PACIFIC GAS IMP. CO.
In Smythe v. Henry,41 Fed. 705, a statute which granted land to the Oherokee chief Junaluska, with restraint upon its alienation, and .also made him a citizen of the United States, was considered, and it was held that a restraint against alienation was not inconsistent with the grant of citizenship. The court said:
"It is insisted that the J:estriction imposed upon the J:ights of alienation by the second section of the act is inconsistent with the spirit and purpose of the fiJ:st section, which upon Junaluska all the J:ights, pJ:ivileges, and immunities of citizenship. When a state conveys land as a bounty, It can impose any J:estJ:iction deemed propel' upon the grantee. When we consider the condition of that new citizen, we may well conclude that the restriction was not unJ:easonable, but was, ratheJ:, just, wise, and beneficent."
And it was held in Be Ooombs, 127 Mass. 278, that it was competent for the legislature to continue the guardianship of Indians by the state after they had been made citizens. It follows, therefore, that the contracts of complainant with the Indians were void, and that he was properly removed from the reser· vation. We have not distinguished between the lease and the con· tract to convey, as we deem them parts of one transaction. If it is for the interest of the Indians or of commerce to remove the restraints on alienation, congress will no doubt do so, if applied to, and in the lat· ter case it will be enabled to provide for the interests of the Indians better than they have seemed to have provided for themselves in the contract with appellee. Judgment reversed, and cause remanded, with directions to dismiss the bill.
PACIFIC GAS IMP. 00. v. ELLERT, Mayor, et al (Circuit Court, N. D. California. October 15, 1894.)
The provision in the act of admission of Califomia into the Union, that all the navigable waters in the state should be common highways, and fOJ:ever fJ:ee, without tax theJ:efoJ:, does not refer to physical obstructions, but to political regulations. Bridge Co. v. Hatch, 8 S. Ct 811, 125 U. S. 1, followed. CIRCUIT COURTs-JURISDICTION-FEDERAL QUESTION. Under Act Aug. 13, 1888, giving circuit courts original jurisdiction of suits "arising under the constitution or laws of the United States," plaintiff's statement of his cause of action must show that he relies on some right under such constitution or laws, and a suggestion in his bill that defendant will claim that acts relied on by plaintiff violate the constitution of the United States cannot give jurisdiction. Tennessee v. Union & Planter's Bank, 14 S. Ct. 654, 152 U. S. 454, followed. SAME-TAKING PROPERTY WITHOUT PROCESS. Const. 14th Amend., prohibiting a state from depriving a person of property without due process of law, applies to an act of any person by virtue of public position under a state government. TIDE LANDS-DISPOSITION BY STATE-RIPARIAN RIGHTS. A state, if its laws permit, may dispose of its tide lands tree from any easement of the upland owner. SAME. The laws of Callfornia, as decided by its supreme court, allow it to make such disposition.
t, . .:
;l\!ld April 1862, ,confirllling which adl;lpti!d,a platlaylhtrout streets over tide waters, and 'declarmg 'streets' so ·'laid' lout to' be pUblic streets; constitute- a dedication by the ,state. " . ' 7. SAME. , " ,.<:;oos.1:. 9.l!1L....a.rt. 1.,.,5, §. "¥,,pr.q.Vidi,n.,g that no Indivldua.I,.palitnershiP,' or corof any shall W t):l¢ free navigation of the water, does pot. p+eyellt 'frOlll'e$w,blishing harbor lines, andauthbrizing the tlli,lpgln such lines a,nd the shore.
' :, ,"", ' . . .' . , Surtl)y the PaciflcGas Improvement Company against L. R. EIle!'tjmayor of the city'am:l:countyoN;an 'Francisco, and others, for injunction. + Order to show, cause why injunction should not be con· tinued, discharged. .! E;S.'PilIsbury, and Robert for complainaJit " .; ,r., .. ' W; McEnerney and W. S.J' Goodfellow, for respondents. '1- , ;
, The bill alleges the incorporation of plliin,tlff,Jabdthe character df"defendant Ellertl mayor, arid theotlietI .I1efendants;supervisors, and contains substantially the folomitting repetitions:
Olili.trm GasughfCompany is the owner in fee simple of block 330 in the city and county of San Francisco, having fOl' its northern boundary the shore of the Bay of San Francisco, excepting a certain piece of land from said block, not necessary to descripe. That prior to the 31st of October, '1893, the said company was in possession of said using t?l!-mefor gas works and appurtenances there!o, and leased tl1l:\ sarrie to United Gas- Improvement Company, of Pennsylvama. and the latter ,on the 16th of January, 1885,leased the same to plaintiff, and latter has been ever since,' alilJ! is, In possession thereof. That the land to the north of said block is owned by the state of California, and is sU1>p:1erged at .all stages of the tllie, and navigable for craft; an!'! has always been ll,common and open p .u bl.. 1Itg h.wa.y fO.l' 1;hepvrpo,ses of nav.Iga.tion, commerce.' and traffic. . That. :i'cirmerly belonged to MeXico, and was ceded to the United' States by the latter, by treaty of GuadalOl;lpe Hidalgo; and by the admission of the state of California Into the Union the title to the same passed to the state-.::upon'conditlon that"all the navigable waters within said state:shall'be cOlllmonbighways and'forever free as well 'to the inhabitants of sa.id Jstate as to'thecltizens:of the United States, without any tax, import or-,duty therefor," and ever since said act the title has continued in the:state 'In trust 'as aforesaid. That ever 'said; 16th of January, '1885, plaintiff has actively fulfilled thepurposei!l,of its incorporation, and has established andcal'l'les on a large and profitable business, Jandhas used and uses the said land properly for the purpose of its business, and that the same is necessary and advan· tage01,lS· .. " ""I J.l , , " ' 1 ' " , . . 'l'hat. ItbR!lbAo' thereon, for vessels al1d boats, and by them brought the materials neceSijla,ry for its p'Ul!li,tless to said p!!operty, and that there is no other way Ill., which they Can. be translllltteQ .to said property than over . ",., . ' ·. .... ' ''', , . , That on tin! 'il'itlt otSeptember, 1893,' the boardQf su:reJ;Visors of San Francisco, assuming to act under an act of the legislature entitled "An net to provide work upon streets, lanes, alleys, courts, places and sidewalks, and ,for tbe of sewers withlnml1nicipalitleS," approved March 18, 1885, and the acts amendatory and supplementary t'liereof, passed and
posted a resolution of intention to improve a pretended street. designated as "Lewis Street," and afterwards passed a resolution ordering work to be done, and invited prO'Posals in the manner and form required by law, and on the 25th of September, 1893, awarded a contract to a firm called "Warren & Malley," which was duly approved, is being posted and published as required by law, and that the posting and publishing will be complete on the 8th of October, 1893, unless restrained by injunction,and that defendant Ackerson will enter into a contract for the work with Warren & Malley or otbers, and said Warren & Malley or others immediately enter upon tbe construction of such improvements, and thereby destroy the said navigable waters and public highway, and destroy the said property and right of plaintiff. That the district described in said resolution of intention lies immediately to the north of and in front of said property, and comprises the whole of tbe basin, inlet, or arm of the Ba.y of Sa.n Fra.ncisco, situated between wbat is known as the "Presidio Reservation," on the west of said basin. and what is known as the "Government Reservation," at Black Point, or the "Fort Mason Reserve," on the east, and is of tl1aogular shape, and nearlJ' a mile wide along the line of the proposed work to the furthest point of the shore. That said district includes a portion of San Francisco Bay equal to about 100 acres, and which area has been from time immemorial navigable fOl' vessels, boats, and ,vater cra.ft, and' has constituted from time immemorial an open, common, public highway for na.vigationa.nd commerce; and the wa.teralong the line of said street is 23 feet in depth at the lowest stage of the tide. That said work wlll cut off the whole of said basin, including the part In front of plaintiff's property. from access to or communication with the other parts of the Ba.y of Sa.n Francisco, and will destroy the whole of said basin as a highway fOl' vessels, boats. or water craft of any kind, and will cause 3'our orator to transport its materials from distant places. for which plaintiff will have to pay large sums of money, which will absorb its profits; aod no adequate compensation can be recovered at law, and the injury would be continuous, causing a multiplicity of actions; and that the navigability of said basin can never be restored; ,and that it is protected from the winds, and affords a ha,en and resting place and anchorage for vessels, etc., and renders the landing places along said basin, especially plaintiff's, of great value. That said work is but part of the work contemplated by the board of supervisors to make solid ground of said basin, and to open and layout over the same streets and highways, and that in so doing and intending the defendants, and each of them, claim and pretend that no part of the soil of said basin is, or for many years has been, owned or held by the state of California in trust for the purpose of commerce or navigation. or owned or held by said state for any purpose or in any way, but that nearly all of it is private property of one James G. Fair and others. and, being within the limits of the city and county of San Francisco. the board of supervisors has jurisdiction, under the said street law of San Francisco, ru cause the same to be improved, graded. and filled up, and cause streets to 1)0 opened and laid out through the same. That the city and county of San Francisco, since 1856, has been a municipal corpol'ailon, and one of the agencies of the state for local government. nnd that its officers, in all matters pertaining to streets and the matters above set furth, derive their authority from, and proceed under what is J,11own as, the "Street Law," hereinbefore mentioned, and certain acts amellthereof [which the bill enumerates], and that by section 14, art. 1. of the constitution of the state. it is provided that "private property shall not be taken or damaged for public use without just compensation having first been made to or paid into court for the owner," and that the act,; set forth constitute a taldng as well as damaging plaintiff's for an alleged pUblic use. That no kind of legal proceedings by or against anybody has ever boon instituted for the purpose of opening or laying out snid basin as a public
