such transfer was in pursuance of an agreement therefor previously entered into between them, to become effective upon the adoption of said ordinance, and, as the plaintiff herein was neither a party to such agreement, nor received any consideration or benefit by reason of the agreement -or its subsequent execution, there was no equity created thereby in favor of the defendant and against the plaintiff, by which the plaintiff is precluded from asserting its want of power to adopt the ordinance.

It is unnecessary to show that the rights of the city to the land could not be divested by a sale under execution upon a judgment recovered against it. Whatever liabilities the city might incur, as well as whatever obligations might be held against it, could be discharged only from its own property,' and not from that which it held in trust for the public. As the land was public property, and held in trust by the city for the public, no right thereto could be created by virtue of any assessment or payment for taxes levied thereon.

5. The court found that certain parcels of land within the tract described in the complaint “have been filled in with earth, whereby said pieces have been raised above the level of ordinary high tide,” and “that by reason of said several pieces of land being filled in and reclaimed from the tide, as appearing in these findings, plaintiff has lost, and the defendant has acquired, the title to each of said pieces so filled, and is the proprietary owner in fee of the same.” These parcels are particularly described in the findings, and are excepted from the tract of land of which the plaintiff is adjudged to be the owner, and the defendant’s title to said parcels is adjudged to be good and valid. The court also found that the defendant had the right to occupy and use, in a manner not inconsistent with the ordinary uses and purposes of navigation and commerce, two wharves described in the judgment which had been constructed upon the land of which the title was found to be in the plaintiff, until compensation be made to it for their value; and also found that the plaintiff is not the owner of that part of the lands described in the complaint which lies southerly from the present southerly boundary line of the city of Oakland. In accordance with these findings judgment was therefore rendered against the prayer of the plaintiff. From these portions of the judgment the plaintiff has appealed.

The parcels of the lands described in the complaint which have been raised above the-level of ordinary high tide by filling

The wharves for which the plaintiff is, by the judgment, required to make compensation before the defendant shall be required to surrender possession, were constructed many years before the commencement of this action and while the defendant or its predecessor was in the possession of the lands under the ostensible grant of the plaintiff’s predecessor. These wharves are instruments for carrying out the purposes of the trust under which the lands were held by the state, and their construction was within the piupose for which the state placed the lands under the control of the plaintiff. As they were constructed by the ostensible permission of the plaintiff or its predecessors, it would be inequitable for the plaintiff, having stood by and suffered their construction without making any objection thereto, to deprive the defendant thereof without making it compensation therefor.

In the act of 1852 incorporating the town of Oakland, its boundaries extended to the southerly line of the San Antonio .creek; “thence down the southerly line of said creek or slough to its mouth in the bay; thence to ship channel.” The act of 1854 incorporating the city of Oakland provided that “the boundaries of said city shall be the same as the boundaries of the present town of Oakland,” and by section 12 of the act it succeeded to all the legal and equitable rights of the town of Oakland. The act of 1862 reincorporating the city declared: “The boundaries of said city shall be the same as are the boundaries of the late town of Oakland, which are more particularly defined and described as follows, to wit: “To the easterly or southeasterly line of that branch of the San Antonio slough, or estuary, over

As the plaintiff’s claim to the lands in question is only by virtue of being a public corporation and governmental agency of the state, its right to the control of any of said lands must be limited to those of which it is the governmental agent of the state. The plaintiff’s claim to the lands as successor to the town of Oakland must be limited to such as the state released to the town by the act of 1852, since that is the only statute by which the state has delegated the control of these lands. Although the boundaries of the city of Oakland were extended by the act of 1862, the state did not confer upon the city the control of the tide lands other than had been conferred by the act of 1852. The state had at all times the right to change the boundaries of the municipality, and whenever such change was made it ceased to be the governmental agent of the state for the management and control of the state’s interest in any lands outside of its charter limits. It was not necessary that the state should expressly repeal or revoke the right or power of control originally given by it to the town of Oakland. The exclusion of any portion of the lands from the territory of the plaintiff would remove its control thereof as effectually as would a direct repeal of the power given in the act by which their management was originally intrusted to it; and the change in the boundaries of the city adopted by the citizens in 1889 was as effective for this purpose as if made by the legislature itself. It follows that, as the plaintiff’s claim is limited to lands within its charter limits, the court was not authorized to enter a judgment in the present action affecting the title to lands outside of those limits.

The judgment and order denying a new trial should be affirmed.

Henshaw, J., concurred in the foregoing opinion of Mr. Justice Harrison.

Rehearing denied.