Opinion
Appeal from the District Court, Fifth Judicial District, County of San Joaquin.
The Legislature, on the 26th of March, 1851, passed an act which provides that all lots of land within certain boundaries, as defined by the act, are known and designated as San Francisco beach and water lots. The line fixing the boundary commences at the intersection of Simmons and Sixth street, from thence southerly, in a zigzag course, to the western boundary line of the city, thence along said line to the natural high-water mark, thence along the line of high-water mark to where it intersects with the southern boundary line of the city, and thence along the last-named line to the point of beginning.
By the terms of the act, land within that boundary line was granted to the city for ninety-nine years, except the property known as the Government Reservation, and also any property held by lessees of officers of the Government.
Section five of the act provides that said boundary line shall be delineated by a red line on a map, to be duly certified to by the mayor and surveyor of the city, to be deposited in the office of the Secretary of State, and in the office of the Surveyor-General, and in the office of the surveyor of the city of San Francisco.
The act approved May 18, 1853, provides for a commission to take charge of and make sale of whatever property interest the State might have within the line fixed by the act of March, 1851.
Section seven of this act provides that said commissioners shall not be authorized to sell any land granted to the city for ninety-nine years, by the act of March 26, 1851, except it be the remaining interest of the State in the property after the expiration of the term mentioned in the act, and also excepting the property known as the Government reserves, and the act authorizes the sale of the last-named interest and no other.
Commissioners were appointed under the act of 1853, who sold to the plaintiff a part of block forty, according to the survey made by said commissioners, described as commencing at the north corner of Channel and Price or Eighth street, running thence northwest along Eighth street to Berry street, thence northeast along Berry street three hundred and twenty-five feet to land of M. R. Roberts, thence at right angles southeasterly along the line of land of M. R. Roberts two hundred and forty feet to Channelstreet, and thence at right angles southwesterly and along Channel street three hundred feet to Eighth street and the place of beginning.
The greater portion of the land thus sold was without the red line mentioned in said section five. In 1868 the Legislature passed another act for the sale of the whole water front of San Francisco, under which, commissioners were appointed to make the sale. These commissioners sold and conveyed to Roche and Conroy a part of the land previously sold to the plaintiff, claiming that the commissioners of 1853 had no power to sell the same. A part of the land conveyed under the act of 1868, to Roche and Conroy, was without the red line and a part of it within the red line. The plaintiff alleged that the deed to Roche and Conroy was a cloud on his title, and brought this action to remove it. The court below found as a conclusion of law, that the commissioners, appointed by the act of 1853, had no power to sell land without the red line, and dismissed the plaintiff's bill as to such land, but gave him judgment as to the remainder. He appealed.
COUNSEL
B. S. Brooks, for the Appellant.
D. William Douthitt, forthe Respondent.
OPINION By the Court:
The part of the land sued for as to which the court dismissed the action, is not within the " red line map" of the water front of San Francisco, which was required to be made by the " Act to provide for the disposition of certain property of the State of California," passed March 26, 1851.
The commissioners appointed under the act (approved May 18, 1853) " 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," had no power to sell any lands not within the tract delineated on the red line map. (Secs. 5, 7.)
Judgment and order affirmed.