or streets, or W cO'nden:m. or acquire, of the property rights of your oratW, hll.ll been provided for, paid, or tendered; and tlleproperty is intended to betaken without due process of law, which is lnviolation ()f the of the United States, upon which plaintiff relies; and ,."that the said defendants,.. and each of them, deny that said provisions of the constitution of the States afford to your orator any protection whatever.". . That tl:;Le defendants claim and pretend that the whole of said basin is private property, over which .t4e board of supervisors !las jurisdiction, and the claims of defendants as to the malllJiler in which Fair and others acquired the title are as follows, to wit: In. the year 1864 the legislature of the state authorized the sale to the North San Francisco Homestead & Railway Association of certain overflowed lands in the city and county of San Francisco. The act was approved April 4, 1864. (pages 482-483, St. 1863-64). That it was provided by said act that the commissioners of swamp and ov.ertlowed lands should appraise certain lands covered by the waters of the bay, extending to a depth not exceeding six.feet at lowest stage of the tide, and that upon the payment by l!iaid association of the sum appraised a patent from the state should issue to said association. And it was expressly provided in said act that in no case should the water front of the adjoining property be interfered With, and that said association, nor its employes, agents, successors, or assigns, should have a rig):lt to levy or collect any tolls, dockages, or wharfages, and that the said association or its assigns shall not have the power to make any use of said. lands, or any. part thereof, which shall interfere with the navigation of the of San Francjsco. And defendants further claim that a. patent was duly Issued, and recorded in the recorder's office of the city and county of San E'ranclsco,and that Fair and other private perspns succeeded to the interest of said association. And plaintiff avers that the interest which it is claimed said association derived as aforesaid consists of all of said basin which lies sou1;h of a pretend,ed street called "Tonquin Street," which is south of Lewis street, and runs across said basin parallel with Lewis street, and the basin, between the shore and said Tonquin street, Is immediately in front of plaintiff's said property. And plaintiff avers that the greater portion of the soil of the .p!lsln, which defendants claim was acquired under said act of 1864, extends far beyond the depth of six feet of water at lowest stage of the tide, and foL', that reason, if no other, said conveyances under said act were invalid, and that the only title which !;laid persons have Is derived through the said association. And plaintiff alleges that neither at the time of the passage of the act, nor the i!;lsuance of the said conveyances to said as!;lociation, was any water-front line establi!;lhed or existing for any part of the city llJnd county of .San Francisco, which fronts on said basin, or has ever existed or now exists, and that said act is void for many rea!;lons, viz.: It was and is In contravention of the act of congress admitting the state into the Union. It is In violation ,of the trust upon which the state held the land covered by navigable waters. That the subject of the act is not expressed In its title. It contains no definite description of the quantity of land, but attempts to delegate the determination to the discretion of the officers who are to appraise the land, and it contains no designation of the character of the land, and, being void, .the proceedings under it were void; and the conveyances were void for the additional reason that no water-front line existed or exists, and that none' of the land was authorized to be conveyed. And plaintiff further avers, if title did pass, it is held In the same trusts as the state of California held it, and that none of the defendants, nor said other persons, ever had or has,under said act of 1864 or otherwise, any right to destroy or obstruct the navigability of said basin. And plaintiff avers, on information and. belief, that the portion of the basin whIch lies north of Tonquin street, and between the same and the northern line of Lewis 'street, the defendants claim, is the private property of Fall' and a few others, and that the board of supervisors has jurisdiction thereof nnder the street law, and that its pretended title is as follows: In the year 1868 the legislature of the state of California passed an act entitled "An act to survey and dispose of certain salt marsh and tide lands belonging to the state 'If California," approved on March 30, 1868, which act is published in the
PACIFIC GAS IMP. CO. 'V. ELLERT.
Laws of 1867-68, at pages 716 to 722, Inclusive, to which act reference is hereby made. 1'hat in and· by the said act it was provided that It board of tide-land commissioners should be appointed in the manner pointed out in the said act, and that it was by said act further provided that the said "commissioners shall take possession of all the salt marsh and tide lands, and lands lying under water, to the point that may be established as the water front, situate along the Bay of San Francisco, and situate in the city and county of San Francisco, belonging to the state of California, and have the same surveyed to a point not beyond twenty-four feet water at the lowest stage of the tide, and cause to be prepared two maps of the same, showing the quantity and extent of the property situated as aforesaid;" and that said tide-land commissioners, in conjunction with the governor of California, the mayor of Sa-n Francisco, and the president of the Chamber of Commerce of San Francisco, should meet, 3Jnd, by a two-thirds vote, establish the waterfront line of San Francisco, where it had not been previously established by the act of March 26, 1851, and that after the establishment of such waterfront line, and after compliance with the provisions of section 4 of said act. said commissioners should proceed to sell at public auction, to the highest bidder, all the right, title, and interest of said state of California in and to the lands of which they were to take possession as hereinabove stated, as the whole will more fully appear from the provisions of said last-mentioned act, to which reference is hereby made. And your orator avers and charges that the defendants claim and pretend that the said act Is a valid act of the legislature, and that under and in pursuance of its provisions the said tide-land commissioners did take possession of said lands lying under water, to a depth not exceeding twenty-four feet of water at the lowest stage of the t;de, and that said commissioners did cause the same to be surveyed, and that said commissioners afterwards, in conjunction with the governor of the state and the mayor of San Francisco, and the president of the Chamber of Commerce, met together, and, by a two-thirds vote, established the water-front line of said San Francisco. But your orator avers and charges that said act of :\farch 30, 1868, was and is invalid and void and of no effect, for the followIng, among other, reasons, viz.: It was and is in contravention of the said act of congress of September 9, 1850, admitting the state of California into the Union; it is in violation of the trust upon which the state of California all the land covered by navigable waters, as hereinabove set forth; it attempts to delegate to others the power to establish a water-front line for the city of San Francisco, such power not being subject to any confirmation or power of rejection by the legislature itself, and to give to such others the power of sale of all lands up to such undefined line; it attempts to deprive the owners along the shore of their rights of access to their property, without any compensation made or to be made, and without due process of law; and finally for the reason that neither the subject nor the object of the act is expressed in its title. And your orator avers that, inasmuch as the act itself was and is void, whatever proceedings were had under it were and are equally void. And plaintiff avers that defendants claim that conveyances were made, under the provisions of said act of 1868, to said North San Francisco Homestead & Railway Association, but that the conveyances are void for the additional reasons that the commission did not take possession of the lands, nor cause them to be surveyed, arid the water-front line never was established; that the act of the legislature of 1870 (St. 1869-70, pp. 541, 542) abolished the saill board of commissioners, and created a new board, and defined the lands to be, over which it has jurisdiction, as "all the salt marsh and tide lalllis lying under water belonging to the state of California and' situate in tbf> city and county of San Francisco," and that these lands are not of the same character as the lands described in the act of 1868, and that no conveyances of any of said lands north of Tonquin street were made to said Rssociation, or to anyone, prior to the time said act of 1870 took effect, and all the conveyances were and are void; that by section 365 of the Political Code, which took effect 1st of January, 1873, it was provided that the "governor, surveyor general, and controller, constitute the state board of tide-land commissioners," and by section 998 of same Code the powers and duties of
