Opinion
[Syllabus Material] [Syllabus Material] Appeal from the District Court of the Seventh Judicial District, County of Mendocino.
The defendant appealed.
COUNSEL:
The Act of 1868 (Stat. 1867-8, p. 514) establishes a State Land-office. Section twenty-eight says: " The * * * tide lands belonging to the State shall be sold at the rate of one dollar per acre," etc (without reservation); while section twenty-nine provides the course to be pursued by any resident who desires to purchase * * * any portion of the tide lands belonging to the State above low tide. The Court below, in construing this statute, holds that it provides only for the sale of such tide lands as are susceptible of reclamation under subsequent sections of the same Act. To meet this opinion, we simply invite a careful perusal of the subsequent sections of the Act, and submit that it contains no provision restricting the sale of tide lands to the latter class.
Section twenty-nine provides the course to be pursued by any resident who desires to purchase any portion of the tide lands belonging to the State above low tide. Nowhere do we find any words restricting the tide lands to any particular character. It is true that the Legislature, by the same Act, sections thirty to fifty, has provided a system of reclamation for such of the salt, marsh, and tide lands as are susceptible of reclamation; but we submit that, from the existence of such a system, it does not necessarily follow that the State can sell no part of the tide lands except such as can be reclaimed in the manner provided. The case of the People v. Morrill , 26 Cal. p. 346, is cited in support of the decision below.
This decision was made upon an application to purchase lands which lay below high tide, under a law which provided alone for the sale of swamp and overflowed lands, which belonged to the State by grant of Congress, September 28th, 1850; and was rendered long prior to the passage of any law authorizing the sale of the land which belonged to the State by reason of her sovereignty.
Bond & Kelton, for Appellant.
George Cadwalader, for Respondent.
By the case of the People v. Morrill , 26 Cal. 336, the term " tide lands" acquired a distinct judicial meaning, as being a class of lands which lie below ordinary high-water mark, but which are capable of reclamation.
The Act of March 28th, 1868, carried out the same policy as the previous Acts, and made the proceeds of the sales of the tide lands go into the Fund for " reclamation purposes," and by every reasonable intendment adopted the definition of tide lands subject to sale laid down in the case of the People v. Morrill.
OPINION By the Court:
A contest having arisen before the State Surveyor-general, whether the plaintiff or the defendant was entitled to enter a small parcel of tide land on the shore of the ocean, the controversy was referred to the District Court, which decided that the land is not subject to entry, and, consequently, that neither of the parties is entitled to enter it. The Court finds that the land sought to be entered " is a sand beach at low tide and is covered by the ordinary high tides, and is between the marks of high tide and deep water; that the said land is not susceptible of reclamation and can be put to no useful purpose, except in connection with a wharf or some other superstructure for commercial or navigation purposes; that the said land is not susceptible of use for agricultural, grazing, or pasturage purposes, that the said premises comprise a part of the bed of the ocean."
We agree with the District Court that it was not the intention of the Legislature to permit a sand beach on the shore of the ocean, between ordinary high and low-water marks, to be converted into private proprietorship under the Act of March 28th, 1868: Stats. 1867-8, p. 514. In People v. Morrill , 26 Cal. 336, it was decided that under the Acts of April 21st, 1858, and May 13th, 1861, regulating the sale of swamp and overflowed and tide lands, the shore of the ocean between ordinary high and low-water marks, and which was not susceptible of reclamation, so as to be made useful for agricultural purposes, could not be entered and converted into private ownership. The same proposition was reaffirmed in Taylor v. Underhill , 40 Cal. 471. These decisions are decisive of this case, unless the Act of March 28th, 1868, has modified the former statutes so as to permit lands of this description to be entered.
Without attempting an analysis of the last named Act, it will suffice to say that, in our opinion, it has not had that effect. It is apparent from many of its provisions that it was not intended to authorize the sale of a class of tide lands which before then had not been subject to entry. But the chief purpose of that Act was to reduce into one harmonious system all previous provisions for the sale of overflowed, swamp, and tide lands and other land belonging to the State, and to provide for the reclamation of the first named classes. But it contains no provision from which it can justly be inferred that it was intended to enlarge its scope, so as to include a class of tide lands which theretofore had not been subject to entry. Nothing short of a very explicit provision to that effect would justify us in holding that the Legislature intended to permit the shore of the ocean, between high and low water mark, to be converted into private ownership.
Judgment affirmed.