eomrillsslonersllTeprovlded' by the act of 1868 and 1870 aforesaid'" lmt tlUlt !tMre was thersaDie defect in :section 698 as in the act of 1868. anduo greater virtue In sectl.l)u 698 than In the act of 1870j that by !lin act appr()vedMarch 80, 1874 (St. 1873-74,. p. 858), the act of 1868 was repealed in toto, ahd'the' act of 1870 repealed so flu' as it provided for aboard of tideland commissioners, and that the state board oftide,land .commissioners was Invested with all the powers llnd duties vested by the act of 1870 in the board of tlde;.lanli' commissioners, and that the act of 1874 and said sections of the Political Code were repealed by an act approved February 4, 1S75, and that no conveyance of the land north of TOIlq,uin street was made prior to the sa.id act of 1874, and that all: conveyances thereof are void, and, if any title vested; it was subject to the. same trusts upon which the lands were held by the state I that by an amendment to 'section 2532 of the Political Code made by the legislature of 1876 the board of state harbor commissioners were authorIzed to survey, and, iIlJ,connection with certain officers, locate, a new harbor front and sea-wall line for the city of San Francisco, and that the said harbor commissioners, in conjunction with !!laid officers, .did locate a new line which extended 'lLCDOSS the 'mouth Of said basin and up to what is known as the "Presidio Reservation," but that the legislature, (St. 1877-78, p. 2(3) confirmed only so mUch theJ.1eof as extended easterly ,from Taylor street to the boundary of San Mateo county, and annulled that portion which extended across the said basin as aforesaid; and that there never has been any waterfront line ex1iendingllcross.said .basin; And plaintiff avers defendants claim that said act,ofthe legislature impairs the obligation of a contract or contracts to the and that said act of 1878 and said amendment of the Political Code are In 'Violation of the constitution of the United States, and are v:oid, !lind that plaintiff relies on said act and amendment, and claims that'neither impairs the obligation of any contract, and tbatneither is In confiict with any pl'ovlsion of the constitution, and is not void. . , And plaintiff further avers that the constitution of the state of California adopted May7,1879, c<mtalns the following provisions 15): · "Sec. 2..No individual, partnership 01' corporation,,claiming or possessing the frontage or tldallands or a harbor bay, Inlet, estua.ry, or other navigable water in this state, shall be permitted to exclude the right to such water. whene'Ver it is required for any pubUc purpose. nor to destroy or obstruct the free navigation of such water; and the legislature shall l:;nact such. laws as will give the. most liberal construction to this provision, so that access to the navigable waters of this state shall be always attainable for the people thereof. "Sec. 3. All tide lands within two miles of any Incorporated city or town in this state and fronting on the waters of any harbor, estuary, bay or inlet:. used for the purpose of navigation, shall be withheld from grant or sale to private perSOll$, partnerships, or corporations." And avers that, if, any title vested in said association or private persons, it was annulled by said provisions. And defendants claim that they impair the obligation of, ,the conveyances aforesaid, and are In violation of the provisions of the constitution of the UnIted States, in violation of the power of the state to impair the obligation of a contract, and deprive said private persons of their property without dUe process of law. But plaintiff reUes on said provision of the constitution of the state. That by an act of congress passed, August 11, 1888 (25 Stat. 400(425), it was enacted as follows: "Sec. 12.. Where It is made manifest to the secretary of war that the establishment of harbor lines is essential to the preservation and protection of harbors, he may and is hereoy authorized to cause such lines to be established beyond which no piers or wharves shall be extended or deposits made, except under such regulations as may be prescribed from time to time by him." , That in pursuance of sald· sectiOn the. secretary of war ran a line through said basin, .outside of Lewis. street:. on the 24th of March, 1890; and defendants claim and pretend that said line and act authorize the filling In of so much of said bay whlcblies south of said line. But plaintiff controverts
the claim, and claims, besides, it is void· because it is tbe result of a declara. . ' tion of pOwer to an executive officer. Plaintiff avers that no, part of said basin is private property, and that the board of supervisors has. no jUrisdiction; that defendants are conspiring to injure, and will injure, plaintiff, by the acts aforeS'ilid,and that they will constitute a taking as well as adamaging, and in violation of the provisions of the constitution of the United States, and are contrary to equity and good conscience, and the act admitting California ip,to the Union; that plaintiff's estate is of the value of $10,000 and upwards, and that said value will be more than one-half destroyed by the acts aforesaid; and that the right of access to said navigable waters for the remainder of the term is worth upwards of $5,000, and plaintiff will therefore suffer damagef\ ina sum exceeding $15,000.
The prayer is in accordance with the allegations. Upon filing the bill an order restraining defendants was made, and plaintiff moves that it be continued. Upon this motion the defendants have filed affidavits denying many of the allegations of the bill, and also object to the jurisdiction. of the court. The plaintiff relies on three grounds of jurisdiction: (1) That their property will be cut off from access to navigable water'S by the proposed work, and therefore taken without due process of law. (2) The act of admission of the state of California, which provides:
"All the navigable waters within. said state shall be common highways and forever free, as well to the inhabitants of said state as to the citizens of the United States, without any tax, impost or duty therefor."
(3) defendants claim that certain acts of the legislature and of congress, which plaintiff relies on, including the second and third sections of article 15 of the constitution of the state of California, and the action of the secretary of war in fixing a harbor line, impair the obligation of contracts, and hence are a violation of the constitution of the United States. The two latter grounds may be easily disposed of. The second ground, though having prominence in both the original and amended bills, has not been urged in argument. It is clearly untenable, under the decision of the supreme court in Bridge Co. v. Hatch, 125 U. S. 1, 8 Sup. Ct. 811. In the deCision, a clause in the act admitting Oregon into the Union, similar to the clause in the act admitting California, was considered; and it was held that it did not refer to physical obstructions of navigable waters, but to political regula· tions which would hamper the freedom of commerce., See, also, Cardwell v. Bridge Co., 113 U. S. 205, 5 Sup. Ct. 423, and Monongahela Nav. Co. v. U. S., 148 U. S. 312,13 Sup. Ct. 622. The third ground is also disposed of by the case of Tennessee v. Union & Planters' Bank, 152 U. 8. 454, 14 Sup. Ct. 654. Justice Gray, speaking for the court, reviewed three cases, two of which were originally brought inthe circuit court of the United States, and one was removed to such court from one of the state courts of Tennessee. All of them were brought to recover taxes alleged to be due to the state and county for the years 1887-91. The charters of the defend· ant banks provided "that said company shall pay to the state of 'fennesseean annual tax of one-half of one per cent. on each share of stock subscribed, which shall be in lieu of all taxes." The bill in
the· two cases brought in the circuit court set out the provision of tJ1e cha:rters, and the general. tax a.ct of the state, and. alleged that the defendantscHtimed, blyiHue of the terms ofthe charter, the tax: ,because in violation of the clause of the constitution of the United States which forbids the state to pass any law impairing the obligation of a <lontract. In the removal case these allega.were contained in. tM defendant Banks' petition for removal. In the 4rst two ,cases the bills were ordered dismissed, and the third case was remanded to the state court. The court held that "under the act of Aug. 13, 1888, c. 866, the circuit court of the United States has no jurisdiction, either original or by removal from a state court, of a suit, one arising the constitution, laws, or treaties of the Unite,d ,States, unless that appears by the plaintiff's statement of his . It Will ·be observed that the case at bar, like the two cases passed on, is, an original suit in the circuit court, and the plaintiff's &1legations of defendants' claims and pretensions are like the ,allegation of plaintiffs in those cases of the claims and pretensions of .tlm defendants therein. The cases seem identical with the case at bar, but counsel claims a distinction, inasmuch as the acts of the legislature which, it is averreq.in the case at bar, defendants rely on, aloe general ones, and necessarily arise, whether set up by the defendants or not,while the bank charters in the main cases were necessary to be averred and proved, and cites Dlinois v. Illinois Cent. Ry. Co., 33 Fed. 726. Counsel say on page 22 of their reply brief, and I quote at length, so as to give a full statement of the contention: .
"The lastprQposition. ot the learned counsel relates to our claim of jurisdiction founded upon the claims and pretenses of defendants. And they cite, as conclusive,the case of Tennessee v. Union & Planters' Bank, 152 U. S. 454, 14 Sup. at. 654. We think that the learned counsel are mistaken in their view of that case. The principle which it lays down is this: That federal jurisdiction cannot ,arise from a defense which the defendant may or may not set up. That principle is undoubtedly correct in the abstract, and also as applied to the fa.cts of the pll.rtlcular case, which rested upon the charter of the bank, which was a private matter, and could not arise in the case unless set up by the defendant. Manifestly, the principle does not apply to a general act of the legislature, of which the court takes notice, and which necessarily arises, Whether set up .by the defendant or not. We do not want any better illustration of the distinction than is afforded by the decision of Mr. Justice Harlan in the Chicago Water-Front Case, 33 Feu. 726. That case was commenced by the state of Illinois in one of her own courts. It was removed to the federal court, on petition of the defendant, under the act of 1887. The federal jurisdiction depended upon the validity of a repealing act, which it was claimed Would be drawn in question. It was denied.. that it would be set up'; but the court held that the question of tqevalidlty of the act necessarily arose whether it was relied on or not, and th/lot, therefore, the court had jurisdictiOn. And Mr. Justice Harlan said: 'It is, quite sufficient upon this point to say that the court is bound to take judicial notice of that statute, and must give effect to It, unless at the hearIng It be adjudged to beUllconstitutional· and void. The diRclaimer· of the attQrney general cannot wOl:k a repeal of the act of 1873, nor close the eye of; 1J;le court to t,he fact that the state-if it could be constitutionally doneha's'l',epealed the act of 186.9. ·.· · Even if the attorney general had stipwith the company that he would ,not, in this proceeding, claim anYthing for· the state under the latter act, the court would feel obliged to liluCh stipUlation. Whetherthe.l'ei>eahng act had such effect is a
PACIFIC GAS IMP. CO. V. ELLERT.
question which the company proposes to raise at the proper time, and in proper form for judicial determination. Upon that question mainly depends the result of this litigation. The presence in the cause of such an issue makes this a case arising under the constitution of the United States.''' Illinois v. Illinois Cent. Ry. Co., 33 Fed. 726.
It is not very clear why a defense which may depend on the notf,ce which the court mayor must take should have a different jurisdictional effect from a defense which can be proved by a defendant; but I am not called upon to reconcile Justice Harlan's views, as quoted, with the views of the supreme court. They are not antagonistic. He concurred in the opinion of the court dismissing the bill in the first two cases passed on, and to which we have seen the case at bar is similar; that is, the two cases which were brought in the circuit court. The views he expressed in Illinois v. Illinois Cent. Ry. Co. were of the third case, to wit, one brought in a state and removed on petition of defendant on the ground that the defense depended upon, or would be defeated by, one or other of the constitution. To give the circuit court original jurisdiction, therefore, it is necessary that the plaintiff's statement of his cause of action show that he relies on some right under the constitution or laws of the United States; and it follows that the third ground of jurisdiction relied on by plaintiff, to wit, the claims and pretenses of defendants, is not sufficient. This leaves for consideration the first ground of jurisdiction claimed. Chief Justice Waite, speaking for the court in Starin v. City of New York, 115 U. S. 248, 6 Sup. Ct. 28, said:
"The character of a case is determined by the questions involved. Osborn v. Bank, 9 Wheat. 738, 824. If, from the questions, it appears that some title. right, privilege, or immunity on which the recovery depends will be defeated by one construction of the constitution of a law of the United States, or sustained by the opposite construction, the case will be one 'arising under the constitution or laws of the United States,' within the meaning of that term as used in the act of 1875; otherWise, not. Such is the effect of the decisions on this subject. Cohens v. Virginia, 6 Wheat. 264, 379; Osborn v. Bank, 9 Wheat. 738, 824; Mayor, etc., v. Cooper, 6 Wall. 247, 252; Water Co. v. _Keyes, 96 U. S. 199, 201; Tennessee v. Davis, 100 U. S. 257, 264; Railroad Co. v. Mississippi, 102 U. S. 135, 140; Ames v. Kansas, 111 U. S. 449, 462, 4 Sup. Ct. 437; Kansas Pac. R. Co.- v. Atchison, T. &. S. 1". R. Co., 112 U. S. 414, 416, 5 Sup. Ct. 208; Society v. Ford, 114 U. S. 635, 641, 5 Sup. Ct. 1104; Pacific Railroad Removai Cases. 115 U. S. 1, 11, 5 Sup. Ct. 1113."
The questions involved are the right of the plaintiff as riparian proprietor; the character and legality of the acts of board of snpervisors, as infringing that provision of the fourteenth amendment of the constitution of the United States which prohibits a state from depriving a person of property without due process of law. The bill alleges that the board of supervisors is claiming to proceed under the street law, but the street law only authorizes the board to proceed if Lewis street is open or dedicated to public use,---;not to take anyone's property, but to improve property already acquired. Spaulding v. Bradley, 79 Cal. 449, 22 Pac. 47; Spaulding v. Wesson, -84 Cal. 142, 24 Pac. 377 i Cook v. Sudden, 94 Cal. 443, 29 Pac. 949.
the dedication or grant of the street by the leg-, islaturedf:the state,exercising its sovereignty over and ownership of: trdWJlf4;l:ls., .If the leg1slatureha'V,esuch power, the plaintiff has no fiiHirian't'ights;-in other words,noileof its was. taken, -and the case of Kaukauna Water-Power Co. v. Green Bay & M. R S. 269j12 Sup. Ct. 173, applies. In that case the courtsa!d: (Justice Brewer delivering' the opinion):
"'.:r'he involvell in this case, proper fol.' us to consider, is whethertJ1e aetor the legislature of Wisconsin of August 8. 1848. reserving to the state' the water power created by the erection of the dam over the FoxriVell,;(1,8 construed by the supreme eoul-:t of the state, and the proceedings thl'lre"nde.... -<ilperated to deprive the plaintiffs in error of their prop.erty oflaw. Notwithstanding the inhibition of the constitution . is' ndt distinctly put in issue by the pleadings, nor directly passed upon in the opInion of the court, it is evident that the court could not have reached. a'. CQnclusion adverse. to .. the defendant company without holding, eithlll' Qf. the property ;b.,ad been taken, or that it was not entitled to competisll-tion therefor, Which is equivalent to saying that it bad not been deprived' ofltil property without due proceSS of law."
, : · : . I
The defendants, however,. urge that the fourteenth amendment is only directed against state action by the legislature, or, if it is prohibitive of executive acts, only of authorized executive acts, and that in tile caB.e a,t.bar thel.'e is no act of tae legislature under which plaintiff's ,property is IWught to be taken, and that if Lewis street is not Ope.nl or has not been dedicated, the board of supervisors is proceeding without authority, and its acts cannot be attributable to the state. Both contentions appear to be opposed to Ex parte Virginia, 100 U. 8. ?46. In this case,Justice Strong, rendering the opin,ion. pf the .1lfajprity of the court, said:
"They [meaning' the provisions of the amendment] have reference to the actions of the pdlltical body denominated a 'state,' by whatever instruments or in. whatever modes that action may be taken. A state acts by its legislative, its executive, or its judicial autho'rities. It can act in no other way. Tbe: constitutional provision. therefore. must mean that no agency of the state. or' of the: officers or agents by whom its powers are exerted, shall deny to anypel'son within its jurisdiction the equal protection of the laws. Whoever. by virtue of public position under a state government, deprives another of property, life. or liberty withont due process of law, or denies or takeS away the eqUid protection of tbe laws, violates the constitutional inhibition; and as 'he acts in the name and for the state, and Is clothed witb the state's power. his act is that of the state. This mnst be so. or the constitutional prohibition has no meaning. 'l'hen the state bas clothed one of its agents with power to annul or evade it."
In Virginia v.Rives, 100 U. S. 313-338, the same learned justice said (page 318):
"The provisions of the fourteenth amendment of the constitution we have quoted, all have reference to state action exclusively, and not to any action of private lndividuals. · · · It is doubtless true that a state may act through different .,ag.encies,-either by its legislative. its executive, or its judiauthQrities.---l!Jld the p,ohibition of the amendment extends to all action of the state denying' equal protection of the laws. whether it be by action by one of these agehdesor by another,"
. This la,n'guage. is made unmistakable by the dissenting opinion of Field and Clifford.
There was a series of cases involving the rights of the colored race, all of which were based on the same reasoning by the court and by those learned justices. In Virginia v. Rives and Ex parte Virginia, the action was by judicial officers unauthorized by a state statute. The instance under consideration was the omission to put colored citizens on the jury list. The state statute made no discrimination. Justices Field and Clifford therefore contended, among other things,-but unavailingly contended,-that the action of the officers was not the action of the state. Justice Field said in Virginia v. Rives (page 333), referring to the fourteenth amendment:
"Its language is that 'no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of .life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' As the state, in the administration of its government, acts through its executive, legislative, and judicial departments, the inhibition applies to them. But the executive and jUdicial departments only construe and enforce the laws of the state. The inhibition, therefore, is, in effect, against the passing and enforcing any laws which are designed to accomplish the ends forbidden. If an execuHve or judicial officer exercises power with which he is not invested by law, and does unauthorized acts, the state Is not responsible for them. The action of the judicial officer in such a case, where the rights of a citizen under the laws of the United States are disregarded, may be reviewed and corrected or reversed by this court It cannot be imputed to the state, ilO as to make it evidence that she, in her sovereign or legislative capacity, denies the rights invaded, or refuses to allow their enforcement. It is merely the ordinary case of an erroneous ruling of an inferior tribunal. Nor can the unauthorized action of an executive officer, imposing upon the rights of the Citizen, be taken as evidence of her intention or policy, so as to charge upon her a denial of such rights."
This court, therefore, has jurisdiction, and it will be necessary to consider the other issues. A consideration of these has been, since the oral argument, sim· plified the decision of the supreme court in Shively v. Bowlby, 152 U. S.l, 14 Sup. Ct. 548. Mr. Justice Gray, speaking for the court, after reviewing all the cases, laid down, among others, the following proposition:
"The title and rights of riparian or littoral proprietors in the soil below high· water mark are governed by the laws of the several states, subject to the rights granted to the United. States by the constitution."
The power of the state could not be more strongly emphasized than by that case. Shiveley was the owner of the upland. Bowlby was the grantee of the state of Oregon of the tide lands in front of Shiveley's property, and the grant was sustained; the court holding, following the law of Oregon, "that the state had a right to dispose of its tide lands free from any easement of the upland owner." Our inquiry, therefore, must be, what is the law of California? For whether the plaintiff has the right contended for depends on that law. It is part of the history of the state that the legislature, commen· cing at the first session after the admission of the state into the Union, made grants of the tide lands to municipalities under condi· tions which contemplated their being conveyed to and held in pri·
'Yi"te ownership. AmQng these was the act of March 26, 1851, kp,01"'n, and Water Lot Act." It was entitled "An prGyi,de for the disposition of certain property of the state ,Section 1 provided that "all the lots of land situ,ated wiAlip the following 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 recorder of the county of San Francisco are known ap.ddesignated in this act as the S. F. Beach and Water Lots; that is to say, beginning at the point," etc, Then follows II description by streets, which includes a portion of the bay. Section 2 grants use and occupation of the land for 99 years, and ,qonftrmsgrants of lands sold by authority of the ayuntamiento, or town or city council, or by any alcalde of said town or city; and section 4, makes the boundary line described in the first section a permanent 'water front of the city. These acts came up for con'sideratjon, and the character of the title conveyed was defined, in Smith v. Morse, 2, Cal. 524; Eldridge v. Cowell, 4 Cal. 87; Chapin v. Bonrne;8 Cal. 294; Hyman v. Read, 13 Cal. 445; Holladay v. Frisbie, 15,Ca1. 635; Wheeler v. Miller, 16 Cal. 125; and City and County olSl.\n Francisco v. Straut, 84 Cal. 124, 24 Pac. 814. The cases are undoubtedly familiar, but the importance of the present action will justify their review. In Smith v. Morse, it l!lale of a water lot for a debt of the city was sanctioned. In Eldridge v. Cowell, the complaint alleged that the plaintiff was the owner of the 50-vara lot known on the map of San Francisco as "1,492;" that the defendant was obstructing the navigation to the lot by mooring and anchoring storeships and making embankments in frOnt of it,and prayed for an injunction and abatement of the nuisance. Justice Hydenfelt delivered the opinion of the court, Chief Justice Murray concurring. The opinion is short, and, besides, its importance induces me to quote it at length:
"In the plan of the city of 'San Francisco, the survey into blocks, lots, and streets' extended into the tide: waters in front of the city, the object of which was to reach a sufficient depth of water on the land line for the convenience of shipptng. It was, necessarily anticipated that the water lots would be filled up to a level suitable for building or land cauiage. That this was perfectly legitimate, in the establishment of a seaport town, is so self-evident that it needs no argument to prove it. The plaintiff obtained by purchase hilillot, wit4 a full knOWledge,of the plan Of, the city. The right of the owners of water lots to fill them up With earth, for the purpose of Improvement and use, was practically admitted by him in filling up that part of his own lot, and the street.in front of it, which was in the water. It is not material to inquire as, to the first authority for the plan of the city, as extended into the water. It is sufficient that by the act of 26th of March, 1851, this plan was recognized by the state, and property in the lots covered by tide water vested in individuals.· The rIght of the state to do this has been established by repeated decisions. She holds the complete sovereignty over her navigable bays and rIvers; .anpalthough her ownership is, by the law of nations and the common and Civil law, attributed to her for the purpose of preserving the public easement, or right of navigation, there is .nothing to prevent the exercise of her power, in certain cases, to destroy the easement, itt order t() subserve the general good, which, when done, subjects the land to private proprietorship. The lot of the defendant was thus permitted, by state legislation, to be reclaimed from the water, and this was so before the plaintiff acquired
PACIFIC GAS IMP. CO· .,. ELLERT.
his lot. He therefore took without any riparian rights. The destruction of the easement in front of him had already been decreed by competent authority. But it is said that the filling up by the defendant is a nuisamce, because it will destroy or impair the navigation of the bay. Assuming this to be true, the plaintiff, as I have shown, has no right to complain; and, in regard to the public, it is not one of those acts which would be denominated or classed as a nuisance. It is, at most, a purpresture, and as such, if destructive to navigation, or seriously affecting the public welfare, would subject the defendant to a prosecution by the people; certainly, not to an action by this plaintiff. Many of the positions taken by the plaintiff in the instructions asked are doubtless sound, and, applied in reference to the whole of this case, they are mere abstract propositions, and were properly refused."
In Chapin 'V. Bourne the action was ejectment to recover a lot within the line of the beach and water lot property. The plaintiff relied upon a grant from an alcalde of San Francisco. The defendant relied upon a deed from the board of land commissioners, made in pursuance of the act of May, 1853. The title of this act is, "To provide for the sale of the interest of the state of California in the property within the water line front of the city of San Francisco, as described in and by the act entitled 'An act to provide for the disposition of certain property of the state O'f California,' passed March 26, 1851." The court held (Terry, C. J., delivering the opinion) that nei· ther party had title,-not the plaintiff, because: First When the alcalde made the grant the pueblo of San Francisco had no title whatever to the water property. It belonged to the United States, who held it in trust for any new state that might be erected out of said territory, and passed to the state of California, on her admission, by virtue of her sovereignty, and that it did not pass under the act of March 26, 1851, because the grant was not recorded as required by said act. Second. The defendant had no title, because the title had passed to the city by the act of March 26, 1851, and that the commissioners had no power to sell any other than the reversionary interests of the state. In Hyman v. Read the action was also ejectment, and the plaintiff and defendant, respectively, claimed under a purchase from the state land commissioners under the act of 1853, and from the city under the act of 1851. Both acts were an exercise, or attempt to exercise, by the legislature, of a power to vest the property in private ownership. Tb,e significance of the decision, as compared with prior ones, is that the property involved was a lot in the city slip. The contention of the defendant was that the act of 1851 conveyed only ''lots,'' technically so called. The court held, however (Terry, C. J., rendering the opinion; Justice Field concurring), that all the land embraced in the general boundaries was conveyed to the city. In Holladay v. Frisbie the court, by Chief Justice Field, said:
"The interest of the city in the beach and ..ater lot property is a legal estate for ninety-nine years. The property is not devoted by the grant of the state to any specific public purpose, or made subject to the performance of any trusts by the city. It is held by a very different tenure, by which the city holds the land of the old pueblo, and which was the subject of elaborate consideration in Hart v. Burnett, 15 OaI. 530. These lands were given upon express trusts, and are now held, if not upon precisely the same trusts, yet upon trusts equally effectual to protect them from forced sale under execution. As to the beach and water lot property, the case is different. In that property
V. 64F. no.4-28
thelnteri!flltofthe cityls<abSoll1te, qUllllfl:edby no condltions, and subjecUO sJ)l!etfiC Wies;J It is therefore a leviable Interest, subject to sale under exe.cut1(1n;;and'such 'interest in' the premises in controversy passed to the defendant upon the sale and conveyance under his judgment and' execution."
In this case the power of the legislature was illustrated by a confirmation of the Van Ness ordinance. Of this the court said:
"But, ,ind,ependent of all considpratioll of the title deriveq. from the sale and convI:lYl:\nc,t;l of the sheriff, the defendant can successfully resist a recovery by the plaintiff by torce of the title vested in him under the Van Ness ordinance. ,* * * Whateyer question may be raised as to the liability of his interest to forced sale, there can be nO'ne as to the validity and effect of his voluntary grant of the sllme, after such grant has received the approval ll-nd satisfaction of the legislature."
In Wheeler v. Miller, Holladay v. Frisbie was affirmed as to the estate oH'hecity under act of 1851. It was again affirmed in City and ('JOunty o'f San Francisco v. Straut. The action was ejectment for the recovery of one'bf the beach and water lots. The defense that: was adverse' poSsession; The court
"The of the city and county of San Francisco in its beach and water lot property 'is 1\ legal estate for 99 years; and the right of the city for that term is' as' absolute a title, and as free from trust, as that Of any private proprietor, and mlty !Je extinguished by adverse possession under the statute of limitations." ,
The court further quoted, in support of these propositions, San Francisco v. Caldel'wood, 31 Cal. 585 i Hoadley v. San Francisco, 50 Oal. 274, 275,-and referred to Yolo, Co. v. Barney, 79 Cal. 378, 21 Pac. 833. In Taylor v. Underhill, 40 Cal. 473, Justice Temple said, speaking of lands below high-water mark:
"This state can probably sell the land, and authorize the purchaser to extend the water front so' as to' enable him to build upon this land. * * ."
These decisions cover a period of 40 years, and have become a rule of property, and the foundation of many titles. They do not seem to be careless decisions, and, therefore, that consideration was given to the relations of the state to navigable waters, and to all other elements for..acorrect judgment, it is natural to suppose; and it seems an irresistible inference that if the legislature had the power to pass the act of 1851, conveying to the city, with the power to sell, land covered by navigable waters, subjecting them to private ownership and reclamation, or to public use, it would have like power over the lands covered by navigable waters in front of plaintiff's property. )?laintiff's counsel, however, deny the right with firmness, and suppoct the denial with ability. They contend that the state had no power to dispose of lands covered by navigable waters to the city, or to ;ply one else, and cite People v. Gold Run Ditch & Min. Co., 66 Oal. .151, 152, 4 Pac. 1152; Heckman v. Swett, 99 Oal. 303, 33 Pac. 1099; ChIcago Water-Front Oase, 146 U. S. 453, 13 Sup. Ct. 110. !'lay, '']Ifow, this being the case [i. e. the title to the land, and not mere).y thesnpervision of a use, being in the state], it has no power to convey it away for a purpose not connected with the purpose of the trust i" citing Hoadley v. Sanl!'rancisco, 50 Cal. 275,
PACIFIC GAS IMP. CO. V.ELLER1'.
276; San Francisco v. I tsell, 80 Cal. 57, 22 Pac. 74; Hoadley's Adm'rs . v. San Francisco, 124 U. S. 646, 8 Sup. Ct. 659. It may be admitted as incontestable, if the title is held in trust, as the cases cited, the state has no rightto convey it away, divested of the trust; but, if this is true of the land now in controversy, it was true of the lands described in the act of 1851. But this act was sustained, as we have seen, by a number of cases, and in Holladay v. Frisbie and in City and County of San Francisco v. Straut, the interest of the city in the water lots was carefully distinguished from the interest of the city in pueblo property, which was the subject of the decisions in Hoadley's Adm'rs v. San Francisco and San Francisco v. Itsell, supra. It it worthy of note that Justice Field delivered the opinion of the court in Hart v. Burnett, which established the principle which applies to pueblo land, and delivered also the opinion in Holladay v. Frisbie, which establishes the distinction between them and the beach and water lots. The relation of these cases, therefore, or rather the <listinction between them, must have been firm and clear in his mind, and in the mind of the court. In People v. Gold Run Ditch & Min. Co., supra, Justice McKee, in rendering the opinion of the court, said:
"As we have already said, the rights of the people in the navigable rivers of the state are and controlling. The state holds the absolute right to all navigable waters, and the soils under them, subject, of course, to any rights in them which may have been surrendered to the general government. Martin v. Waddell, 16 Pet. <167. The soil she holds as trustee of a public trust for .the benefit of the people, and she may, by her legislature, grant it to an individual; but she cannot grant the rights of the people to the use of the navigable waters flowing over it. These are inalienable. Any grant of the soil, therefore, would be subject to the paramount rights of the people to the use of the And such was the doctrine of the common law. 'The jus prh,atum,' says .Lord Hale in De Jure Maris (page 22), 'must not prejudice the jus puhlicum, wherewith pUblic rivers and arms of the sea are affected to public use.' It is therefore beyond the power of legislatures to destroy or abridge such rights, or to authorize their impairment."
But there is no inconsistency between this case and the cases which preceded. No inconsistency was deemed to exist by the supreme court of the state, for that court, in City and County of San Francisco v. Straut, rendered afterwards, affirmed the prior cases. 501' can it be said it was intended to reverse People v. Gold Run Ditch & Min. Co. The language of the latter case, even if it be held as necessary to the judgment of the court, is but a general expression of a proposition uttered in a number of cases. The proper limitation of the language is expressed by the supreme court in Shively v. Bowlby, supra, or shown by the cases themselves. A limitation is expressed in quite general language in Heckman v. Swett, 99 Cal. H09, 310, 33 Pac. 1099,-a case cited by complainant. The court said:
"Navigable streams, and the shores to ordinary high-water mark, are held by the state in trust for the public; but qualified rig1lts the1'ein may be granted, 80 far a8 they are not inconsistent with. or are in aid of, the princljJal use, viz. 10'1' th8 purp08es oj navigation." (The italics are mine.)
What this qualification means is explained by the practice of the states of the Union and the decisions of the courts. Hardin Y.
Jordan; 140 U. S. 371, 11 Sup. Ct. 808, 838, may be selected lor illustration.· Justice Bradley, speaking for the court, after stating that the title to shore and,landsunder water is regarded as incidental to the sovereignty of the state,-a portion of the royalties belonging thereto"and held in trust for the public purposes of navigation and fishing (language which, it may be remarked in passing, is similar to Justice McKee's in Peoplev. Gold Run Ditch & Min. Co.),-said:
"Such title being in the' state, the lands are subject to state regulation and control,under ilie condition,however, of not interfering with the regulations Which may be made by congress with regard to public navigation and commerce. The state may dispose of the usufruct of such lands, as is frequently done by leasing oyster beds in them, and granting fisheries in particular localities; . also, by the reclamation of submerged flats, and the erection of wharves and piers, and other adventitious aids of commerce. Sometimes large areas 80 reclaimed are occupied by cities, and are put to other pubUc or private uses; state control and ownership therein being supreme, subject only to the paramount authority of congress in making regulations of comJ;llerce, and in subjecting the lands to the necessities and uses' of commerce. See Manchester v. Massachusetts, 139 U. S. 240, 11 Sup. Ct. 559; Smith v. Maryland, 18 How. 71; McCready v. Virginia, 94 U. S. 391; Martin v.Waddell, 16 Pet. 367; Den v. Jersey Co., 15 How. 426,"
facts, is conspicuously different from the one at bar. The grant was not of portions of land within a harbor line established by public authority to assist commerce; but it was a grant of the whole harbor, conveying its control to a private corporation,-a victual abdication of the power of the state, the court said, and hence either void or revocable. I refrain from an extended examination of this decision, because it will come under consideration in another case, where a careful analysis of it will be necessary. It is only necessary now to point out its distinction from the case at bar, and to state the principal it establishes. It is not that a state cannot dispose at all of lands covered by navigable waters, but that, to quote the language of Justice Field:
Illinois Cent. R. Co. v. Illinois, 146 U. S. 387-464, 13 Sup. Ct. 110, is urged as supporting plaintiff's contention. That case, in its
"It is the settled law of the country that the ownership of, and dominion and sovereignty over, lands covered by tide waters within the limits of the several states, belong to the respective states within which they are found, with the consequent right to use or dispose of any portion thereof. when that can be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of congress to control their navigation so far as may be necessary for the regulation of commerce With foreign nations and among the states. This doctrine has often been IlDnounced by this court, and is not questioned by counsel of any of the pl\.rties. Pollard's Lessee v. Hagan, 3 How. 212; Weber v. Commissioners, 18 Wall. 57."
This .principle is repeated in Shively v. Bowlby and manifestly does not exclude the grants relied on by defendants. The right of a state. to deny riparian rights is clearly established by that case, and the cases it reviews. "Each state," Justice Gray said (page 26, 152 U.S., and page 548, 14 Sup. Ct.), "has dealt with the lands under tide waters within its borders according to its own views of public justice and policy, reserving its own control over such lands, or granting rights therein to individuals or corporations, whether own-
PACIFIC GAS IMP. CO. II. ELLERT.
ers of the adjoining upland or not, as it considered for the best interests of the public." It will be observed from the cases that this right is an attribute of a state's sovereignty and control of tide lands, and of the doctrine (probably dependent upon it) that grants of the upland stop at high-water mark. These propositions are as firmly established in California as in other states, and the conclusion from them must be the same; that is, to quote Justice Gray's language in the Shiveley Case, "that the state has the right to dispose of its tide lands free from any easement of the upland owner." In Packer v. Bird, 71 Cal. 13,1, 11 Pac. 873, the plaintiff claimed under a patent from the United States on a confirmed Mexican grant The land was bounded by the Sacramento river, and the plaintiff therefore contended it extended to the middle of the stream. The court said:
"We do not concur in this view. The river being navigable in fact, the title extends no further than the edge of the stream. We think this conclusion accords with the rulings in People v. Gold Run Ditch & Min. Co., 66 Cal. 138, 4 Pac. 1152, and Lux v. Haggin, 69 Cal. 255, 10 Pac. 674."
This case was taken by writ of error to the supreme court of the United States, and affirmed. 137 U. S. 661, 11 Sup. 01. 210. Justice Field, speaking for the court, said:
"In the courts of the western states there is much conflict of opinion,some, like the courts of Illinois, adopting the common-law rule to its fullest extent; and others, like the courts of Iowa.. repudiating its application, In determining the navigability of the great rivers, and the rights of riparian owners upon them. .A. very elaborate consideration of the adjudged cases is found in McManus v. Carmichael, 3 Iowa, 1. Indeed, the opinion of the supreme court of Iowa in that case, and the opinion of the court of appeals -of New York in People v. Canal Appraisers [33 N. Y. 461, 499], above cited, contain an exhaustive and instructive consideration of the whole subject, with a careful review of the decisions of the courts of the states. In this case we accept the view of the supreme court of California in its opinion, as expressing the law of that state,-'that, the Sacramento river being navigable in fact, the titie of the plaintiff extends no further than the edge of the stream.' Lux v. Haggin, 69 Cal. 255. 10 Pac. 674."
This case was cited in Hardin v. Jordan, 140 U. S. 371-406, 11 Sup. Ct. 808, 838, as applying the principles expressed in Barney v. Keokuk, 94 U. S. 324, to California, in which it was held that the title of the riparian proprietor extends only to high-water mark, and that the city of Keokuk had a right to widen a street in front of the plaintiff's. property below high-water mark, and authorize its occupation by railroad tracks and buildings, and that the riparian owner was not entitled to compensation. In People v. Canal Appraisers, cited with approval in Packer v. Bird, it was decided that the Mohawk river is a navigable stream, and the title to its bed is in the people of the state of New York, and that the state had therefore the right to divert its waters without paying damages to riparian owners. In Hoboken v. Railroad Co., 124 U. S. 656, 8 Sup. Ct. 643, the court held that, by the laws of New Jersey, lands below high-water mark on navigable waters are the absolute property of the state, subject only to the power conferred upon congress to regulate foreign com-
among1the they' may be granted bythe state either to the riparian owners or tostrangei's, as the state' the right given to the' Hoboken Company 'by the staw, <tit! Unprove the lands! in front" of, streets terminating at the and not sUbject to the easement of the streets. Itis:sUidl'tbat .Weber v.Commissioners;18 Wall. 57, that ariparian!poollrietor has a right of access to the navigable part of the streatm .:This was an appeal from the circuit court for the district of,olll1itornia, in which court- one Weber filed a bill against the board of state harbor commissioners of Califorbia,to compel them to abate and to remove certain erections made by them on the watel,' fl'AlliLofSan Francisco, which he alleged interfered with a wharf rigbtfully erected by him. Weber derived title under act of 1853 to certain lots lying along the waterfront of the city, on which he had a wharf. The board of harbor commissioners proceeded, under il-ctli Of the. legislature, to improve the harbor, and, in the execution of the work, caused piling to be had, and capping and planking on. of. tJ,le complainant's wharf, sO as to prevent the approach to it of vessels. Against any daim of the state the plaintiff :also pleaded the statute of limitations. Mr. Justice Field delivered of the court, and said:
"It is unnecessary for the disposition of this case to question the doctrine that a riwriliUl pJ:opl.'ietor, whose land is bounded by a navigable stream, has the rigbtof ,a,ccess to the navigable part of the stream in front of his land, and to a wharf or pier projecting into the stream, for his own use or the.use-.pi; 9thers, subject to· such general rules and regulations as the legislature· Qlay . prescribe for the protection of the public; as was held in 10 WaU.491. On the contrary, we recognize the cor· rectness of the doctrine, as stated and affirmed in that case,"
But 'v.:M:Ihvaukee has received a different explanation in Shively v. BOWlby, .and is made to depend upon the law of Wisconsin. Besides, theJearned justice seemed to intend to confine hIs language to land bounded by a stream, properly 80 called, as distinguished from the sea, or arm of the sE!a, for he further said:
"Nor is it necessary to contrpvert the proposition that in several of the states, by general legislation or immemorial usage, the proprietor whose land is Qounded by the liIhore of the sea, or an arm of the sea, possesses a similar right to erect a wharf or pier .in front of his land, extoending into the waters. to the point where they are navigable. In the absence of such legislation or usage, however, the common-law rule would govern the rights of the proprietor, at least·· ih those states where the common law obtains. By that law the title to the shore of the sea, and of the arms of the sea. and in the ooils under is, in England, in the king, and, in this country, in the state. Any erection thereon without license is therefore deemed an encroachment upon the property of the sovereign, or, as it is termed In the language of the 'law, a 'purpresture,' which he lllay remove at pleasure, whether it tend to obstruct navigation or otherwise,"
The learned justice then stated the title of the state to the soil under tide waters as follows:
"Upon .the adtp.isslon of Calif0l'Illa Into the Union upon equal footing' with the original states, absolute property in, and dominiOlll and sovereignty over, aU soUsnn4el' the tide waters within her limits, passed to the state. with the COnlJeqlleJ:lt right to dispose of the title to any part of said soilsin such manner aSllhe might deem proper, subject only to the paramount right.
of navigation over the waters, so far as sucl;l navigation might be by the necessities of commerce with foreign nations or among the several states, the regulation of whIch was vested in the general government. Acting upon the rights thus acquired, the legislature of the state, on the 26th of March, 1851, at its first session after the admission, passed an act disposing of portions of the lands covered by the tide waters of the bay, in front of the city of San Francisco. That act is generally lmown to the state as the 'Beach and Water Lot Act.' " .
The case, therefore, is authority that the act of 1851, as I have h retofore declared it to be, is a rightful exercise of the powers of the state; and it is adduced in ShivelJ' v. Bowlby as one of the lat.er judgments of the supreme court, clearly establishing that the title and rights of riparian or littoral proprietors in the soil below high-water mark of navigable waters are governed by the local laws of the several states, subject to the rights granted to the United States by the constitution. Shirley v. Bishop, 67 Cal. 545, 8 Pac. 82, does not militate against these views of the California laws. In that case, plaintiffs were the owners of a block of land in the city of Benicia,-whether land cov by water, or upland, does not appear. At any rate, it was red bounded on the east by the navigable waters of Carquinez Straits, and the line of the permanent water front of the city of Benicia, established by an act of the legislature of the state, approved March 21, 1868. The defendants were attempting, under a franchise from the city of Benicia, to erect a wharf within three feet of plaintiffs' wharf, and parallel to it for about 60 feet,-that is, in the navigable waters of the straits, and beyond the water front established by law. An injunction was granted, and rightly granted. By establishing the water front, the legislature fixed a line beyond which wharves and other structures could not be extended (Yesler v. Commissioners, 14:6 U. S. 655, 13 Sup. Ct. 190), and fixed the lines of the highway. There was no question of riparian rights. The rights were derived from the coincidence of their eastern line with the water-front line established by the legislature. If it had been further landward, the doctrine of 'Weber v. Commissioners would have applied. There only remains to be considered the claim of the defendants of the dedication of Lewis street, and the claim of the plaintiff of tbe revocation of the dedication, by the constitution of the state adopted in 1879. To support their contention, defendants cite the act of the legislature approved March 11,1858, entitled "An act con· cerning the city of San Francisco and to ratify and confirm certain ordinances of the common council of said city;" an act approved April 25, 1862, amendatory of various acts relating to the city." See St. 1862, p. 391. Section 1 of the ordinance confirmed by the first act is as follows:
"That the plan or map of the Western addition, reported by the commission created under an ordinance of the last common council of the city of San Francisco, be adopted by this board, and be declared to be the plan of the city, in respect to the location and establishment of streets and avenues, and the reservation of squares and lots for public purposes in that portion of the then Incorporated limits of said city, lying west of Larkin, and south· west of Johnston streets."
Section 1 of the second act is as follows:
"All the orIginal streets,as laid down upon the map now In the omce of the city a:p,d county surveyor of. the city and county of San Francisco, signed by C. Gough, Michael Hayes, and Horace Hawes, commissioners, and by John J. llo1r, surveyor, and generally known as the 'Van Ness Map,' and aU other lanes, alleys, places, or courts, now deuicated to public use, or which shall be hereafter dedicated to public use. lying between the Bay of San Francisco and .J ohnston and Larkin streets. including the two last are hereby declared to be open, pubUc streets, lanes, alleys. places,orcQurts, for the purpose of this law; and the board of supervisors of said city and county are hereby authorized to employ the city and county surveyor to ascertain and establish the lines and width of all or any of said streets, lanes, and alleys, and the sizes of said places or courts, when they shall de¢m it necessary so to do."
I think this constitutes a dedication by the state. To support its contention, plaintiff cites section 2 of article 15 of the constitution of the state. It is as follows:
"No indiVidual, partnership or corporation, claiming or possessing the frontage 01.' tidal lands of a harbor, bay, inlet. estuary or other naVigable water in this state, shall .be permitted to exclude the right or way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free ri,avigation of such water; and the legislature shall enact such laws as will give the most liberal construction to this provision. so that access to the navigable waters of the state shall be always attainable for the people thereof."
"The provision to which we wish to direct special attention is contained In section 2. It will be observed that this section contains two separate and distlilctprohibitions. In the first place, the right of way to navigable water must :not be excluded. In the second place, the navigation of the navigable wateJ,' mUlilt not be destroyed or obstructed. With the first of these prohibitions. we, have nothing to do. We are concerned only with the second. And, leaving out extraneous matter, this prohibition is as follows: 'No individual,partnership or corporation, claiming or possessing * * · tidal lands of a harbor, bay, inlet, estuary or other navigable water in this state shall be:permitted * * · to destroy or obstruct the free navigation of such water.'''
Passing. the point that titles or rights acquired could not be revoked even by an amendment of a constitution, and the further point that plaintiff cannot plead the prohibition, I do not think its contention can be sustained. The language of the constitution is directed at "individuals, partnerships or corporations;" and, besides, I cannot but believe that if it had been the intention to abridge the poweJ' of the legislature to improve the harbors and establish uniform harbor lines,as it had been the practice, and may be necessity, to do, such intention would have been explicitly declared. The order to show cause must, therefore, be discharged, the temporary restraining order vacated, and the application for injunction denied, and it is so ordered. .
YOUNGSTOWN BRIDGE CO. 11. KENTUOXY '" I. BRIDGE CO.
YOUNGSTOWN BRIDGE CO. v. KENTUCKY & I. BRIDGE CO. et aI. (TREASURER OF FLOYD COUNTY, Intervener). (Circuit Court, D. Indiana. November 21, 1894.) No. 8,918.
TAXATION-VALIDITY OF ASSESSMENT-INDIANA STATE BOARD.
The Indiana state board of tax commissioners, baving jurisdiction to bear evidence and decide what property is assessable, determine its value for the purpose of. taxation, and MSasS property within the limits of the state, made an assessment upon tbe property of a bridge company own· ing a bridge across a river between that state and an adjoining state. Held, that such assessment was not void because the board had, by mis· take, erroneously included in such assessment a portion of the bridge actually within such adjoining state.
Suit in equity by the Youngstown Bridge Company against the Kentucky & Indiana Bridge Company and others. The treasurer of Floyd county, Ind., filed an intervening petition, asking that the receivers of the defendant corporation be directed to pay certain taxes alleged to be due from such corporation. The receivers filed an answer to the petition. Upon exceptions to this answer Miller, Winter & Elam, for intervening petitioner. Bennett H. Young', for receivers of defendant Kentucky & I. Bridge Co. BAKER, District Judge. The treasurer of Floyd county, in the state of Indiana, filed his intervening petition in the above·entitled cause, asking that the receivers of the Kentucky & Indiana Bridge Company be directed to pay to him, as such treasurer, the sum of $5,693.13, being the amount due from said bridge company for state and county taxes. The receivers, answering the intervening petition, allege that the taxes were not lawfully assessed upon the property of the bridge company, because the principal part of its property so assessed, consisting of a bridge across the Ohio river, with its approaches and appurtenances, is located in the state of Kentucky, and that the assessment was made in a lump sum upon its property in both states. It is insisted for the receivers that the assessment is void, if not in whole, at least pro tanto, because the state board of tax commissioners were not, and could not be, clothed with power to make a valid assessment upon the property of the bridge company located in the state of Kentucky. For the petitioner, it is insisted that the state board of tax commissioners is given jurisdiction to assess all property of the kind here assessed, within the limits of the state, and to hear evidence, and determine its value for the purposes of taxation, and that its determination is final and conclusive, in the absence of fraud. It is the settled law of this state that the state board of tax commissioners is not a judicial tribunal, within the meaning of the constitution, and that it has only such quasi judicial powers as are possessed by every public officer vested with discretionary power; but when, in the exercise of its quasi judicial power, it has fixed the value of property falling within its jurisdiction, and has assessed such